DAV College Managing Committee & others vs Smt. Anuradha Gupta & another

MANOJ K. TIWARI, J. (ORAL)

Issue notice to respondent no.1 by registered post acknowledgement due, returnable within four weeks.

Steps to be taken within a week.

Learned counsel for the respondent no.2 prays for and is granted four weeks’ time to file counter affidavit.

List after four weeks.

Learned counsel for the petitioners by referring to Annexure No.18 to the writ petition submits that education tribunal constituted in terms of

judgment rendered in the case of TMA Pai Foundation authorized the District Judge to hear and decide such cases. According to him, in the present

case the appeal filed by respondent no.1, who is a Teacher, has been decided by the Additional District Judge, Kotdwar, who according to learned

counsel for the petitioner is not competent in terms of Notification dated 05.07.2005.

The second submission of learned counsel for the petitioners is that learned Additional District Judge has found no infirmity in the procedure

followed by the Inquiry Officer and also the Disciplinary Inquiry held against respondent no.1, yet he has interfered with the quantum of punishment

by directing that the penalty provided under Rule 22.6.2(I) (II) be imposed which according to the petitioners is beyond the scope of powers available

to the Education Tribunal as held by Hon’ble Supreme Court in the case of Deputy Commissioner, Kendriya Vidyalaya Sansthan and others vs. J.

Hussain reported in (2013) 10 SCC 106. Learned counsel for the petitioners has placed reliance upon paragraph nos. 8, 14 and 16 of the said

judgment, which are extracted below:-

“8. The order of the Appellate Authority while having a re-look of the case would, obviously, examine as to whether the punishment imposed by

the Disciplinary Authority is reasonable or not. If the Appellate Authority is of the opinion that the case warrants lesser penalty, it can reduce the

penalty so imposed by the Disciplinary Authority. Such a power which vests with the Appellate Authority departmentally is ordinarily not available to

the Court or a Tribunal. The Court while undertaking judicial review of the matter is not supposed to substitute its own opinion on reappraisal of facts.

(See: Union Territory of Dadra & Nagar Haveli vs. Gulabhia M.Lad.) In exercise of power of judicial review, however, the Court can interfere with

the punishment imposed when it is found to be totally irrational or is outrageous in defiance of logic. This limited scope of judicial review is permissible

and interference is available only when punishment is shockingly disproportionate, suggesting lack of good faith. Otherwise, merely because in the

opinion of the Court lesser punishment would have been more appropriate, cannot be a ground to interfere with the discretion of the departmental

authorities.

Thus, in our view entering the school premises in working hours i.e. 11.30 a.m. in an inebriated condition and thereafter forcibly entering into the

Principal’s room would constitute a serious misconduct. Penalty of removal for such a misconduct cannot be treated as disproportionate. It does

not seem to be unreasonable and does not shock the conscience of the Court. Though it does not appear to be excessive either, but even if it were to

be so, merely because the Court feels that penalty should have been lighter than the one imposed, by itself is not a ground to interfere with the

discretion of the disciplinary authorities. The penalty should not only be excessive but disproportionate as well, that too the extent that it shocks the

conscience of the Court and the Court is forced to find it as totally unreasonable and arbitrary thereby offending the provision of Article 14 of the

Constitution. It is stated at the cost of the repetition that discretion lies with the disciplinary/appellate authority to impose a particular penalty keeping in

view the nature and gravity of charge. Once, it is found that the penalty is not shockingly disproportionate, merely because in the opinion of the Court

lesser punishment could have been more justified, cannot be a reason to interfere with the said penalty.

In the present case, it cannot be imputed that the departmental authorities while imposing the punishment acted in a manner which manifests lack

of reasonableness or fairness. In Karnataka Bank Ltd. Vs. A.L.Mohan Rao, charge against the delinquent employee was that he had colluded with

one of the Branch Managers and enabled grant of fictitious loan. The High Court interfered with the punishment of dismissal and ordered

reinstatement on sympathetic ground even when it found that the misconduct was proved. This Court reversed the judgment of the High Court.

Repeatedly this Court has emphasized the courts should not be guided by misplaced sympathy or continuity ground, as a factor in judicial review while

examining the quantum of punishment.â€​

Mr. Shashank Upadhyay, learned counsel for respondent no.2 supports the Disciplinary Inquiry held against respondent no.1. According to him, the

Disciplinary Inquiry against respondent no.1 was held as per affiliation by-laws of the CBSE.

Till the next date of listing, effect and operation of the impugned judgment and order dated 29.05.2018 shall remain stayed.