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Judgment
Sanjay Yadav, J
This appeal under Section 2(1) of The Madhya Pradesh Uchcha Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005 is directed against the order dated 09.10.2006 passed in Writ Petition No.6126/2003; whereby, learned Single
Judge had affirmed the Award passed by the Central Government Industrial Tribunal cum Labour Court, Jabalpur, (referred as CGIT). The CGIT in turn was in seisin with an industrial dispute as to ‘whether the action of the management of
Ordnance Factory, Katni, in compulsory retiring the workman Shri Shayam Narayan Mishra, Examiner Trade Ticket No. 202/1642 vide order dated 31.10.1992 is legal and justified ? If not, what relief the workman is entitled to.’
2- The industrial dispute reference was at the instance of respondent No.1 who was found guilty in the departmental enquiry and was visited with the order of compulsory retirement. The CGIT found that though the departmental enquiry
proceedings were just and proper; however, interfered with the quantum of punishment and directed for his reinstatement without backwages vide award dated 22.02.2002. The respondent workman was thus denied the backwages of about
nine years eight months. It found that though a co-worker was also proceeded with the same charges was let off with lesser punishment and that the charge of having consumed liquor in duty hours could not be established as the Assistant
Surgeon, Government Hospital, Katni gave a clear finding on 10.01.1992 that the workman had not consumed alcohol on the relevant day when the alleged incident took place. In paragraph 7 of the Award the CGIT returned following findings:
“7- It is an admitted fact that the workman was the office bearer of the recognized trade union at the time of occurrence in question. He had actively participated in trade union activities for furthering the genuine cause of workers of the Ordinance Factory of Katni.
On the relevant day, in connection with the trade Union activities, the workman was suspended by the management in respect to the commission of misconduct. Another co-worker Ram Bharose Yadav was also suspended by the management and subsequently
during the course of enquiry proceedings on the assurance of the management, he accepted his guilt and lesser punishment was awarded against him. Thereafter, Ram Bharose Yadav was given employment by the management. The management had also assured the
workman to give him employment provided he confessed his guilt in the enquiry proceedings. On this very occurrence the workman admitted the alleged charges and thereafter he was compulsory retired by the management. ?He was not given employment as had
been done in the case of co-worker Ram Bharose in imposing penalty in respect to the same charges. Such action can hardly be justified in law. At the time there is no evidence on record to show that the workman had actually used any consumption of alcohol the
assistant surgeon of the Government Hospital Katni has given a clear finding on 10.01.92 that the workman had not consumed alcohol on the relevant day when the alleged incident took place. Taking all these facts into consideration, the imposition of penalty of
compulsory retirement from service of the workman deserves to be quashed. This order is discriminatory and it does not stand to the test of law. The workman is therefore entitled to reinstatement.â€
3- Learned Single Judge in a Writ Petition under Article 227 of the Constitution declined to interfere with the findings by the CGIT, holding-
“7- It is seen that the Labour Court recorded finding that alongwith concerned Workman one Shri R. B. Yadav was also suspended and was charged. He also accepted his guilt and thereafter, was imposed a minor penalty and was taken back into service and
according to the Labour Court. As the workman was discriminated with regard to the punishment with the same set of charge one Shri R. B. Tiwari has already taken back into services and the present workman has been imposed a penalty of compulsory retirement;
therefore, the Management has acted in a discriminatory manner with regard to the punishment accordingly the punishment was held to be back.
8- It may be further seen that it was allegation against the concerned workman that on 10.01.1992 he was found to have consumed alcohol and then misbehaved on 10.01.1992 with the officers. The concerned workman was examined by the Assistant Civil Surgeon of
Government Hospital, Katni, who gave a finding that on that date the workman had not consumed alcohol. Such findings were given by the Assistant Surgeon after examining the workman. It is apparent that the order of compulsory retirement has rightly been set
aside by the Labour Court. The reasons given by the Labour Court are proper and this Court does not find any jurisdictional error in the award.â€
4- Though an exception is taken to the findings arrived at by the CGIT and learned Single Judge; however, the reference to the material, more particularly, the alleged admission of guilt vide memo dated 29.08.1992 which is the basis of
compulsory retirement without holding the departmental enquiry is of no consequence, because the bare perusal of the said admission will bear that it is not an unequivocal admission of charges which varied from alleged misbehaviour with
superiors; and using abusive language being in the drunken condition, was not unequivocal.
5- Trite it is that unless admission of charges are unequivocal, the employee/workman cannot be held guilty, without holding a regular departmental enquiry. In this context, reference can be had of the decision in Jagdish Prasad Saxena vs
State of Madhya Bharat AIR 1961 SC 1070 wherein their Lordships were pleased to hold:
“11- … In such a case, even if the appellant had made some statements which amounted to admission it is open to doubt whether he could be removed from service on the strength of the said alleged admissions without holding a formal enquiry as required by the
rules. But apart from this consideration, if the statements made by the appellant do not amount to a clear or unambiguous admission of his guilt, failure to hold a formal enquiry would certainly constitute a serious infirmity in the order of dismissal passed against him.
Under Art. 311(2) he was entitled to have a reasonable opportunity of meeting the charge framed against him, and in the present case, before the show-cause notice was served on him he has had no opportunity at all to meet the charge. After the chargesheet was
supplied to him he did not get an opportunity to cross-examine Kethulekar and others. He was not given a copy of the report made by the enquiry officers in the said enquiries. He could not offer his explanation as to any of the points made against him; and it appears
that from the evidence recorded in the previous enquiries as a result of which Kethulekar was suspended an inference was drawn against the appellant and show-cause notice was served on him. In our opinion, the appellant is justified in contending that in the
circumstance of this case he has had no opportunity of showing cause at all, and so the requirement of Art. 311(2) is not satisfied.â€
6- Similarly, it is held in Collector Singh vs L.M.L. Limited, Kanpur (2015) 2 SCC 410> -
“8- Insofar as the first limb of contention as to the satisfaction of Labour Court in interfering with the discretion of the authority, considering the findings of the courts below in our considered view, the Labour Court and the High Court did not properly appreciate
tenor of the apology letter. Courts below appear to have proceeded on the premise that in his apology letter, the appellant has admitted the said incident on 18.4.1992. Courts below held that the charges proved against the workman are not only throwing jute/cotton
waste balls on his superior officer/the Foreman, but for alleged misbehaviour using filthy language and in such circumstance, punishment of dismissal imposed by the Management is justified. By perusal of the contents of the said apology letter, it is discerned that
the appellant has made admission only with respect to throwing of the jute/cotton waste balls by mistake and further stating that such a mistake would not be repeated in future and that he be pardoned for the same. The letter nowhere states that the appellant was
involved in the incident of hurling abuses and using filthy language against his superior officer. In essence, even the incident of throwing of jute/cotton waste balls at the Foreman has been stated as a mistake. As we have already observed use of abusive language is
not established by the apology letter. Therefore, mere act of throwing of jute/cotton waste balls weighing 5 to 10 gms may not by itself lead to imposing punishment of dismissal from service. In such a situation, we find it difficult to fathom a reason for placing such
excessive reliance on the apology letter by the enquiry officer appointed for the departmental enquiry as well as the courts below for justifying the punishment of dismissal from service.
7- In the case at hand, though charge sheet was issued but no enquiry was held on the anvil of alleged admission of guilt on 29.08.1992 which is reproduced for ready reference:
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2) . 1427/1/. 0 5.2.92 27.02.92 3) . 1427/1/ . 0 1.4.92
4) . 1427/1/ . . 20.08.92
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8- Reading of memo does not establish the admission of charges levelled against the respondent workman.
9- Furthermore, the CGIT has returned a finding that the respondent workman was examined by the Assistant Surgeon, Government Hospital, Katni, who examined him and found him not drunk, is nowhere contradicted by the management.
On the contrary, the fact that the workman was taken to District Hospital Katni and was examined by the Government Doctor is also borne out from the record produced before us by the Management.
10- The scope of interference under Article 227 of the Constitution and in the intra-Court appeal is limited only to the extent of perversity. In Baddula Lakshmiah vs Sri Anjaneya Swami Temple (1996) 3 SCC 52, it is held that in an intra-court
appeal the appellate Court is a Court of Correction which corrects its own orders, in exercise of the same jurisdiction as was vested in the Single Judge. Such is not an appeal against an order of subordinate court. In such appellate jurisdiction
the High Court exercises the powers of a Court of Error.
11- Further contention that CGIT and learned Single Judge erred in comparing the case of co-worker with the respondent No.1 is erroneous. The contention, however, deserves to be rejected when tested on the anvil of Statement of
Imputation wherein the alleged conduct of the respondent and two more person, viz., Chottelal Sharma and Ram Bharose has been recorded alleging that three of them were found under the influence of alcohol. Whereas, Ram Bharose was
not charge-sheeted, Shri Chottelal Sharma being charged with the similar charges, though differently worded, has been let away with lesser punishment.
12- In Man Singh vs State of Haryana (2008) 12 SCC 331, it is held:
“20- We may reiterate the settled position of law for the benefit of the administrative authorities that any act of the repository of power whether legislative or administrative or quasi-judicial is open to challenge if it is so arbitrary or unreasonable that no fair minded
authority could ever have made it. The concept of equality as enshrined in Article 14 of the Constitution of India embraces the entire realm of State action. It would extend to an individual as well not only when he is discriminated against in the matter of exercise of
right, but also in the matter of imposing liability upon him. Equal is to be treated equally even in the matter of executive or administrative action. As a matter of fact, the doctrine of equality is now turned as a synonym of fairness in the concept of justice and stands as
the most accepted methodology of a governmental action. The administrative action is to be just on the test of 'fair play' and reasonableness.
21- We have, therefore, examined the case of the appellant in the light of the established doctrine of equality and fair play. The principle is the same, namely, that there should be no discrimination between the appellant and HC Vijay Pal as regards the criteria of
punishment of similar nature in departmental proceedings. The appellant and HC Vijay Pal were both similarly situated, in fact, HC Vijay Pal was the real culprit who, besides departmental proceedings, was an accused in the excise case filed against him by the Excise
Staff of Andhra Pradesh for violating the Excise Prohibition Orders operating in the State. The appellate authority exonerated HC Vijay Pal mainly on the ground of his acquittal by the criminal court in the Excise case and after exoneration, he has been promoted to the
higher post, whereas the appeal and the revision filed by the appellant against the order of punishment have been rejected on technical ground that he has not exercised proper and effective control over HC Vijay Pal at the time of commission of the Excise offence by
him in the State of Andhra Pradesh. The order of the disciplinary authority would reveal that for the last about three decades the appellant has served the Police Department of Haryana in different capacity with unblemished record of service.
22- In the backdrop of the above-mentioned facts and circumstances of the case, we are of the view that the order of the disciplinary authority imposing punishment upon the appellant for exhibiting slackness in the discharge of duties during his visit to Hyderabad
when HC Vijay Pal was found involved in Excise offence, as also the orders of the appellate and revisional authorities confirming the said order are unfair, arbitrary, unreasonable, unjustified and also against the doctrine of equality. The High Court has failed to
appreciate and consider the precise legal questions raised by the appellant before it and dismissed the Second Appeal by unreasoned judgment. The judgment of the High Court, therefore, confirming the judgments and decrees of the first appellate court and that of
the trial court is not sustainable. The appellant deserves to be treated equally in the matter of departmental punishment initiated against him for the acts of omissions and commissions vis-`-vis HC Vijay Pal, the driver of the vehicle.â€
13- The decision in Administrator, Union Territory of Dadra and Nagar Haveli vs Gulabhia M. LAD (2010) 5 SCC 77 5relied by the appellant is of no assistance because, as apparent from paragraphs 14, 15 and 16, the person with lesser
punishment was found to be carrying out order of his officer who was inflicted with the major penalty.
14- Having thus considered, we do not perceive any error in the impugned order as would warrant any interference.
15- Consequently, appeal fails and is dismissed. No costs.
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