Gursharanjit Kaur vs Presiding Officer, Industrial Tribunal-cum-Labour Court

G.S. Sandhawalia, J.—The legal question that arises in the present case is:

Whether the employees who were similarly chargesheeted for the same misconduct can be treated differently by the employer while imposing punishment once they have been found guilty of the said charge in the enquiry proceedings?

The deceased-workman, namely, Jagjit Singh has been denied the relief vide the award under challenge dated 09.09.2010 (Annexure P16) on account of the fact that fraud had been played by him for making payment of less amount to the tune of Rs. 2000/- and that he had tampered with the said entry by first writing Rs. 3458/- and thereafter, erasing the same and fresh entry was made showing the entry as Rs. 5458/- in the way register.

The deceased-workman who was working as Junior Assistant with the respondent No. 2-Corporation since 28.09.1971, while posted in the cash branch, on 12.06.1995, was to make payment of Rs. 5458.65 to Ranjit Singh, Conductor. As per the chargesheet, he, in connivance with Gurpal Malhotra, Sr. Assistant and Surinder Singh, Junior Cashier, entered an amount of Rs. 3458/- and made payment to the said employee of the less amount and thereafter, changed the amount to Rs. 5458/-. In view of the cuttings made, he was chargesheeted on 06.10.1995. On 12.03.1998 (Annexure P6), the charges against Gurpal Malhotra, Senior Assistant, dated 10.10.1995 were withdrawn. Surinder Singh, Assistant Cashier, was also chargesheeted on 10.10.1995 for the same misconduct and an enquiry was also conducted against him by the same Enquiry Officer and on the basis of the said enquiry report, the Managing Director of the Corporation held that he was guilty of financial impropriety which has directly resulted in the fraud and directed him to be placed at the initial grades of his pay scale of his post. Relevant portion of the punishment order, passed on 28.05.1998 (Annexure P7), reads as under:

Considering all the facts of the case, I am of the view that Shri Surinder Singh, Asstt. Cashier entered/booked the expenditure of Rs. 5458/- even though he was aware that the payment of Rs. 3458/- was actually made to Shri Ranjit Singh conductor F-83 of Chandigarh depot. Therefore, he is also responsible for making less payment of Rs. 2000/- to Shri Ranjit Singh conductor No. F-83. In view of this, he deserves for strict punishment in the instant case. However, the statement of main witness in this case clearly indicates that Shri Surinder Singh, Asstt. Cashier has not committed any fraud with him and he was not connived with other delinquent Shri Jagjit Singh, Jr. Assistant, Shri Surinder Singh, Asstt. Cashier, however, is guilty of financial impropriety which may have directly resulted in fraud.

Considering all the facts of the instant case, the gravity of the charges, I order that Shri Surinder Singh Asstt. Cashier be placed in the initial grades of his pay-scale of his post.

He will not be paid any thing over an above the subsistence allowance already paid to him during the period of his suspension.

However, in the case of the petitioner, on the basis of the enquiry report dated 03.01.1997, which was also conducted by the same official, namely, Shri Sat Pal Kapil, Sectional Officer, the punishment of termination of service was passed on 21.05.1998 (Annexure P8). Thereafter, the appeal of the petitioner was also dismissed by the Chairman of the Corporation on 18.08.1999. On account of the said dismissal order, the demand notice dated 22.05.2000 was served taking the plea that charges upon Gurpal Malhotra were withdrawn on 12.03.1998 and Surinder Singh was given punishment by reducing his pay-scale to the initial grades whereas the deceased-workman was given the punishment of dismissal from service on the same charge. The said contents were not denied by the Management being a matter of record and in the written statement, filed before the Labour Court, it was only averred that all the concerned officials were chargesheeted and were punished according to their offences as proved against them and the deceased-workman was guilty of gross misconduct and was fully responsible for the short payment. In the evidence also, the workman specifically averred regarding the said fact. The workman examined himself apart from Nam Chand, Cashier as WW1 and Raj Kumar as AW2. The Labour Court, as noticed above, declined the reference on the ground that there was charge of misappropriation and therefore, the enquiry office had evaluated the evidence and on scrutiny of charges, gave the report and the punishment order was reasoned and there was no irregularity or illegality in the said order.

Counsel for the petitioner has only submitted that employees who were similarly chargesheeted could not have been accorded different treatment by especially referring to the proceedings of Surinder Singh, Assistant Cashier and submitted that if he was punished with reduction of pay scale to the initial grades, the same should be followed in the case of the deceased-workman.

On the other hand, counsel for respondent No. 2, has laid stress to the pleadings in the written statement in which justification has been made that the chargesheet against Gurpal Malhotra was withdrawn on account of the fact that he was not involved in the embezzlement with the workman and the case of Surinder Singh, Assistant Cashier was also different as it was his duty to inform the higher authorities that the workman has embezzled the amount and the workman was responsible for making the cuttings. Accordingly, the termination order was sought to be justified.

In view of the stand taken by the respondent-Corporation, it is necessary to examine the chargesheet issued against the deceased-workman dated 06.10.1995 (Annexure P3), which reads as under:

You, Sh. Jagjit Singh, Junior Assistant, were working as Assistant Cashier in Cash Branch P.R.T.C. Chandigarh. On 12.6.95, Sh. Gurpal Malhotra, Senior Assistant, had given you Bill No. 675 dated 2.1.1995 of Rs. 5458.65 Ps. for making its payment to Sh. Ranjit Singh, Conductor No. F-83. But you, in league and connivance with Sh. Gurpal Malhotra, Senior Assistant and Sh. Surinder Singh, Assistant Treasurer, entered an amount of Rs. 3458/- on page No. 08 of payment register against voucher No. 26 for making its payment to Sh. Ranjit Singh, conductor No. F-83, which was entered against voucher No. 25, Bill No. 426 dated 8.6.95 and made a payment of Rs. 3438/- to the Conductor. After making the payment, you changed the said amount to Rs. 5458.65 Ps. and entered the said expenditure on 12.6.95 at Page No. 43 of cash Book. Sh. Ranjit Singh, Conductor No. F-83 got suspected that his payment is exceeding, on which he asked Raj Kumar, conductor, in order to enquire about his bill as to why he has been paid less amount. When on 19.6.95, Sh. Raj Kumar, Conductor, checked the bill from Assistant Controller (Finance & Accounts), Chandigarh, the said bill was found amounting to Rs. 5458.65 Ps. When the Assistant Controller (Finance & Accounts) checked the payment register, there was cutting made and amount of Rs. 3438/- was changed to Rs. 5458.65 Ps. Hence, you paid Rs. 2000/- to the said Conductor in the presence of Assistant Controller (Finance & Accounts), Chandigarh Depot. Thereafter, he deleted the said entry made in the payment register with the help of Sh. Surinder Singh, Assistant Treasurer and entered the same at Page No. 81 against Bill No. 23/TA/Direction dated 13.6.95 against Voucher No. 43 and again obtained signatures of conductor, which he put on 19.6.95. Thus, you have destroyed the official record and attempted to commit fraud/deceit with the said Conductor to the tune of Rs. 2020.65 Ps. which is grave misconduct on your part.

It is important to note that Surinder Singh was chargesheeted on 10.10.1995 with the following charges which are reproduced in the punishment order dated 28.05.1998 (Annexure P7):

Grave misconduct.

To make payment of Rs. 3438/- against Bill No. 675 dated 2.1.95 of Sh. Ranjit Singh, Conductor No. F-83, which was amounting to Rs. 5458.65 Ps., by entering the same in connivance with Sh. Surinder Singh, Assistant Treasurer and on later stage, cutting the payment of Rs. 3438/- from the payment register and making it to Rs. 5458.65 Ps. and thus attempting to grab the amount of Rs. 2020.65 Ps. of the said Conductor.

Demolishing the official record entered at Page No. 8 of payment register in connivance with Sh. Surinder Singh, Senior Treasurer and replacing the same with a new entry at page No. 81.

Attempting to grab the amount of Rs. 2020.65 Ps. with the Corporation while working on the post of Assistant Cashier.

Showing negligence and carelessness in duty.

Violation of rules.

A perusal of the above two charges would go on to show that both these officials were, thus, chargesheeted for the same misconduct and the charge was of connivance with each other, they had also destroyed the official record. Though the charge talks about connivance with Surinder Singh, Assistant Treasurer but he was charged and connivance is obviously with Jagjit Singh and therefore, both the said employees were charged of the same misconduct. The punishment order which has been imposed upon Surinder Singh on 28.05.1998, in pursuance of the said chargesheet, is reproduced above in para 2. A perusal of the same would go on to show that Surinder Singh was also responsible for making less payment to Sh. Ranjit Singh. However, a finding was recorded that in view of the statement of Ranjit Singh, who had specifically averred that Surinder Singh, Assistant Cashier had not cheated him but Jagjit Singh, Junior Assistant was responsible for the same, the Managing Director held that he had not connived with Jagjit Singh.

This Court is of the opinion that merely because the complainant had some grouse against the deceased-employee would not make only him liable for more punishment than the other employees also. The Enquiry Officer has, in his report, clearly pointed out that if it was in the notice of Surinder Singh that Rs. 2000/- has been paid less, he should have brought it to the notice of the higher authorities and therefore the distinction which is sought to be made by the Corporation is without any justification. It is settled principle of law that once officials who have been chargesheeted for the same fraud, cannot be treated on a different footing since it would amount to violation of Article 14 of the Constitution of India. Reliance can be safely placed upon the principles of the Apex Court in Akhilesh Kumar Singh Vs. State of Jharkhand and Others, wherein it was held that the delinquent officials, similarly situated, should be dealt with similarly and if charges against the employees are identical, it is desirable that they should be dealt with similarly. In Man Singh Vs. State of Haryana and Others, the Apex Court granted the benefit to the appellant by noticing that the appellant and one Vijay Pal, both police officials, were dealt with in departmental proceedings on account of transporting liquor in violation of the prohibitory orders of the State Government. Vijay Pal''s punishment in the departmental proceedings was set aside by the Appellate Authority after his acquittal by the criminal Court in the excise case whereas, the punishment imposed upon Mann Singh was not interfered with and the appeal and revision was dismissed. He filed a civil suit challenging the order whereby his two annual future increments with permanent effect had been stopped. The Civil Court refused to interfere and the said judgment was upheld by the First Appellate Court and the High Court. The Apex Court thereafter allowed the appeal on the ground that there has to be similar treatment to both the officials.

The relevant portion reads thus:-

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. 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.

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-a-vis HC Vijay Pal, the driver of the vehicle.

This Court in The Punjab State Coop. Supply and Marketing Federation Ltd. (Management of Markfed) Vs. Ashok Kumar Mehta (Workman) and Others, also noticed in the said case that the employees who had been jointly chargesheeted were entitled to the same treatment as was awarded to the co-employee, under the same circumstances. In the said case, the co-employee-Roop Singh was only awarded stoppage of 2 increments in the departmental appeal filed by him whereas the appeal of the other employee, namely, Ashok Kumar Mehta, was dismissed and the order of termination was upheld. This Court also directed that similar punishment be imposed and upheld the order of the Labour Court which had directed that similar punishment be imposed. This Court in CWP No. 20066 of 2011 titled Commissioner, Municipal Corporation, Chandigarh Vs. Presiding Officer, Industrial Tribunal-cum-Labour Court, Chandigarh & another decided on 01.05.2014, also followed the said view and held that two similarly situated persons could not be given different treatments on account of same disqualification as the same would be violative of Article 14 of the Constitution of India since it would be absolutely arbitrary and violative of the doctrine of equality.

To be fair to the counsel for respondent No. 2, who has placed reliance upon judgment of the Apex Court in B.C. Chaturvedi Vs. Union of India and others, to submit that Courts should not interfere with the punishment imposed by the disciplinary authorities until it is found to be disproportionate. However, the said judgment infact provides that Courts can interfere where the proceedings against the delinquent official are inconsistent with the rules of natural justice and in violation of the statutory rules. Relevant observations read as under:

Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to re-appreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.

In the said judgment, Justice B.L. Hansaria noticed that this Court under Article 226 of the Constitution of India has to restrain itself in exercising its power of judicial review but for the self-imposed limitation, while exercising the power under Article 226, there is no inherent reason to disallow the application of judicial mind regarding the question of proportionality of punishment/penalty. Relevant observations read as under:

The aforesaid has, therefore, to be avoided and I have no doubt that a High Court would be within its jurisdiction to modify the punishment/penalty by moulding the relief, which power it undoubtedly has, in view of long line of decisions of this Court, to which reference is not deemed necessary, as the position is well settled in law. It may, however, be stated that this power of moulding relief in cases of the present nature can be invoked by a High Court only when the punishment/penalty awarded shocks the judicial conscience.

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No doubt, while exercising power under Article 226 of the Constitution, the High Courts have to bear in mind the restraints inherent in exercising power of judicial review. It is because of this that substitution of High Court''s view regarding appropriate punishment is not permissible. But for this constraint, I would have thought that the law makers do desire application of judicial mind to the question of even proportionality of punishment/penalty. I have said so because the Industrial Disputes Act, 1947 was amended to insert section 11A in it to confer this power even on a Labour Court/Industrial Tribunal. It may be that this power was conferred on these adjudicating authorities because of the prevalence of unfair labour practice or victimisation by the management. Even so, the power u/s 11A is available to be exercised, even if there be no victimisation or taking recourse to unfair labour practice. In this background, I do not think if we would be justified in giving much weight to the decision of the employer on the question of appropriate punishment in service matters relating to Government employees or employees of the public corporations. I have said so because if need for maintenance of office discipline be the reason of our adopting a strict attitude qua the public servants, discipline has to be maintained in the industrial sector also. The availability of appeal etc. to public servants does not make a real difference, as the appellate/revisional authority is known to have taken a different view on the question of sentence only rarely. I would, therefore, think that but for the self-imposed limitation while exercising power under Article 226 of the Constitution, there is no inherent reason to disallow application of judicial mind to the question of proportionately of punishment/penalty. But then, while seized with this question as a writ court interference is permissible only when the punishment/penalty is shockingly disproportionate.

Accordingly, keeping in view the abovesaid principles, this Court is of the opinion that two identically situated employees could not be granted different punishments, as notice above, from the factual matrix reproduced above. In view of the fact that the employee has now since expired and therefore, only his legal heirs would be entitled to the retiral benefits which are payable under the rules and at this stage, to send the matter back to the disciplinary authorities to impose similar punishment, would not be justified and in order to shorten the litigation, the dismissal order dated 21.05.1998 and the award dated 09.09.2010 are quashed. The respondent-Corporation is directed to impose the same punishment of placing the deceased employee at the initial grade of pay scale of his post and calculate the monetary benefits which the said employee was liable to be paid and to which the legal heirs are now entitled to. Thereafter, the amount, on account of the modification of the order of punishment be paid to them, within a period of 3 months from the receipt of a certified copy of this order. In case the said amount is not paid within the prescribed period, the same shall carry interest @ 9% per annum.

With the abovesaid directions, the writ petition is partly allowed.