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Judgment
A.P. Ravani, J.—The petitioner who is serving as Junior Clerk (Typist) in the head office of respondent No. 1-Corporation challenges the legality and vahditY of ihe order of discharging him from service which is produced at Annexure E to the petition.
The petitioner belongs to Scheduled Caste. He was appointed as apprentice in the year 1978. After completion of apprenticeship period, with effect from September 12, 1979, he was appointed as Junior Clerk in the head office in the pay scale of 260-400.
The petitioner was charged with for some misconduct to the effect that: (1) he was lacking in responsibility. (2) he was irregular in attendence, (3) habitual late coming, (4) dis-obedience of orders of superiors, (5) negligence in performing duties assigned to him, (6) negligence of work, (7) wilful damage to the property of the Corporation (Typewriter) and (8) absence without prior permission from duty. After holding enquiry under the provisions of the National Textile Corporation (Gujarat) Limited Employees'' Conduct, Discipline and Appeal Rules, 1974 (hereinafter referred to as ''the Rules'') the disciplinary authority came to the conclusion that the petitioner was guilty of the misconduct alleged against him and directed that he was required to be reduced in rank to the lower post of peon in the pay scale of Rs. 268-5-318 and his basic pay was fixed at Rs. 268 per month. This order was passed on June 1, 1987.
The petitioner challenged the legality and validity of the aforesaid order by filing Special Civil Application No. 2831 of 1987 in this High Court. The matter came up for hearing on 7th July, 1987 before the Court (Coram: I.C. Bhatt, J.). The petition was disposed of on the ground that remedy by way of appeal under Rule 32 of the Rules was provided for and the petitioner should file an appeal. Meanwhile the Court directed that the order reducing him to the post of peon should not be implemented. Thereafter the petitioner filed an appeat, but the appeal has been rejected by an order dated August 6, 1987. While rejecting the appeal, in the same order, it was directed as follows:
That the penalty imposed on Shri N.K. Parikh is inadequate and that the enhanced penalty of discharge from service he imposed on Shri N.K. Parikh.
Thus, the petitioner was called upon to show cause as to why enhanced penalty should not be imposed upon him. The petitioner again filed Special Civil Application No. 3991 of 1987 challenging the aforesaid order rejecting the appeal and the issuance of show cause notice lor enhancement of penalty. That petition has been disposed of by an order dated September 16, 1987 (Coram: R.C. Mankad, J.) which reads as follows:
Mr. P.S. Patel, learned Counsel for the respondent states that the impugned order dismissing the petitioner''s appeal shall be withdrawn and the petitioner will be given an opportunity of being heard before a fresh order is passed. Mr. Patel further states that the respondent has no objection if the petitioner amends the memorandum of appeal within three weeks from today. Under the circumstances. Mr. S.V. Parmar seeks permission to withdraw the petition. Permission granted. Petition shall stand disposed of as withdrawn. Ad interim relief vacated with no order as to costs.
Thereafter the petitioner has been informed about the order passed by the appellate authority vide Annexure ''E'' dated November 12, 1987. It appears that on November 7, 1987, the appellate authority has rejected the appeal and has also directed to enhance the penalty to that of discharging the petitioner from service under Rule 23(g) of the Rules. However, since the petitioner was served with an order Annexure ''E'' dated November 12, 1987 issued by the disciplinary authority i.e. Incharge, Administration and Personnel, the petitioner annexed that order only to the petition and challenged the legality and validity of the same. The respondent-corporation has filed affidavit-in-reply and contested the petition on facts as well as on law points.
The respondent-corporation has raised preliminary objection as regards the maintainability of the petition, hence it may be dealt with first. It is contended that the dispute sought to be raised in this petition is an industrial dispute and remedy by way of reference to the Labour Court under the Industrial Disputes Act, 1948 is available to the petitioner. Since that remedy is an alternative efficacious remedy, the petition should not be entertained. However, the contention cannot be accepted for the simple reason that the petitioner is serving as Clerk in the head office of the respondent-corporation. He is not governed by the Standing Orders under the Industrial Disputes Act, 1947 or under the Bombay Industrial Relations Act, as applicable to the State of Gujarat. National Textile Corporation (Gujarat) Limited Employees'' Conduct, Discipline and Appeal Rules, 1974 are applicable to the petitioner. Rule 2 of the said Rules read as follows:
These rules shall apply to all employees except: (i) those in casual employment or paid from contingencies; (ii) those governed by the Standing Orders under the Industrial Disputes Act, 1948 or under the Bombay Industrial Relations Act as applicable to the State of Gujarat.
In view of the aforesaid provisions of the Rules of the Corporation and in view of the fact that the Corporation itself has exercised its power of holding enquiry and imposing penalty against the petitioner under these very Rules the contention, to say the least, is devoid of merits. Therefore, the contention that there is alternative remedy to the petitioner is not available to the respondent-Corporation.
Assuming for a moment that there is alternative remedy available to the petitioner, then even as held by this Court in the case of Kandla Port Trust v. Mulraj Mathreja reported in [1986 (1)] GLR 442 . "the Rule which requires the exhaustion of alternative remedies in a Rule of convenience and discretion, a self-imposed restraint on Court rather than Rule of law". These observations have been made on the basis of a decisions of the Supreme Court in the case of Ram and Shyam Company Vs. State of Haryana and Others, and in the case of State of U.P. v. Mohmmad Nooh reported in AIR 1958 SC 86. This is a fit case in which the respondent-corporation cannot be permitted to invoke this Rule of alternative remedy especially when the petitioner has been to tossed here and there and that too mainly because of unjust and improper stand adopted by the Corporation.
The order in appeal is produced at Annexure ''II'' to the affidavit in reply. In the entire order, there is nothing to show that the appellate authority has considered as to why the penalty of reduction in rank imposed upon the petitioner was inadequate and as to why the same was required to be enhanced and that too, to the extent of penalty of discharge from service. In the appellate order reference to enhancement of penalty is made only in the last sentence. Prior to that the entire discussion is with regard to the contention raised in appeal and why the contentions are not accepted. In fact there is not a single word about the enhancement of penalty. Thus the order from appeal is eloquently, silent and non-speaking as far as the enhancement of penalty is concerned. Therefore, the order passed in appeal as regards enhancement of penalty cannot be sustained.
Once this part of the order cannot be sustained, the question remains as to whether the order of penalty reducing the petitioner in rank to the post of peon is sustainable or not. There is no dispute with regard to the fact that the petitioner is a direct recruit. In para 6 of the affidavit-in-reply it is stated that the petitioner was initially appointed as apprentice and thereafter he was appointed as Junior Clerk with effect from September 12, 1979. In view of the decisions of the Supreme Court in the case of Hussain Sasan Saheb Kaladgi Vs. State of Maharashtra, and in the case of Nyadar Singh Vs. Union of India (UOI) and Others, , the penalty of reduction in rank cannot be imposed on an employee who is a direct recruit. This is settled legal position.
Hence the only question remains, which penalty could and should have been imposed upon the petitioner. Rule 23 of the Rules provide for different penalties which may be imposed upon a delinquent employee. Major penalties are provided in Clauses (e) to (h) of Rule 23. Rule 23(e) which has been invoked in case of the petitioner reads as follows:
Reduction to lower grade of post, or to a lower stage in a time scale.
Once reduction to a lower grade or post is not possible as provided is the Clause of major penalties, other penalty provided in the same clause may be imposed. In fact, the learned Counsel for the petitioner has conceded that the penalty imposed upon him is very harsh arid the petitioner is agreeable to some lesser penalty. If some lesser penalty is imposed upon him, ends of justice would be served. In the facts and circumstances of the case it appears that the penalty imposed upon the petitioner is too harsh and excessive.
Even apart from the unjust and excessive nature of the penalty, there Is nothing to indicate in the order passed by the appellate authority as to why the penalty imposed upon the petitioner initially, (i.e. reduction in rank to the post of peon) was inadequate and as to why the same was required to be enhanced to that of discharge from service. Therefore, this penalty of discharge from service cannot be sustained. Once penalty of discharge cannot be sustained, the pstitioner has to be retained in service, but he cannot be reduced in rank as he is a direct recruit. Therefore, any other penalty mentioned in the same Clause (i.e. 23(e)) of the Rules has got to be substituted.
In the result the petition is allowed. The penalty of discharge from service passed by the appellate authority as per order dated November 7, 1987 produced at Annexure ''H'' to the affidavit-in-reply and conveyed by order Annsxure ''E'' to the petition dated November 12, 1937 and also the order of reducing the petitioner in rank to the past of peon are hereby quashed and set aside. Instead of penalty of reduction in rank, penalty of reduction by one step in the time scale of pay is ordered to be substituted. The orders of discharge from service and reduction in rank to the post of peon are held to be illegal and void and shall be treated as if they were never passed. The petitioner shall be entitled to all the benefits flowing from this declaration, and order. It is hoped that respondent-corporation shall not resort to technicalities and will grant all the benefits to the petitioner flowing from this declaration and order. The respondent-Corpoation is directed to implement this order within a period of one month from the date of this order i.e. latest before March 20, 1989. Rule made absolute accordingly.
The above judgment and order has been dictated in open Court on January 11,. 1989. But during the course of dictation of the judgment, the learned Counsel for the respondent-corporation submitted that the judgment may not be signed since there was a proposal for compromise. The proposal for compromise has not been accepted by the petitioner. Therefore, the aforfesaid judgment is being declared today and it is being signed today i.e. on February 21, 1989.