HADIBANDHU JENA Vs. TRIBAL DEVELOPMENT CO OPERATIVE

JUDGEMENT

(1.) BY order of the Managing Director, Tribal Development Co -operative Corporation of Orissa Limited, Bhubaneswar, as communicated in Memo No. 10036/TDCCOL dated 29.11.1989 (Annexure -4), the petitioner was removed from service under Rule 9(9) (i) of the T.D.C.C. Employees Disciplinary Proceedings and Appeal Rules, 1988. The petitioner preferred appeal against the order of removal from service which was dismissed as per order dated 7.6.1990 (Annexure -5). In this writ application, he assails the propriety and correctness of the aforesaid orders, Annexures -4 and 5.

(2.) THE petitioner while serving as shop supervisor under the Tribal Development Co -operative Corporation of Orissa Limited (TDCC) was served with a set of charges and was called upon to submit his written statement of defence (Annexure -1). The petitioner submitted his statement of defence denying the charges (Annexure -2). The charges were enquired into. The Enquiring Officer in his report dated 10.7.1989 (Annexure -3) found him guilty of all the 12 charges. The Disciplinary Authority considered the enquiry report and after concurring with the findings of guilt recorded by the Enquiring Officer passed the impugned order removing the petitioner from service of the T.D.C.C. (Annexure -4).

(3.) SHRI Das lastly contended that the order of removal from service is disproportionate to the gravity of charges proved. He submitted that in certain cases of shop supervisors who faced similar charges as that of the petitioner were dealt with leniently by the T.D.C.C. and were let off with minor penalties. The learned counsel also brought to our notice that in respect of four charges separate dispute cases were filed by the T.D.C.C. which were dismissed in absence of evidence of misappropriation which indicates that the finding of guilt recorded is vulnerable. We may state that the Supreme Court in B.C. Chaturvedi v. Union of India, AIR 1996 SC 484 has held that the High Court while exercising the powers of Judicial Review cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority shocks the conscience of the Court, it may direct the disciplinary authority to reconsider the penalty imposed. The same opinion was expressed by the Supreme Court in Union of India v. G. Gannayutam, AIR 1997 SC 3387. The so -called mitigating circumstances pointed out by the learned counsel are matters which are within the domain of the disciplinary authority or appellate authority to consider and for sufficient and good reasons they can substitute the penalty or removal by imposing some other penalty prescribed under law. We, therefore, direct the appellate authority to consider the decisions of the Co -operative Tribunal and the penalty imposed on some other employees as pointed out by the petitioner and decide whether in view of those circumstances, the penalty of removal is disproportionate and whether the same should be substituted by a lesser punishment. The appellate authority is directed to complete such exercise within a period of two months from the date of communication of this order.