- (1.) Heard Mr. Ravi Kiran Jain, senior advocate, assisted by Mr. R.K. Awasthi, learned Counsel for the Petitioner and learned standing counsel.
(2.) This writ petition has been filed for quashing the order of suspension dated 27.7.2010 (Annexure-9 to the writ petition). According to the Petitioner, the order of suspension passed by the Respondent has been passed without any proper inquiry and no preliminary inquiry was ever made fixing liability, therefore, the order of suspension in view of Rule 4 of U. P. Government Servant (Discipline and Appeal) Rules, 1999 is bad in law. Learned Counsel for the Petitioner submits that the charges regarding disobedience have not been proved and on 12.7.2010, a letter was issued to the Petitioner to submit a reply and the same was received in the office on 16.7.2010. The Deputy Director has issued a letter dated 17.6.2010 putting an allegation upon the Petitioner that he has not submitted the relevant documents in spite of repeated directions. Further, submission has been made that according to Rule 4, the suspension is not permissible unless and until the appointing authority or the disciplinary authority is satisfied regarding the charges levelled against the charged employee of misconduct and seriousness of act of omission and commission. Sri Jain, learned senior advocate has relied upon a judgment of the Apex Court in State of Orissa v. Bimal Kumar Mohanty, 1994 AIR(SC) 2296. Taking support of the aforesaid judgment, learned Counsel for the Petitioner submits that it is settled law that normally when an appointing authority or the disciplinary authority seeks to suspend an employee pending or contemplated inquiry into grave charges of misconduct, the order of suspension would be passed after considering the gravity of misconduct sought to be enquired or investigated and the nature of evidence placed before the appointing authority and the order of suspension should not be passed in a routine and automatic manner. It is the duty of the appointing authority to consider the gravity of charges and if the charges are not serious in nature then no order of suspension should be passed. In such circumstances, learned Counsel for the Petitioner submits that order of suspension is bad and is liable to be quashed.
(3.) On the other hand, learned standing counsel submits that it is settled in law that order of suspension pending inquiry is not a punishment. There is no dispute to this effect that in normal course the order of suspension should not be passed unless and until it is verified by the disciplinary authority that charges are serious in nature. From the perusal of the order of suspension, it is clear that the charges against the Petitioner are disobedience, not discharging the official function according to norms and not behaving properly to the higher authorities, therefore, it cannot be said that the charges are not serious in nature. In the inquiry, if it is found that the Petitioner is not guilty of the charges levelled against him, he will be exonerated. He placed reliance upon Para 8 of the judgment of Apex Court in M.P. Electricity Board v. Jagdish Chandra Sharma, 2005 3 SCC 401, which reads as under: 8. The question then is whether the interference with the punishment by the labour court was justified? In other words, the question is whether the punishment imposed was so harsh or so disproportionate to the charge proved, that it warranted or justified interference by the labour court? Here, it had been clearly found that the employee during work, had hit his superior officer with a tension screw on his back and on his nose leaving him with a bleeding and broken nose. It has also been found that this incident was followed by the unauthorized absence of the employee. It is in the context of these charges found established that the punishment of termination was imposed on the employee. The jurisdiction under Section 107A of the Act to interfere with punishment when it is a discharge or dismissal can be exercised by the labour court only when it is satisfied that the discharge or dismissal is not justified. Similarly, the High Court gets jurisdiction to interfere with the punishment in exercise of its jurisdiction under Article 226 of the Constitution only when it finds that the punishment imposed, is shockingly disproportionate to the charge proved. These aspects are well-settled. In U.P.S.R.T.C. v. Subhash Chandra Sharma this Court, after referring to the scope of interference with punishment under Section 11A of the Industrial Disputes Act, held that the labour court was not justified in interfering with the order of removal from service when the charge against the employee stood proved. It was also held that the jurisdiction vested with the labour court to interfere with punishment was not to be exercised capricioulsy and arbitrarily. It was necessary, in a case where the labour court finds the charge proved, for a conclusion to be arrived at that the punishment was shockingly disproportionate to the nature of the charge found proved, before it could interfere to reduce the punishment. In Krishnakalt Tea Estate v. Akhil Bhartiya Chah Mazdoor Sangh this Court after referring to the decision in State of Rajasthan v. B.K. Meena also pointed out the difference between the approaches to be made in a criminal proceeding and a disciplinary proceeding. This Court also pointed out that when charges proved were grave, vis-a-vis the establishment, interference with punishment of dismissal could not be justified. In Bharat Forge Co. Ltd. v. Uttam Manohar Nakate this Court again reiterated that the jurisdiction to interfere with the punishment should be exercised only when the punishment is shockingly disproportionate and that each case had to be decided on its facts. This Court also indicated that the labour court or the Industrial Tribunal, as the case may be, in terms of the provisions of the Act, had to act within the four corners thereof. It could not sit in appeal over the decision of the employer unless there existed a statutory provision in that behalf. The Tribunal or the labour court could not interfere with the quantum of punishment based on irrational or extraneous factors and certainly not on what it considers a compassionate ground. It is not necessary to multiply authorities on this question, since the matter has been dealt with in detail in a recent decision of this Court in Mahindra and Mahindra Ltd. v. N.B. Narawade. This Court summed up the position thus: (SCC p. 141, para 20) 20. It is no doubt true that after introduction of Section 11A in the Industrial Disputes Act, certain amount of discretion is vested with the labour court/Industrial Tribunal in interfering with the quantum of punishment awarded by the management where the workman concerned is found guilty of misconduct. The said area of discretion has been very well defined by the various judgments of this Court referred to hereinabove and it is certainly not unlimited as has been observed by the Division Bench of the High Court. The discretion which can be exercised under Section 11A is available only on the existence of certain factors like punishment being disproportionate to the gravity of misconduct so as to disturb the conscience of the Court, or the existence of any mitigating circumstances which require the reduction of the sentence, or the past conduct of the workman which may persuade the labour court to reduce the punishment.;