The Superintending EngineerChidambaranar ElectricityDistribution Circle, T.N.E.B.Tuticorin v. 1. The Presiding Officer Labour Court, Tirunelveli.2. P.Chelliah

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 15.11.2007CORAMTHE HONOURABLE MR. JUSTICE S.J.MUKHOPADHAYAANDTHE HONOURABLE MR. JUSTICE A.C.ARUMUGAPERUMAL ADITYANW.A. NO. 2237 OF 2002The Superintending EngineerChidambaranar ElectricityDistribution Circle, T.N.E.B.Tuticorin... Appellant- Vs -1. The Presiding Officer Labour Court, Tirunelveli.2. P.Chelliah.. Respondents Writ Appeal filed against the order dated 16.04.2001 passed bylearned single Judge in W.P. No.3240 of 1994, praying to issue a writ ofcertiorari calling for the records of the first respondent in ID.No.521/90and quash its order made therein dated 21.10.92.For Appellant : Ms. C.A.Sharmila for Mr.M.VaidyanathanFor Respondents : Mr. S.Ayyathurai for R-2JUDGMENTS.J.MUKHOPADHAYA, J.The writ petition was preferred by the Superintending Engineer,Chidambaranar Electricity Distribution Circle, Tuticorin, (hereinafterreferred to as 'Electricity Board'), against the award dated 21st Oct.,1992, passed by learned Presiding Officer, Labour Court, Tirunelveli, inI.D. No.521/90. By the said order, learned Presiding Officer, LabourCourt, Tirunelveli held that the punishment of removal from service isexcessive and disproportionate to the misconduct alleged and, thereby,rendered the order of removal illegal without awarding any punishment, asthe workman had attained the age of superannuation in the meantime. Themanagement of the electricity board has been directed to pay the terminalbenefits, including pension, etc. Learned single Judge upheld the awardgiving rise to this appeal. https://hcservices.ecourts.gov.in/hcservices/

2. The relevant facts for determination of claim are mentionedhereunder :-The 2nd respondent – workman, who was working under the appellant, wasproceeded departmentally in December, 1988. Inspite of service of notice,he did not choose to reply nor appeared in the proceeding. In thecircumstances, the enquiry officer had to conduct ex-parte enquiry. Onthe basis of the evidence on record, he held the workman guilty of thecharges. On 16th Nov., 1988, a show cause notice was issued on the workmanas to why he should not be removed from service. This time also, theworkman did not choose to submit any reply, whereinafter, the disciplinaryauthority, agreeing with the finding of the enquiry officer, removed theworkman from service on 1st Feb., 1989. The order was served on theworkman on 23rd Feb., 1989, against which he preferred appeal before theChief engineer, Electricity Board on 3rd March, 1989 explaining his familycircumstances and suffering for not attending the enquiry. The appealhaving been dismissed, he forwarded a mercy petition to the Chairman ofthe Electricity Board on 18th Oct., 1989,which having been rejected, heraised an industrial dispute u/s 2 (A) (2) of the Industrial Disputes Act,1947.The application was registered as I.D. No.521/90. The appellantappeared and contested the matter. Learned Presiding Officer, by impugnedaward dated 29th Oct., 1992, while upheld the enquiry proceeding and reportsubmitted by the enquiry officer, held that the punishment of removal fromservice was disproportionate to the gravity of charges. The relief wasgranted to the workman, except back wages for the intervening period.3. The only question requires to be determined in this appeal iswhether the punishment of removal from service as was imposed by appellantwas proportionate to the gravity of the charges.4. While according to the appellant, punishment of removal fromservice was proportionate to the gravity of the charges and inflicting anylesser punishment will be disproportionate; on the other hand, accordingto the counsel for the workman, punishment of removal from service isdisproportionate to the gravity of the charges.5. We have heard the learned counsel for the parties, perused theaward, records, judgment passed by learned single Judge and also noticedthe submissions as made by counsel for the parties.6. For determination of the issue, it is desirable to quote thecharges as was levelled against the workman vide charge memoNo.AEE/Rural/F.Doc Con./J.A./D.No.452/88 dated 20th June, 1988, Englishversion of which is quoted hereunder :- https://hcservices.ecourts.gov.in/hcservices/ "1. Thiru P.Chelliah, then wireman, Velayuthapuram,absented from duty for 7 days, in February1, 8, 9, 23, 25,26 and 27.2.1986 without any previous permission. Againhe has not attended duty from 7.4.1988 to 28.6.1988, i.e.,the date of issue of charge memo. The above acts of ThiruP.Chelliah, wireman constituted misconduct as per BoardsStanding Order 30 (I) (VIII) (X) and 30 (XXVI) of Workmenother than those engaged in clerical work.2. As per the Assistant Engineer/Distribution/KalugumalaiMemo, Thiru P.Chelliah, wireman, should attend theDistribution office every Monday. But he has not takenany care and had not attended the Distribution office on28.12.1987 and 4.1.1988. This act of Thiru P.Chelliahconstitutes misconduct as per Boards Standing order 30 (1)and (X) of Workmen other than those engaged in clericalwork.3. Thiru P.Chelliah, wireman has given direct connection,i.e., without Meter, to service connection No.56 atKaradikulam. This act of Thiru P.Chelliah, wiremanconstitutes misconduct of Workmen other than those engagedin clerical work.4. While the inspection of the Assistant Engineer on20.04.1988 it is found out that Thiru P.Chelliah, wiremanhas dismantled the meter in service connection No.192,Velayuthapuram without any approval of the AssistantEngineer and the meter has also not been handed over tothe office. This act of Thiru P.Chelliah, wireman,constitutes misconduct as per Standing order 30 (1) and(X) of the Workmen, other than those engaged in clericalwork.5. Thiru P.Chelliah, wireman, has received serviceconnection meters on 8.3.1988 moving. But he has notgiven any report regarding effecting service connectionsto the Assistant Engineer, Kalugumalai upto the date ofreceipt of the charge memo. This act of Thiru P.Chelliah,wireman constitutes misconduct as per Standing order 30(1) and (X) of the Workmen, other than those engaged inclerical work."From the charge memo it will be evident that charge No.1 and 2 relateto unauthorised absence from duty, which constitutes misconduct under theBoard's Standing Order. Charge No.3 relates to grant of direct connectionto one of the consumer without permission and without meter. Charge No.4relates to grant of direct connection to another consumer by dismantlingthe meter without any approval of the superior officers. Charge No.5relates to non-submission of report regarding effecting service connectioninspite of receipt of service connection meters.7. From the award it will be evident that learned Presiding Officer,while discussing the gravity of charges, at paragraph-5, has noticed onlythe question of unauthorised absence from duty. No discussion has beenmade with regard to more serious charges like grant of directionconnection to consumers without any approval from the higher authority or https://hcservices.ecourts.gov.in/hcservices/ for changing the meter and giving direct connection to another consumerwithout any approval from the higher authority. Without discussing suchgravity of charges as shown, particularly charge Nos. 3, 4 and 5, merelyon the basis of the lesser charges made under charge Nos. 1 and 2, thePresiding Officer held that the punishment is disproportionate. Learnedsingle Judge has also failed to notice the aforesaid fact while dismissingthe writ petition.8. From the award it will be evident that the Presiding Officernoticed that the workman also absented earlier in the year 1981 whenpunishment of stoppage of two increments was imposed. He was alsosuspended subsequently for similar charge on 1st May, 1984.9. A case relating to unauthorised absence from duty fell forconsideration before the Supreme Court in North Eastern Karnataka R.T.Corporation – Vs – Ashappa & Anr. reported in 2006 (2) SC Service LawJudgments 141. In the said case, a conductor of a bus remained absentfrom duty unauthorisedly for a large period for which a departmentalproceeding was initiated. Opportunity was given to resume duties, but hehad not reported. Leave records suggested that earlier also he remainedabsent unauthorisedly from duty on several occasions. In the said case,Supreme Court held that in the circumstances, unauthorised absence fromduty of public utility service cannot be taken lightly, which amounts tograve misconduct.10. So far as the quantum of penalty is concerned, as pointed out, thePresiding Officer, Labour Court, merely held it higher on the basis ofcharge Nos.1 and 2, without discussing the effect of charge Nos.3, 4 and5, which were much grave in nature and for which the workman was held tobe guilty. Though departmental enquiry was upheld by Labour Court, asalso by learned single Judge, but while giving finding with regard to thequantum of punishment, it was not deliberated as to what should be theproportionate punishment, if removal from service was disproportionate.11. The question of quantum of punishment fell for considerationbefore Supreme Court in Regional Manager, UPSRTC, Etawah & Ors. - Vs –Hoti Lal & Anr. reported in 2003 (2) All India Services Law Journal 56.In the said case, the workman was found guilty of non-issuing tickets topassengers and not collecting correct fare. He was dismissed fromservice. In the said case, the High Court, though found that there was noflaw in the proceeding, yet reduced the penalty. While dealing with thescope of interference in such case, the Supreme Court observed asfollows :-"10. It needs to be emphasised that the Court or Tribunalwhile dealing with the quantum of punishment has to recordreasons as to why it is felt that the punishment does notcommensurate with the proved charges. As has beenhighlighted in several cases to which reference has beenmade above, the scope for interference is very limited andrestricted to exceptional causes in the indicatedcircumstances. Unfortunately, in the present case, thequoted extra acts of the High Court's order would go toshow, no reasons whatsoever have been indicated as to why https://hcservices.ecourts.gov.in/hcservices/ the punishment was considered disproportionate. Reasonsare live links between the mind of the decision taker tothe controversy in question and the decision or conclusionarrived at. Failure to give reasons amounts to denial ofjustice. See alexander Machinery Dudley Ltd. v. Crabtree,1974 LCR 120. A mere statement that it isdisproportionate would not suffice. A party appearingbefore a Court, as to what it is that the Court isaddressing its mind. It is not only the amount involvedbut the mental set up, the type of duty performed andsimilar relevant circumstances which go into the decision-making process while considering whether the punishment isproportionate or disproportionate. If the chargedemployee holds a position of trust where honesty andintegrity are inbuilt requirements of functioning, itwould not be promote to deal with the matter leniently.Misconduct in such cases has to be dealt with iron hands.Where the person deals with public money or is engaged infinancial transactions or acts in a fiduciary capacity,highest degree of integrity and trust-worthiness is mustand unexceptionable. Judged in that background,conclusions of the division Bench of the High Court do notappear to be proper. We set aside the same and restoreorder of learned single Judge upholding order ofdismissal."12. Learned counsel appearing on behalf of the workman submitted thatthe workman had attained the age of superannuation and thus nointerference is called for; the Labour Court had already disallowed backwages. Request was made to take a lenient view in the facts andcircumstances of the case.13. As stated above, it will be evident that the workman wasperforming a public duty. He was wireman, who was to give electricconnection. The electricity board generates its revenue only fromelectrical connection, which is given to its consumers. It can be wellimagined if such connections are given directly without any meter and thattoo, without any order of the superior authority. It has also not beenmade clear by the workman as to who asked him to give direct connection orto replace the meter. It is not the case of the workman that anyauthority asked him to replace such meter, or to give direct connection toanother consumer. This type of attitude of a wireman in suo motu takingup the matter to give direct connection to one or other consumer cannot betaken casually, as it not only affects the revenue of the electricityboard, but also the confidence of management on such workman. If themanagement loses its confidence on such workman, for such gravity ofcharges, it is not justified to take any lenient view for awarding lesserpunishment, than the punishment to which a person is actually entitled to.According to us, for the charges, particularly charge Nos.3, 4 and 5,any punishment less than removal from service will be disproportionateand, thereby, removal from service cannot be held to be harsh, it beingproportionate to the gravity of the charges. https://hcservices.ecourts.gov.in/hcservices/

14. We, accordingly, set aside the award dated 21st Oct., 1992, passedby Presiding Officer, Labour Court, Tirunelveli, as also the order dated16th April, 2001, passed by learned single Judge. The writ petition as waspreferred by workman is dismissed. However, if any amount has been paidto the workman in view of the interim order passed by this Court, theauthority will not recover the same. The writ appeal is allowed with theaforesaid observation. There shall be no order as to costs.GLNSd/-Asst.Registrar/true copy/ Sub Asst.RegistrarTo1. The Presiding Officer Labour Court Tirunelveli.2. The Superintending Engineer Chidambaranar Electricity Distribution Circle, T.N.E.B. Tuticorin.+1 cc to Mr.S.Ayyathurai, Advocate Sr.No.67755.SA(CO)dcp/20.11 W.A. NO. 2237 OF 2002