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CASE NO.:

Appeal (civil) 2554 of 2003

PETITIONER:

Hombe Gowda Edn. Trust & Anr.

RESPONDENT:

State of Karnataka & Ors.

DATE OF JUDGMENT: 16/12/2005

BENCH:

S.B. Sinha & P.P. Naolekar

JUDGMENT:

JUDGMENT

W I TH

CIVIL APPEAL NOS.2555-2557 OF2003

S.B. SINHA, J :

One Venkappa Gowda, Respondent No.3 herein, was at all material

times a lecturer in Kuvempu Mahavidyalaya, the Appellant No.2 herein.

The said institution is under the management of the Appellant No.1.

The private institutions in the State of Karnataka are governed by the

Karnataka Private Educational Institutions (Discipline and Control) Act,

1975, (for short, ' the Act').

The Respondent No.3 herein was subjected to a disciplinary

proceeding on an allegation that he had assaulted the Principal of Appellant

No.2 with a 'chappal'. He was found guilty of the said charge and dismissed

from service. An appeal was preferred by him before the Educational

Appellate Tribunal (for short, 'the Tribunal') in terms of Section 8 of the

said Act. The said Tribunal is constituted in terms of Section 10 thereof.

The proceeding before the said Tribunal by a legal fiction is treated to be a

judicial proceeding. It is not in dispute that the Appellant No.2 received

grant-in-aid from the State of Karnataka in terms of the Grant-in-Aid Code

framed by the Karnataka Collegiate Education Department. Before the

Tribunal, the State of Karnataka as also the Director of Collegiate Education

were impleaded as parties. A preliminary issue was framed as to whether

the departmental proceedings held against the Respondent No.3 was in

consonance with the provisions of Rule 14(2) of CCS (CCA) Rules. While

deciding the preliminary issue, it was held that the departmental proceeding

was invalid in law. The Appellants, therefore, adduced evidences before the

Tribunal to prove the charges against Respondent No.3. The Tribunal

having regard to the pleading of the parties formulated the following

questions for its determination :

"1. Whether the respondents 1 and 2 have

proved by acceptable evidence that allegation that the

appellant had absented from duty unauthorisedly and as

to whether his conduct was unbecoming of lecturer ?

2. Whether the evidence establishes that the

appellant had misbehaved on 18.1.87 and as to whether

he had indulged in physical assault upon the Principal?

3. If so, whether the punishment of dismissal

imposed upon the appellant is justified in this case and

if not what punishment he deserves?"

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Upon consideration of the evidence adduced before it, the Tribunal

held that the first charge had not been satisfactorily proved by cogent and

acceptable evidence. As regard the second charge, it was found :

"R.W. 1 has himself stated that he did not permit

appellant to sign the attendance register in the morning of

18.9.87. It led to verbal altercation and then turned to

heated argument. According to R.W. 1 appellant abused

him in the vulgar language as :

(Boli magane, Mudi goobe, Neenyaru nnann

Jekijethus)

RW. 1 pushed him. This particular part of his

evidence is sought to be corroborated to evidence of C.S

Dhanpal. Dhanpal has stated he was present in the

chamber of Principal when appellant arrived. He also

says that the Principal refused to permit appellant to sign

the attendance register. Dhanpal further stated that R.W.

1 told appellant he will not permit him to sign even

morning registers if he does not sign afternoon registers.

After hearing such talk Vankappagowda replied "It is not

a proper conduct of Principal" and rushed towards him.

Then Principal took away the register from

Venkappagowda At that juncture Venkappagowda

caught hold of his collar. Simultaneously Principal R.W.

1 pushed Venkappagowda down which resulted in his

fall. After falling down Venkappagowda got up and hit

the Principal with a chappal."

It was held :

Since I am only appreciating facts placed before

me, it is but necessary that the facts so projected should

be considered collectively and not in isolation. Each fact

spoken by the witnesses has woven a web clearly

indicating that all was not well between the Principal and

the appellant and therefore, incident on 18.9.87 took a

violent turn. The evidence has to be weighed according

to the norms of reasonable probabilities, but not in trade

mans scale. While doing this exercise I have formed an

opinion that the incident would not have occurred had the

Principal employed restrained upon his words and action.

Any way even the act of the appellant in using chapels to

assault the Principal cannot under any circumstances be

justified. Both persons involved are teachers what is

taught should be practiced. If what their action show is

any indication an impression is gathered that the

Principal and the appellant have acted in undesirable

manner and unbecoming of academitials to say the least

teachers, their acts are demeaning the profession they

have adopted\005"

Despite holding that although it could not be said that the Respondent

No.3 acted in retaliation to the action of the Principal, but such conduct was

not justifiable, he opined that the assault by the Respondent No.3 on the

Principal was proved. However, he awarded punishment of withholding of

three increments only in plea of the order of dismissal passed by the

Appellants.

It was further held :

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"The appellant shall be taken back to service and

will be entitled to all pecuniary benefits like salary and

allowances retrospectively from the date of dismissal

minus and subject to withholding of three increments.

The respondent 1 and 2 are held liable to make

payment of amount due to the appellant. I also hold

respondents 3 and 4 vicariously liable to discharge the

claim of the appellant.

Aggrieved, the Management, the State of Karnataka also the

Respondent No.3 preferred separate writ petitions before the Karnataka High

Court.

The High Court in its judgment came to the following findings :

"When the action of the petitioner in assaulting the

Principal with chappal stands proved by the evidence of

R.Ws. 1 to 5, whatever may be the provocation for such a

conduct, the said conduct of the Petitioner cannot be

justified under any circumstances. Therefore the

Tribunal was fully justified in holding that the

misconduct alleged against the Petitioner stands proved

partly."

The High Court noticed that the punishment imposed by the Tribunal

could not be given effect to as Respondent No.3 in the meantime reached the

age of superannuation within three months from the date of the order and,

thus, held that the Appellants should be directed to pay back wages to the

extent 60% only. It was further held that though the primary liability to

make such payment is that of the Management, when Management could

claim the same by way of advance grant or by way of reimbursement from

the Government, its liability to pay the said amount cannot be disputed.

Both the Management as also the State are, thus, in appeal before us.

Mr. R.S. Hegde and Mr. S.R. Hegde, the learned counsel appearing on

behalf of the Appellants in their respective appeals, would submit that as a

finding of fact was arrived at both by the Tribunal as also the High Court

that the Respondents committed a misconduct, which is grave in nature,

there was absolutely no justification in directing payment of 60% back

wages after setting aside the order of punishment of dismissal imposed by

the Management.

Mr. S.N. Bhatt, the learned counsel appearing on behalf of

Respondent No.3, on the other hand, would contend that a finding of fact has

been arrived at by the Tribunal which has been affirmed by the High Court

that it was the Principal who provoked Respondent No.3. It is not in

dispute, Mr. Bhat, submitted that the Principal was also at fault but curiously

enough he was not proceeded against. Both the Respondent No.3 and the

Principal of the College having been found guilty, it was argued, it was

obligatory on the part of the Management to initiate a departmental

proceeding also against the Principal. The Management of the Institution

being guilty of being selectively vindictive, Mr. Bhat urged, it is a fit case

where this Court should not exercise its discretionary jurisdiction under

Article 136 of the Constitution of India.

It was further submitted that the question should also be considered

from the angle that charge no. 1 framed against the Respondent No.3 was

not proved Our attention was also drawn to the fact that the Management

had sought for time for complying with the order of the High Court which

having been granted, the Appellants are estopped and precluded from

maintaining this appeal.

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It is now well-settled that by seeking extension of time to comply with

the order of the High Court by itself does not preclude a party aggrieved to

question the correctness or otherwise of the order of the High Court as

thereby a party to a lis does not waive his right to file an appeal before this

Court.

The Respondent No.3 is a teacher. He was charge-sheeted for

commission of a serious offence. He was found guilty by the Tribunal.

Both the Tribunal as also the High Court, as noticed hereinbefore, have

arrived at a concurrent finding of fact that despite grave provocation, the

Respondent No.3 cannot be absolved of the charges levelled against him. It

may be true that no departmental disciplinary proceeding was initiated

against the Principal of the Institution, but the same by itself would not be a

relevant fact for imposing a minor punishment upon the Respondent. It may

further be true that the Respondent No.3 committed the offence under a

grave provocation, but as noticed hereinbefore, the Tribunal as also the

High Court categorically held that the charges against him were established.

The Tribunal's jurisdiction is akin to one under Section 11A of the

Industrial Disputes Act. While exercising such discretionary jurisdiction, no

doubt it is open to the Tribunal to substitute one punishment by another; but

it is also trite that the Tribunal exercises a limited jurisdiction in this behalf.

The jurisdiction to interfere with the quantum of punishment could be

exercised only when, inter alia, it is found to be grossly disproportionate.

This Court repeatedly has laid down the law that such interference at

the hands of the Tribunal should be inter alia on arriving at a finding that no

reasonable person could inflict such punishment The Tribunal may

furthermore exercises its jurisdiction when relevant facts are not taken into

consideration by the Management which would have direct bearing on the

question of quantum of punishment.

Assaulting a superior at a workplace amounts to an act of gross

indiscipline. The Respondent is a teacher. Even under grave provocation a

teacher is not expected to abuse the head of the institution in a filthy

language and assault him with a chappal. Punishment of dismissal from

services, therefore, cannot be said to be wholly disproportionate so as shock

one's conscience.

A person, when dismissed from services, is put to a great hardship but

that would not mean that a grave misconduct should go unpunished.

Although the doctrine of proportionality may be applicable in such matters,

but a punishment of dismissal from service for such a misconduct cannot be

said to be unheard of. Maintenance of discipline of an institution is equally

important. Keeping the aforementioned principles in view, we may

hereinafter notice a few recent decisions of this Court.

In Management of Krishnakali Tea Estate v. Akhil Bharatiya Chah

Mazdoor Sangh and Anr. [JT 2004 (7) SC 333 = (2004) 8 SCC 200],

this Court held :

"This leaves us to consider whether the punishment of

dismissal awarded to the workmen concerned dehors the

allegation of extortion is disproportionate to the

misconduct proved against them. From the evidence

proved, we find the workmen concerned entered the

Estate armed with deadly weapons with a view to gherao

the manager and others, in that process they caused

damage to the property of the Estate and wrongfully

confined the manager and others from 8.30 p.m. on 12th

of October to 3 a.m. on the next day. These charges, in

our opinion, are grave enough to attract the punishment

of dismissal even without the aid of the allegation of

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extortion. The fact that the management entered into

settlement with some of the workmen who were also

found guilty of the charge would not, in any manner,

reduce the gravity of the misconduct in regard to the

workmen concerned in this appeal because these

workmen did not agree with the settlement to which

others agreed, instead chose to question the punishment."

Yet again in Muriadih Colliery v. Bihar Colliery Kamgar Union

[(2005) 3 SCC 331 = JT 2005 (2) SC 444], the law has been laid down in the

following terms :

"It is well-established principle in law that in a given

circumstance it is open to the Industrial Tribunal acting

under Section 11-A of the Industrial Disputes Act, 1947

has the jurisdiction to interfere with the punishment

awarded in the domestic inquiry for good and valid

reasons. If the Tribunal decides to interfere with such

punishment it should bear in mind the principle of

proportionality between the gravity of the offence and the

stringency of the punishment. In the instant case it is the

finding of the Tribunal which is not disturbed by the writ

courts that the two workmen involved in this appeal

along with the others formed themselves into an unlawful

assembly, armed with deadly weapons, went to the office

of the General Manager and assaulted him and his

colleagues causing them injuries. The injuries suffered by

the General Manager were caused by lathi on the head.

The fact that the victim did not die is not a mitigating

circumstance to reduce the sentence of dismissal."

[See also Mahindra and Mahindra Ltd. v. N.N. Narawade etc. \026 JT 2005 (2)

SC 583].

In V. Ramana v. A.P. SRTC and Others [(2005) 7 SCC 338], relying

upon a large number of decisions, this Court opined :

"The common thread running through in all these

decisions is that the court should not interfere with the

administrator's decision unless it was illogical or suffers

from procedural impropriety or was shocking to the

conscience of the court, in the sense that it was in

defiance of logic or moral standards. In view of what has

been stated in Wednesbury case the court would not go

into the correctness of the choice made by the

administrator open to him and the court should not

substitute its decision for that of the administrator. The

scope of judicial review is limited to the deficiency in

decision-making process and not the decision.

To put it differently unless the punishment imposed

by the disciplinary authority or the Appellate Authority

shocks the conscience of the court/Tribunal, there is no

scope for interference. Further to shorten litigations it

may, in exceptional and rare cases, impose appropriate

punishment by recording cogent reasons in support

thereof. In a normal course if the punishment imposed is

shockingly disproportionate it would be appropriate to

direct the disciplinary authority or the Appellate

Authority to reconsider the penalty imposed."

In Bharat Forge Co. Ltd. v. Uttam Manohar Nakate [(2005) 2 SCC

489], it was held :

"Furthermore, it is trite, the Labour Court or the

Industrial Tribunal, as the case may be, in terms of the

provisions of the Act, must act within the four corners

thereof. The Industrial Courts would not sit in appeal

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over the decision of the employer unless there exists a

statutory provision in this behalf. Although its

jurisdiction is wide but the same must be applied in terms

of the provisions of the statute and no other.

If the punishment is harsh, albeit a lesser punishment

may be imposed, but such an order cannot be passed on

an irrational or extraneous factor and certainly not on a

compassionate ground.

In Regional Manager, Rajasthan SRTC v. Sohan Lal

it has been held that it is not the normal jurisdiction of

the superior courts to interfere with the quantum of

sentence unless it is wholly disproportionate to the

misconduct proved. Such is not the case herein. In the

facts and circumstances of the case and having regard to

the past conduct of the respondent as also his conduct

during the domestic enquiry proceedings, we cannot say

that the quantum of punishment imposed upon the

respondent was wholly disproportionate to his act of

misconduct or otherwise arbitrary."

In M.P. Electricity Board v. Jagdish Chandra Sharma [(2005) 3 SCC

401], this Court held :

"In the case on hand, the employee has been found

guilty of hitting and injuring his superior officer at the

workplace, obviously in the presence of other employees.

This clearly amounted to breach of discipline in the

organisation. Discipline at the workplace in an

organisation like the employer herein, is the sine qua non

for the efficient working of the organisation. When an

employee breaches such discipline and the employer

terminates his services, it is not open to a Labour Court

or an Industrial Tribunal to take the view that the

punishment awarded is shockingly disproportionate to

the charge proved. We have already referred to the views

of this Court. To quote Jack Chan,

"discipline is a form of civilly responsible behaviour

which helps maintain social order and contributes to the

preservation, if not advancement, of collective interests

of society at large".

Obviously this idea is more relevant in considering the

working of an organisation like the employer herein or an

industrial undertaking. Obedience to authority in a

workplace is not slavery. It is not violative of one's

natural rights. It is essential for the prosperity of the

organisation as well as that of its employees. When in

such a situation, a punishment of termination is awarded

for hitting and injuring a superior officer supervising the

work of the employee, with no extenuating circumstance

established, it cannot be said to be not justified. It cannot

certainly be termed unduly harsh or disproportionate. The

Labour Court and the High Court in this case totally

misdirected themselves while exercising their

jurisdiction. The Industrial Court made the correct

approach and came to the right conclusion."

In Divisional Controller, KSRTC (NWKRTC) v. A.T. Mane [(2005) 3

SCC 254], this Court held :

"From the above it is clear that once a domestic

tribunal based on evidence comes to a particular

conclusion, normally it is not open to the Appellate

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Tribunals and courts to substitute their subjective opinion

in the place of the one arrived at by the domestic tribunal.

In the present case, there is evidence of the inspector who

checked the bus which establishes the misconduct of the

respondent. The domestic tribunal accepted that evidence

and found the respondent guilty. But the courts below

misdirected themselves in insisting on the evidence of the

ticketless passengers to reject the said finding which, in

our opinion, as held by this Court in the case of Rattan

Singh is not a condition precedent. We may herein note

that the judgment of this Court in Rattan Singh has since

been followed by this Court in Devendra Swamy v.

Karnataka SRT."

It was further held :

"Coming to the question of quantum of punishment,

one should bear in mind the fact that it is not the

amount of money misappropriated that becomes a

primary factor for awarding punishment; on the

contrary, it is the loss of confidence which is the

primary factor to be taken into consideration. In our

opinion, when a person is found guilty of

misappropriating the corporation's funds, there is

nothing wrong in the corporation losing confidence or

faith in such a person and awarding a punishment of

dismissal."

In Municipal Board of Pratabgarh and Another v. Mahendra Singh

Chawla and Others [(1982) 3 SCC 331], whereupon reliance has been placed

by Mr. Bhat, the employee concerned, an Overseer, having accepted a

paltry amount of Rs. 200/- was convicted and sentenced under Section 161

161 IPC. Upon taking into consideration various circumstances including

the fact that he was advanced in age, this Court modified the sentence of

dismissal from withholding of back wages from 31.08.1965 till the date of

reinstatement. No law had been laid down therein.

It is no doubt true, as has been contended by Mr. Bhat , in some

cases, this Court may not exercise its discretionary jurisdiction under

Article 136 of the Constitution of India, although it may be lawful to do so;

but the circumstances mentioned by Mr. Bhat for not exercising the said

jurisdiction do not appeal to us to accept the said contention.

Indiscipline in an educational institution should not be tolerated. Only

because the Principal of the Institution had not been proceeded against, the

same by itself cannot be a ground for not exercising the discretionary

jurisdiction by us. It may or may not be that the Management was

selectively vindictive but no Management can ignore a serious lapse on the

part of a teacher whose conduct should be an example to the pupils.

This Court has come a long way from its earlier view points. The

recent trend in the decisions of this Court seek to strike a balance between

the earlier approach of the industrial relation wherein only the interest of the

workmen was sought to be protected with the avowed object of fast

industrial growth of the country. In several decisions of this Court it has

been noticed that how discipline at the workplaces/ industrial undertaking

received a set back. In view of the change in economic policy of the

country, it may not now be proper to allow the employees to break the

discipline with impunity. Our country is governed by rule of law. All

actions, therefore, must be taken in accordance with law. Law declared by

this Court in terms of Article 141 of the Constitution of India, as noticed in

the decisions noticed supra, categorically demonstrates that the Tribunal

would not normally interfere with the quantum of punishment imposed by

the employers unless an appropriate case is made out therefor. The

Tribunal being inferior to that of this court was bound to follow the

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decisions of this Court which are applicable to the fact of the present case in

question. The Tribunal can neither ignore the ratio laid down by this Court

nor refuse to follow the same.

In Dwarikesh Sugar Industries Ltd. v. Prem Heavy Engineering

Works (P) Ltd. And Another [(1997) 6 SCC 450], it was held :

"When a position, in law, is well settled as a result of

judicial pronouncement of this Court, it would amount to

judicial impropriety to say the least, for the subordinate

courts including the High Courts to ignore the settled

decisions and then to pass a judicial order which is

clearly contrary to the settled legal position. Such judicial

adventurism cannot be permitted and we strongly

deprecate the tendency of the subordinate courts in not

applying the settled principles and in passing whimsical

orders which necessarily has the effect of granting

wrongful and unwarranted relief to one of the parties. It

is time that this tendency stops."

[See also Ajay Kumar Bhuyan and Ors. etc. v. State of Orissa and Ors. etc.

(2003) 1 SCC 707].

Yet again in M/s D. Navinchandra and Co., Bombay v. Union of

India and Ors. [(1987) 3 SCC 66], Mukharji, J (as His Lordship then was)

speaking for a three-Judge Bench of this Court stated the law in the

following terms :

"\005Generally legal positions laid down by the court

would be binding on all concerned even though some of

them have not been made parties nor were served nor any

notice of such proceedings given."

For the reasons aforementioned, the impugned judgments cannot be

sustained, which are set aside accordingly. The appeals are allowed.

However, in the facts and circumstances of the case, there shall be no order

as to costs.