Important Point
Verbal abuse by an employee to his superior officer can be sufficient to inflict punishment of dismissal.

Headnote:(i) Service Law—HMT Ltd. Conduct, Discipline and Appeal Rules—Appellant employed as Safety Officer was placed under suspension on allegation of misconduct and he preferred appeal before Labour Commissioner—On completion of enquiry show cause was issued for punishment of dismissal—Appellant was dismissed from service on 21-2-1998—Labour Commissioner by his order dt.—12-4-1998 allowed appeal of appellant against order of suspension—Writ petition filed by respondent allowed by High Court—Appeal—No material to accept contention that disciplinary proceedings were actuated by malice—Enquiry Officer had held appellant guilty of misconduct in respect to charge No. 2 and exonerated of charge 1 and 3—Labour Commissioner misdirected himself in passing the order as appellant had admitted to have made abusive utterances for his officer—Order of suspension was passed not as a measure of penalty within meaning of Rules—As regards quantum of punishment, verbal abuse was sufficient for inflicting punishment of dismissal—No reason to interfere.
       (ii) Constitution of India—Article 226—Exercise of jurisdiction in face of availability of alternative remedy—Writ Court may exercise its discretionary jurisdiction of judicial review—Once writ had been entertained and determined on merits, appellate court except in rare cases would not interfere therewith only on ground of existence of alternative remedy.
       Held : The High Court in exercise of its jurisdiction under Article 226 of the Constitution, in a given case although may not entertain a writ petition inter alia on the ground of availability of an alternative remedy, but the said rule cannot be said to be of universal application. Despite existence of an alternative remedy, a writ court may exercise its discretionary jurisdiction of judicial review inter alia in cases where the court or the tribunal lacks inherent jurisdiction or for enforcement of a fundamental right or if there has been a violation of a principle of natural justice or where vires of the act is in question. In the aforementioned circumstances, the alternative remedy has been held not to operate as a bar. [See Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and Others, 1998(1) SCC 1, Sanjana M. Wig (Ms.) v. Hindustan Petroleum Corpn. Ltd., (2005) 8 SCC 242, State of H.P. and Others v. Gujarat Ambuja Cement Ltd. and Another, (2005) 6 SCC 499. In any event, once a writ petition has been entertained and determined on merit of the matter, the appellate court, except in rare cases, would not interfere therewith only on the ground of existence of alternative remedy. [See Kanak (Smt.) and Another v. U.P. Avas Evam Vikas Parishad and Others, (2003) 7 SCC 693]. (Paras 20 & 21)
       (iii) Service Law—Dismissal—Verbal abuse of an employee to his superior officer can be held to be sufficient for inflicting the punishment of dismissal. (Para 22)

JUDGMENT

S.B. Sinha, J.—Leave granted.

2. The Appellant was employed by the Respondent herein as a Safety Officer. On an allegation that he had committed acts of misconduct, he was placed under suspension. He preferred an appeal before the Labour Commissioner in terms of Rule 14 of the U.P. Factories (Safety Officers) Rules, 1984 (for short “the Rules”).

3. A writ petition was filed by him which was disposed of directing that the appeal preferred by him against the order of suspension be disposed of by the Labour Commissioner within the period specified therein. On completion of enquiry, a show cause notice was issued to him on 8.01.1998 as to why punishment of dismissal be not awarded.

4. In the meanwhile, the Labour Commissioner issued notice to the Respondent directing it to appear on 2.4.1998. A prayer for adjournment made by the Respondent herein that the matter be posted after 15.4.1998 as the officers were busy in relation to closing of financial year, was refused 9.4.1998 was the date fixed for hearing of the parties which was a holiday. The memo of appeal was also not furnished to the Respondent. In the meanwhile, upon considering the show cause filed by the Appellant, herein, he was dismissed from service by an order dated 21.02.1998. The Labour Commissioner by reason of an order dated 12th April, 1998 allowed the appeal preferred by the Appellant, herein against the order of suspension dated 20th May, 1996. Being aggrieved by and dissatisfied therewith the Respondent filed a writ petition before the Uttaranchal High Court which by reason of the impugned judgment and order has been allowed.

5. Mr. Ashok Desai, learned senior counsel appearing on behalf of the Appellant raised the following contentions :

(i) The action of the Respondent in initiating a departmental proceeding against the Appellant was actuated by malice as a criminal case came to be registered against the Management at his instance.

(ii) Suspension being one of punishments within the meaning of Rule 8 of the Rules, the impugned order of dismissal could not have been passed for commission of the same offence.

(iii) In view of the alternative remedy available to the Respondent as they could prefer an appeal against the order passed by the Labour Commissioner in terms of sub-rule (3) of Rule 14 of the Rules, the writ petition was not maintainable.

(iv) In any event, the quantum of punishment is wholly disproportionate to the charges of misconduct.

6. Mr. Sunil Gupta, learned senior counsel appearing on behalf of the Respondent, on the other hand, would submit that :

(i) as the factum of misconduct was not questioned by the Respondent, the order of punishment cannot be said to be illegal.

(ii) whereas suspension by way of punishment is provided for in the Rules, the conduct rules framed by the company provides for suspension during pendency of a departmental proceeding and having regard to the fact that the Appellant herein accepted the subsistence allowance without any demur whatsoever, he now cannot turn round and contend that the order of suspension could have been passed only in terms of the Rules.

7. The Appellant was appointed as a welfare officer. The terms and conditions of his services indisputably were governed by the Rules framed in terms of Section 40-B of the Factories Act, 1948. Rules 4, 5 and 8 of the Rules which are relevant for our purposes read as under :

“4. Pay, allowances and other benefits. The scale of pay, allowances and other benefits such as Leave, Provident Fund, Bonus, Gratuity, Medical facilities, Residence, etc., to be granted to the Safety Officer and other conditions of their service shall be the same as those of other officers of corresponding status in the factory.

5. Status The Chief Safety Officer or the Safety Officer in the case of factories where only one Safety Officer is required to be appointed shall be given the status of a departmental head or a senior executive in the factory and he shall work directly under control of the Ch

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2006 Supreme(SC) 83

Important PointVerbal abuse by an employee to his superior officer can be sufficient to inflict punishment of dismissal.

Cases Referred (6)

Important Point
Verbal abuse by an employee to his superior officer can be sufficient to inflict punishment of dismissal.