2006 Supreme(SC) 1130

2007(1) Supreme 612
SUPREME COURT OF INDIA
(From Kerala High Court)
G.P. Mathur and Dalveer Bhandari, JJ.
Govt. of India & Anr.—Appellants
versus
George Philip—Respondent
Civil Appeal No. 4998 of 2006
(Arising out of SLP (C) No. 2023 of 2006)
Decided on 16-11-2006
Counsel for the Parties :
For the Appellants : Vikas Singh, A.S.G., Ms. Anita Sahani, D.S. Mahra and Ms. Amrita Narayan, Advocates.
For the Respondent : Raju Ramachandran, Sr. Advocate, Venkat Subramaniam T.R. and G. Ramakrishna Prasad, Advocates.

IMPORTANT POINT
Tribunal or High Court exercising jurisdiction under Article 226 of the Constitution are not hearing an appeal against decision of disciplinary authority imposing punishment upon delinquent employee.

Headnote:SERVICE LAW—Order of compulsory retirement—Respondent working as Scientific Officer in Bhabha Atomic Research Centre applied for leave for two years for advance research training in Plasma Physics as he was granted Common Wealth Scholarship and leave was sanctioned—He over stayed for more than two years of the leave period and failed to join duty after expiry of leave despite notices—Charge of over staying the leave was found established and penalty of removal from service was imposed on 18.12.1990—Tribunal found that charge had been established but quashed the punishment with direction to competent authority to consider question of quantum of punishment afresh—Appellant passed fresh order imposing penalty of compulsory retirement from service—Tribunal set aside the order and directed reinstatement with full back wages—High Court upheld the order of reinstatement but held respondent not entitled to back wages—Appeal—Leave sanctioned to respondent was subject to condition that respondent shall not register for Ph.D. degree and respondent before availing leave gave an undertaking to that effect—Respondent joined Ph.D. degree which showed he did not state correct facts and violated his undertaking—Tribunal or High Court exercising jurisdiction under Article 226 of the Constitution of India are not to hear it as appeal against decision of disciplinary authority imposing punishment—Power of judicial review was restricted only where there was substantial non compliance of rules of procedure or gross violation of rules of natural justice resulting in miscarriage of justice—Punishment of compulsory retirement could not be held to be disproportionate to charge proved against respondent—Impugned judgment was liable to be set aside.

       Held : It requires to be noticed that while seeking permission of the Central Government to proceed to Canada, the respondent had clearly mentioned that the purpose of his visit was “for advance research training in Plasma Physics” and the duration of the training was “two years”. In the order dated 8.2.1982 passed by the Department of Atomic Energy, Government of India, it was clearly mentioned that the respondent is being sanctioned extraordinary leave for a period of two years and this was subject to the condition that he should not register for Ph.D. degree and that no extension of leave beyond two years will be granted. The respondent also gave an undertaking on 9.2.1982 that he would not register himself for a Ph.D. degree and that he would not request extension of leave during the training abroad. In fact, the leave order dated 6.9.1982 clearly specified that the period of leave was from 24.8.1982 to 23.8.1984 and the said period of leave will count for increment. The fact that the respondent enrolled himself for a Ph.D. degree shows that he did not state the correct facts while moving the application to the Ministry of Education for award of Commonwealth Scholarship and while seeking permission to go abroad and applying for leave. His intention right from the beginning was to somehow get a scholarship in order to join a University in Canada for award of a Ph.D. degree. There can be no manner of doubt that he violated the undertaking given by him that he would not register for a Ph.D. degree and would not request for extension of leave. Though as many as 8 notices and telegrams were sent to the respondent refusing his request for extension of leave and asking him to report for duty, but he chose to overstay the leave by over two years. In the enquiry the charges were found to have been proved and this finding was affirmed by the Tribunal in its first order dated 6.1.1994. It is indeed surprising that when the respondent challenged the order of compulsory retirement passed thereafter, the Tribunal went into the question as to whether the charges are proved or not and after examining the evidence again which it was not entitled to do, directed for reinstatement with full back wages and issued a further direction that the period of his absence shall be counted as period on duty for all purposes. This is clearly illegal as the order dated 6.1.1994 passed by the Tribunal affirming the findings recorded in the enquiry had not been challenged by the respondent and the only issue before the Tribunal was the quantum of punishment which had been imposed upon the respondent as a consequence of the direction issued in the first order of the Tribunal dated 6.1.1994. The High Court has observed that the benefit granted by the Tribunal cannot be denied to the respondent since it did not find any illegality in its approach excepting the direction regarding the wholesale back wages. With respects, the High Court failed to notice that the findings in enquiry having been affirmed by the Tribunal at the first stage, it was not open to the Tribunal while hearing the O.A. challenging the award of punishment of compulsory retirement, to go into the question regarding establishment of charge against the respondent. Thus, the second order of the Tribunal dated 17.9.1999 and the order passed by the High Court dated 10.8.2005 in that regard are clearly illegal. (Para 7)

       It is trite that the Tribunal or the High Court exercising jurisdiction under Article 226 of the Constitution are not hearing an appeal against the decision of the disciplinary authority imposing punishment upon the delinquent employee. The jurisdiction exercised by the Tribunal or the High Court is a limited one and while exercising the power of judicial review, they cannot set aside the punishment altogether or impose some other penalty unless they find that there has been a substantial noncompliance of the rules of procedure or a gross violation of rules of natural justice which has caused prejudice to the employee and has resulted in miscarriage of justice or the punishment is shockingly disproportionate to the gravamen of the charge.(Para 9)

       We are, therefore, of the opinion that in the facts and circumstances of the case, the punishment of compulsory retirement imposed upon the respondent cannot be held to be disproportionate, much less shockingly disproportionate, and there was absolutely no ground on which the Tribunal or the High Court could interfere with the order passed by the appellants. (Para 12)