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2012 Supreme(J&K) 677
JAMMU & KASHMIR HIGH COURT
M.M.Kumar; CJ, Mohammad Yaqoob Mir, JJ.
State of J&K & Ors. -Appellant
Versus
Mushtaq Ahmad Sohail & Ors. -Resopndent
LPA(SW) No. 33/2010, CMA No. 54/2010
Decided On : 20-12-2012
M.I. Qadri, Advocate General, with Gagan Basotra, Sr. AAG , G. S. Thakur, GA. for the Appellant(s).
Mr. O. P. Thakur for the Respondent(s).
The principle of proportionality in punishment and the need for a reformative approach with additional disciplinary measures.
Headnote:
Termination - Misconduct - Industrial Dispute Act - Section 36 of the Police Act - [Jaswant Singh v. Pepsu Roadways Transport Corp., AIR 1984 SC 355; Scooter India limited, Lucknow v. Labour Court Lucknow, AIR 1989 SC 149]
Fact of the Case:
The appellants, employees of the respondent company, were involved in consuming liquor in the office, creating nuisance, and subsequently being convicted under Section 36 of the Police Act. Their services were terminated, leading to a legal dispute.
Finding of the Court:
The court found that while the misconduct was deplorable, the termination was disproportionate, and a reformative approach was necessary. It referenced previous judgments to support the reinstatement without back wages but with additional disciplinary measures.
Issues: The main issue was whether the termination of the appellants' services was proportionate to the misconduct committed.
Ratio Decidendi: The court applied the principle of proportionality in punishment and referenced previous judgments to support a reformative approach with additional disciplinary measures.
Final Decision: The judgments impugned were set aside, and the appellants were ordered to be reinstated without back wages but with additional disciplinary measures.
1. The appellants admittedly were employees of respondent no. 1 (Company). On 7-10-1988, were working as General Duty Clerk in its branch at Shalimar Road, Jammu. They allegedly consumed liquor in the office of the Company at Shalimar Road, Jammu on 07.10.1988. Under the influence of liquor so consumed while coming out of the said office allegedly started quarreling, which gave rise to nuisance on the Shalimar Road, near City Chowk, Jammu, as a result thereof, both were arrested under Section 36 of the Police Act and produced before the learned Chief Judicial Magistrate, Jammu. On conviction have been sentenced to pay fine of Rs. 50/each.
2. Respondent-Company placed the appellants under suspension. Thereafter requisite enquiry was conducted and finally their services were terminated. The appellants projected their grievances before the Conciliation Officer under the J&K Industrial Dispute Act, but failure of the conciliation culminated in referring the case to respondent no. 3. The termination orders have been quashed by Labour Court (respondent no. 3).
3. Dissatisfied with the order of respondent no. 3, respondent no. 1 company filed a Writ petition OWP No. 977/2002 and 976/2002, which have been allowed vide judgments impugned, termination of the appellants was held to be correct and the order passed by respondent no. 3 (Presiding officer, Industrial Tribunal, Labour Court J&K, Jammu) was set aside.
4. By the medium of these Appeals, judgments rendered by the learned Single Judge have been assailed.
5. Learned counsel for the appellants made various submissions and finally contended that the order of termination is disproportionate for the act committed. In support of his submissions, placed reliance on the judgment rendered by the Apex Court in case titled Jaswant Singh v. Pepsu Roadways Transport Corp. and another, AIR 1984 SC 355 and also on the judgment rendered in case titled Scooter India limited, Lucknow v. Labour Court Lucknow and others, AIR 1989 SC 149.
6. In opposition, it is contended that for the act committed by the appellant, the order of termination was quite appropriate.
7. Actual occurrence i.e., consumption of liquor, creating nuisance in City Chowk, Jammu, police action followed by order of conviction for the offence under Section 36 of the Police Act and fine of Rs. 50/- each, passed by the Court of Chief Judicial Magistrate, Jammu has not been challenged.
8. The important aspect of the matter is, as to whether, appellants should be allowed to rotten or reformative approach would be proper. It is not only appellants but their family who shall be ultimate sufferers for no fault of theirs. Penalty for misconduct shall be adequate but not disproportionate. In the judgment titled Jaswant Singh v. Pepsu Roadways Transport Corpn and another (supra) a driver while on duty had consumed liquor, on enquiry was dismissed from service by the Corporation. Labour Court opined that punishment of dismissal from service is on the heavier side, reinstatement was ordered denying back wages. The said order was challenged before the Single Judge, which was set aside and punishment of dismissal was confirmed. Following portion of Para No. 4 of the judgment is relevant to be quoted:-
"..we are of the opinion that the Labour Court was right and justified in directing reinstatement of the appellant in service. Further appellant is not entitled to back wages for the reasons that appealed to Labour Court. This is not adequate penalty for the misconduct proved. In our opinion to keep the appellant within the bounds of well-disciplined conduct a further punishment is also called for and should be imposed so that our humanistic approach may not induce him to repeat his intemperate performance. Accordingly, we direct that the appellant should not be given three incre#31;ments in the time scale in which he would be reinstated, for the next three years. For all other benefits he will be treated as continuing in service. The appe
