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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.