1. The order passed by the learned Single Judge of this Court in the case of M. Siddappa v Board of Governors, Indian Institute of Management, Bangalore (ILR 2006 Kar.3192: 2006 (5) AIR Kar.R.388), dated 26th July, 2006 in Writ Petition No.29639 of 1993 (S) is under challenge by the aggrieved respondent-India Institute of Management, which is a premier National Institute Imparting Education in Management Studies. By the impugned order, the penalty of dismissal from service ordered by the Management vide its order dated 9-7-1993 against their delinquent employee/respondent herein passed by the Secretary of the appellant-Board, is quashed with all monetary benefits.
2. An undisputed fact of the case is, the respondent-charge-sheeted official (‘C.S.O.’ for short) herein joined the service of the appellant-Management in the year 1974 as a Research Fellow. He was designated as Assistant Professor on 16-1-1986. He was an active Trade Union leader and was the elected Vice-President of the Indian Institute of Management Employees’ Association. He was issued Articles of Charges on 10-7-1987 alleging misconduct of assaulting one Padmanabhan Nair; that on 18-7-1986, the respondent along with five employees of the Institute with an object and common intention of preventing one Padmanabhan Nair, Mechanic in the Transport Department, from discharging has official duties, surrounded him; the respondent caught hold of his collars and hit him on his left cheek and one N. Ramesh fisted him on his lips and tried to strangulate him, while four others incited, cheered up and abetted the assault, thereby they committed misconduct under Rule 11.3(i) and 11.3(iii) of the Indian Institute of Management, Bangalore Service Rules ('Service Rules’ for short).
The respondent-C.S.O. denied the charges. Not being satisfied with the explanation, joint domestic enquiry was initiated and the Enquiry Officer was appointed. During the course of enquiry, it appears, three Enquiry Officers had to be changed, and fourth one concluded the enquiry. Enquiry Officer submitted his report dated 28-4-1993 holding that the charges leveled against all the six employees are proved. The Disciplinary Authority accepted the enquiry report and vide order dated 9-7-1993 dismissed him from service. In the meantime, on the complaint lodged by Padmanabhan Nair, the jurisdictional Police registered a case against six employees in respect of offences punishable under Sections 143, 147, 332 and 449 of the Indian Penal Code, 1860. However, the accused 3 to 6 were discharged and only 1st and 2nd accused (respondent and N. Ramesh) were sent for trial. Said order though challenged by the State before the District Court and subsequently before this Court, it was not interfered. Accused 1 and 2 were charged for the offence punishable under Section 323 of IPC only and after full-fledged trial, they were acquitted of the charges.
3. The revision petition filed by the prosecution before the District Court came to be dismissed. The criminal petition filed under Section 482 of Criminal Procedure Code, 1973 by the State was dismissed by this Court in Criminal Petition No.82 of 1990 vide order dated 2-4-1990. The respondent was acquitted from the criminal case vide judgment dated 27-8-1993 subsequent to the conclusion of the disciplinary proceedings. One of the C.S.Os. of the same enquiry viz., R.V. Krishnamurthy against whom also the charges were held proved and who was removed from service vide order dated 13-7-1993, approached the Labour Department. After failure of the statutory conciliation, the State referred the dispute to the Labour Court under Section 10(1)(c) of the Industrial Disputes Act, 1947. The Labour Court in Ref.No.1 of 1999 vide award dated 18-8-2000 set aside the punishment order impugned therein by awarding 75% of back wages from the date of dismissal till reinstatement. Writ petition and the subsequent writ appeal filed by the Management challenging the award came to be dismissed. It is also a fact that, other four codelinquent employees, who were jointly tried for the misconduct during the joint enquiry and imposed punishment, entered into settlement with the Management and availed monetary benefits. The C.S.O. brought the lis to this Court under Article 226 of the Constitution of India and sought for quashing the dismissal order and for his service benefits.
4. When the matter came up for consideration before the learned Single Judge, he framed following five points for his consideration on the controversy between the parties.
'1. Whether the disciplinary enquiry proceedings are initiated by an incompetent authority and as such, the entire enquiry proceedings are vitiated?
2. Whether the petitioner was denied reasonable and adequate opportunity to defend himself in the enquiry proceedings?
3. Whether the acquittal of petitioner in criminal proceedings would bar the respondents from holding disciplinary proceedings and to levy a penalty of dismissal?
4. Whether the findings of the Enquiry Officer are supported by legally acceptable evidence on record?
5. Whether the petitioner is victimized and the penalty of dismissal is disproportionate to the nature of charges?'
Though the issues 3 and 5 were answered in the affirmative, issues 1, 2 and 4 have gone against the Management and the dismissal order is quashed.
5. Sri S.S. Ramdas, learned Counsel appearing for the appellant-Management submits that, the appellant is a Registered Society under the Karnataka Societies Registration Act, 1960 and one of the four National Institutes. It conducts Post-graduate and Doctorate Programmes in Management Studies apart from conducting Training Programmes for various Company Executives. The students are selected on merit on All India basis. The faculty of the Institute are eminent scholars from India and abroad. It maintains high standard of discipline amongst its employees. Research Scholars and Members of the faulty are expected to contribute towards research activity.
6. The respondent joined the service of appellant-Management on 11-11-1974 on a Research Scholarship; in October 1973, to enable him to complete his Ph.D. though scholarship period was extended twice, he did not obtain Ph.D. He became Vice-President of the Union in the year 1979. He was offered one year contract appointment as a Research Fellow during which period he was expected to complete Ph.D., failing which the contract was to end. His contract came to an end on 17-12-1979; by the time he approached Karnataka Educational Appellate Tribunal and obtained interim stay of termination of his contract, though subsequently his appeal came to be rejected, during the pendency of the appeal, similar matters were preferred for arbitration before the Chief Labour Commissioner. While the Tribunal dismissed his appeal on 11-12-1985, on his request, the Arbitrator recommended for appointment to the post of Faculty Research Associate. Following the same, he was offered the position of Faculty Research Associate on 16-1-1986. The departmental enquiry in question was dragged on for five years due to the attitude of the delinquent employee in obstructing smooth progress of the enquiry. The events of the disciplinary proceedings were checkered at every stage as listed by the Enquiry Officer in his enquiry report.
7. The learned Single Judge while quashing the dismissal order has placed heavy reliance on the result of the criminal proceedings whereby the employee was acquitted of the charges. But it should be borne in mind that by the time enquiry report was submitted, the criminal case was not yet concluded. It is well-settled, that there is no bar for the departmental enquiry to proceed despite initiation of criminal proceedings by the State. The standard of proof in a departmental enquiry is on a different parameter from that of a criminal case. While the criminal case demands proof beyond reasonable doubt, in a departmental enquiry, the requirement is mere satisfaction of the employer about the culpability of the employee in the alleged incident. The sufficiency or insufficiency of the evidence to prove the misconduct will not come into picture. Full Bench of this Court in the matter of T.V. Gouda v State of Mysore and Another (ILR 1975 Kar.895 (FB)), while answering the reference on consideration of previous decisions of this Court, various other High Courts and the Apex Court held 'an order of Criminal Court acquitting the accused on the merits of a case would not bar the Disciplinary Authority from holding him guilty, by imposing punishment in disciplinary proceedings under the Mysore (Karnataka) Civil Services (Classification, Control and Appeal) Rules on the basis of the same facts and accusations in respect of which he was tried and acquitted by the Criminal Court'. That is the legal position by virtue of various judicial pronouncements of Apex Court also.
8. Enquiry was held in full compliance of the Service Rules applicable to the employee of the appellant-Management and strictly adhering to principles of the audi alteram partem. The CSO was given full opportunity during the enquiry to defend himself against the charges. Management examined 4 witnesses and produced 56 documents. During the rebuttal evidence, the C.S.O. examined 19 witnesses and marked 94 documents. The Enquiry Officer on consideration of the entire material on record, held that the charges are proved against the C.S.O. The Board of Governors of the appellant-Management on the basis of the enquiry report and also considering the remarks submitted by the C.S.O. to the enquiry report accepted the report. Having regard to the gravity of misconduct, he is dismissed from service. The said punishment order is in accordance with Rule 12.4.1 of Service Rules of the appellant-Management. The scope of interference of the Court under Article 226 of the Constitution is very limited. Writ Court is not an Appellate Authority while exercising its jurisdiction of judicial review and cannot reappraise the evidence. The scope of the Court is limited only to the extent of correction of law and procedural errors leading to manifest injustice or violation of principles of natural justice, as held by Apex Court in Rae Bareli Kshetriya Gramin Bank v Bhola Nath Singh and Others (AIR 1997 SC 1908: 1997 SCC (L and S) 865: 1999-I-LLJ-947 (SC): (1997) 3 SCC 657) and State Bank of India v Ram Lal Bhaskar and Another ((2011) 10 SCC 249). When there is evidence supporting the Enquiry Officer’s report, learned Single Judge could not have reversed the order of the Disciplinary Authority on the ground of approach of the Enquiry Officer, perversity of the judgment; that is not in accordance with the ruling of the Apex Court in the matter of R.S. Saini v State of Punjab and Others (AIR 1999 SC 3579: 1999-I-LLJ-1415 (SC): 1999 SCC (L and S) 1424: (1999) 8 SCC 90). Adequacy or reliability of the evidence cannot be canvassed as laid down in The High Court of Judicature at Bombay v Shashikarant S. Patil and Another (AIR 2000 SC 22: (2000) 1 SCC 416: 2000 SCC (L and S) 144) and also in Union of India and Others v P. Gunasekaran (AIR 2015 SC 545). In the light of the above, the learned Single Judge was not justified in returning his finding that on surmises and conjectures to the Enquiry Officers has held charges proved.
9. Further Sri Ramdas addressing the proportionality of the punishment submits that the settlement arrived between the Management and the other employees who were found guilty by the Enquiry Officer is a different aspect of the matter. The appellant being a reputed Institution of Management is the only one of its kind in South India; the standard of conduct and behaviour expected of a faculty member is much more than that of the other staff employees. He shall be a role model to the Fellow Researchers and Scholars. The aggressive conduct of voluntarily causing hurt on an employee of the Management, who was a Mechanic, in the premises of the Management, which is proved during the enquiry amounts to unbecoming of an employee under the Karnataka Civil Services (Conduct) Rules, 1966 warranting punishment of dismissal under Rule 12.4.1 (vi) of the Service Rules. It is in the highest wisdom of the employer to impose appropriate punishment on its employee for the proved misconduct. The punishment so imposed cannot be interfered unless it is shockingly disproportionate to the misconduct proved. The scope of judicial review in the matter of penalty or punishment is very limited as held in the case of Mithilesh Singh v Union of India and Others (AIR 2003 SC 1724: 2003 SCC (L and S) 271: (2003) 3 SCC 309) and also in Hombe Gowda Educational Trust and Another v State of Karnataka and Others ((2006) 1 SCC 430: 2006-I-LLJ-10044 (SC): 2006 SCC (L and S) 133).
10. Sri Ramdas, continues his persuasive submission that the respondent herein does not stand on the same footing as that of Keshava whose dismissal order was set aside by the award of the Labour Court for the simple reason that said Keshava was an employee of ‘workman’ category while the respondent herein is of supervisory grade. Standard of conduct and behaviour of a faculty member cannot be equated with that of a workman category employee such violent behaviour by a faculty member would send wrong signal to others. The learned Single Judge in a cryptic manner has recorded that the employee is victimised due to his Trade Union activities. The term 'victimisation' as understood in the legal parlance is otherwise. When the alleged misconduct is proved in a properly held departmental enquiry and the punishment is imposed having regard to the gravity of misconduct proved during the enquiry, the question of victimisation will not arise. There is not even a scintilla of material to presume that the Management had acted maliciously and vindictively actuated by an intention to punish him for his trade union activities. During the enquiry all his requests were heeded to. He was provided subsistence allowance during the enquiry period. The criminal case failed because of the failure of the prosecution to prove the charges beyond reasonable doubt but in the case on hand, the evidence of the victim of the incident was corroborated by the evidence of independent witnesses. The Apex Court in the matter of M/s. Bharat Iron Works v Bhagubhai Balubhai Patel and Others (AIR 1976 SC 98: (1976) 1 SCC 518: 1976 SCC (L and S) 92), observed '…A proved misconduct is antithesis of victimisation as understood in industrial relations……'. This is not a case where the respondent alone was targeted by showing consideration to other respondent, who were similarly placed with him. Since others entered into settlement with the Management, they were given monetary benefits. The respondent is not discriminated in the matter of punishment. The order of the learned Single Judge in setting aside the dismissal order with the result of monetary benefit it is not legal and is liable to be set aside.
11. In reply, Sri P.N. Hegde, learned Counsel appearing for the respondent-C.S.O. submits that, the criminal proceedings and departmental enquiry were based on the same incident, the charges were similar, the documents relied and the witnesses examined were one and the same. In the back drop of the said circumstance learned Single Judge has held that it was not fair to allow departmental enquiry to go on when the criminal case has ended in acquittal, that too, not on technical ground but on merits and it was an honourable acquittal. There is no gainsay in the position of law that the interference of Writ Court under Article 226 of the Constitution of India is not called for in a disciplinary proceeding. It is also trites that this Court or the Apex Court under Article 226 of the Constitution of India can interfere with the order of quasi-judicial authority when its finding is based on no evidence. The learned Single Judge took note of infirmities in the Enquiry Report and also the subsequent developments (acquittal from the criminal charges) has passed the impugned order which is always permissible under law to meet the ends of justice. The allegation was, the C.S.Os. indulged in forming unlawful assembly with a common object and intention of preventing Mr. Padmanabhan Nair from discharging his official duty of reporting of the conditions of the motor vehicle and misuse of the motor cycles to the Management and in furtherance of the same assaulted him. It was incumbent upon the Management during Department Enquiry to prove said allegation that the C.S.Os. misused the vehicle belonging to the institution, which they failed. Sri Padmanabhan Nair was not duty-bound to report the condition of the motor vehicle and misuse of the vehicle. The delinquent employees did not have prior knowledge of visit of Nair at the alleged place and time and had no reason to form common object and intention to stop Mr. Nair from reporting the misuse when they saw him. M.W.1-V.S. Gopinatha Rao and M.W. 4-M.R. Suryanarayana Shastry, Transport Superintendent have not stated about misuse of the vehicle during relevant time. The victim of the incident K. Padmanabhan Nair-M.W.2 was only a Mechanic in the garage of the Transport Department and he was not in charge of submitting any report of the vehicle to the Transport Department. Even M.W.1 and M.W.4 had categorically stated during cross-examination that they had not instructed Padmanabhan Nair to report about misuse of the vehicle. The evidence of Mr. Nair was inconsistent; except himself, none of the other witnesses had stated either in the criminal case or during the domestic enquiry that they had actually witnessed the delinquent employees assaulting Padmanabhan Nair. A story was developed subsequently that Nair had bleeding during incident, however, it was not stated so in the complaint lodged to the Police at the earliest point of time or in the complaint given to the Management. The witnesses, who accompanied the injured to the Hospital and the Police Station, were not examined. The wound certificate from Jayanagar Hospital where he was immediately treated was not produced. The material object/the bloodstained cloth alleged to have been seized by the Enquiry Officer was quietly substituted by another shirt, as emerges from the evidence of the Police Officer. The Hospital documents did not form part of the charge memo. As per the evidence of M.W.1, the conduct of Padmanabhan Nair was complaining and argumentative and he was not a reliable witness. That is how the Criminal Court was prompted to disbelieve the case of the prosecution. The Labour Court in the matter on one Keshava, on appreciation of the evidence collected during the domestic enquiry has gone on detailed analysis of the evidence of Management witnesses and has recorded the finding that the Management witnesses were hearsay witnesses and it was a case without any material and the Management had failed to prove the guilt of the employee Keshava. Even if the finding of the Labour Court and also criminal case is kept aside for a while, then also on a reading of the examination-in-chief of the Management witnesses, it emanates that except the evidence of Padmanabhan Nair, there were no eye-witnesses to the incident. There was delay of 3 days in lodging the complaint to the Management. The victim was sent to Victoria Hospital after a gap of 4-5 hours probably to get a medical certificate. The name of the respondent was not cited in the first complaint lodged to the Police on 18-7-1986. In the backdrop of the fact that there was ongoing agitation by the union against the Management, C.S.O. being the Vice-President of the Union was brought to book by the design of the Management. The learned Single Judge has rightly observed that the Trade Union of the petitioner displeased the Director and he was prejudiced against him. Even otherwise, if it were to be held that there are material to hold that the charge is proved, then also the punishment order is serve and disproportionate to the alleged charges. The learned Single Judge has expressed that for a charge of this nature, even if it is proved, no reasonable employer would impose, extreme penalty of dismissal, which is nothing but victimisation of the petitioner. The previous record of the petitioner was unblemished. The respondent made much out of nothing with an intention to get rid off him.
12. Sri Hegde further reasons out that it is a fact that he had filed a writ petition before this Court during the pendency of the domestic enquiry in Writ Petition Nos.478 to 483 of 1988 on the ground that continuation of departmental proceedings when criminal prosecution on same set of facts is going on, amounts to compelling the C.S.Os. to disclose their defence which is otherwise not necessary in the criminal case. It was not at all his case that departmental enquiry is not permissible while the criminal prosecution is pending. However, said petition came to be dismissed and the said dismissal order was affirmed in the writ appeal. The learned Single Judge in the impugned order has clearly distinguished the judgments relied by the Management in the matter of Secretary, Ministry of Home Affairs v Tahir Ali Khan Tyagi ((2002) 94 FLR 453 (SC): JT 2002 Supp. (1) SC 520), and Allahabad District Co-operative Bank Limited v Vidhya Varidh Mishra (2004-III-LLJ-526 (SC): (2004) 6 SCC 482). The power of judicial review is aptly invoked by the learned Single Judge. No such incident as alleged had occurred, the Repot of Enquiry was one sided and perverse, the punishment was disproportionate to the alleged misconduct and it is a proven case of victimisation. The order of learned Single Judge is supported by sound reasoning’s not warranting interference, hence appeal, is liable to be dismissed.
13. Regarding the question of full service benefits, the submission of Sri Hegde is, the Apex Court in the matter of Union of India and Others v K.V. Jankiraman (AIR 1991 SC 2010: 1993 SCC (L and S) 387: 1991-II-LLJ-570 (SC): (1991) 4 SCC 109), the Apex Court has categorically held that, a workman when comes out with a clean bill, he has to be restored to all the benefits from which he was kept away unjustly. The principle of 'no work no pay' cannot be invoked in this case for the simple reason that the respondent was in no way responsible for his suspension or his placement out of work; he has not voluntarily abstained from discharging his duties, he was ever ready to do his job. Management willfully prevented him from doing his duty hence, he is entitled for full service benefits along with retirement benefits or pension, whichever applicable to him.
14. In the light of the above submissions and on perusal of the impugned order and the records, the points that arise for our consideration are:
1. Whether the interference of the Writ Court in the matter of departmental enquiry in exercise of its jurisdiction under Article 226 of the Constitution was justified?
2. Whether the relief granted to the C.S.O. is justified?
15. The appellant-Management though registered under the Societies Act, the service conditions of its employees are in mutatis mutandis with that of civil employees of Central Government employees.
16. The first blush of contention of appellant is, regarding the effect of acquittal of C.S.O. from criminal charges on the departmental proceedings. It is well-settled by now, that the acquittal from the criminal case will not automatically absolve a delinquent employee from the charges of misconduct in a departmental enquiry. It is permissible to conduct departmental enquiry parallel to the criminal proceedings. Even after acquittal in a criminal proceeding, departmental proceedings can continue, since the degree of proof required in support of the charge in both proceedings varies. The appreciation of evidence in a departmental enquiry is on ‘preponderance of probability’, and in criminal case on proof beyond all reasonable doubts. It is permissible to impose appropriate punishment in a case of proved misconduct by the employer despite acquittal in a criminal case on the similar charges. When the enquiry is independently held in accordance with the Service Rules governing the employee and the procedure is duly followed, depending upon the facts, charges and nature of evidence, appropriate punishment can be imposed. The delinquent employee in the absence of specific provisions in the Service Rules applicable to him cannot claim as of right the benefit of his acquittal from the criminal charges.
17. Conversely there are examples of High Court and Apex Court exercising their judicial review jurisdiction in the matter of Departmental Enquiries.
In G.M. Tank v State of Gujarat and Another (AIR 2006 SC 2129: (2006) 5 SCC 446: 2006-III-LLJ-1075 (SC): 2006 SCC (L and S) 1121: 2006 AIR SCW 2709), since the enquiry finding recorded was contrary to the acquittal judgment of the Criminal Court, being unfair, the dismissal order was set aside.
In Union of India v H.C. Goel (AIR 1964 SC 364), on the observation that the departmental enquiry was based on no evidence in support of the charges, writ of certiorari was issued without further proof of mala fide exercise of power by the Government. The punishment order was interfered since the enquiry report was not supported with sound reasoning.
18. At this juncture, we feel it appropriate to quote the observation of the Apex Court which beautifully enumerates supremacy of judicial review of the Constitutional Court.
In Kehar Singh and Another v Union of India and Another (AIR 1989 SC 653: (1989) 1 SCC 204: 1989 Cri.L.J.941 (SC): 1989 SCC (Cri.) 86), while addressing the question regarding extension of judicial review against the order passed by the supreme power of President under Article 72 of the Constitution of India, their Lordships observed thus.
'……………..Whether or not there is distinct and rigid separation of powers under the Indian Constitution, there is no doubt that the Constitution has entrusted to the Judicature in this country the task of construing the provisions of the Constitution………This Court in fact proceeded in State of Rajasthan and Others v Union of India, AIR 1977 SC 1361, at 80-81 to hold:
'…….So long as a question arises whether an authority under the Constitution has acted within the limits of its power or exceeded it, it can certainly be decided by the Court. Indeed it would be its Constitutional obligation to do so….this Court it the ultimate interpreter of the Constitution and to this Court in assigned the delicate task of determining what is the power conferred on each branch of Government, whether it is limited, and if so. What are the limits and whether any action of that branch transgresses such limits. It is for this Court to uphold the Constitutional values and to enforce the Constitutional limitations. That is the essence of the Rule of Law……'.
and in Minerva Mills Limited and Others v Union of India, AIR 1980 SC 1789: (1981) 1 SCR 206 at 286-287, Bhagwati, J. said:
'….the question arises as to which authority must decide what are the limits on the power conferred upon each organ or instrumentality of the State and whether such PG NO 1114 limits are transgressed or exceeded.. The Constitution has, therefore, created an independent machinery for resolving these disputes and this independent machinery is the judiciary which is vested with the power of judicial review……..It will be noted that the learned Judge observed in S.P.''.
19. The appellant being an Autonomous Body registered under the Societies Act and a National Institute, its employees are governed by the Service Rules applicable to the Central Government employees. The above principles declared by the Apex Court directly cover the lis on hand.
20. Learned Single Judge in the light of the judgments of the Apex Court in the cases of Senior Superintendent of Post Offices, Pathananthitta and Others v A. Gopalan (AIR 1999 SC 1514: (1997) 11 SC 239: 1998 SCC (L and S) 124: 1999-I-LLJ-1313 (SC)); Tahir Ali Khan Tyagi; Allahabad District Co-operative Bank Limited; Krishnakali Tea Estate v Akhil Bharatiya Chah Mazdoor Sangh and Another (AIR 2004 SC 4647: 2004-III-LLJ-772 (SC): 2004 SCC (L and S) 1067: (2004) 8 SCC 200); Capt. M. Paul Anthony v Bharat Gold Mines Limited and Another (AIR 1999 SC 1416: 1999-I-LLJ-1094 (SC): 1999 SCC (L and S) 810: (1999) 3 SCC 679); G.M. Tank, at para 17 well-enumerates the reigning principles operating in the matter of parallel criminal proceedings and departmental proceedings, the charges in the departmental enquiry. The allegations of the prosecution in the criminal case were same and the witnesses to the incident examined in both the cases were also same. Two of the prosecution witnesses who did not support the case of the prosecution in the Criminal Court were appreciated as natural witnesses, and the respondent herein with co-accused was acquittal of the charge under Section 323 of IPC. That has prompted the learned Single Judge to make his observation that the delinquent employee is honourably acquitted and he is entitled for the benefit of acquittal of the criminal proceeding. Sri Ramdas has objection for the expression 'Honourable acquittal', which does not find place either in the Code of Criminal Procedure, 1973 or Indian Penal Code.
21. Be that as it may, even if we keep aside his acquittal from the criminal charges and consider the evidence of Management witnesses during departmental enquiry, the evidence of the victim of the incident was not corroborated by the evidence of direct eye-witnesses. From the enquiry material, we notice that with regard to incident of 18-7-1986, the victim of the incident Padmanabhan Nair was examined as M.W.2. As per his evidence, the respondent caught hold of his collar and slapped on his left cheek, Ramesh punched on his face and strangled his neck, because of punching, blood came out of his lips. In the complaint to the Police, which was at the earliest point of time, Padmanabhan Nair had cited ‘the Transport Supervisor’ and ‘Security Supervisor Kurup’ and others as the witnesses. The so-called witnesses to the incident viz., one M.R. Surayanarayana Shastry, C.K.B. Kurup, Basappa Polishettar (HC), who were deployed on special duty at the premises of the Institution, none of them stated that they have seen the incident. The Wound Certificate from Jayanagar Hospital where he was immediately treated was not produced. Learned Single Judge, in the backdrop of the ongoing agitation of the Union and ensuing hostility between the Management and the Unions at the relevant point of time rightly draws inference that the Enquiry Officer has not considered the evidence on record, and that is bad in law. We endorse the view taken by the learned Single Judge that the finding of the Enquiry Officer was not supported by legally acceptable evidence. Though the judgment of the criminal case was not available before the Enquiry Officer before he submitted his enquiry report, there is no inhibition for this Court to compare and contrast between the judgment of the jurisdictional Magistrate Court in acquitting the accused from the charges under Section 323 of IPC and the report of the Enquiry Officer, a retired District Judge, who found the delinquent employee, guilty of misconduct.
22. Apart from the judgment of the Criminal Court, the judgment and award passed by the Labour Court is also persuasive. It was the case of one of the C.S.Os., namely Sri R.V. Krishnamurthy tried jointly in the Department enquiry, he was ordered reinstatement by award of the Labour Court and said order was confirmed by this Court. The allegation against the said employee viz., Krishnamurthy was slightly different from that of the allegation of the respondent herein. Charge against him was, he along with three others abused the Padmanabhan Nair and cheered up and abetted assault by Siddappa (the respondent) and Ramesh on Padmanabhan Nair. It should be borne in mind that though R.V. Krishnamurthy was of 'workman' cadre and the employee herein is of 'supervisory' cadre, joint enquiry is held. The Labour Court on consideration of entire evidentiary material placed before the Enquiry Officer held that absolutely there was no evidence to show that the workman therein had participated in abetting and cheering up of the offence. The Management before passing the punishment order had not issued show-cause notice to the workman as contemplated in Rule 12.4.2 and the Service Rules was violated. While holding that the charges were not proved, the dismissal order was set aside with 75% of the back wages. While the Magistrate, on a meticulous appreciation of evidence of the prosecution found falsity in the case of prosecution, the Enquiry Officer in the Departmental Enquiry without considering rebuttal evidence led by C.S.O. on the basis of evidence of Management witnesses holds charges proved. Learned Single Judge upheld the contention of C.S.O. that he is victimised. The allegation of victimisation is not taken by the respondent for the first time in the writ petition. Right from initiation of the enquiry, it was his case that he was implicated by suppressing the complaint given by him about the incident though he was the one aggrieved victim of the incident. The reason being his Association refused the offer of deal to handover the Association room to the Management in exchange of revocation of suspension of employees including himself, etc.
23. Learned Single Judge has gone to the history of the case that the delinquent employee was a Vice-President of the Trade Union for 10 years and Padmanabhan Nair was not a member of said Trade Union. The Employee’s Association launched agitation against the Management on 22-5-1986; on 20-6-1986, the Union made a complaint against the Director of the Management to the Chairman of the Management; on 16-6-1986, the delinquent employee wrote to the Director objecting the presence of the Police in the campus; on 4-7-1986, a civil suit was filed in the City Civil Court, Bangalore, against the petitioner and others for grant of permanent injunction and an ex parte temporary injunction restraining the employee and others from holding meetings, dharanas, demonstrations, shouting slogans defaming the Director, was passed. The learned Single Judge rightly presumes that the environment in the campus was one of distrust, suspicious, ill-will, agitative, not peaceful and not conducive. According to the learned Single Judge, under the said circumstanc
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e, the petitioner became the victim of Management’s wrath by reason of his Trade Union activities. We cannot counter learned Single Judge, for this finding on going through one sided Enquiry Report. 24. Coming to the question of proportionality of punishment, except the stray incident of 18-7-1986, there was no other allegation against the employee. Admittedly, there was no medical evidence that due to the slap inflicted by the employee, there was any injury on his cheek; it was never the case of the Management that it was a premeditated and consorted action of the C.S.Os. in cornering and assaulting Padmanabhan Nair. Under the circumstance, the learned Single Judge has rightly held that no reasonable employer would have imposed an extreme penalty of dismissal against the employee on such charges. We fully endorse the sad observation of the learned Single Judge. 25. Now coming to the question of monetary relief granted by the learned Single Judge, admittedly, the employee superannuated long back and there cannot be any question of reinstatement into service. Had if the learned Single Judge upheld enquiry report, with exception to severity of punishment, then there was scope for the Court to refer back the case to the Disciplinary Authority, giving liberty to pass appropriate punishment at its discretion. Here is a case where very enquiry report is found to be illegal. That being so, the question of remitting the matter to the employer to fix appropriate punishment does not arise. 26. If the impugned order is given effect to in its entirety, the respondent becomes entitled for full back wages from the date of his suspension till attaining superannuation and thereafter for complete pensionary benefits/terminal benefits as applicable for him under the Service Rules. We have reservation to uphold the full monetary benefits granted to the respondent, for the reasons to follow. 27. The appellant is not carrying on any commercial activity, but an Educational Institution. The departmental enquiry went on for six long years and the reasons for protracting the enquiry is attributed to the C.S.Os. as manifested from the enquiry report. 'No work no pay' is the general rule applied by the Courts when the dismissal order/removal order is set aside. Setting aside of the punishment need not automatically shower full monetary benefits on an employee. Having regard to the totality of the circumstance, we are of the considered opinion that 50% of the back wages from the date of suspension order till respondent attained superannuation plus full retirement benefits by treating the interim period as on duty will do complete justice between the parties. Accordingly, Writ Appeal No.1489 of 2006 is allowed in part. The order passed by the learned Single Judge of this Court in Writ Petition No.29639 of 1993 (S), dated 26th July, 2006, is hereby modified. While confirming the impugned order so far it relates to quashing of the dismissal order of the respondent-C.S.O., it is ordered that he is entitled for 50% of the back wages from the date of his suspension till attaining superannuation, as against all monetary benefits ordered by the learned Single Judge. The period during which he was kept out of job shall be considered as on duty for the purpose of calculating his terminal benefits/pensionary benefits. The appellant-Management is given 60 days’ time to implement the above order. In view of the disposal of the writ appeal, C.C.C.No.110 of 2007 (Civil) filed by the charge-sheeted official, stands disposed of. In view of disposal of the appeal, I.A.No.2 of 2007 filed for stay and I.A.No.3 of 2007 filed for rejecting I.A.No.2 of 2007, do not survive for consideration. Accordingly, I.A.Nos.2 and 3 of 2007 are disposed of as having become infructuous.