M/S Indian Oil Corporation Ltd vs Rajendra D. Harmalkar

M/s Indian Oil Corporation Ltd. ..Appellant

Versus

Shri Rajendra D. Harmalkar ..Respondent

JUDGMENT

M. R. Shah, J.

1. Feeling aggrieved and dissatisfied with the impugned

judgment and order dated 29.06.2015 passed by the High Court

of Judicature at Bombay at Goa in Writ Petition No.660 of 2013

by which the High Court has partly allowed the said writ petition

preferred by the respondent herein (hereinafter referred to as the

“original writ petitioner”) directing the petitioner herein to

reinstate the original writ petitioner without any back wages and

other benefits by substituting the punishment of dismissal Signature Not Verified Digitally signed by R Natarajan Date: 2022.04.21 16:56:57 IST Reason: 1 imposed by the Disciplinary Authority, the employer – Indian Oil

Corporation Ltd. has preferred the present appeal.

2. The facts leading to the present appeal in a nutshell are as

under:

That the respondent herein original writ petitioner was

initially appointed in the year 1982 as a casual employee. He

moved an application seeking the position of Refueling Helper,

wherein under the heading of qualifications, he mentioned that

he has passed Secondary School Leaving Certificate (hereinafter

referred to as “SSLC”) in April, 1986 from Karnataka Secondary

Education Board. That he was thereafter appointed as Helper as

per the regularization policy regularizing the casual employees,

inter alia, subject to the contents prescribed in the application

form for employment being correct. At that stage also the original

writ petitioner submitted SSLC of Karnataka Board bearing

No.206271 dated 19.05.1986.

2.1 In the year 2003, the Chief Vigilance Officer of the

Corporation received a complaint that the original writ petitioner

had secured his job as Re­fueling Helper by submitting a false

and forged SSLC. Similar complaint was also made to the police

authorities also.

2 2.2 Despite repetitive requests and follow up by the authorities,

original writ petitioner did not submit the original SSLC

Certificate. On the contrary, the original writ petitioner sent a

communication wherein it was mentioned that the original SSLC

has been misplaced. Thereafter the Manager, ER advised original

writ petitioner to obtain a duplicate copy of the original SSLC and

to submit the same to the Manager, ER. However, he continued

evading submission of the original certificate or even the

Duplicate SSLC from Karnataka Board.

2.3 The Manager, ER thereafter requested the authorities of the

Secondary Board to check up their records and confirm whether

they had issued any marks certificate carrying details available

on the photocopy of the SSLC marks sheet issued by them. In

response to the same, the Board informed the authority that “as

per the record, SSLC statement of marks for the year March,

1986 bearing Registration No.206271 relate to one Agrahar

Jayant S/o Satyanarayana A.L. DOB – 15.02.1968 and does not

belong to Rajendra Dattaram Harmalkar S/o Datta Ram

Harmalkar, DOB – 08.12.1962”.

2.4 In the above circumstances, a departmental enquiry was

initiated against the original writ petitioner. The original writ

3 petitioner was served with the charge­sheet containing two

charges which read as under:

“1. Wilful insubordination or disobedience whether or not in combination with another, of any lawful and reasonable order of a superior.

2. Giving false information regarding one's age, father's name, qualifications or previous service at the time of employment.”

2.5 The original writ petitioner replied to the charge­sheet. The

Inquiry Officer held that both the aforesaid charges were proved

and proposed the punishment of dismissal. After giving an

opportunity to the original writ petitioner on having agreed with

the findings of the Inquiry Officer, and after taking into

consideration the gravity of the acts of misconduct proved, the

Disciplinary Authority imposed the punishment of dismissal from

services. The appeal preferred by the original writ petitioner

came to be dismissed.

2.6 At this stage it is required to be noted that the original writ

petitioner was also prosecuted by the Criminal Court, however

the learned Trial Court acquitted him by giving benefit of doubt

mainly on the ground that the original SSLC was not brought on

record.

4 2.7 Feeling aggrieved and dissatisfied with the order of

dismissal passed by the Disciplinary Authority confirmed by the

Appellate Authority, the original writ petitioner preferred the writ

petition before the High Court. It was the case on behalf of the

original writ petitioner that he admitted the alleged guilt of

misconduct on the assurance of a lenient view being taken by the

authorities. It was also argued that there was no minimum

educational qualification and age limit (minimum or maximum)

prescribed to secure the job or even for the promotion. It was

submitted that therefore in such circumstances, it cannot be said

that he had submitted a false and forged certificate with an

attempt to secure the job or promotion. That the certificate was

produced only for the purpose of record and there was no

dishonest intention to grab the job or promotion. It was also

urged that the Criminal Court had acquitted him and that he had

a good service record and that the first charge of insubordination

is not established. The High Court framed only one point for

determination, namely, whether the punishment imposed upon

the petitioner is grossly disproportionate to the misconduct

committed by the petitioner. By the impugned judgment and

order the High Court observed and held that the punishment

5 imposed upon the original writ petitioner was grossly

disproportionate to the misconduct and interfered with the order

of punishment imposed by the Disciplinary Authority by

observing that the respondent was assured that on admission of

his guilt a lenient view may be taken while imposing the

punishment. The High Court also observed that the petitioner is

out of service from the year 2006 and as the counsel for the

petitioner had made a statement that he will forgive his back

wages and promotion, by the impugned judgment and order the

High Court allowed the said writ petitioner and the directed the

appellant to reinstate the original writ petitioner from the date of

dismissal from service in the post of Refueling Helper, however

without any back wages or benefits.

2.8 Feeling aggrieved and dissatisfied with the impugned

judgment and order passed by the High Court allowing the writ

petitioner and interfering with the order of punishment imposed

by the Disciplinary Authority, the Indian Oil Corporation –

employer – Disciplinary Authority has preferred the present

appeal.

3. Shri Rajiv Shukla, learned counsel appearing on behalf of

the appellant had vehemently submitted that in the facts and

6 circumstances of the case the High Court has committed a grave

error in interfering with the order of punishment imposed by the

Disciplinary Authority pursuant to the charge of giving false

information regarding his father’s name, his qualification by

producing a fake and false SSLC was held to be proved. It is

contended that the High Court materially erred in observing that

the punishment of dismissal imposed by the Disciplinary

Authority on the proved misconduct was disproportionate to the

misconduct established and proved.

3.1 It is urged that when an employee has produced a false and

forged SSLC of the Education Board the same can be said to be a

grave misconduct and therefore the Disciplinary Authority was

justified in imposing the punishment of dismissal.

3.2 It is further submitted by learned counsel for the appellant

that the grounds on which the High Court interfered with the

punishment imposed by the Disciplinary Authority namely that

original writ petitioner:­

(i) has admitted the guilt on an assurance that a lenient

view shall be taken while imposing the punishment;

(ii) has been acquitted by the Criminal Court; and

7

(iii) that no minimum qualification or age limit was

prescribed for getting the job or promotion and that he

had a good service record, are all irrelevant and/or not

germane.

3.3 It is submitted that the High Court has not properly

appreciated the fact that the Criminal Court acquitted the

original writ petitioner by giving him a benefit of doubt and there

was no honorable acquittal.

3.4 It is contended that it is immaterial, whether, there was a

minimum qualification or age limit prescribed for the job or

promotion or not and therefore there was no intention to secure

the job by producing the fake/forged certificate. It is submitted

that it is a case of TRUST and therefore when the Disciplinary

Authority/employer loses the Confidence and TRUST in such an

employee who submitted a forged/fake certificate, the High Court

ought not to have interfered with the order of punishment

imposed by the Disciplinary Authority.

3.5 Relying upon the decision of this Court in the case of Om

Kumar v. Union of India, (2001) 2 SCC 386; Union of India v. G.

Ganayutham, (1997) 7 SCC 463; Union of India v. Dwarka Prasad

Tiwari, (2006) 10 SCC 388; and Union of India v. Diler Singh,

8 (2016) 13 SCC 71, it is submitted that while interfering with the

order of punishment imposed by the Disciplinary Authority the

High Court has exceeded in its jurisdiction while exercising its

powers under Article 226 of the Constitution of India. It is

submitted that as per the settled position of law unless there is a

procedural irregularity in conducting the disciplinary proceedings

and/or the punishment imposed is shockingly disproportionate

to the proved misconduct, then and then only, the High Court

can exercise powers under Article 226 of the Constitution of India

and interfere with the order of punishment imposed by the

Disciplinary Authority.

3.6 It is further submitted that even denying the back wages on

the concession given by the employee cannot be said to be a

sufficient punishment imposed. It is submitted that in the

present case as such during the interregnum period the

respondent original writ petitioner was working with the

petroleum unit of Reliance Industries as a driver for the period

between 2006 to 2017. Therefore, denying the back wages and

promotion by the High Court by the impugned judgment and

order cannot be said to be any punishment at all.

9 3.7 Making the above submissions and relying upon the above

decisions, it is prayed to allow the present appeal.

4. The instant appeal is vehemently opposed by Ms. Suruchi

Suri, learned counsel appearing on behalf of the respondent.

4.1 It is submitted by Ms. Suri, learned counsel appearing on

behalf of the respondent – original writ petitioner that in the

present case the respondent – original writ petitioner did produce

the fake/forged SSLC. However, the same had no relevance for

securing the job as there was no minimum qualification or age

limit prescribed for getting the job or promotion. It is submitted

that the same was produced only for the purpose of record.

4.2 Further, the original writ petitioner admitted his guilt of

producing the fake/forge certificate on an assurance that a

lenient view would be taken at the time of imposing the

punishment.

4.3 It is submitted that even the respondent – original writ

petitioner has been acquitted by the Criminal Court for the

offences punishable under Sections 468 and 471 IPC regarding

the said SSLC produced by him.

4.4 It is further urged that even the respondent had an

unblemished and good service record. Therefore, considering the

10 aforesaid overall facts and circumstances, when the High Court

has interfered with the order of punishment imposed by the

Disciplinary Authority and has ordered reinstatement without

any back wages and promotion, the same is not required to be

interfered with by this Court in exercise of powers under Article

136 of the Constitution of India.

4.5 Making the above submissions it is prayed to dismiss the

present appeal.

5. Heard learned counsel for the respective parties.

6. By the impugned judgment and order, the High Court, in

exercise of powers under Article 226 of the Constitution of India,

has interfered with the order of punishment imposed by the

Disciplinary Authority and has ordered reinstatement without

back wages and other benefits by observing that order of

punishment of dismissal from the service imposed by the

Disciplinary Authority is disproportionate to the misconduct

proved.

Therefore, the short question which is posed for

consideration by this Court is, whether, in the facts and

circumstances of the case the High Court is justified in

11 interfering with the conscious decision taken by the Disciplinary

Authority while imposing the punishment of dismissal from

service, in exercise of powers under Article 226 of the

Constitution of India.

7. On the question of judicial review and interference of the

courts in matters of disciplinary proceedings and on the test of

proportionality, a few decisions of this Court are required to be

referred to:

i) In the case of Om Kumar (supra), this Court, after

considering the Wednesbury principles and the doctrine of

proportionality, has observed and held that the question of the

quantum of punishment in disciplinary matters is primarily for

the disciplinary authority to order and the jurisdiction of the

High Courts under Article 226 of the Constitution or of the

Administrative Tribunals is limited and is confined to the

applicability of one or other of the well­known principles known

as ‘Wednesbury principles’.

In the Wednesbury case, (1948) 1 KB 223, it was said that

when a statute gave discretion to an administrator to take a

decision, the scope of judicial review would remain limited. Lord

12 Greene further said that interference was not permissible unless

one or the other of the following conditions was satisfied, namely,

the order was contrary to law, or relevant factors were not

considered, or irrelevant factors were considered, or the decision

was one which no reasonable person could have taken.

ii) In the case of B.C. Chaturvedi v. Union of India, (1995) 6

SCC 749, in paragraph 18, this Court observed and held as

under:

“18. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact­finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof.”

iii) In the case of Lucknow Kshetriya Gramin Bank (Now

Allahabad, Uttar Pradesh Gramin Bank) v. Rajendra Singh,

13 (2013) 12 SCC 372, in paragraph 19, it was observed and held

as under:

“19. The principles discussed above can be summed up and summarised as follows:

19.1. When charge(s) of misconduct is proved in an enquiry the quantum of punishment to be imposed in a particular case is essentially the domain of the departmental authorities.

19.2. The courts cannot assume the function of disciplinary/departmental authorities and to decide the quantum of punishment and nature of penalty to be awarded, as this function is exclusively within the jurisdiction of the competent authority.

19.3. Limited judicial review is available to interfere with the punishment imposed by the disciplinary authority, only in cases where such penalty is found to be shocking to the conscience of the court.

19.4. Even in such a case when the punishment is set aside as shockingly disproportionate to the nature of charges framed against the delinquent employee, the appropriate course of action is to remit the matter back to the disciplinary authority or the appellate authority with direction to pass appropriate order of penalty. The court by itself cannot mandate as to what should be the penalty in such a case.

19.5. The only exception to the principle stated in para 19.4 above, would be in those cases where the co­ delinquent is awarded lesser punishment by the disciplinary authority even when the charges of misconduct were identical or the co­delinquent was foisted with more serious charges. This would be on the doctrine of equality when it is found that the employee concerned and the co­delinquent are equally placed.

However, there has to be a complete parity between the two, not only in respect of nature of charge but subsequent conduct as well after the service of charge­ sheet in the two cases. If the co­delinquent accepts the charges, indicating remorse with unqualified apology, lesser punishment to him would be justifiable.”

14 7.1 In the present case, the original writ petitioner was

dismissed from service by the Disciplinary Authority for

producing the fabricated/fake/forged SSLC. Producing the

false/fake certificate is a grave misconduct. The question is one

of a TRUST. How can an employee who has produced a fake and

forged marksheet/certificate, that too, at the initial stage of

appointment be trusted by the employer? Whether such a

certificate was material or not and/or had any bearing on the

employment or not is immaterial. The question is not of having

an intention or mens rea. The question is producing the

fake/forged certificate. Therefore, in our view, the Disciplinary

Authority was justified in imposing the punishment of dismissal

from service.

7.2 It was a case on behalf of the petitioner – original writ

petitioner before the High Court that he pleaded guilty and

admitted that he had submitted a forged and fake certificate on

the assurance that lesser punishment will be imposed. However,

except the bald statement, there is no further evidence on the

same. Nothing has been mentioned on record as to who gave him

such an assurance.

15 7.3 Even otherwise the conduct on the part of the original writ

petitioner is required to be considered.

As observed hereinabove, prior to the issuance of the

chargesheet and after the complaint was received by the

Vigilance Officer, there were repetitive requests and follow up by

the authorities requesting the original writ petitioner to produce

the original SSLC. Initially the original writ petitioner did not

even respond to the said requests. Thereafter, he came up with a

case that the original SSLC was misplaced. He was then called

upon to obtain a duplicate copy of the SSLC and to submit the

same to the Manager, ER. However, he continued to evade

obtaining the duplicate certificate from Karnataka Board. Only

thereafter the Manager, ER directly contacted the authorities of

the Board and requested the Education Board to check up from

their records and only thereafter it was revealed that the SSLC

produced by the original petitioner was forged and fake and

belonged to or related to some another student and it did not

belong to the original writ petitioner. This shows the malafide

intention on the part of the original writ petitioner.

7.4 Now, so far as the submission on behalf of the original writ

petitioner that he was acquitted by the Criminal Court for the

16 offences punishable under Sections 468 and 471 IPC in respect

of the same certificate is concerned, the said contention is neither

here nor there and is of no assistance to the original writ

petitioner. Apart from the fact that he was acquitted by the

Criminal Court by giving benefit of doubt and there was no

honourable acquittal, in the present case before the Disciplinary

Authority the original writ petitioner as such admitted that he

produced the fake and forged certificate. Therefore, once there

was an admission on the part of the respondent – original writ

petitioner, thereafter whether he has been acquitted by the

Criminal Court is immaterial.

7.5 Even from the impugned judgment and order passed by the

High Court it does not appear that any specific reasoning was

given by the High Court on how the punishment imposed by the

Disciplinary Authority could be said to be shockingly

disproportionate to the misconduct proved. As per the settled

position of law, unless and until it is found that the punishment

imposed by the Disciplinary Authority is shockingly

disproportionate and/or there is procedural irregularity in

conducting the inquiry, the High Court would not be justified in

interfering with the order of punishment imposed by the

17 Disciplinary Authority which as such is a prerogative of the

Disciplinary Authority as observed hereinabove.

7.6 From the impugned judgment and order passed by the High

Court, it appears that the High Court has denied the back wages

and other benefits and has ordered reinstatement on a

concession given by the learned counsel on behalf of the original

writ petitioner. However, it is required to be noted that for the

period between 2006 to 2017 i.e. during the pendency of the writ

petition the respondent was working in the Petroleum Division of

Reliance Industries. Therefore, he was aware that even otherwise

he is not entitled to the back wages for the aforesaid period.

Therefore, the concession given on behalf of the original writ

petitioner as such cannot be said to be a real concession. In any

case in the facts and circumstances of the case and for the

reasons stated above and considering the charge and misconduct

of producing the fake and false SSLC Certificate proved, when a

conscious decision was taken by the Disciplinary Authority to

dismiss him from service, the same could not have been

interfered with by the High Court in exercise of powers under

Article 226 of the Constitution of India. The High Court has

exceeded in its jurisdiction in interfering with the order of

18 punishment imposed by the Disciplinary Authority while

exercising its powers under Article 226 of the Constitution of

India.

8. In view of the above and for the reasons stated above, the

impugned judgment and order passed by the High Court in

interfering with the order of punishment imposed by the

Disciplinary Authority of dismissing the original writ petitioner

from service and ordering reinstatement without back wages and

other benefits is hereby quashed and set aside. The order passed

by the Disciplinary Authority dismissing the original writ

petitioner from service on the misconduct proved is hereby

restored.

The present appeal is accordingly allowed. In the facts and

circumstances of the case, there shall be no order as to costs.

…………………………………J. (M. R. SHAH)

…………………………………J. (B.V. NAGARATHNA) New Delhi, April 21, 2022.

19