TaxTMI 
TaxTMI 
2006 (1) TMI 551
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....sted after 15.4.1998 as the officers were busy in relation to closing of financial year, was refused. 9.4.1998 was the date fixed for hearing of the parties which was a holiday. The memo of appeal was also not furnished to the Respondent. In the meanwhile, upon considering the show cause filed by the Appellant, herein, he was dismissed from service by an order dated 21.02.1998. The Labor Commissioner by reason of an order dated 12th April, 1998 allowed the appeal preferred by the Appellant, herein against the order of suspension dated 20th May, 1996. Being aggrieved by and dissatisfied therewith the Respondent filed a writ petition before the Uttaranchal High Court which by reason of the impugned judgment and order has been allowed. Mr. Ashok Desai, learned senior counsel appearing on behalf of the Appellant raised the following contentions: (i) The action of the Respondent in initiating a departmental proceeding against the Appellant was actuated by malice as a criminal case came to be registered against the Management at his instance. (ii) Suspension being one of punishments within the meaning of Rule 8 of the Rules, the impugned order of dismissal could not have been pa....
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....vice; (iii) reduction in rank; (iv) withholding of increment (including stoppage of an efficiency bar); (v) censure; and (vi) warning; Provided that no order imposing any such penalty on a Safety Officer shall be made except after an enquiry in which he has been informed of charges against him and given a reasonable opportunity of being heard in respect of such charges and where it is proposed, after such enquiry, to impose on him any such penalty until he has been given a reasonable opportunity of making representation against the penalty proposed, but only on the basis of the evidence adduced or any other material being used against him during such enquiry." It is also not in dispute that the Respondent, herein had framed HMT Limited Conduct, Discipline & Appeal Rules which came into force on and from 27.6.1988. Rule 23 provides for discipline and appeal regulations and disciplinary action procedure. Regulation 23.1.6 reads, thus: "23.1 MISCONDUCT: Without prejudice to the generality of the term 'Misconduct' the following acts of omission and commission shall be treated as 'Misconduct': *** *** *** 23.1.6 Drunkenness, riotous or disorderly or indecen....
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....e disciplinary authority were actuated by malice, the Appellant would not have been exonerated on two very serious charges. Furthermore, when a charge has been proved, the question of exonerating the Appellant on the ground of purported malice on the part of the Management does not arise. Evidently, the disciplinary authority was not biased against the Appellant nor any malice has been attributed to him. The contention is rejected. It is true that in terms of sub-rule (3) of Rule 14 of the Rules an appeal was maintainable before the State Government. But it is well settled, availability of an alternative forum for redressal of grievances itself may not be sufficient to come to a conclusion that the power of judicial review vested in the High Court is not to be exercised. The Respondents herein filed the writ petition inter alia on the ground that the Labour Commissioner did not give enough opportunity to them to place their case. From the order dated 12th April, 1998 passed by the Labour Commissioner, it appears, he allowed the appeal preferred by the Appellant, herein inter alia on the ground : (i) "Dismissal from service during the pendency of Appeal against suspensio....
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.... on 18.5.1996. The Enquiry Officer came to the conclusion that both the Management and the witnesses corroborated each other's statements and although they had been cross-examined thoroughly, no contradiction was found in their statements in regard to the said charge. Suspension is of three kinds. An order of suspension may be passed by way of punishment in terms of the conduct rules. An order of suspension can also be passed by the employer in exercise of its inherent power in the sense that he may not take any work from the delinquent officer but in that event, the entire salary is required to be paid. An order of suspension can also be passed, if such a provision exist in the rule laying down that in place of the full salary, the delinquent officer shall be paid only the subsistence allowance specified therein. The Appellant herein admittedly obtained the subsistence allowance offered to him without any demur whatsoever. The order of suspension was not passed as a measure of penalty within the meaning of the Rules. Rightly or wrongly, the Respondent invoked Rule 23.3 of HMT Limited Conduct, Discipline & Appeal Rules. The Appellant did not raise any question about the applicab....
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....ment where the workman concerned is found guilty of misconduct. The said area of discretion has been very well defined by the various judgments of this Court referred to hereinabove and it is certainly not unlimited as has been observed by the Division Bench of the High Court. The discretion which can be exercised under Section 11-A is available only on the existence of certain factors like punishment being disproportionate to the gravity of misconduct so as to disturb the conscience of the court, or the existence of any mitigating circumstances which require the reduction of the sentence, or the past conduct of the workman which may persuade the Labour Court to reduce the punishment. In the absence of any such factor existing, the Labour Court cannot by way of sympathy alone exercise the power under Section 11-A of the Act and reduce the punishment. As noticed hereinabove at least in two of the cases cited before us i.e. Orissa Cement Ltd. and New Shorrock Mills this Court held: "Punishment of dismissal for using of abusive language cannot be held to be disproportionate. " In this case all the ....