This article is contributed by Bhavpreet Singh Dhatt, Advocate, Punjab and Haryana High Court
The Supreme Court bench of Justices Sudhansu Jyoti Mukhopadhaya and Prafulla Chandra Pant delivered the judgement of Life Insurance Corporation and Ors v Triveni Sharan Mishra, Civil Appeal 4335 of 2007 on 2.9.2014 (2014) 10 SCC 346 . The Court was confronted with the question as to whether an employee who possessed minimum qualifications at the time of his appointment but was over qualified, i.e. he possessed higher qualifications than the prescribed maximum is entitled to what punishment?
The question arose out of the appeal filed by LIC against the order passed by the Single Judge of Madhya Pradesh High Court in W.P. (S) 542 of 2004. The Single Judge set aside the order passed by the disciplinary authority dismissing the delinquent employee from service and remanded the matter back to the authority to consider imposing a similar punishment as had been awarded to another delinquent facing the same charge in a different departmental enquiry.
The delinquent had been charged for showing his educational qualification as Higher Secondary (equivalent to 11th Standard at the time) when he applied for the post of peon, though actually he was already a graduate and was pursuing M.A. (Economics) at the time. The minimum prescribed qualification was 9th Standard with at least 50% marks, but no candidate should have held any educational qualification higher than 12th Standard. The delinquent was charge sheeted and later a departmental enquiry was held which found him to be guilty. He was ordered to be removed from service with forfeiture of benefits after his reply to the show cause notice was found unsatisfactory. The said order was assailed by him before in a writ petition before the Madhya Pradesh High Court seeking parity in punishment with one Daluram Patidar.
Though it was argued on behalf of the delinquent petitioner before the High Court that fixing an upper ceiling on educational qualification for appointments is bad in law and persons can’t be debarred from applying on this ground, it seems that the vires of the terms of the terms of advertisement itself were not challenged before the learned single judge and the delinquent sought the limited relief of being awarded the same punishment. The Court observed noticed that the Supreme Court judgement of Mohd Riazul Usman Ghani v District and Sessions Judge, Nagpur and Another, (2000) 2 SCC 606 had held that such a criteria was not rational, but did not extend this observation as a universal principle and was to be restricted to the particular facts of that case. The High Court also observed that over qualification can’t be a bar for getting employment and that the present case did not involve any material suppression and since the employee did possess the minimum stipulated qualification, there was no fraud. The Court distinguished the Supreme Court judgement of Kendriya Vidyalaya Sangathan v Ram Ratan Yadav, (2003) 3 SCC 457, wherein the termination had been upheld for non-disclosure of criminal antecedents. The High Court finally ordered reinstatement without back wages and the matter was remanded to the disciplinary authority to impose the same punishment as the similarly charged Daluram Patedar.
The above order was carried in appeal by LIC before the Supreme Court but the same was dismissed. The Supreme Court in para 9 of the judgement framed two questions, i.e. whether the qualification that had been fixed was violative of Article 14 and whether the delinquent should have been awarded the same punishment as the similarly charged. The Supreme Court does not seem to have independently analysed the issue of Article 14 violation but agreed with the High Court relying on the judgement of Mohd Riazul Usman Ghani.
Surprisingly, the Court did not find favour with the judgement of Kerala Solvent Extractions Ltd v A Unnikrishnan, (2006) 13 SCC 619 and sought to distinguish it on the ground that the issue in the present case pertained to the validity of fixing maximum qualifications. Kerala Solvent related to empanelment of “Badli” workmen and the maximum qualification had been fixed as 8th Standard. The employee showed himself to have studied up to 7th Standard, but was later found to be over qualified and his services were terminated for fraudulent misrepresentation. The Labour Court ruled in favour of the workmen but the same was deprecated by the Single Judge of the High Court. The High Court, however, did not set aside the reinstatement of the workmen as no hardship or prejudice would be caused through his retention. The Division Bench refused to interfere and the matter reached the Supreme Court.
The Supreme Court made the following strong observations:
“8. Sri Vaidyanathan, learned senior counsel for the appellant submitted, in our opinion not without justification, that the Labour Court’s reasoning bordered on perversity and such unreasoned, undue liberalism and misplaced sympathy would subvert all discipline in administration. He stated that the Management will have no answer to the claims of similarly disqualified candidates which might have come to be rejected. Those who stated the truth would be said to be at a disadvantage and those who suppressed it stood to gain. He further submitted that this laxity of judicial reasoning will imperceptibly introduce slackness and unpredictability in the legal process and in the final analysis, corrode legitimacy of the judicial process.
- We are inclined to agree with these submissions. In recent times, there is an increasing evidence of this, perhaps well-meant but wholly unsustainable tendency towards a denudation of the legitimacy of judicial reasoning and process. The reliefs granted by the courts must be seen to be logical and tenable within the framework of the law and should not incur and justify the criticism that the jurisdiction of courts tends to degenerate into misplaced sympathy, generosity and private benevolence. It is essential to maintain the integrity of legal reasoning and the legitimacy of the conclusions. They must emanate logically from the legal findings and the judicial results must be seen to be principled and supportable on those findings. Expansive judicial mood of mistaken and misplaced compassion at the expense of the legitimacy of the process will eventually lead to mutually irreconcilable situations and denude the judicial process of its dignity, authority, predictability and respectability.”
Kerala Solvents had a similar factual situation as Triveni Sharan Mishra. The Supreme Court’s logic to distinguish it on the ground that the latter involved a challenge to the prescribed qualifications seems to be questionable, on the ground that neither did the court in Triveni Sharan Mishra independently analyse the maximum qualifications prescribed on the touch stone of Article 14 nor did the court in the ultimate analysis give any finding about the vires of the said qualifications. The fact that the employee was found to be similarly charged and therefore, ultimately, subjected to the same punishment is further proof that the court did not strike down the vires though the court did express its disinclination with the prescribed maximal qualifications by agreeing with the observations made in Mohd. Riazul Usman Ghani.
While awarding the sentence in Triveni Sharan Mishra, the Court did not abide by the established principles of awarding punishments as per the principles laid down in a catena of judgements. The recent judgement of Lucknow Kshetriya Gramin Bank v Rajendra Singh, (2013) 12 SCC 372, had culled out certain principles in relation to the manner of awarding punishments under service law. The Court after considering and harmonising the law laid down in several prior judgements went on to observe as follows:
“19. The principles discussed above can be summed up and summarized 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 was identical or the co- delinquent was foisted with more serious charges. This would be on the Doctrine of Equality when it is found that the concerned employee and the co-delinquent 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 co-delinquent accepts the charges, indicating remorse with unqualified apology lesser punishment to him would be justifiable.
- It is made clear that such a comparison is permissible only when the other employee(s) who is given lighter punishment was co- delinquent. Such a comparison is not permissible by citing the cases of other employees, as precedents, in all together different departmental enquiries.”
In Lucknow Kshetriya, the Court held that parity must be not only in the nature of charge but also the subsequent conduct after the service of charge sheet. A person who admits this guilt at the first instance would deserve a lesser punishment than one who did not. The Court also limited the scope of judicial review while interfering with such orders.
The Supreme Court while delivering Triveni Sharan Mishra, lost sight of the principles laid down in para 20 of Lucknow Kshetriya which said that a delinquent can only be compared to his co-delinquent and that a delinquent can’t be compared to another similarly placed employee in a different departmental employee. Lucknow Kshteriya was rendered prior to the Supreme Court judgement in Triveni Sharan Mishra and therefore the judges had the benefit of the said judgement unlike the Single Judge of the High Court, but it seems that it was not brought to the notice of the Court.
The Division Bench of Punjab and Haryana High Court seems to have taken the correct view in Oriental Bank of Commerce v Ram Kumar, LPA 1250 of 2015. Herein, the intra court appeal was filed by the Bank against the order of the Single Judge in CWP 20961 of 2014 who had allowed the appeal of the employee by relying upon Triveni Sharan Mishra. The Division Bench noted that the length of service of the delinquent was different from that of the one who was alleged to be similarly charged, and the delinquent was entitled to benefits like retirement and gratuity, unlike the similarly charged who had a much lesser length of service and therefore, was not entitled to the same benefits. The said difference was a material factor and justified differential treatment to the delinquent from the similarly charged.
The conclusion of the Division Bench in Ram Kumar seems to be correct, even though the attempt to distinguish the Triveni Sharan Mishra on facts seems to be unsatisfactory. Though there are several judgements which have laid down mitigating factors for punishment of delinquent employees, the settled law seems to be that undue and misplaced sympathy should be avoided and the courts must show restraint and not interfere with the view taken by the departmental authorities unless it “shocks the conscience of the court.” In a number of judgements over the last three decades, the Supreme Court has cautioned against showing misplaced sympathy to delinquent employees. This reasoning, clearly visible from the sharp language used in Kerala Solvents, has been echoed in a long line of judgements by the Court.
Though the rule making bodies and authorities would be well advised to follow the law laid down by the Supreme Court in Mohd Riazul Usman Ghani and not fix any upper ceiling in the qualifications prescribed, in absence of any constitutional challenge to the qualifications and in the face of well settled position that courts should not be overly guided by compassion and sympathy, the Supreme Court should and is likely to set Triveni Sharan Mishra aside.