EQUALITY OF LAW IS A POSITIVE CONCEPT AND IT CANNOT BE ENFORCED IN A NEGATIVE MANNER

Ronita Biswas | National Law University, Orissa | 11th January 2020

Sr. Divisional Manager, LIC of India v. Renuka Sharma (W.P.C. 669/2014)

Facts

The Respondent had applied for and was granted leave for 35 days to visit Singapore from 11^th April, 2008 to 15^th May, 2008. However, she had failed to join back her duties on 16^th May, 2008 despite letters dated 12^th June, 2008 and 25^thAugust, 2008. A show cause notice-cum-charge sheet was issued to the Respondent on 15th November, 2008 to show cause as to why penalty of removal be not imposed on her. Subsequently, she joined back the duties on 27th November, 2008 subject to the enquiry proceedings but again proceeded on unauthorized leave on 28th December, 2008. She chose not to appear before the Enquiry Officer to contest the enquiry despite repeated written intimations. The Enquiry Officer fairly conducted the enquiry after affording a reasonable opportunity to the Respondent. There was no violation of the principles of natural justice. The Enquiry Officer submitted his report on 30th April, 2009.

The disciplinary authority imposed the penalty of removal on the Respondent under Regulation 39(1) (f) of LIC of India Staff Regulation 1960 for unauthorized absence of 373 days. The Respondent filed an appeal before the Appellate Authority, Zonal Manager which was rejected. Thereafter she filed a memorial to the Chairman which was also rejected.

The Respondent raised an industrial dispute which was referred to the Industrial Tribunal. She sought reinstatement  claiming that she went to Singapore after taking leave as her husband was posted there; the health of children deteriorated in Singapore whereupon she requested for extension of leave.

The Tribunal held that the enquiry conducted by the Enquiry Officer was just, fair and in consonance with the principles of natural justice since full opportunity was given to the Respondent to join the proceedings. The Tribunal found the punishment of removal from service awarded by the Petitioner discriminatory. Reliance was placed on the case of V.S. Iyer and Harish Chand Bhatnagar, who had also gone abroad and overstayed their sanctioned leave. They were not awarded punishment of removal. V.S. Iyer was awarded penalty of reduction in basic pay by two stages whereas Harish Chand Bhatnagar was awarded penalty of reduction in basic pay by three stages. Applying the principle of parity, the Industrial Tribunal set aside the reinstatement and awarded punishment of reduction in basic pay by three stages. Aggrieved by this judgement, the Petitioner challenged the award of the Industrial Tribunal in the High Court.

Petitioner’s contention

The Petitioner submitted that the Respondent had committed gross misconduct and disobedience by remaining on an unauthorized leave. In such circumstances, a fair enquiry was conducted by the Enquiry Officer and the Respondent chose not to contest the same. There was no violation of principles of natural justice and the punishment of removal of the Respondent from the service ought not to have been interfered by the Industrial Tribunal.

The Petitioner submitted that once the charge had been proved, the disciplinary authority was empowered to impose appropriate punishment. The Tribunal had no jurisdiction to substitute the punishment imposed by the disciplinary authority. Reliance was also placed on Deputy Commissioner, Kendriya Vidyalaya Sangthan v. J. Hussain, (2013 10 SCC 106) in which the SC reiterated the settled position of law that the Tribunal has a limited scope for interfering in the disciplinary proceedings against an employee. The punishment awarded by the employer was not to be interfered unless the punishment awarded shocks the conscience of this Court (B.C. Chaturvedi v. Union of India, 1995 SCC (6) 749).

Lastly, the Petitioner submitted that two cases referred to by the Tribunal are entirely different and not comparable. In the cases of V.S. Iyer and Harish Chand Bhatnagar, both the officers had participated in the enquiry and substantiated their claim with documents whereas the Respondent herein neither participated in the enquiry despite several opportunities nor submitted any document to support the unauthorized leave.

Respondent’s contention

The Respondent submitted that the impugned award was fair and justified since the Tribunal had balanced the equalities between the parties by comparing the instant case with that of V.S. Iyer and Harish Chand Bhatnagar. Awarding different punishments to similarly situated persons constitutes clear discrimination (Ramdev v. Union of India, 2009 (121) FLR 13).

The Respondent contended that a conscious decision was taken by senior officers in other cases (V.S. Iyer and Harish Chand Bhatnagar)and it had not been decided what action had to be taken against the concerned officers for wrong decisions taken by them. The Petitioner’s contention that wrong decision does not entitle other to claim the benefits is misleading and misconceived.

The Respondent further submitted that the Industrial Tribunal had the power to interfere with the punishment inflicted by the authority to grant appropriate relief (D.T.C. v. Jagdish Chander, 2005 (120) DLT 664).

Held

The Court reiterated the settled law that equality before law is a positive concept and the same cannot be enforced in a negative manner. If an illegality or irregularity had been committed in favour of any individual or a group of individuals, others cannot claim order on principle of equality before law. If such claims were to be enforced, it shall amount to perpetuating an illegal procedure or an illegal order for extending similar benefits to others. In Gursharan Singh v. NDMC (1996 2 SCC 459), the SC held that if an order is passed in favour of a person who is not entitled to the same, the others cannot claim parity because it would amount to directing an illegal procedure/order to continue and perpetuate further. Reliance was placed on State of Haryana v. Ram Kumar Mann, (1997 3 SCC 321) in which SC held that a wrong order cannot be a foundation for claiming equality as two wrongs do not make a right.

The Court found that the Respondent was guilty of gross misconduct for unauthorized absence since 16^th May, 2008 and the punishment inflicted by the Petitioner was proportionate to her misconduct.