Surekha Domaji Bele vs Executive Engineer Testing Division Msedcl
- Court
- Supreme Court
2026 INSC 639
REPORTABLE
IN THE SUPREME COURT OF INDIA
(CIVIL APPELLATE JURISDICTION)
CIVIL APPEAL NO. OF 2026
(@ SPECIAL LEAVE PETITION(C) NO. ________ OF 2026)
(@DIARY NO. 11294 OF 2025)
SUREKHA DOMAJI BELE ...APPELLANT
VERSUS
EXECUTIVE ENGINEER,
TESTING DIVISION, MSEDCL ...RESPONDENT
J U D G M E N T
NONGMEIKAPAM KOTISWAR SINGH, J.
1. IA No. 61680 of 2025 seeking exemption from payment
of court fee is allowed.
2. Leave granted.
Signature Not Verified
Digitally signed by
MINI
Date: 2026.06.11
16:58:27 IST
Reason:
3. The present appeal arises out of the judgment and order
dated 05.04.2024 passed by the High Court of Judicature at
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Bombay, Nagpur Bench, in Writ Petition No. 1200 of 2023,
whereby the writ petition preferred by the Appellant came to
be dismissed. The Appellant also assails the order dated
11.11.2024 passed by the High Court in MCA No. 357 of
2024, by which the review application preferred by her was
also rejected.
4. The dispute arises from the disciplinary proceedings
initiated against the Appellant, who was employed with the
Maharashtra State Electricity Distribution Company Limited
(hereinafter referred to as “MSEDCL”). The proceedings
culminated in the order dated 12.07.2017, by which the
Appellant was dismissed from service and the period of
suspension was directed to be treated as punishment. The
order of dismissal has been upheld by the Labour Court, the
Industrial Court and the High Court. Having failed before the
said fora, the Appellant has approached this Court.
FACTUAL BACKGROUND
5. The Appellant, Surekha Domaji Bele, was appointed as
a Lower Division Clerk in the erstwhile Maharashtra State
Electricity Board, O&M Circle, Chandrapur, pursuant to the
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appointment order dated 01.04.1985. She joined the service
on 02.04.1985. She was thereafter promoted as an Upper
Division Clerk with effect from 11.04.1988. The Appellant
was in the service of the Respondent-management for more
than two decades before the disciplinary proceedings that
form the subject matter of the present appeal were initiated,
resulting in her dismissal from service.
6.
The record indicates that certain service disputes had
arisen between the Appellant and the management of
MSEDCL much before the disciplinary action in issue was
initiated. The Appellant had been reverted to the post of
Lower Division Clerk on 29.09.1995, which she challenged.
She was thereafter transferred from Ballarsha to the Warora
Pole Factory on 16.01.2002, which she successfully
challenged, and the said transfer order was set aside on
24.06.2003. The Appellant also stated that she had initiated
proceedings under the Payment of Wages Act and other
proceedings in respect of her service grievances. According to
the Appellant, the subsequent disciplinary action was a
counterblast to the proceedings she initiated against the
management. The Respondent, however, has maintained that
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the disciplinary proceedings were founded upon acts of
misconduct affecting discipline and office functioning.
7. On 04.09.2006, the Appellant was placed under
suspension pending enquiry. The suspension order alleged
acts of indiscipline, insubordination, disobedience of superior
officers, tampering with official documents and negligence.
The suspension order also recorded that during the period of
suspension the Appellant would be entitled to the
subsistence allowance as per rules. It further directed her to
mark attendance once every week, on Wednesday, at the
office of the Executive Engineer, O&M Division, MSEDCL,
Warora. The Appellant’s case is that the direction to report at
Warora was unjustified because her earlier transfer to
Warora had already been set aside. The Respondent’s case is
that the reporting condition was validly imposed under the
Service Regulations and that the Appellant did not comply
with the same.
8. A charge-sheet dated 19.09.2006 was then issued to
the Appellant. Broadly stated, the charges alleged
indiscipline, insubordination or misbehaviour, disobedience
of superior officers, tampering with official documents,
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negligence in the discharge of duty, and misuse of company
property. The Appellant did not file a reply to the charge-
sheet, but instead sought copies of certain documents.
According to her, although she requested those documents
on 26.11.2006, they were supplied only on 18.02.2008.
9. The domestic enquiry was thereafter taken up in March
2008. The Appellant’s case is that the enquiry was scheduled
on 24.03.2008, but she was required to appear as a witness
in another proceeding on that date. The enquiry then was
adjourned to 25.03.2008. On 25.03.2008, the Appellant
appeared before the Enquiry Officer and sought further time
of 8 to 10 days to participate in the enquiry. However, the
request was declined. The Enquiry Officer then proceeded ex
parte, examined five witnesses in the absence of the Appellant
and closed the enquiry.
10. The Enquiry Officer submitted his report on
25.04.2008. Based on the said enquiry report, the
Respondent issued a show-cause notice dated 25.04.2008
proposing dismissal from service. The Appellant challenged
the said show-cause notice by filing Complaint (ULP) No. 34
of 2008 before the Labour Court, Chandrapur.
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11. The Labour Court, by order dated 29.11.2014, held
that the enquiry was not fair and the finding was perverse.
The Respondent-management then challenged the said order
of the Labour Court before the Industrial Court by filing
Revision (ULP) No. 4 of 2015. By order dated 14.08.2015, the
Industrial Court set aside the Labour Court’s order dated
29.11.2014 and remanded the matter to the Labour Court by
permitting the Respondent-management to establish the
misconduct by leading evidence before the Labour Court,
since the domestic enquiry had been found not to be fair.
12. After remand, proceedings in Complaint (ULP) No. 34
of 2008 resumed before the Labour Court. The Respondent-
management led evidence before the Labour Court to prove
the misconduct. The Appellant sought an opportunity to
respond to the charge-sheet in view of the post-remand
proceedings, but the said request was declined. Upon
consideration of the evidence adduced before it, the Labour
Court, by judgment dated 27.06.2017, held that the
misconduct stood proved. The Labour Court also held that
the show-cause notice dated 25.04.2008 was legal and proper
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and accordingly, dismissed the Complaint (ULP) No. 34 of
2008.
13. The judgment dated 27.06.2017 of the Labour Court
is material for the present appeal because the misconduct
was ultimately sustained in a manner different from the
earlier domestic enquiry. The show-cause notice dated
25.04.2008 had been issued based on the domestic enquiry.
That enquiry, however, did not remain the effective
foundation for sustaining the misconduct, since it was held
to be perverse and the management was thereafter permitted
by the Industrial Court to prove the charges by leading
evidence before the Labour Court after remand. The
misconduct was ultimately held proved based on such
evidence led before the Labour Court. Thus, though the
finding of misconduct has attained finality, the foundation on
which such finding rested was the post-remand adjudication
before the Labour Court, and not the earlier domestic enquiry
report. This distinction has to be kept in mind while we
examine the Appellant’s grievance regarding Regulation 88(j)
of the MSEDCL Employees Services Regulations, 2005
(hereinafter referred to as “Service Regulations”).
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14. After the Labour Court dismissed the Complaint (ULP)
No. 34 of 2008 on 27.06.2017, the Respondent passed the
order dated 12.07.2017 dismissing the Appellant from
service. By the same order, the Respondent directed that the
period of suspension shall be treated as punishment. The
dismissal order records that the Appellant had not submitted
any explanation to the show-cause notice dated 25.04.2008.
The Appellant’s grievance is that the Respondent relied on
that earlier show-cause notice, though the misconduct was
ultimately sustained on the basis of evidence led before the
Labour Court after remand. No fresh notice was issued after
the findings recorded in the de novo proceedings before the
Labour Court.
15. The Appellant challenged the Labour Court’s
judgment dated 27.06.2017 by filing Revision (ULP) No. 37 of
2017 before the Industrial Court. The said revision was
dismissed by the Industrial Court on 08.06.2018. The
Appellant did not challenge that order further.
16. The Appellant subsequently challenged the dismissal
order dated 12.07.2017 by filing Complaint (ULP) No. 28 of
2017 before the Labour Court. In the said complaint, she
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questioned the dismissal order on several grounds, including
the competence of the disciplinary authority to pass the
dismissal order, absence of proper post-enquiry show-cause
notice, non-payment of subsistence allowance, illegal
treatment of the suspension period as punishment, and
disproportionality of the penalty of dismissal.
17. By judgment dated 08.08.2019, the Labour Court
dismissed the Complaint (ULP) No. 28 of 2017. It held that
the Appellant could not reopen the finding of misconduct,
since the said finding had already been recorded in
Complaint (ULP) No. 34 of 2008 and affirmed in revision by
the Industrial Court. The Labour Court further held that the
Executive Engineer was competent to impose the punishment
of dismissal, that no fresh show-cause notice was required,
that the treatment of the suspension period as punishment
was valid, and that the punishment of dismissal could not be
said to be shockingly disproportionate.
18. The Appellant carried the matter in Revision (ULP) No.
14 of 2019 before the Industrial Court. By judgment dated
18.01.2023, the Industrial Court dismissed the revision and
affirmed the Labour Court’s judgment dated 08.08.2019. The
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Industrial Court held that the issue of misconduct had
attained finality, that the dismissal order was passed by the
competent disciplinary authority, and that no interference
was warranted with the punishment imposed.
19. The Appellant thereafter filed a writ petition, viz., Writ
Petition No. 1200 of 2023 before the High Court of Judicature
at Bombay, Nagpur Bench. The High Court, by judgment
dated 05.04.2024, dismissed the writ petition. It upheld the
concurrent findings of the Labour Court and the Industrial
Court. The High Court rejected the Appellant’s contentions
regarding lack of competency of the disciplinary authority,
non-conformity to the prescribed format of the dismissal
order, show-cause notice, treatment of suspension period
and proportionality of punishment. The review application
filed by the Appellant in MCA No. 357 of 2024 was also
dismissed by the High Court on 11.11.2024.
20. The Appellant had earlier approached this Court in
SLP(C) No. 1400 of 2025. By order dated 14.02.2025, this
Court permitted withdrawal of the said petition with liberty
to file a fresh petition on the same and subsequent cause of
actions and further directed that delay would not come in the
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way if the fresh petition was filed within the time indicated.
The present appeal arises in this background.
21. The material sequence may therefore be stated briefly.
The Appellant was suspended on 04.09.2006. She was
charge-sheeted on 19.09.2006 and was served with a show-
cause notice dated 25.04.2008 after the domestic enquiry.
The domestic enquiry was thereafter found not to be fair. In
revision, the Industrial Court remanded the matter to the
Labour Court on 14.08.2015 and permitted the Respondent-
management to prove the misconduct before the Labour
Court rather than hold a fresh domestic enquiry. Upon
remand, evidence was led before the Labour Court and
misconduct was held proved by judgment dated 27.06.2017.
The Respondent thereafter passed the dismissal order dated
12.07.2017 relying on the earlier show-cause notice dated
25.04.2008. The Appellant’s challenge to the finding of
misconduct in Revision (ULP) No. 37 of 2017 failed and was
not carried further. Her separate challenge to the dismissal
order also failed before the Labour Court, the Industrial Court
and the High Court.
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22. The finding of misconduct has, therefore, attained
finality and is not being reopened in the present appeal. The
question before us is narrower. It is whether, after the
domestic enquiry was found defective and the misconduct
was thereafter proved before the Labour Court in the de novo
proceedings, the Respondent could impose dismissal by
relying substantially on the earlier show-cause notice dated
25.04.2008 which was based on the domestic enquiry was
earlier found to be vitiated by the Labour Court. The
connected questions relate to the competence of the
disciplinary authority, denial of subsistence allowance,
treatment of the suspension period as punishment, and
proportionality of the dismissal order.
SUBMISSIONS OF THE PARTIES
23. The Appellant submitted that the order of dismissal is
without the authority of law. According to her, she was
appointed by the Superintending Engineer and, therefore,
could not have been dismissed by the Executive Engineer a
post lower to Superintending Engineer. It was urged that the
courts below failed to appreciate that the punishment of
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dismissal could not be imposed by an authority lower than
the appointing authority.
24. The Appellant submits that the Regulation 88(j) of the
MSEDCL Employees Service Regulations contemplates a
notice after the departmental enquiry is completed,
communicating the findings of the competent authority and
calling upon the employee to show cause against the
contemplated punishment. The show-cause notice dated
25.04.2008 was issued based on the domestic enquiry, but
the Labour Court subsequently found that enquiry defective.
Pursuant to the remand by the Industrial Court, the
Respondent-management led evidence before the Labour
Court and the misconduct was proved in the de novo
proceedings before the Labour Court and not by way of a
domestic enquiry. According to the Appellant, once the
finding was based on the de novo adjudication before the
Labour Court, a fresh notice under Regulation 88(j) was
mandatory before imposing the penalty of dismissal. It is
urged that reliance on the earlier show-cause notice, which
was based on a domestic enquiry that was held defective, is
contrary to the mandate of Regulation 88(j).
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25. The Appellant has also urged that she was not paid
subsistence allowance during suspension from 04.09.2006
till the date of dismissal on 12.07.2017, a period of nearly
eleven years. It is submitted that subsistence allowance is a
means of survival and of effective defence. While the
Appellant acknowledges that the suspension order required
reporting at Warora, she contends that complete denial of
subsistence allowance for such a long period could not be
mechanically justified merely on that basis, especially when
there is no finding of gainful employment elsewhere and when
the Service Regulations themselves require review of
suspension beyond six months.
26. The Appellant also submits that the punishment of
dismissal was grossly disproportionate, and that, in addition,
the dismissal order also treated the period of suspension as
punishment, thereby imposing two consequences by way of
punishment for the same misconduct arising out of the same
proceeding. She also submitted that she had rendered about
twenty-one years of service before the disciplinary
proceedings were initiated. It is submitted that several
allegations resemble minor lapses under Schedule A of
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Regulation 86, and that there was no allegation of financial
misappropriation, corruption, moral turpitude or pecuniary
loss to the employer, and that the competent authority did
not apply its mind to the long service, previous conduct and
the possibility of imposing a lesser penalty.
27. Per contra, the Respondent supports the judgments
of the Labour Court, the Industrial Court and the High Court.
The Respondent submits that the misconduct had been
proved before the Labour Court after the management led the
evidence. That finding of the Labour Court was tested in
revision before the Industrial Court and attained finality. The
Respondent submits that the Appellant cannot now be
permitted to reopen the finding of misconduct in the later
proceedings challenging the dismissal order.
28. The Respondent further submits that no fresh show-
cause notice was required, since the earlier show-cause
notice had been held legal and proper by the Labour Court
and Industrial Court. On the quantum of punishment, it is
submitted that the charges were serious, related to discipline
and office functioning, and therefore dismissal could not be
said to be disproportionate. On the issue of subsistence
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allowance, the Respondent relies on the reporting condition
in the suspension order and contends that the Appellant did
not comply with the said condition.
ISSUES FOR CONSIDERATION
29. Upon considering the record and the rival
submissions, the following questions arise for consideration:
Firstly , whether the dismissal order dated 12.07.2017 was
passed by the competent authority;
Secondly , whether a fresh show-cause notice for
punishment was required after the de novo proceedings
before the Labour Court;
Thirdly , whether the plea relating to subsistence allowance
requires reconsideration;
Fourthly , whether the direction treating the suspension
period as punishment is valid; and
Fifthly, whether the punishment of dismissal is
disproportionate.
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FIRST ISSUE - WHETHER THE DISMISSAL ORDER
DATED 12.07.2017 WAS PASSED BY THE COMPETENT
AUTHORITY
30. The Appellant has laid considerable emphasis on the
fact that she was appointed by the Superintending Engineer
but dismissed by the Executive Engineer. According to her,
the dismissal order is invalid because it was passed by an
authority lower than the appointing authority.
31. The courts below examined the applicable MSEDCL
Employees Service Regulations and found that the Appellant
was a Pay Grade-III employee. They further held that, under
the relevant regulations and schedules governing disciplinary
action, the Executive Engineer was competent to impose
punishment on an employee belonging to that category. The
High Court also considered the Appellant’s reliance on the
schedule relating to transfers and held that the said schedule
did not govern dismissal from service.
32. The question of competence has to be determined
with reference to the service regulations governing the
employee. If the regulations empower a particular authority
to impose punishment on a specified category of employees,
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the order cannot be set aside merely on a general proposition
that the authority that passed the punishment order should
not be below the authority that issued the appointment order.
The Appellant has not established that the Executive
Engineer was excluded from exercising the power of
disciplinary authority under the applicable Regulations.
33. The relevant entry in the Service Regulations
expressly deals with the authority competent to dismiss or
remove an employee from service. The relevant entry reads as
follows:
“Sr. No. 44 - Regulation No. 25 - To dismiss or remove from
service after following the prescribed procedure.
Competent Authority:
Appointing Authority as prescribed in Third Schedule.
OR
The Competent Authority prescribed in Schedule ‘C’ .”
34. Relevant portion of Schedule ‘C’ reads as follows:
Sr.
No.
Category of
Competent
Appellate
Authority
(for 1st Appeal)
2nd
Appellate
Authority if
2nd appeal is
employees
Authority
permitted by
the Appellate
Authority
Page 18 of 65
iii) Employees
Officers of
the rank of
Officers of the
rank of S.E. or
Head of
Department.
in Pay Gr.III
in
the Field
(excluding
employees in
Security Deptt.)
E.E. /A.C.P.
equivalent &
above.
O./
E.E.(Stores)
/ A.C.O.S.
or
equivalent &
above.
35.
The Appellant’s challenge to the competence of the
Executive Engineer also rests substantially on the protection
contained in Article 311(1) of the Constitution of India. There
can be no dispute that if Article 311(1) applies, no service
regulation can override that constitutional protection.
However, the threshold question is whether the Appellant,
being an employee of MSEDCL, has established that she held
a civil post under the Union or the State. In S.L. Agarwal v.
General Manager, Hindustan Steel Ltd., (1970) 1 SCC
177 , a Constitution Bench of this Court considered whether
an employee of Hindustan Steel Ltd. could claim protection
under Article 311. The relevant portion reads as follows:
“ 6 . The question that arises in this case is : whether
the employees of a Corporation such as the
Hindustan Steel Ltd., are entitled to the protection of
Art. 311? This question can only be answered in
favour of the Appellant if we hold that the Appellant
held a civil post under the Union. It was conceded
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before us that the Appellant could not be said to
belong to the civil service of the Union or the State.
Art. 311, on which this contention is based, reads as
follows :
‘311. Dismissal, removal or reduction in rank of
persons employed in civil capacities under the
Union or a State.
(1) No person who is a member of a civil service of
the Union or an all-India service or a civil service
or a State or holds a civil post under the Union or
a State shall be dismissed or removed by an
authority subordinate to that by which he was
appointed.”
The Constitution Bench thereafter rejected the argument
that employment under a Government-controlled company
would, by itself, amount to holding a civil post under the
Union. The relevant concluding paragraph reads as follows:
“ 10 … The existence of shareholders, of capital raised
by the issuance of shares, the lack of connection
between the finances of the corporation and the
consolidated fund of the Union rather make out a
greater independent existence than that of the
corporation in the English case. We must,
therefore, hold that the corporation which is
Hindustan Steel Limited in this case is not a
department of the Government nor are the
servants of it holding posts under the State. It
has its independent existence and by law relating to
Corporations it is distinct even from its members. In
these circumstances, the Appellant, who was an
employee of Hindustan Steel Limited, does not
answer the description of a holder of ‘a civil post
under the Union’ as stated in the article. The
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Appellant was not entitled to the protection of Art.
311. The High Court was therefore right in not
affording him the protection. The appeal fails and is
dismissed but in the circumstances of the case we
make no order about costs.”
36. The broader principle is that a corporation or
company having a legal personality distinct from the
Government is not, merely because of Government ownership
or control, is to be treated as a Government department for
the purpose of Article 311. What is material is whether the
employee holds a civil post under the Union or State or not.
In the present case, it has not been established that the
Appellant holds a civil post thus, entitled to the protection as
envisaged in Article 311 of the Constitution.
37. We therefore find no error in the concurrent finding
that the Executive Engineer was competent to pass the order
of dismissal.
SECOND ISSUE - WHETHER A FRESH SHOW-CAUSE
NOTICE FOR PUNISHMENT WAS REQUIRED AFTER THE
DE NOVO PROCEEDINGS BEFORE THE LABOUR COURT
38. The Appellant’s principal submission is that the
show-cause notice dated 25.04.2008 was issued on the basis
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of the domestic enquiry. That enquiry was thereafter found to
be not fair. The Industrial Court, by order dated 14.08.2015,
remanded the matter to the Labour Court and permitted the
Respondent-management to establish the misconduct before
the Labour Court. According to the Appellant, once
misconduct was proved in the de novo proceedings before the
Labour Court, the Respondent could not have mechanically
acted upon the earlier show-cause notice issued based on the
earlier domestic enquiry which was found to be defective.
39. The submission requires consideration in the light of
Regulation 88(j) of the MSEDCL Service Regulations.
Regulation 88(j), titled “Show Cause Notice”, reads as follows:
“ After the enquiry is completed , the Competent
Authority shall serve a notice on the employee
communicating to him its findings and asking
him to show cause within a specified time as to why
the contemplated punishment involving dismissal,
removal or reversion or withholding of increment/s
should not be inflicted on him. The employee may
be supplied with a copy of the findings of the
Competent Authority or of those of the Enquiry
Officer, as the case may be , or he may be given an
opportunity to take a copy of such findings.”
40. The language of Regulation 88(j) is significant. It
contemplates a notice to be issued after the enquiry is
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completed. The purpose of such notice is not an empty
formality. The employee must be informed of the findings
based on which the competent authority proposes to impose
punishment and must be given an opportunity to show cause
why the contemplated punishment should not be inflicted.
41. The rationale underlying such opportunity was stated
by this Court in Khem Chand v. Union of India, AIR 1958
SC 300
, where this Court observed as follows:
“ 18 . In addition to showing that he has not been
guilty of any misconduct so as to merit any
punishment, it is reasonable that he should also
have an opportunity to contend that the charges
proved against him do not necessarily require the
particular punishment proposed to be meted out to
him. He may say, for instance, that although he has
been guilty of some misconduct it is not of such a
character as to merit the extreme punishment of
dismissal or even of removal or reduction in rank and
that any of the lesser punishments ought to be
sufficient in his case… ”
and
“ 19 . To summarise: the reasonable opportunity
envisaged by the provision under consideration
includes-
(a) an opportunity to deny his guilt and establish
his innocence...
(b) an opportunity to defend himself by cross-
examining the witnesses produced against
him... and finally
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(c) an opportunity to make his representation as
to why the proposed punishment should not be
inflicted on him…”
42. We are conscious that a second opportunity against
proposed punishment is not a mandate in every disciplinary
proceeding. However, where the applicable service regulation
expressly provides for a post-enquiry notice communicating
the findings and calling upon the employee to show cause
against the contemplated punishment, the authority must
comply with that regulation. In the present case, therefore,
the issue arises not as an abstract constitutional
requirement, but from the express language of Regulation
88(j).
43. In Managing Director, ECIL v. B. Karunakar,
(1993) 4 SCC 727 , this Court emphasized the importance of
giving the delinquent employee an opportunity to meet the
findings which may influence the disciplinary authority. The
relevant passage reads as follows:
“ 57 . The findings or recommended punishment by
the enquiry officer are likely to affect the mind of the
disciplinary authority in his concluding the guilt or
penalty to be imposed. The delinquent is, therefore,
entitled to meet the reasoning, controvert the
conclusions reached by the enquiry officer or is
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entitled to explain the effect of the evidence
recorded... Even if the disciplinary authority comes
to the conclusion that charge or charges is/are
proved, the case may not warrant imposition of any
penalty. He may plead mitigating or extenuating
circumstances to impose no punishment or a lesser
punishment. For this purpose the delinquent needs
reasonable opportunity or fair play in action.”
44. The Respondent is correct in submitting that where a
domestic enquiry is found defective, the employer may be
permitted to prove the misconduct before the Labour Court.
In Workmen of Firestone Tyre & Rubber Co. of India (P)
Ltd. v. Management, (1973) 1 SCC 813 , this Court held
that:
“ 37 … Therefore, the position is that even now the
employer is entitled to adduce evidence for the first
time before the Tribunal even if he had held no
enquiry or the enquiry held by him is found to be
defective. Of course, an opportunity will have to be
given to the workman to lead evidence contra... This
right in the management to sustain its order by
adducing independent evidence, before the Tribunal,
if no enquiry has been held or if the enquiry is held
to be defective, has been given judicial recognition
over a long period of years.”
Page 25 of 65
45. This Court further held in Workmen of Firestone
( )
supra that, when such evidence is adduced before the
Tribunal, it is the Tribunal which has to be satisfied on the
question of guilt. The relevant paragraph reads as follows:
“ 39 . Having held that the right of the employer to
adduce evidence continues even under the new
section, it is needless to state that, when such
evidence is adduced for the first time, it is the
Tribunal which has to be satisfied on such evidence
about the guilt or otherwise of the workman
concerned...
40 . It has to consider the evidence and come to a
conclusion one way or other.”
46. The principle in Workmen of Firestone (supra)
enables the employer to sustain the charge of misconduct by
leading evidence before the Labour Court where the domestic
enquiry is defective. That principle, however, operates at the
stage of proving misconduct. It does not dispense with the
disciplinary authority’s duty to consider the findings that
ultimately survive and to decide the appropriate penalty
under the applicable Service Regulations. The Labour Court
decides whether misconduct is proved. The competent
Page 26 of 65
disciplinary authority decides what punishment should
follow.
47. The Appellant’s submission has to be examined from
this limited perspective. After the domestic enquiry was found
defective, the Respondent-management was permitted to
adduce evidence before the Labour Court. The Appellant was
a party to those proceedings. The Labour Court considered
the evidence and held that the misconduct stood proved. That
finding was carried in revision before the Industrial Court and
attained finality. The Appellant cannot, therefore, reopen the
finding of misconduct merely on the ground that no fresh
notice was issued after the Labour Court recorded its finding.
The issue is whether the disciplinary authority, while
imposing dismissal on 12.07.2017, could rely substantially
on the earlier show-cause notice dated 25.04.2008, though
misconduct was ultimately proved in a different manner,
namely by adducing evidence adduced before the Labour
Court after remand.
48. The show-cause notice dated 25.04.2008 was
undoubtedly issued after the domestic enquiry. But the
foundation of that notice was the domestic enquiry report.
Page 27 of 65
Once the domestic enquiry was found defective, the legally
sustainable basis for holding misconduct proved was no
longer the domestic enquiry report, but the finding recorded
by the Labour Court after evidence was led before it.
49. We are conscious that the Labour Court and the
Industrial Court are adjudicatory bodies, that the Appellant
had participated in the proceedings before those fora, and
that the show-cause notice dated 25.04.2008 was not
invalidated. Therefore, the absence of a fresh notice after the
Labour Court’s finding cannot be treated as causing
prejudice in relation to the adjudication of guilt or
misconduct.
50. However, the question of punishment stands on a
different footing. The disciplinary authority was required to
consider the findings which ultimately survived, namely the
findings recorded in the de novo adjudication before the
Labour Court, and thereafter apply its mind to the
appropriate punishment. This consideration necessarily
included the gravity of the misconduct, the nature of the
charges proved, the Appellant’s long service, past record,
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absence or presence of financial loss or dishonesty, and
whether a lesser penalty would meet the ends of justice.
51. The dismissal order dated 12.07.2017 proceeds
substantially on the footing that a show-cause notice had
already been issued after the departmental enquiry and that
no explanation had been received from the Appellant. Such
an approach does not sufficiently reflect independent
consideration by the competent authority of the findings
recorded after remand by the Labour Court, or of the factors
relevant to the quantum of punishment. The Appellant’s
failure to reply to the earlier show-cause notice could not
have been treated as conclusive when the enquiry on which
that notice was founded had itself been found defective and
the misconduct was subsequently thereafter established
through a separate adjudicatory process and not before the
departmental forum.
52. The Labour Court, in Complaint (ULP) No. 34 of 2008,
held that misconduct stood proved and that the show-cause
notice dated 25.04.2008 was legal and proper. That finding
was affirmed in revision. But the question before us is not
merely whether the earlier show-cause notice was valid when
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issued. The question is whether the disciplinary authority
could impose dismissal by relying substantially on the earlier
notice, without independently considering the findings which
ultimately survived after remand and without giving the
Appellant an opportunity to place her explanation on the
quantum of punishment in the light of those later findings.
53. We also clarify the role of the Labour Court in the
post-remand proceedings. Once the domestic enquiry was
found defective and the Respondent-management was
permitted to prove the misconduct before the Labour Court,
the Labour Court was required to decide whether the charges
stood proved on the evidence adduced before it. Any
observation by the Labour Court describing the misconduct
as grave or serious could not substitute the independent
satisfaction of the competent authority on the question of
penalty. Similarly, the finding that the earlier show-cause
notice dated 25.04.2008 was legal and proper could not
relieve the competent authority of its obligation to consider
the findings which ultimately survived after remand and to
apply its own mind on the quantum of punishment.
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54. Regulation 88(j) contemplates that, after the enquiry
is completed, the competent authority shall communicate its
findings and call upon the employee to show cause against
the contemplated punishment. In the peculiar facts of the
present case, the enquiry which ultimately sustained the
charges was the de novo adjudication before the Labour
Court after the earlier enquiry was found defective. Therefore,
the decision-making process on punishment could not be
treated as complete merely because the earlier show-cause
notice was held valid.
55. We, therefore, clarify that our concern is limited to the
decision-making process before imposing punishment. Since
the disciplinary authority proceeded substantially on the
earlier show-cause notice founded on the defective domestic
enquiry and did not undertake a fresh consideration of
punishment on the basis of the findings by the Labour Court
which ultimately survived after remand, the order of
dismissal dated 12.07.2017 cannot be sustained. Even if the
show-cause notice dated 25.04.2008 was held valid, the
seven days’ time granted under that notice had long expired.
The Respondent under the circumstances ought to have
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called upon the Appellant afresh to submit her response
against the proposed punishment in the light of the findings
recorded by the Labour Court after remand.
56. We, accordingly, hold that non-service of a fresh
notice after the Labour Court’s de novo finding does not
vitiate the finding of misconduct, since the Appellant was a
party to the adjudicatory proceedings before the Labour
Court and the Industrial Court. However, the disciplinary
authority was required to apply its independent mind to the
findings which ultimately survived after remand to the
question of appropriate punishment and issue a fresh show-
cause notice on the proposed punishment, for the period of
reply in terms of the earlier show-cause notice dated
25.04.2008 had long expired and the basis of it also does not
exist.
57. Accordingly, while the finding of misconduct remains
undisturbed, the matter deserves to be remitted to the
competent authority for fresh consideration as regards the
quantum of punishment by issuing a fresh show-cause
notice. The Appellant shall be given an opportunity to place
her explanation as regards the punishment. The competent
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authority shall thereafter pass a reasoned order about the
punishment proposed to be imposed on the Appellant.
THIRD ISSUE - WHETHER THE PLEA RELATING TO
SUBSISTENCE ALLOWANCE REQUIRES
RECONSIDERATION
58. The Appellant has urged that she was not paid
subsistence allowance during the entire period of
suspension, i.e. from 04.09.2006 till the order of dismissal
dated 12.07.2017. The period of suspension continued for
nearly eleven years. The grievance cannot be treated as a
mere monetary claim of a routine nature. Subsistence
allowance is intended to preserve the suspended employee’s
minimum means of survival and to enable her to effectively
defend herself in the disciplinary proceedings.
59. In State of Maharashtra v. Chandrabhan Tale,
(1983) 3 SCC 387 , this Court explained that subsistence
allowance is the bare minimum required for maintenance.
This Court held that;
“ 20 …If the civil servant under suspension, pending
a departmental enquiry or a criminal trial started
against him, is entitled to subsistence allowance at
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the normal rate which is a bare minimum required
for the maintenance of the civil servant and his
family, he should undoubtedly get it... Whether he is
lodged in prison or released on bail on his conviction
pending consideration of his appeal, his family
requires the bare minimum by way of subsistence
allowance. Subsistence allowance provided for... at
the nominal rate of Re. 1 per month is illusory and
meaningless.”
60. This Court further observed in the same decision that
it would be impossible for a civil servant under suspension,
who has no other means of subsistence, to defend himself
effectively without payment of subsistence allowance. The
principle is that the subsistence allowance must be real and
meaningful because the employee is kept away from work and
is not permitted to earn a regular salary during suspension;
hence, it ordinarily cannot be denied.
61. In O.P. Gupta v. Union of India (1987) 4 SCC 328 ,
this Court emphasized that suspension cannot be continued
indefinitely and that disciplinary proceedings must be
concluded with reasonable diligence. The relevant principle
was stated thus:
“ 15 …It is a clear principle of natural justice that the
delinquent officer when placed under suspension is
entitled to represent that the departmental
proceedings should be concluded with reasonable
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diligence and within a reasonable period of time. If
such a principle were not recognised, it would imply
that the executive is being vested with a totally
arbitrary and unfettered power of placing its officers
under disability and distress for an indefinite
duration.”
62. In Ajay Kumar Choudhary v. Union of India,
(2015) 7 SCC 291 , this Court again cautioned against
unduly prolonged suspension. It directed:
“ 21 . We, therefore, direct that the currency of a
Suspension Order should not extend beyond three
months if within this period the Memorandum of
Charges/Chargesheet is not served on the
delinquent officer/employee; if the Memorandum of
Charges/Chargesheet is served a reasoned order
must be passed for the extension of the suspension.”
63. The above decisions do not mean that every
suspension beyond a particular period will be automatically
void in all cases, but they underline an important principle
that suspension is not to become an indefinite condition of
civil and economic disability.
64. At the same time, the Respondent is right in
submitting that the reporting condition in the present case
cannot be ignored altogether. Regulation 88(a)(i) of the
Service Regulations empowers the competent authority to
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direct a suspended employee to report to it or to any other
officer at such intervals as may be deemed necessary during
the period of suspension. Regulation 88(a)(i) reads as follows:
“An employee charged for an act of misconduct or
against whom a case in respect of criminal offence is
under investigation, enquiry or trial is liable to be
suspended by the Competent Authority if his
continuance in the post held by him or in the office in
which he is working is likely to vitiate the enquiry or
to become otherwise detrimental to the proceedings
or to the interest of the Organization. The
Competent Authority may in its discretion
direct an employee who has been suspended to
report to it or to any other Officer at such
interval as may be deemed necessary by it
during the period of suspension .”
65. Regulation 88(a)(ii), however, is equally material. It
shows that suspension is not contemplated to be an
indefinite state of suspension and continuation beyond six
months requires review. Regulation 88(a)(ii) reads as follows:
“(a) In case where an employee is suspended as
provided in S.R.88(a)(i), the Competent Authority,
who ordered suspension shall revoke the
suspension, if preliminary enquiries instituted
against him are completed and also disciplinary
action completed within a period of six months.
(b) In case, where the preliminary enquiries are
not completed and disciplinary action is yet to
start and the suspension of an employee is
continued beyond six months, then the case
shall be referred to the next higher authority of
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the Suspending Authority with a detailed
report giving the reasons for delay, if any,
together with specific recommendations of the
Suspending Authority for review of suspension.
On receipt of such report, the next higher
authority of the Suspending Authority shall
consider the matter and take the appropriate
decision as to whether the suspension is to be
continued or revoked.”
66. Regulation 88(a)(iii), which deals with subsistence
allowance, reads as follows:
during the period of
“An employee shall,
suspension, be eligible to a Subsistence
Allowance as the Competent Authority may decide
which shall in no case exceed 50 percent of the Basic
Pay that he was drawing prior to his suspension in
addition to the full Dearness Allowance. Entitlement
to Subsistence Allowance shall be dependent upon
compliance by the employee under suspension or
reporting his presence as directed in his suspension
subject to leave of absence
order that may be
granted to him by the Competent Authority.”
67. The suspension order dated 04.09.2006 also
contained two relevant clauses. First, it recorded that during
suspension the Appellant would be entitled, as per MSEDCL
rules, to subsistence allowance. Secondly, it directed the
Appellant to mark attendance once in a week at Warora. The
relevant portions read as follows:
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“As per rules of the MSEDCL, during the period of
suspension you will be entitled to get 50% basic pay
+ other allowances as per rule, subsistence
allowance.”
and
“...you are directed to mark your attendance once in
a week on Wednesday or if there is public holiday on
Wednesday, on that second day in the office of E.E.
O&M Dn. MSEDCL, Warora at 10.00 a.m.”
68. Thus, the reporting condition had a regulatory
foundation and cannot be treated as wholly extraneous.
However, the existence of a reporting condition does not
mean that subsistence allowance can be mechanically denied
for the entire period of nearly eleven years without examining
the effect of the remaining parts of Regulation 88. The object
of requiring a suspended employee to report is to ensure that
the employee remains available to the employer, does not
evade the proceedings, and does not take advantage of
suspension by engaging in gainful employment elsewhere or
becoming unavailable. In the present case, there is no finding
before us that the Appellant was gainfully employed
elsewhere during the period of suspension.
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69. A conjoint reading of Regulation 88(a)(i), Regulation
88(a)(ii) and Regulation 88(a)(iii) is therefore necessary.
Regulation 88(a)(i) permits the competent authority to impose
a reporting condition during suspension. Regulation 88(a)(iii)
makes entitlement to subsistence allowance dependent upon
compliance with such reporting direction, subject to leave of
absence that may be granted by the competent authority.
However, these provisions cannot be read apart from
Regulation 88(a)(ii), which requires review if suspension
continues beyond six months. The Regulations do not
contemplate that an employee may remain under suspension
indefinitely on the strength of the original suspension order
alone. Once the suspension crosses six months, its
continuation must be reviewed in the manner contemplated
by Regulation 88(a)(ii). In the absence of such review,
continued reliance on the original suspension order would be
contrary to the Regulations.
70. The present case is not an ordinary case of short
suspension. The Appellant was suspended on 04.09.2006.
The first period of six months expired on 03.03.2007. She
nevertheless continued under suspension till the dismissal
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order dated 12.07.2017, i.e., for nearly eleven years. During
this period, she was required to defend herself in the
departmental process, before the Labour Court, and in
connected proceedings. Denial of subsistence allowance for
such a prolonged period directly affects the employee’s ability
to survive and to defend herself effectively.
71. For the period from 04.09.2006 to 03.03.2007, the
original reporting condition in the suspension order may be
relevant while considering the Appellant’s entitlement to
subsistence allowance, including whether leave of absence
from reporting ought to have been sought or granted.
However, for the period after 03.03.2007, the Respondent
cannot rely solely on the original reporting condition to deny
subsistence allowance for the entire remaining period up to
12.07.2017.
72. The words “subject to leave of absence that may be
granted to him by the Competent Authority” in Regulation
88(a)(iii) must also be understood in the same regulatory
setting. The question of leave of absence from reporting would
properly arise during the subsistence of a valid suspension
order and reporting direction. Once the first six-month period
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expired, the Respondent was required to show that the
suspension was reviewed and continued in accordance with
Regulation 88(a)(ii). The original reporting condition cannot
operate perpetually as a ground to deny subsistence
allowance for the post-six-month period, which unfortunately
is not on record nor justified by the Respondent.
73. We are, therefore, of the view that even if the
Appellant’s non-reporting at Warora is treated as relevant for
the first six months, the position after 03.03.2007 stands on
a different footing. In the absence of any order reviewing or
validly continuing the suspension beyond six months being
shown on record, the Appellant shall be treated as eligible for
subsistence allowance for the period after 03.03.2007 till
12.07.2017.
74. With respect to the first six months, i.e., 04.09.2006
to 03.03.2007, the Appellant’s explanation for not reporting
at Warora also requires consideration. Her case is that the
direction to report at Warora was unjustified because her
earlier transfer to Warora had already been set aside.
Whether this explanation was sufficient for the initial six-
month period, and whether leave of absence from reporting
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ought to have been granted, are matters which the competent
authority was required to examine.
75. Regulation 88(a)(v) further supports this view. It reads
as follows:
“When an employee has not been wholly exonerated
and the period of suspension has been treated as
punishment, the employee shall not be eligible to any
arrears of pay and allowances for the period of
suspension nor shall the Subsistence Allowance
already paid or payable to the employee on any
account be recoverable from the employee
.”
76. Regulation 88(a)(v), extracted above, uses the
expression “Subsistence Allowance already paid or payable”.
The expression “payable” is important. It shows that
subsistence allowance occupies a separate position from
arrears of pay and allowances. Therefore, even where the
employee is not wholly exonerated and the suspension period
is not treated as duty, the subsistence allowance which was
payable under the Regulations cannot be denied merely
because the suspension period is later treated as
punishment.
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77. Accordingly, the claim for subsistence allowance shall
be determined in two parts. For the period from 04.09.2006
to 03.03.2007, the authority shall consider the original
reporting condition, the Appellant’s explanation for non-
reporting at Warora, the effect of her earlier transfer to
Warora having been set aside, and whether leave of absence
from reporting ought to have been granted. For the remaining
period after 03.03.2007 till 12.07.2017, the Appellant shall
be treated as eligible for subsistence allowance.
FOURTH ISSUE - WHETHER THE DIRECTION TREATING
THE SUSPENSION PERIOD AS PUNISHMENT IS VALID
78. The Appellant next contends that the dismissal order
dated 12.07.2017 could not have further directed that the
period of suspension shall be treated as punishment.
According to the Appellant, this direction amounts to
imposing an additional punishment for the same misconduct
arising out of the same disciplinary proceeding. This
contention has to be considered in the context of the fact that
the Appellant remained under suspension from 04.09.2006
till 12.07.2017, i.e., for nearly eleven years.
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79. Treating the entire suspension period as punishment
may deprive the employee of the ordinary service and
monetary benefits attached to that period, including arrears
of pay and allowances, continuity-related benefits,
increments or other service advantages depending on the
rules, and consequential retiral or terminal benefits. In the
present case, this consequence is particularly severe because
the suspension period was for nearly eleven years. Therefore,
treating the entire period as punishment is not a routine
consequential adjustment. It has the practical effect of
depriving the Appellant of the standard service benefits for a
substantial part of her remaining service, apart from the
subsistence allowance which Regulation 88(a)(v) expressly
protects if it was already paid or payable.
80. At the outset, it is necessary to distinguish between
two concepts of suspension in service jurisprudence. First,
suspension pending enquiry, which is an interim
departmental arrangement to facilitate proper enquiry and is
not, by itself, a form of punishment. Secondly, suspension as
a substantive form of punishment, where the applicable rules
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expressly prescribe suspension as one of the penalties which
may be imposed after misconduct is proved.
81. Therefore, the Appellant’s suspension from
04.09.2006 was not, by itself, a punishment. It was a
suspension pending enquiry. The present issue arises
because, after imposing the penalty of dismissal from service,
the disciplinary authority further directed that the entire
period already spent under suspension shall also be treated
as punishment.
82. Regulation 91 of the MSEDCL Employees Service
Regulations prescribes punishments for minor lapses and
acts of misconduct. Insofar as acts of misconduct are
concerned, Regulation 91(2) includes suspension, reversion,
removal and dismissal as separate punishments. The
relevant portion reads:
“2. Acts of misconduct
(a) As in (d) above but for loss in excess of
Rs.50,000/- according to the gravity of the offence
and the loss incurred by the Company.
(b) Withholding of increment with cumulative
effect.
(c) Stoppage of promotion.
(d) Suspension.
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(e) Reversion to a lower post.
(f) Removal from service.
(g) Dismissal .”
83. Thus, while Regulation 91(2)(d) contemplates
suspension as an independent penalty, Regulation 88(a)(v)
deals with the consequences where an employee is not wholly
exonerated and the suspension period is treated as
punishment. The Regulation 88(a)(v) has been already quoted
under para 75 (supra).
84. The aforesaid provision does contemplate that, where
an employee is not wholly exonerated, the period spent under
suspension may be treated as punishment if the disciplinary
authority chooses to treat the period of suspension as
punishment for the misconduct proved. However, it does not
create an independent second substantive penalty under
Regulation 91 over and above the penalty of dismissal
imposed for the proved misconduct. The effect of such
punishment of suspension being imposed is that arrears of
pay and allowances for the suspension period, will be denied
but subsistence allowance already paid or payable cannot be
forfeited or denied.
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The said provision explains what would be the effect
when the disciplinary authority imposes the penalty of
punishment by treating the period of suspension as
punishment.
85. If the authority describes the entire past suspension
period as punishment, in addition to imposing of the
punishment of dismissal, a question will arise whether
imposition of such additional punishment will be permissible
under law.
86. In Union of India v. S.C. Parashar, (2006) 3 SCC
167 , this Court considered a case where the disciplinary
authority had imposed an amalgam of penalties in the same
disciplinary proceeding. The employee had been visited with
reduction in pay, loss of seniority and recovery of loss. This
Court held as follows:
“ 12 . The penalty imposed upon the Respondent is an
amalgam of minor penalty and major penalty. The
Respondent has been inflicted with three penalties :
(1) reduction to the minimum of the time-scale of pay
for a period of three years with cumulative effect; (2)
loss of seniority; and (3) recovery of 25% of the loss
incurred by the Government to the tune of
Rs.74,341.89p., i.e., Rs.18,585.47p. on account of
damage to the Gypsy in 18 (eighteen) equal monthly
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instalments. Whereas reduction of time-scale of pay
with cumulative effect is a major penalty within the
meaning of clause (v) of Rule 11 of the CCS Rules, loss
of seniority and recovery of amount would come
within the purview of minor penalty, as envisaged by
clause (iii) and (iii)(a) thereof. The Disciplinary
Authority, therefore, in our opinion acted illegally and
without jurisdiction in imposing both minor and major
penalties by the same order. Such a course of action
could not have been taken in law.”
87. The principle emerging from the aforesaid decision is
that where the service rules prescribe distinct penalties, the
disciplinary authority cannot impose an amalgam of separate
substantive penalties for the same misconduct unless the
rules authorise such a course. The order of punishment must
therefore be tested with reference to the penalties prescribed
under the governing Regulations.
88. Accordingly, we hold that the Appellant cannot be
visited with both dismissal under Regulation 91(2)(g) and a
separate punishment of suspension under Regulation
91(2)(d) for the same misconduct. The direction in the
dismissal order dated 12.07.2017 treating the suspension
period as punishment shall not operate as an independent or
additional penalty over and above the harsher penalty finally
imposed.
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89. The competent authority shall, while passing the
fresh order on punishment, separately decide the service and
monetary consequences of the suspension period from
04.09.2006 to 12.07.2017 only in accordance with
Regulation 88(a)(v). While doing so, it shall keep in mind that
subsistence allowance already paid or payable stands
protected under the said provision, and that the past
suspension period cannot be treated as an independent
additional punishment for the same misconduct, if the
disciplinary authority chooses a more severe punishment.
FIFTH ISSUE - WHETHER THE PUNISHMENT OF
DISMISSAL IS DISPROPORTIONATE
90. The Appellant has urged that the punishment of
dismissal is grossly disproportionate to the charges proved.
91. The Appellant has submitted that several allegations,
even if accepted, would fall within the category of minor
lapses under Regulation 86(2) read with Schedule A of the
MSEDCL Employees Service Regulations, 2005. She has
relied upon entries such as late attendance, irregular
attendance, absence without prior permission, minor
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negligence, lack of courtesy towards colleagues and lack of
respect towards superiors not amounting to insubordination.
92. Regulation 86 classifies offences as follows:
“ 86. CLASSIFICATION OF OFFENCES
(1) Offences are classified in two categories as
shown below-
(a) Minor lapses, and
(b) Acts of misconduct
(2) Minor lapses are those mentioned in Schedule
‘A’ (with any modification that may be effected by
the Company) which may result in a punishment
upto the limit prescribed in (1) of the Statement
below Regulation 91.
(3) Acts of misconduct are those which have been
listed in Schedule ‘B’ (with such modifications as
may be specified by the Company from time to
time) for which maximum penalty is as prescribed
in (2) of the Statement below Service Regulation 91
according to the gravity of the misconduct.
(4) Any minor lapse may be treated as an act of
misconduct if repeated for a third time within the
period of one year and may be dealt with
accordingly.
Note: Schedules A and B appended to the Service
Regulations are only indicative of what could be
deemed as a minor lapse or act of misconduct. The
list is neither complete nor exhaustive. Such of the
irregularities or offences committed by an
employee not included in the list but commonly or
generally known or understood to be against the
cannon of good behavior and discipline, may be
deemed to have been included in either of the two
schedules according to the nature and gravity of
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the offence committed, at the discretion of the
authority competent to order departmental
proceedings.”
93. Schedule A, on which the Appellant relies,
enumerates minor lapses. The relevant entries charged
against Appellant are extracted hereunder:
“ SCHEDULE ‘A’
MINOR LAPSES
[See Service Regulation 86(2)]
1.Late attendance on more than 3 occasions in a
month.
2.Irregular attendance.
4.Absence without prior permission.
6.Instances of carelessness of minor nature.
7.Minor negligence in the discharge of duties
assigned.
8.Instances of lack of normal courtesy towards
colleagues and subordinates.
14.Lacking in sense of respect towards
superiors (not amounting to disrespect or
insubordination).
Note: Any of the above instances of misbehavior
may, at the discretion of the Competent
Authority, be treated as an act of misconduct
according to the circumstances and gravity of
the misbehavior.”
94. Schedule B deals with acts of misconduct. The entries
relevant to the present case are as follows:
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“SCHEDULE ‘B’
ACTS OF MISCONDUCT
[See Service Regulation 86(3)]
9.Indiscipline.
12.Insubordination, insolence, impertinence,
rude and uncivil behavior or commission of any
act subversive of good behavior.
13.Disobedience of any order of the superior
officer or a senior officer.
14.Theft, embezzlement, fraud, falsification of
account, tampering with official documents,
breach of trust, misappropriation or dishonesty
in connection with the affairs or property of the
Company.
22.Breach of any Rules, Regulation, Circulars,
Orders or Instructions.
23.Negligence or neglect of work. ”
95. Regulation 91 prescribes the punishments for minor
lapses and acts of misconduct. The material portion reads as
follows:
“ 91. PUNISHMENTS FOR MINOR LAPSES AND
ACTS OF MISCONDUCT
The following punishments are prescribed for minor
lapses and acts of misconduct.
1.Minor lapses
(a) Warning
(b) Reprimand
(c) Fine up to 1/3rd of the gross salary of the
employee.
(d) Recovery from gross salary / or an
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encashment of leave at the time of retirement to
make up wholly or partly the pecuniary loss
caused to the Company due to negligence or
breach of orders (amounts less than Rs.50,000/-
).
(e) Withholding of increment without cumulative
effect.
2.Acts of misconduct
(a) As in (d) above but for loss in excess of
Rs.50,000/- according to the gravity of the
offence and the loss incurred by the Company.
(b) Withholding of increment with cumulative
effect.
(c) Stoppage of promotion.
(d) Suspension.
(e) Reversion to a lower post.
(f) Removal from service.
(g) Dismissal .”
96. Note 4 below Regulation 91 is also relevant. It reads:
“Note 4: The act of grave misconduct like theft of
energy / abetment in theft of energy, obtaining or
attempting to obtain illegal gratification,
misappropriation of Company’s property or money or
stores, theft, fraud, falsification of account,
tampering with official document, gross irregularity
or negligence in discharging of official duties with a
dishonest motive, act of disloyalty, sabotage etc.
(The list is illustrative and not exhaustive and is
intended to serve as guide) shall necessarily merit
action of imposing one of the major penalties as
prescribed for the acts of misconduct and the
Competent Authority shall not have any discretion to
convert the act of misconduct into minor lapses and
impose the punishment prescribed for the minor
lapses.”
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97. The above scheme shows that Schedule A and
Schedule B are not rigid watertight compartments. The Note
to Regulation 86 expressly states that the Schedules are
indicative and not exhaustive. It further permits irregularities
or offences to be treated either as minor lapses or as acts of
misconduct depending on their nature and gravity. Schedule
A itself provides that even instances mentioned therein may,
at the discretion of the competent authority, be treated as
acts of misconduct according to the circumstances and
gravity of the misbehaviour.
98. In the present case, the charge-sheet did not proceed
merely on isolated late attendance or a single absence. The
charges were framed under Regulation 86(3) read with
Schedule B. The Schedule B heads invoked against the
Appellant included indiscipline, insubordination or
misbehaviour, disobedience of orders of superior officers,
tampering with official documents, negligence and misuse of
company property. The Labour Court also recorded that the
main proved charges related to indiscipline, misbehaviour,
disobedience of superior officers, tampering with official
documents and negligent discharge of duty.
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99. Therefore, the proved acts cannot be reclassified by
this Court as only minor lapses under Schedule A. The
finding that misconduct stood proved shall remain
undisturbed. However, the Appellant’s submission is relevant
while considering the proportionality of punishment. The fact
that some components of the charge resemble minor lapses,
the absence of financial misappropriation, the long service of
the Appellant, and the period to which the allegations
substantially relate, are all matters which the competent
authority must consider while deciding the appropriate
penalty.
100. The Appellant had rendered long service before
disciplinary proceedings were initiated. She joined service in
1985, and she was dismissed from service on 12.07.2017.
Her case is that there were no allegations of misconduct for
about 21 years of service and that the allegations arose
substantially during a limited period in 2006. She has also
contended that the punishment was a counterblast to the
proceedings she instituted regarding her service grievances.
101. The Respondent has maintained that the proved
charges were serious and related to discipline and office
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functioning. While we are not inclined to reopen the finding
of misconduct, the question of punishment stands on a
different footing. The punishment must bear a reasonable
relationship with the gravity of the misconduct, the past
service record, the surrounding circumstances and the
impact of the misconduct on the establishment as also
observed by the Labour Court while referring the finding of
the alleged misconduct proved.
102. The Labour Court in its final order dated 27.06.2017
passed in Complaint ULP No. 34/2008 observed in paragraph
49 of the order as follows:
“49 . As such, in present case in hand considering
above discussion, disciplinary authority cannot be
prevented from imposing proper punishment on
complainant by allowing her complaint. Needless to
say, that while determining appropriate punishment
according to law, disciplinary authority has to
consider length of service of complainant, her past
service record, gravity of misconduct proved against
her and reply filed to the impugned show cause
notice .
103. On the issue of proportionality, this Court in Ranjit
Thakur v. Union of India, (1987) 4 SCC 611 , held that:
“ 25 . Judicial review generally speaking, is not
directed against a decision, but is directed against
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the decision-making process. The question of the
choice and quantum of punishment is within the
jurisdiction and discretion of the Court-Martial. But
the sentence has to suit the offence and the offender.
It should not be vindictive or unduly harsh. It should
not be so disproportionate to the offence as to shock
the conscience...”
104. In B.C. Chaturvedi v. Union of India, (1995) 6 SCC
749 , this Court noted the limited scope of interference with
punishment, while recognizing that the Court may mould
relief in an appropriate case. It held that:
“ 18 … 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.”
105. In Chairman-cum-Managing Director, Coal India
Ltd. v. Mukul Kumar Choudhuri, AIR 2010 SC 75 , this
Court reiterated that punishment, which is grossly excessive,
disproportionately high or unduly harsh cannot claim
immunity from judicial scrutiny. It observed that:
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24
“ . So far as our legal system is concerned, the
doctrine is well settled. Even prior to CCSU, this
Court has held that if punishment imposed on an
employee by an employer is grossly excessive,
disproportionately high or unduly harsh, it cannot
claim immunity from judicial scrutiny, and it is
always open to a court to interfere with such penalty
in appropriate cases.”
106. Dismissal from service is the severest form of penalty
which can be inflicted on a delinquent employee in service
jurisprudence. It brings the relationship of employer and
employee to an end permanently, and ordinarily deprives the
employee of the incidents of past service, including retiral
benefits. It does not lead merely to the loss of the existing
source of income for the employee but also for the dependent
family members. Thus, it will have a devastating effect not
only on the dismissed employee but also on all those who are
dependant on the employee. Because of the severity of its
impact not only on the employee but also to his dependents,
the disciplinary authority must be very careful in seeking to
impose the severest form of punishment of dismissal.
It further carries consequences beyond immediate
cessation of employment. It leaves a permanent stigma on the
service record of the employee concerned, and may impair
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future employment prospects, particularly in public
employment, statutory bodies, public sector undertakings
and other regulated establishments where antecedents and
service record are material. For this reason, dismissal must
remain reserved for cases where the misconduct is of the
most serious nature where elements of synthetic
consideration would be undesirable and inappropriate.
107.
The misconduct found proved against the Appellant
relates to indiscipline, insubordination, and the consequent
tampering with documents. We are not minimizing the
importance of discipline in an office establishment. However,
the material presently noticed does not show corruption,
illegal gratification, moral turpitude, misappropriation of
funds, proved pecuniary loss to the employer, public scandal,
or conduct bringing the institution into public disrepute. The
allegations substantially appear to arise out of internal office
functioning and service-related conflict and did not play out
in the public domain.
108. In the present case, we do not find that the competent
authority undertook such an exercise of evaluating various
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relevant factors. The order does not reflect consideration of
the Appellant’s long service, past record, age, absence or
presence of dishonesty, or absence or presence of actual loss
as also commended by the Labour Court.
109. Even where the Regulations include dismissal as one
of the permissible punishments for acts of misconduct, the
authority is not relieved of its duty to consider all relevant
factors to see whether the facts of the case truly warrant the
most extreme form of penalty. The mere fact that a proved act
falls within the broad category of “misconduct” under the
Regulations does not mean that dismissal must follow as a
matter of course.
110. Dismissal is ordinarily justified where the misconduct
is of such gravity that continuance of the employee would be
wholly incompatible with discipline, trust or institutional
functioning. Cases involving corruption, illegal gratification,
moral turpitude, misappropriation, acts causing substantial
loss to the employer, or conduct showing complete unfitness
for continued service stand on a different footing. However,
where the misconduct does not involve corruption, moral
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turpitude, financial misappropriation or proved loss to the
employer, and where there is long service without much
blemish, the disciplinary authority must carefully examine
whether any lesser punishment would meet the ends of
justice.
CONCLUSION & DIRECTIONS
111. For the reasons discussed above, the appeal is partly
allowed in the following terms.
111.1. We hold that imposition of the second punishment of
treating the suspension undergone as punishment was not
permissible and accordingly, the same is set aside.
111.2 With respect to the punishment of dismissal which we
consider wholly disproportionate to the charges proved, the
competent authority shall consider any punishment other
than the ultimate penalty of dismissal from service, after
considering the Appellant’s long service, past record, age,
nature of misconduct, absence or presence of financial loss,
and other relevant circumstances.
111.3. It shall also decide the service and monetary
consequences of the suspension period in accordance with
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the Regulations as discussed above including payment of
subsistence allowance in terms of our observations above.
111.4. The finding that misconduct stood proved against the
Appellant shall remain undisturbed and we are not reopening
the adjudication of misconduct recorded in Complaint (ULP)
No. 34 of 2008 by the Labour Court, which was also affirmed
in Revision (ULP) No. 37 of 2017 by the Industrial Court. The
Appellant was a party to the adjudicatory proceedings before
the Labour Court where the misconduct was recorded and
had the opportunity to lead and in fact led the evidence in her
favour.
111.5. We also find no error in the concurrent finding that
the Executive Engineer was competent under the applicable
MSEDCL Employees Service Regulations to pass an order of
punishment against the Appellant, who was a Pay Grade-III
employee. The challenge to the dismissal order on the ground
of lack of competence is therefore rejected.
111.6. However, regarding the dismissal order dated
12.07.2017, the disciplinary authority proceeded
substantially on the earlier show-cause notice dated
25.04.2008, which was based on the domestic enquiry that
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was subsequently found not to be valid. After remand, the
misconduct was still established, but in a different manner
before the new forum, i.e., based on the evidence led before
the Labour Court. The disciplinary authority was, therefore,
required to give another show cause notice with fresh
application of mind to enable the Appellant to submit her
representation as regards the nature of punishment.
111.7.
Before imposing the penalty of dismissal from
service, the disciplinary authority failed to consider the
relevant factors bearing on punishment, including the nature
and gravity of the misconduct, the Appellant’s long service,
past record, age, absence of financial loss to the Respondent
– Company, or dishonesty, and the possibility of imposing a
lesser penalty.
The dismissal order dated 12.07.2017 is, therefore, set
aside as wholly disproportionate, while leaving the finding of
misconduct undisturbed.
111.8. The competent authority shall, within four weeks
from the date of receipt of this judgment, issue a proper
show-cause notice to the Appellant based on the findings of
the Labour Court in Complaint (ULP) No. 34 of 2008, as
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regards the penalty proposed to be imposed other than
dismissal, having regard to the gravity of the misconduct.
Thereafter, the competent authority shall pass a reasoned
order on penalty within eight weeks.
111.9. The competent authority shall determine the
Appellant’s claim for subsistence allowance in two parts.
For the period from 04.09.2006 to 03.03.2007, the
authority shall consider the original reporting condition, the
Appellant’s explanation for non-reporting at Warora, the
effect of her earlier transfer to Warora having been set aside,
and whether leave of absence from reporting ought to have
been granted.
For the period after 03.03.2007 till 12.07.2017, the
Appellant shall be treated as eligible for subsistence
allowance. The said amount shall be paid to the Appellant
irrespective of the nature of punishment that may be passed.
111.10. Since the Appellant has already crossed the age of
superannuation, no direction for reinstatement can be issued
at this stage. The monetary and retiral consequences, if any,
shall abide by the fresh order to be passed by the competent
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authority in terms of this judgment and the applicable
Regulations.
112. Consequently, the impugned judgment and order
dated 05.04.2024 passed by the High Court of Judicature at
Bombay, Nagpur Bench in Writ Petition No. 1200 of 2023 is
set aside in terms of the directions and observations made
above. As a sequel, the order dated 11.11.2024 passed by
the High Court in MCA No. 357 of 2024 is also set aside.
Pending applications, if any, shall stand disposed of.
……………………………J.
(SANJAY KAROL)
……………………………………….…………J.
(NONGMEIKAPAM KOTISWAR SINGH)
NEW DELHI;
JUNE 11, 2026.
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