1. An employee wins a foreign jaunt; apart from the pleasure pursuit, the employee will undergo training abroad. On board the flight bound overseas, the employee is found drunk, too much. He is deplaned. The employer treats it as grave misconduct, punishes him —with removal from service. Is the punishment shockingly disproportionate?
2. M.G. Venu, the petitioner, joined SBI Life Insurance Company Ltd. (“the employer”), the first respondent, in 2005 as a Unit Manager. In nine years, he had earned five promotions—three in the first year. In 2013, the employer held a business contest, in which most of its employees participated. The successful employees would earn a trip to Colombo, where they had to attend a programme sponsored by the employer. Venu won the trip along with a few other officers.
3. On 23.11.2013, the employees, including Venu, transited at Chennai and boarded the plane to Colombo. But Venu was deplaned on the allegation that he had been found highly intoxicated.
4. Later, on 10.03.2014, the employer issued the Ext.P6 show-cause notice asking Venu why he should not be departmentally proceeded against for indiscipline: of conduct unbecoming of the Company’s employees. After rejecting Venu’s Ext.P7 explanation, on 15.05.2014, the employer inflicted on him Ext.P9 termination. The appeal he preferred to the Managing Director, the appellate authority, proved futile: through Ext.P10, the appellate authority refused to interfere. Then, Venu filed W.P.(C) No.23023 of 2016 before this Court. He contested the punishment alleging that no enquiry was conducted and that he had no opportunity to defend himself.
5. This Court, through Ext.P11 judgment, directed the appellate authority to examine Venu’s grievance and act further accordingly. To comply with the Ext.P11 judgment, the appellate authority heard Venu and passed Ext.P13 order dated 18.11.2016: The punishment imposed earlier—dismissal from service—was reiterated. Aggrieved, Venu has filed this writ petition.
6. Smt. Surya Binoy S, the learned counsel for the petitioner, has strenuously contended that, of the Employees’ Service Regulations, Clause (9)(3)(c) and (d)—covering a facet of indiscipline —has no application to the allegations levelled against Venu. According to her, the allegation that Venu had been intoxicated on board is not an act attributable to an employee on duty.
7. In elaboration, Smt. Binoy has submitted that Venu along with other employees, given his meritorious performance, earned a jaunt to Colombo; it is more a holiday than anything else—especially, an official engagement on foreign soil. She has also submitted that the employer has never framed any charges; nor has it placed any material, either documentary or oral, to establish that Venu had been inebriated and only because of that he was offloaded.
8. Smt. Binoy has drawn my attention to para 4 of Ext.P11, through which this Court has directed the appellate authority to consider the petitioner’s objection that a formal enquiry had not been conducted. According to her, the appellate authority ought to have, in the first place, considered whether the punishment imposed on the employee had been vitiated because the employer had not conducted any enquiry. And, later, the appellate authority ought to have rendered a definite finding on that basis. Instead, the appellate authority, contends the learned counsel, proceeded further as if the enquiry were not required, and passed the impugned Ext.P13 order.
9. In the alternative, Smt. Binoy has also contended that the punishment imposed on Venu is grossly disproportionate. According to her, it violates the principle of proportionality, too.
10. Sri Jaju Babu, the learned Senior Counsel for the SBI Life, with equal vehemence, has contended that the employer, all along, had acknowledged that Venu performed well. And, in fact, for this reason, it gave Venu out-of-turn promotions, on more than one occasion. The employer was constrained to act, asserts Sri Jaju Babu, against Venu only in the interest of the organisation for his conduct was unbecoming of an employee—disreputable.
11. Before acting against Venu, submits Sri Jaju Babu, the employer had the confirmation through Ext.P12 from Sri Lankan Airlines: Venu had been deplaned only because he had been inebriated. As to the question whether Venu was on an official trip, the learned Senior Counsel has insisted that there is ample material to establish that he was on duty. He has drawn my attention to para 25 of the counter-affidavit filed by the employer to hammer home his contention that the trip was organised officially under the banner of the employer.
12. The learned Senior Counsel has also submitted that the appellate authority has considered the issue in depth, strictly in tune with the judicial directive in Ext.P11. According to him, this Court never ordered an enquiry by a disciplinary authority; it only directed the appellate authority to consider whether an enquiry was required. Given Venu’s admission, the appellate authority has felt that it does not call for any enquiry except appreciating the admitted fact whether Venu’s conduct amounted to gross misconduct by the regulations.
13. Later, the learned Senior Counsel has placed on record the employer’s affidavit along with Ext.R1(c) containing the details about the purpose of the trip undertaken by the employees. To support his contentions, Sri Jaju Babu relied on Govt. of T.N. and others v S.Vel Raj1.
14. Heard Smt. Surya Binoy S, the learned counsel for the petitioner and Sri Jaju Babu, the learned Senior Counsel for the respondents, besides perusing the record.
15. Clause 9 (3) (c) of the Terms & Conditions of Service of Directly Recruited Officers prescribe an employee from doing anything “unbecoming of an officer of the Company.” En route to attend training overseas, an employee was found drunk. Before taking off, the airliner offloaded the employee. Was the employee, then, on duty? Is the employee’s conduct unbecoming of an officer of the employer?
16. Ext.P8 Service Regulations examined, we realise that Clause 9 deals with the employees’ conduct. Clause 9 (3) (c) mandates thus: Every officer shall, at all times, take all reasonable and possible steps to ensure and protect the interests of the Company and discharge his/her duties with utmost integrity, honesty, devotion and diligence, and “do nothing that is unbecoming of an officer of the Company.” Sub-Clause (3) (d) further mandates that every officer shall maintain good conduct and discipline and show courtesy and attention to all persons in “the performance of duties of the Company.”
17. On the question of the airlines’ offloading Venu nothing much to be elicited. Venu, after his initial denial, did admit that he took liquor. Going by the ratio of the Supreme Court in Vel Raj, indeed, an employee found inebriated while on duty is guilty of gross misconduct. That could visit upon the delinquent with summary dismissal from service, too. In that context, let us find out whether the trip undertaken by the employees to Colombo is a mere holiday or a business trip involving the employer’s interest.
18. Ext.R1(c) clarifies that the employer proposed to hold training programme from 23rd November 2013 to 25th November 2013 at Colombo. Therefore, indisputably, the employees had been in transit at Chennai on their way to Colombo to participate in the training sponsored by their employer. In that sense, the entire trip is official.
19. That said, I must add that an employee’s misbehaving in a drunken state while “on duty” and while “on the way to duty” need to be distinguished from each other. Here, the latter applies.
20. The facts examined, Vel Raj reveals that the delinquent is a Head Constable of Tamil Nadu Police Subordinate Service. He was accused of misconduct: consuming prohibited liquor—arrack—on duty. In the departmental enquiry, he was found guilty. By way of punishment, he was reverted to the lower grade. On appeal, the appellate authority felt that the punishment imposed was lenient. On further enquiry, the delinquent, by way of enhanced punishment, was compulsorily retired.
21. In the final hustings, the Supreme Court has emphatically observed that “the police force has to be a disciplined force and a member of the police force has to behave in a disciplined manner particularly when he is on duty.” The Head Constable’s behavior, held the Court, must be regarded as an act of gross misconduct.
22. Another decision dealing with an employee’s attending duty drunk is State of Punjab v. Ram Singh2. A single act of being heavily drunk while on duty fell for consideration. The erring employee is a gunman having service revolver. While on duty, he drank alcohol heavily and became uncontrollable. In that context, Ram Singh observes that “taking to drink by itself may not be a misconduct. Out of office hours one may take to drink and remain in the house. But being on duty, the disciplined service like police service, the personnel shall maintain discipline and shall not resort to drink or be in a drunken state while on duty.” The employee’s conduct, in fact, aggravated his misconduct: Heavily drunk, he was seen wandering in the market with a service revolver. Sent for medical examination, he abused the medical officer on duty. I see here no factual similarities, even remotely.
23. As has been rightly contended by the learned Senior Counsel, all the employees may have travelled under the employer’s banner, thereby, propagating to the world that they are representing their employer. So, the employees’ misbehaviour will reflect on the employers’ reputation—and adversely, at that.
24. On the other hand, the learned counsel for the petitioner has drawn my attention to Ext.P6 show cause notice. According to her, the employer has taken two pleas: Venu’s misbehaviour at the hotel and later the airline deplaning him for his drunkenness. She has further submitted that in neither of the cases has the employer placed any proof on record.
25. Attractive as her submission is, I must acknowledge that the employer has been fair enough in giving up the first charge: Venu’s alleged misbehaviour at the hotel. On the second plea, the Airlines responded and affirmed that they deplaned Venu because of his drunkenness. Once it is an admitted fact, notwithstanding Venu’s ritualistic denial that he was suffering from illness, absent further proof, the employer’s conclusion cannot be termed erroneous or unconscionable.
26. In the end, all is said and done, I still cannot affirm the employer’s findings that Venu’s conduct is so gross that it should end up in a summary sack.
(a) The Origins:
27. A couple of years ago, the then High Court of Andhra Pradesh had an occasion to examine the jurisprudential justification of proportionality. In Md. Rasheed v. M.D., APSRTC., decided on 19.03.2014, the Court, per me, considered this judicial concept and its contours.
28. To begin with, as recently as in 1984, the House of Lords in Council of Civil Service Union v. Minister for Civil Service3 has observed as follows:
“Judicial review has I think developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under the heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call illegality, the second irrationality and the third procedural impropriety. That is not to say that further development on a case-by-case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of proportionality . . .”
29. The English jurisprudence was tentative to take proportionality as one of the grounds of judicial review in 1984. And it only hoped that, in course of time, the scope of judicial review would be expanded by the addition of further grounds, particularly, by the possible adoption of the principle of proportionality. On the other hand, the Indian industrial jurisprudence, as far back as in 1965, pragmatically acknowledged the potentiality of proportionality as a mitigating factor and put it on a firm pedestal of judicial approval. In Hind Construction & Engg. Co. Ltd. V. Workmen4 the Supreme Court has observed as follows:
“It is impossible to think that any other reasonable employer would have imposed the extreme punishment of dismissal on its entire permanent staff in this manner. . . the punishment imposed on the workmen was not only severe and out of proportion to the fault, but one which, in our judgment, no reasonable employer would have imposed.”
30. After examining the scope and content of the doctrine of proportionality, the Supreme Court in Coimbatore District Central Cooperative Bank v. Coimbatore District Central Co-operative Employees Association5, after quoting the House of Lord’s Council of Civil Service Union (referred to above) has spelt out the contours of its application. In para-29 of the judgment, it is observed as follows:
31. The proportionality test, having its origin in Droit Administratif, for many years bypassed English shores but had its echo found in a far distant land. When the English jurisprudence continued its dalliance with Wednesbury, the Indian Courts took recourse to Article 14 and gave the proposition of proportionality a constitutional status by interpreting that article expansively. At the risk of repetition, I may observe that in 1965, the Supreme Court accepted the principle of proportionality holding that any punishment shockingly disproportionate cannot be sustained. After many decades, in 1985, the House of Lords held that the proportionality might be one of the heads to be considered.
32. Holding that any adjudication of the principle of proportionality would involve an appreciation of facts as if it were a primary authority and that such a primary review would be impermissible, the English Courts have not travelled beyond Wednesbury. In any event, with the advent of Human Rights Act, 1998, the House of Lords has adopted a position between proportionality requiring primary review and Wednesbury requiring secondary review. As for the Indian jurisprudence, beginning with Hind Construction in 1965, later affirming its stand further in another celebrated case—E. P. Royappa v. State of Tamil Nadu6
33. The administrative and quasi-judicial orders affecting the civil and constitutional rights of the citizen involve nothing but secondary review. But official acts affecting the fundamental rights or freedoms under Part-III of the Constitution, the Courts have permitted primary review: a straight and simple application of proportionality without the intensifier “shockingly,” to quote as an example. About the secondary review, the Hon’ble Supreme Court has reiterated the principle time and again. To cite a few of those pronouncements, it is apposite to refer to the following: (1) Union of India v. G. Ganayutham7; (2) Indian Oil Corporation v Ashok Kumar Arora8; (3) U.P. State Road Transport Corporation v. Subash Chandra Sharma9; (4) Apparel Export Promotion Council v. A.K.Chopra10; (5) C.M.D. United Commercial Bank v. P.C.Kakkar11; (6) Regional Manager, U.P.SRTC v. Hoti Lal12; (7) Dev Singh v. Punjab Tourism Development Corporation13; (8) Mineral Development Ltd., v State of Bihar14; and (9) Akbar Badruddin v. Collector of Customs15. It is besides our purpose to dwell deeper on this further.
34. So, before putting the lid on the issue of proportionality, I may recall what we have referred to earlier: Jurisprudentially speaking, the Indian Courts have judicially acknowledged proportionality, realised its utility, and, in fact, employed it ubiquitously beginning with 1965. As a part of Indology—without religious overtones, though—we can, however, observe that proportionality is ingrained in Indian ethos as an adjunct of fair play —to a mythological proportion.
35. To narrate an episode from the Mahabharatha, I may say, Mandavya was a sage wrongly punished by the king: The sage was impaled to death on a post. This occurred as a band of robbers hid its stolen treasure in a corner of his hermitage when he had been in deep contemplation. As a result, he was wrongly assumed to have stolen the treasure; so, he was punished with impalement. Commenting on this, in Beyond Orientalism, the Work of Wilhelm Halbfass and its Impact on Indian and Cross-Cultural Studies, edited by Eli Franco and Karin Preisendanz16, the authors observe thus: Having suffered the horrific punishment of impalement, Mandavya goes to the abode of Dharma (Yama) and censures him in this manner:
What sin was committed by me unknowingly in expiation of which such misery was ordained to me? Yama replied that A.M. [Ani Mandavya] had fixed a blade of grass in the wings of flies [made a garland of flies], and his present misery was in retaliation for this offence. An offence howsoever small meets with a great punishment. Being asked as to when that sin was committed by him, A.M. is told that it was in his boyhood. A.M. then ordains that whatever a boy might do till he reaches twelve years from his birth will not be a sin. And inasmuch as Yama has made him … suffer a punishment out of proportion to his offence, Yama would be borne as a human being …
(b) To Be Shocking, How Disproportionate Should the Punishment Be?
36. It is a prosaic proposition to repeat that the employer must have enough leeway in dealing with its employees, lest administration should be imperiled. Discipline in the workplace and rectitude in the employee’s conduct are non-negotiable. The employer should have all the wherewithal to deal with the erring employees appropriately—not only to remedy the malady of employees’ malfeasance but also to exemplify and deter the recurrence; to restore discipline in the organization. So, the Courts usually decline to stultify the disciplinary proceedings by taking too narrow a technical approach.
37. Granted that the employer enjoys expansive, if not unbridled, powers of discipline, I must also observe that repeated use—more so, when it is uncalled for—of a weapon blunts its edges, the sword of punishment having no exception. An employer invests, over a period, on an employee, in terms of money and time; the employee, in fact, is the real, tangible asset of any establishment. Axing employees on peccadilloes spells doom, of all, to the well-being of the very organisation. Intolerance of triviality is as dangerous as tolerance of barbarity.
38. The oft-repeated judicial warning is that Courts cannot condone the delinquent’s misconduct or commiserate with his private travails by displaying misplaced sympathy or generosity. At the same time, however wide the latitude an employer enjoys in dealing with his workforce, we cannot conclude that its conduct brooks no judicial interference. An employer’s conduct is amenable to judicial review— on established lines of interference, of course, in the matters of discipline, too.
39. To sum up, we need to determine the shock-value of punishment by taking, for example, the nature of misconduct; the loss the employer suffered, be it pecuniary or reputation-wise; the duties the delinquent discharges; his or her track record, the cascading effect of the misconduct.
40. Drunkenness is no sin by itself. But what is right inside our house or alehouse need not be right in a school or temple—of all, a workplace. Unguided gluttony spells doom. Flying overseas, restrictions removed, many Indians on board let their hair down in the name of fun, so to speak. That was what Venu, too, did. But Venu, committed an act of indiscretion. Was the place a prohibited one? Answered straight, it was not. The concomitant question is, was he on duty?
41. Our answer to the above question determines whether the punishment imposed on Venu is disproportionate—and shockingly disproportionately, at that. The employer has demonstrated beyond the pale of doubt that the employees, Venu included, were en route to attend a training programme abroad. Training treated as a part of duty, I must conclude that Venu, though not on duty, was on his way to duty. Under beneficial legislations, such as the Employees’ Compensation Act, the concept of “on duty” has been expansively— very expansively, indeed—interpreted. That expansive interpretation, no doubt, is with justification. But, here, the concept of “on duty” needs to be contextualized: Has Venu’s conduct brought disrepute or disgrace to the employer? I doubt.
42. I find it tough to sustain the employer’s contention that Venu’s conduct is unbecoming of its officer. Nor can I conclude that he failed to show “courtesy and attention to all persons in the performance” of his duties. Venu’s conduct, beyond the bounds of his office, on board a flight bound abroad, may have embarrassed the employer. Nothing more.
43. Confining to Venu’s conduct in office and his discharge of duties, even the employer did not sound uncharitable. His getting five promotions—three in one year—speaks volumes about his efficiency. Groomed for long to be an asset to the employer, Venu has value, still, to offer to his employer. His summary dismissal for, what I reckon to be, a minor misconduct is not only shockingly disproportionate but also institutionally inappropriate. “Human beings are works in progress that mistakenly think they’re finished”, the Harward professor Danil Gilbert said in a 2014 TED Talk called “The Psychology of Your Futureself”. So, I reckon, Venu deserves, at least, one more chance to redeem himself. Wisdom may dawn on him: Ethanol may enthrall him, but it can end his career, too—which it almost did now.
44. So, as I have already observed, it is not a case of misbehaviour or misconduct on duty but, perhaps, on the way to duty. Taking that as a mitigating factor, I conclude that the punishment imposed is shockingly disproportionate to the gravity of the offence. I accordingly set it aside. The punishment imposed on Venu needs modification. And that exercise this Court cannot undertake; it is in the realm of the employer to impose a suitable punishment.
45. Having set aside Ext.P13, I remand the matter to the Appellate Authority to reconsider the issue for imposing an alternative punishment, short of dismissal from service. With the above observations, the writ petition stands disposed of. No order on costs. Until the Appellate Authority decides on the alternative punishment, it is deemed that the petitioner continues to be under suspension.
Do you think CBDT should extend Tax Audit Report and relevant ITR Due Date? Please Comment, Vote, Retweet and Like.— Tax Guru (@taxguru_in) September 18, 2018