# Castings Ltd v. State of U.P. and

- **Citation:** (2003) 1 ILRA 177
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-02-18
- **Case number:** Civil Misc. Writ Petition No. 37210 of 2001
- **Bench:** M. Katju, Prakash Krishna
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/castings-ltd-v-state-of-u-p-and-39945
- **Pages:** 4

## Headnote

Constitution of India, Article 311 (2)-
Service Law- Punishment of dismissal
from service- only charge against the
employee about using filthy language to
his Superior authority- not amount to
physical assault- held - punishment of
dismissal highly disproportionate liable
to quashed.

Held- Para 4

The finding of the Tribunal is a finding of
fact and we cannot interfere with the
same. In so far as the punishment is
concerned in our opinion the same is
disproportionate to the offence. The
allegation against the petitioner is that
he abused his superior. There is no
averment that the petitioner physically
assaulted his superior or committed
some such grave act of misconduct.
There is a difference between abusing
and physically assaulting. It is said in
English that 'words break no bones'. In
other words, abusing a person does not
cause physical hurt. However, it may
certainly hurt his feelings and it may be
an act of insubordination. Be that as it
may,
in
our
opinion
the
extreme
sentence of dismissal is too harsh for the
misconduct of abuse. Now a days it very
often happens in society that people lose
their temper and utter improper words
which they should not , but that is a
lesser offence than physical assault. It is
well settled in service law that the
punishment should be proportionate to
the offence.

Practice and Procedure- punishment of
dismissal found highly disproportionate
order quashed - whether should the
court itself impose lessor punishment or
ought to have remand the matter before
the
disciplinary
authority
?
held-
considering
unreasonable
delay
the
Court can impose the lessor punishment.

Held- para 8

In the present case, since the matter has
been delayed for a long time, we are of
the opinion that instead of remanding
the case to the disciplinary authority for
imposing appropriate punishment, this
court itself should impose punishment.
Hence while we set aside the impugned
orders
on
the
ground
that
the
punishment is disproportionate to the
offence and direct reinstatement of the
petitioner with continuity of service, we
impose
the
punishment
that
the
petitioner will get only half the back
wages from the date of suspension till
the date of reinstatement and the
petitioner will be given severe warning
not to commit such an offence in future.
Case law discussed:
1984 (2) SCC-569
AIR 1982 SC-1552
AIR 1977 SC-3387

## Text

http://www.allahabadhighcourt.nic.in
1All] Dayal Kushwaha V. The State of U.P. and others 177
5. After the aforesaid order, the
counsel for petitioner Sri J. Nagar sought
permission
and
was
permitted
to
withdraw from the case, and has been
substituted
by
Sri
P.K.
Chatterjee,
Advocate,
Sri
S.N.
Verma,
Senior
Counsel for petitioner has relied upon the
judgment of this Court in Electro Steel
Castings Ltd. vs. State of U.P. and
others, 2001 (1) UPLBEC 651 in
submitting that provisions of Section 6
(W) are not applicable to establishment
where there are more than 300 workmen.
Sri K.P. Agarwal appearing for workmen
submits that the said matter was argued
by him, and that relevant provisions of
law were not considered and which were
left to be pointed out at that stage.

6. A supplementary affidavit has
been filed by petitioner stating that during
the pendency of writ petition, some of the
workmen approached Deputy Labour
Commissioner, Allahabad in proceedings
under section 33-C (2) of the Central
Industrial Disputes Act, 1947, in which
the
Deputy
Labour
Commissioner,
Allahabad has allowed the application
with the direction that the applicant
workmen concerned are entitled to three
months pay as closure compensation and
three months notice pay from the
employers and further 10% interest if the
amount has not been paid within three
months. The order appears to have been
passed after notice but without benefit of
appearance on behalf of the employers,
who after some adjournments absented
from proceedings.

7. A writ petition against show cause
notice is not maintainable. The petitioner
has not filed its reply before the Deputy
Labour Commissioner nor have pleaded
that they were not required to obtain
permission of closure as they employed
less than three hundred workmen, or that
the
closure
was
effected
due
to
unavoidable circumstances. In each case
different
consequences
follow
under
industrial law.

8. The disputed facts had not been
raised before or considered by the Deputy
Labour Commissioner. It is contended by
Sri S.N. Verma that the matter has to be
referred
under
section
4
K
for
adjudication. Sri K.P. Agarwal does not
agree with the proposition. According to
him, there is no dispute to be decided and
that only computation to be made and that
the workmen are entitled to full wages on
account of illegal and inoperative closure.
As found above, this question has not
been raised or considered by the Deputy
Labour Commissioner. The industrial
unrest on account of alleged closure dated
11.3. 2000 has not been resolved as yet.

9. In the facts and circumstances,
both the aforesaid writ petitions are
dismissed with the observation that their
parties shall be permitted to take all
possible objection before the Deputy
Labour Commissioner, who shall decide
the matter as expeditiously as possible.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.2.2003

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE PRAKASH KRISHNA, J.

Civil Misc. Writ Petition No. 37210 of 2001

Dayal Kushwaha

...Petitioner
Versus
The State of Uttar Pradesh and others

 ...Respondents
http://www.allahabadhighcourt.nic.in
178 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
Counsel for the Petitioner:
Sri M.C. Dwivedi
Sri N.K. Trivedi
Sri Bhagwati Prasad

Counsel for the Respondents:
S.C.

Constitution of India, Article 311 (2)-
Service Law- Punishment of dismissal
from service- only charge against the
employee about using filthy language to
his Superior authority- not amount to
physical assault- held - punishment of
dismissal highly disproportionate liable
to quashed.

Held- Para 4

The finding of the Tribunal is a finding of
fact and we cannot interfere with the
same. In so far as the punishment is
concerned in our opinion the same is
disproportionate to the offence. The
allegation against the petitioner is that
he abused his superior. There is no
averment that the petitioner physically
assaulted his superior or committed
some such grave act of misconduct.
There is a difference between abusing
and physically assaulting. It is said in
English that 'words break no bones'. In
other words, abusing a person does not
cause physical hurt. However, it may
certainly hurt his feelings and it may be
an act of insubordination. Be that as it
may,
in
our
opinion
the
extreme
sentence of dismissal is too harsh for the
misconduct of abuse. Now a days it very
often happens in society that people lose
their temper and utter improper words
which they should not , but that is a
lesser offence than physical assault. It is
well settled in service law that the
punishment should be proportionate to
the offence.

Practice and Procedure- punishment of
dismissal found highly disproportionate
order quashed - whether should the
court itself impose lessor punishment or
ought to have remand the matter before
the
disciplinary
authority
?
held-
considering
unreasonable
delay
the
Court can impose the lessor punishment.

Held- para 8

In the present case, since the matter has
been delayed for a long time, we are of
the opinion that instead of remanding
the case to the disciplinary authority for
imposing appropriate punishment, this
court itself should impose punishment.
Hence while we set aside the impugned
orders
on
the
ground
that
the
punishment is disproportionate to the
offence and direct reinstatement of the
petitioner with continuity of service, we
impose
the
punishment
that
the
petitioner will get only half the back
wages from the date of suspension till
the date of reinstatement and the
petitioner will be given severe warning
not to commit such an offence in future.
Case law discussed:
1984 (2) SCC-569
AIR 1982 SC-1552
AIR 1977 SC-3387

(Delivered by Hon'ble M. Katju, J.)

1. Heard learned counsel for the
petitioner
and
the
learned
standing
counsel.

2. This writ petition has been filed
against the impugned order of the U.P.
Public Services Tribunal dated 4.6.2001,
the order of dismissal dated 15.1.1994 as
well as appellate order dated 21.1.1995,
vide Annexures 1, 10 and 12 to the writ
petition.

3. The petitioner was appointed as
an additional child warden at District Jail,
Jhansi. The Deputy Jailor made a
complaint against the petitioner and one
Rajendra Prasad Tiwari on 20.9.1992,
vide Annexure 2 to the writ petition in
which it was alleged that the petitioner
http://www.allahabadhighcourt.nic.in
1All] Dayal Kushwaha V. The State of U.P. and others 179
and one Rajendra Prasad Tiwari had
abused the Deputy Jailor, who was their
superior. Thereafter, the petitioner was
given a charge sheet dated 20.11.1992,
vide Annexure 6 to the writ petition and
after enquiry a report dated 28.5.1993 was
submitted by the Enquiry Officer, vide
Annexure 8 to the writ petition. On the
basis of the enquiry report petitioner's
service was terminated and his appeal was
also dismissed. He filed a claim petition
no. 2256 of 1995, which was also
dismissed.

4. The finding of the Tribunal is a
finding of fact and we cannot interfere
with the same. In so far as the punishment
is concerned in our opinion the same is
disproportionate to the offence. The
allegation against the petitioner is that he
abused his superior. There is no averment
that the petitioner physically assaulted his
superior or committed some such grave
act of misconduct. There is a difference
between
abusing
and
physically
assaulting. It is said in English that 'words
break no bones'. In other words, abusing a
person does not cause physical hurt.
However, it may certainly hurt his
feelings and it may be an act of
insubordination. Be that as it may, in our
opinion the extreme sentence of dismissal
is too harsh for the misconduct of abuse.
Now a days it very often happens in
society that people lose their temper and
utter improper words which they should
not, but that is a lesser offence than
physical assault. It is well settled in
service law that the punishment should be
proportionate of the offence.

5. In Ved Prakash Gupta vs. M/s
Delton Cable India (P) Ltd. (1984) 2 SCC
569 the worker had abused a co-worker in
filthy language and hence he was given
punishment of dismissal. The Supreme
Court observed that the punishment
awarded is shockingly disproportionate to
the charge. Similarly in Rama Kant Misra
vs. State of U.P. AIR 1982 SC 1552 the
Supreme Court observed that abusive
language may show lack of culture but
mere use of such language on one
occasion
unconnected
with
any
subsequent
positive
action
and
not
preceded by any blame worthy conduct
cannot justify the extreme penalty of
dismissal from service.

6. Following the said decision, this
writ petition is allowed. The impugned
order of the Tribunal dated 4.6.2001 as
well as the order of dismissal dated
15.1.1994 and the order dated 21.1.1995
dismissing the appeal of the petitioner are
quashed.

7. Ordinarily when this court sets
aside the order of punishment on the
ground that it is disproportionate to the
offence, it has to remand the matter to the
disciplinary
authority
for
imposing
appropriate punishment. However, it has
been observed by the Supreme Court that
in exceptional cases, where there has been
already considerable delay in order to
avoid further hardship, the Court can
itself impose the punishment, vide Union
of India vs. G.G. Ganayutham AIR 1997
SC 3387.

8. In the present case, since the
matter has been delayed for a long time,
we are of the opinion that instead of
remanding the case to the disciplinary
authority for imposing appropriate
punishment, this court itself should
impose punishment. Hence while we set
aside the impugned orders on the ground
that the punishment is disproportionate to
http://www.allahabadhighcourt.nic.in
180 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
the offence and direct reinstatement of the
petitioner with continuity of service, we
impose the punishment that the petitioner
will get only half the back wages from the
date of suspension till the date of
reinstatement and the petitioner will be
given severe warning not to commit such
an offence in future.

9. The petition is allowed with the
above observations.
-----------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18TH FEBRUARY,
2003

BEFORE
THE HON'BLE SUSHIL HARKAULI, J.

Civil Misc. Writ Petition No. 4101 of 2003

Sri Abdul Waheed & others ...Petitioners
Versus
U.P. State through Collector

 ...Respondents

Counsel for the Petitioners:
Sri Kshitij Shailendra
Sri S.K. Johari

Counsel for the Respondents:
S.C.

Indian Stamp Act 1899- Sub Section (4)
of Section 47-A- now numbered as sub
section
(3)
which
empowers
the
Collector to Act suo motu. Therefore, the
reference made by the Sub Registrar can
be treated to be a mere information to
the Collector, in the present case.
Held- Para 10

The contention is not acceptable for two
reasons. The first reason is that there is
a power under sub section (4) of Section
47-A now numbered as sub section (3),
which empowers the Collector to Act suo
motu. Therefore, the reference made by
the Sub Registrar can be treated to be a
mere information to the Collector, in the
present case.

(Delivered by Hon'ble Sushil Harkauli, J.)

1. A sale deed dated 11.5.2001 was
executed in favour of the petitioners.
According to the recital in the sale deed it
was in respect of land alone. The Sub
Registrar after the date of registration of
the sale deed sent a reference to the
Collector under section 47 A of the Indian
Stamp Act, 1899 by his letter dated
17.7.2001. In that letter it was written that
the spot inspection was carried out in
which the land was found to have a three
story building standing over it, which
appeared to be more than ten years old.

2. On the basis of this information,
proceedings were started in the form of
Case no. 131/2001-02 under sections
33/40/47 of the Indian Stamp Act. Stamp
duty and penalty was imposed by an order
of the Additional District Magistrate
dated 27.3.2002. It was stated in that
order
that
the
Additional
District
Magistrate had himself inspected the
property on 17.3.2002 and found three
storied old house on the land in question,
which appeared to be ten or twelve years
old. The petitioners preferred a revision
under section 56 (1) Stamp Act, being
Revision No. 36 of 2001-02, which was
allowed by the Commissioner by order
dated 8.5.2002 and the matter was
remanded back with an observation that
the
matter
be
decided
after
spot
inspection.
After
the
remand
the
Additional
District
Magistrate,
Moradabad again repeated his order. In
the order he again mentioned that spot
inspection was done by him which
corroborated the report of the Sub