Protesting a change of seat in the office, raising a grievance with the president of Employees Association regarding a change in seating arrangement and absence from duty on a half-day for taking one’s child to a school function – are these acts of grave indiscipline which justify the termination of an employee’s service?
To do so will be against the principle of proportionality.
In the case of the former Junior Court Assistant of the SC, who has come out with allegations of sexual harassment against the CJI, these acts resulted in her dismissal from service on December 21, 2018.
This officer, who has been in the service of the Supreme Court since May 2014, has an otherwise unblemished record. Her Annual Confidential Reports are endorsed with the grading “Good” in the first year and “Very Good” in the following years.
Between August and November, her postings were changed three times. On August 27, 2018, she was appointed at the CJI’s residence. Within two months, she was transferred and posted at the Centre for Planning and Research (CPR) on October 22, 2018. She was again transferred and posted at the Library on November 22, 2018, following her alleged acts of subordination at the CPR.
What are the charges?
The charges do not sound grave; at best, they are trivial transgressions or isolated instances of insubordination, which warranted no more than a censure, or a minor penalty, or anything except dismissal.
It was on November 19 that she was served with a memo regarding the initiation of disciplinary charges against her. On November 27, she was placed under suspension and was served with ‘Article of Charges’ and ‘Statement of Imputations’. The charges leading to her dismissal are:
When her seat was shifted from CPR to the Admin Section with effect from November 16, she had “shown reluctance, felt dissatisfied” and had questioned the seating arrangement. It was alleged that she “acted in a manner prejudicial to discipline”.
She had tried to exert influence and pressure from “unacceptable quarters” to change her seat.
She had taken an unauthorised leave on November 17 (Saturday), defying the direction of her superior to be present for work, and had shown “insubordination, lack of devotion to duty and indiscipline”.
The employee’s response to the charges was not confrontational or overly defensive; rather, she adopted an apologetic tone and highlighted that she had been acting under pressure. With regard to the first charge, she said that she had felt anxiety and insecurity over three transfers in a short span.
“What I expressed to the Branch Officer, Admin. Materials Section was not reluctance to perform duties assigned to me, but only my anxiety over being allotted three different postings in a short span of time”, she explained.
She also apologised for her expression of anxiety which “bordered on questioning the authority” and clarified that it was never her intention.
She added that she had “casually” conveyed her anxiety to the president of the Supreme Court Employees Welfare Association and had requested the president to find out if there was any deficiency in her performance which led to her consecutive transfers. This was the basis of the charge on her of exerting pressure from “unacceptable quarters”.
She claimed that she had not asked him to speak to the Branch Admin on her behalf with respect to the change in seating arrangement. It is beyond comprehension as to how an employee’s communication with the president of an association, which is formed for the welfare of employees, can be regarded as an act of insubordination.
From her response to the third charge of unauthorised absence, we get the picture of a woman who is struggling to balance pressure between her work and domestic obligations.
She said that her eight-year-old girl child had a function to attend at school on that day, and had conveyed to the Branch Admin, her inability to attend office. It may be noted that the day in question was a Saturday, a half-day for SC staff. It is also pertinent to note that her attending the school programme was a permissive act, as her superior officer had allowed her to attend it and to come to work late. This is clear from the testimony of her superior who was examined as PW2 by the Inquiry Officer.
The lady officer stated in her reply that the programme got unexpectedly prolonged till 1:15 pm, and so she could not attend office before 1 pm. She added that since her husband – then employed with the Delhi Police – was out of station, she could not have left the child alone. Instead of a deliberate omission, it appears to have been a situational lapse caused by circumstances beyond control.
“All these 4 years I have been balancing my responsibilities in the office as well as towards my family. On many occasions, I had not attended the school events of my daughter. There have been many occasions and events where only my husband had attended and I have not attended my daughter’s school function, which shows my devotion and dedication towards school duties”, she said in the reply.
In this regard, she also added that an SC employee was entitled to eight casual leaves and that she had only availed four leaves as on that date. She had applied for a casual leave on November 16, which was not granted, she mentioned. However, apologised unconditionally and said that “I realise this is a serious lack of judgment on my part and I should not have prolonged”. She also added that it was a “question of survival of her family”. “I pray with folded hands to consider my case on humanitarian and sympathetic grounds”, she pleaded. She also offered assurance of her intention to abide by discipline in future.
The Inquiry Officer held that the officer had virtually admitted to the charges, and reported that the “delinquent official had committed an act of insubordination and that she had acted in a manner unbecoming of a court servant and prejudicial to discipline”.
The Disciplinary Authority accepted the findings recorded by the Inquiry Officer as “well-founded” and imposed on her the major penalty of termination from service under Rule 11(iv) of the Supreme Court Officers and Servants (Conditions of Service and Conduct)Rules 1961.
From the report of the Inquiry Officer, three things follow:
- She protested the change in seating arrangement
- She tried to get the earlier seating arrangement restored through the President of SC Employees Welfare Association
- She had taken unauthorised leave on November 17, Saturday, when she had gone to attend a school function of her child.
Are these charges grave enough to warrant the penalty of dismissal from service? It is well concluded that the punishment imposed on an employee should be proportionate to the gravity of the misconduct. That is the reason why service rules provide for a graded system of punishment, ranging from minor penalties to major penalties. The SC Officers and Servants (Conditions of Service and Conduct) Rules 1961 are also not different.
It provides for a range of penalties in the form of censure: withholding of increments or promotions, reduction in rank, compulsory retirement, recovery from payment, removal from service which will not be a disqualification for future employment, and dismissal from service which will be a disqualification for future employment.
As can be seen, dismissal from service is the most severe penalty. For an employee, it is akin to capital punishment. When the service rules provide for different degrees of penalties, the Disciplinary Authority has to apply its discretion to choose a penalty which is commensurate with the gravity of the misconduct. Otherwise, it will be an arbitrary exercise of power.
In Dev Singh vs Punjab Tourism Development Corporation (2003) 8 SCC 9, an employee with 20 years of unblemished service was dismissed for a single act of misplacement of file. The Supreme Court held the punishment to be disproportionate. “If the punishment imposed by the disciplinary authority is totally disproportionate to the misconduct proved against the delinquent officer, then the court would interfere in such a case”, observed the court while reducing the punishment to a lesser penalty.
Even in cases of Court Martial against armed officers, the SC has interfered with punishments which appeared to be disproportionate.
“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 and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the Court Martial, if the decision of the Court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction”, observed the Court in Ranjit Thakur vs Union of India AIR 1987 SC 2386.
In this case, an army officer’s dismissal from service for disobedience was set aside by the court as disproportionate. In Ex Naik Sardar Singh vs Union of India (1991) 3 SCC 213, the SC interfered with the dismissal of an army officer who was found to have taken liquor bottles beyond permit. The SC said that there was “an element of arbitrariness in awarding the severe punishment”.
In Collector Singh vs LML Ltd Kanpur (2015) 2 SCC 410, the SC held that dismissal from service for an act of throwing jute balls on a colleague was “harsh and disproportionate”.
In Ram Kishan vs Union of India 1995 (6) SCC 157, the delinquent employee was dismissed from service for using abusive language against a superior officer. On the facts and circumstances of the case, the Supreme Court held that the punishment was harsh and disproportionate to the gravity of the charge imputed to the delinquent and modified the penalty to stoppage of two increments with cumulative effect.
When the punishment is “outrageously disproportionate” to the gravity of the misconduct, the courts will interfere. (Jai Bhagwan vs Commissioner of Police & Ors., 2013 (11) SCC 187). In this case, a police officer was dismissed for shouting at his superior and for not being in proper uniform. The SC reduced the punishment of dismissal, which is reserved for incorrigible employees in grave cases of dereliction of duty, corruption, cases involving moral turpitude etc.
For a dismissal to be justifiable, the situation should be such that the continuation of the employee’s service would adversely affect the very functioning of the institution. Sporadic instances of insubordination by an employee, who otherwise has a good track record, will not justify dismissal under ordinary circumstances.
In the instant case, the Junior Court Officer’s expression of protest at the change of seat, or her approaching the president of the Employees Welfare Association with a grievance cannot be seen as grave acts of indiscipline. Even her unauthorised absence for a single day cannot justify dismissal from service, as per the SC precedents.
Apart from that, her unblemished record of past service, which was graded “very good” and “good” during previous years, and her unconditional apology for the lapse along with her undertaking to abide by discipline in the future should have been regarded as mitigating factors.
Unfortunately, these aspects were not taken into consideration by the Disciplinary Authority. There is no discussion as to why alternate penalties were not considered for the misconduct of the employee. From the totality of circumstances, punishment against the Junior Court Assistant appears to be “outrageously disproportionate”.
This article was first published on LiveLaw. Read the original here.