Delhi High Court has held that "The law is well settled that equality before law is a positive concept and it cannot be enforced in a negative manner. If an illegality or irregularity has been committed in favour of any individual or a group of individuals, others cannot claim order on principle of equality before law."
In this case, the petitioner challenged the award of the Industrial Tribunal where, the Industrial Tribunal set aside the penalty of removal from service of the respondent and imposed penalty of reduction of three stages of basic pay of time scale as an alternate of penalty for removal from service.
The facts of the case are as follows :
The respondent applied for and was granted leave for 35 days (from 11 April 2008 to 15 May 2008) to visit Singapore. The respondent failed to join back duties on 16 May 2008 despite repeated written intimations on 12 June 2008 and 25 August 2008. A show cause notice-cum-charge sheet was issued to the respondent on 15 November 2008 to show cause as to why penalty of removal be not imposed. Though the respondent joined back the duties on 27 November 2008 subject to the enquiry proceedings but again proceeded on unauthorized leave on 28 December 2008 and chose not to appear before the Enquiry Officer. The court alleged that after affording a reasonable opportunity to the respondent, the Enquiry Officer conducted the enquiry. And hence, there is no violation of the principles of natural justice as alleged by the respondent. The Enquiry Officer submitted his report on 30 April 2009.
Thus the disciplinary authority imposed the penalty of removal on the respondent under Regulation 39 (1) (f) of LIC of India Staff Regulation 1960 for unauthorized absence of 373 days. Though the respondent filed an appeal and thereafter a memorial to the Appellate Authority, i.e., Zonal Manager and to the Chairman respectively, both were rejected.
Even though the Industrial Tribunal held the punishment imposed on the respondent as discriminatory on the grounds that lower punishment was awarded to similarly situated employees, Justice J.R. Midha said,
"The law is well settled that equality before law is a positive concept and it cannot be enforced in a negative manner. If an illegality or irregularity has been committed in favour of any individual or a group of individuals, others cannot claim order on principle of equality before law. If such claims are enforced, it shall amount to directing to continue and perpetuate an illegal procedure or an illegal order for extending similar benefits to others." The court further added that, " a wrong decision does not give a right to a person to enforce the wrong order and claim parity or equality."
While allowing the petition, the court held that the respondent is guilty of gross misconduct of unauthorized absence since and the punishment inflicted by the petitioner is proportionate to her misconduct. The court further added that the Tribunal gravely erred interfering with the punishment of removal of service of the respondent which is contrary to the well-settled law.
The court also dismissed the claim of the respondent and upheld the punishment of removal of the respondent.
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