Sunday 5 February 2012

Gutka chewing a misconduct, but does not warrant dismissal: HC

Chewing gutka is bad but not so serious a misconduct as to warrant the dismissalof a person from service, the Bombay High Court ruled while directing a clerk to be reinstated nearly 12 years after he was given the marching order.
The judges, however, observed that "unfortunately, there is a tendency among the service class to chew pan masala, tobacco, gutka or consume tea or coffee during office hours and such conduct is required to be deprecated".
A division bench of Justice P B Majmudar and Justice A P Bhangale of the Nagpur bench was hearing a plea filed by Shivdas Borkar challenging his dismissal from service in 2000 by the district and sessions judge, Nagpur, who is the disciplinary authority (DA). Borkar was a junior clerk in the court of civil judge (junior division) and judicial magistrate first class, Narkhed. On May 25, 1999, Borkar fished out a pouch of gutka from his pocket, tore it with his teeth and ate gutka in the presence of the presiding officer in the courtroom.
He was charged with serious misconduct, misbehaviour and insubordination. An enquiry officer's (EO) report to the DA said that seven out of nine charges, including Borkar issuing threats to the presiding officer in his reply to the show-cause notice, were proved against the staffer. On April 28, 2000, the appellate authority, Registrar High Court (Appellate side), upheld the dismissal.
Borkar's advocate I S Charlewar argued that at that time, Borkar, who had by then put in over nine years of service, was not in a proper frame of mind as his father and brother were seriously ill and that it was the only such incident in his service career. Senior advocate S V Manohar, appearing for the High Court administration, said there is no record to show that Borkar was habituated to eating ghutka but his conduct, as a clerk in the judiciary, should have been exemplary.
The judges held the DA had rightly accepted the EO's report and the only question to consider is whether the punishment is adequate or disproportionate to the charges proved.
On January 24, the judges observed that chewing of gutkha was a misconduct and
noted that Borkar had chewed gutka just once in his service career. "In our view,
The said misconduct of the petitioner is not such a serious one by which one chance could not have been given to him for improvement of his character," said the judges, adding, "Noted that unfortunately, there is a tendency in the service class to chew pan masala, tobacco, gutka or consume tea or coffee during office hours and such conduct is required to be deprecated. The employees must learn that they have to give 100% work during office hours, but it is unfortunate that government servants, during office hours, are found taking tea, coffee, pan, pan masala, etc. Such practice is to be deprecated and strict action needs to be takenn and corrective measures are necessary to be adopted with the object that they do not repeat such things in future."
They said charges of writing letter to presiding officer that he will file criminal and civil proceedings was out of frustration and also writing for providing additional cupboard is not serious insubordination. Concluding that the punishment is unduly harsh, the judges directed his reinstatement within a month.
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