wp.622.09
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
WRIT PETITION NO. 622/2009 Kishor s/o Sitaramji Gaidhani Aged about 50 years, occu: Nil R/o 83, H B Puram, Shivangaon Nagpur. ..PETITIONER v e r s u s Central Government of India through Ministry of Defense Ordnance Factory, Bhandara. ..RESPONDENT ...........................................................................................................................
Mr. B.G.Kulkarni, Advocate for the petitioner Mrs.M.R.Chandurkar, Counsel for the respondent ...........................................................................................................................
CORAM: SMT. VASANTI A. NAIK &
MRS . SWAPNA JOSHI, JJ
.
DATED : 5th April, 2017
ORAL JUDGMENT: (PER SMT. VASANTI A. NAIK, J.)
1. By this Writ Petition, the petitioner challenges the order of the Central Administrative Tribunal, dated 25.10.2005, dismissing the Original Application filed by the petitioner and upholding the order of removal of the petitioner from service.
2. Few facts giving rise to the petition are stated thus; ::: Uploaded on - 10/04/2017 ::: Downloaded on - 12/04/2017 00:23:59 :::
wp.622.09 2 The petitioner had joined the services in the Ordnance Factory, Bhandara as a Chemical Supervisor on 02.07.1982. There was no complaint or grievance in respect of his services from the date of his appointment till 1998-99 inasmuch as, the services of the petitioner were unblemished till then. In the year 1996, while working in the P.T.Section as CMII (Tech), the petitioner suffered from breathing trouble, chronic bronchitis and cough problem due to the fumes and the chemicals in the Section in which the petitioner was working. The petitioner initially took the treatment at the Ordnance Factory Hospital at Bhandara. However, since the petitioner did not show any improvement after the treatment at the Ordnance Factory Hospital, he came to Nagpur so as to secure the treatment from specialists. The petitioner was treated at the super-speciality hospital and the Mure Memorial Hospital at Nagpur. The Civil Surgeon, Bhandara, Doctors at the Mure Memorial Hospital and the Super-speciality Hospital, diagnosed that the petitioner had suffered serious breathing problems with bronchitis as a result of fumes emanating from the chemicals in the Section in which he was working. The petitioner submitted an application to the respondent for grant of leave. The petitioner was, however, not granted any leave. Before seeking leave, the petitioner also submitted an application dated 24.07.1998 for transfer from one Section of the Ordnance Factory to another, so that he should not be exposed to fumes and chemicals, at least for some time. Along ::: Uploaded on - 10/04/2017 ::: Downloaded on - 12/04/2017 00:23:59 ::: wp.622.09 3 with the leave and the transfer applications, the petitioner submitted the certificate showing that he was unfit. The petitioner submitted the certificates issued by Civil Surgeon, Bhandara dated 08.04.1999 and the certificates issued by the Medical Officer at the Mure Memorial Hospital dated 10.05.1999, 11.07.1999 and 11.04.2000. The petitioner also submitted the certificate of Doctors at the Super-speciality Hospital, pointing out that the petitioner was suffering from serious bronchitis. According to the petitioner, though the reason for the absence of the petitioner from duty was known to the respondent, the respondent initiated a disciplinary enquiry against the petitioner for unauthorised absence from 07.01.1999 to 12.07.1999. The charge of unauthorised absence was proved against the petitioner and as a punishment, the pay of petitioner was reduced to the minimum of the scale from Rs.6,200/- to Rs.5,000/- with effect from 13.07.2000. The petitioner continued to submit the applications seeking his transfer from P.T. Section to other sections which did not deal with production so as to avoid exposure to chemicals and fumes. All the medical papers and certificates were annexed by the petitioner to the said applications. Being satisfied that the petitioner suffered severe health problems as a result of his services in the P.T. Section, the Deputy General Manager, Ordnance Factory, Bhandara addressed a communication to the General Manager, Ordnance Factory, Nagpur, dated 11.1.2000, requesting that the petitioner could be transferred to the Ordnance ::: Uploaded on - 10/04/2017 ::: Downloaded on - 12/04/2017 00:23:59 ::: wp.622.09 4 Factory at Nagpur. However, the request of the petitioner for transfer to Ordnance Factory at Nagpur or to any other Ordnance Factory, was ultimately turned down. A charge-sheet was again served on the petitioner, dated 18.04.2000, levelling the charge of unauthorised absence from duty after 07.01.1999. The petitioner participated in the enquiry and produced the certificates and other documents to point out that the petitioner was seriously ill at the relevant time and since there was a bona fide cause for the petitioner to remain absent, strict action may not be taken against the petitioner. However, the Inquiry Officer held that the charge levelled against the petitioner was proved and the petitioner was removed from service by the order of the Disciplinary Authority, dated 14.11.2000. The petitioner challenged the order of his removal before the Central Administrative Tribunal. The Central Administrative Tribunal, by the impugned order, dismissed the Original Application filed by the petitioner.
3. Shri B.G. Kulkarni, the learned counsel for the petitioner submitted that there is no doubt that there is some fault on the part of the petitioner in not presenting himself before the Doctors in the hospital of the Ordnance Factory, Bhandara, as asked on behalf of the respondent, but the petitioner cannot be penalised to such an extent so as to remove the petitioner from service, in view of the said fault. It is submitted that it is apparent from the record and it ::: Uploaded on - 10/04/2017 ::: Downloaded on - 12/04/2017 00:23:59 ::: wp.622.09 5 is also held by the Central Administrative Tribunal that admittedly the petitioner was suffering from bronchitis due to the fumes and chemicals in the P.T. Section where the petitioner was working. It is submitted that it is apparent from the medical certificates that were produced by the petitioner before the respondent, especially the certificates of the Medical Officer at Bhandara, the Medical Officers at the Mure Memorial Hospital and the specialists in the super-speciality Hospital that the petitioner was under severe medication in view of bronchitis, with which he suffered, as a result of his services in the P.T. Section. It is submitted that every document produced by the petitioner before the authorities and in this Court would clearly show that the petitioner was suffering from severe bronchitis and the absence of the petitioner, though uunauthorised, was not deliberate or intentional. It is submitted that after the Central Administrative Tribunal has observed that the petitioner was suffering from serious ailment as a result of his services in P.T. Section, the Tribunal ought to have taken a lenient view in the matter and ought to have remanded the matter to the Disciplinary Authority for imposing a lesser punishment on the petitioner. It is submitted that the petitioner has a spotless and unblemished service record of at least 17-years to his credit and though the petitioner had applied for his transfer or also for voluntary retirement, the transfer was not granted to him and the voluntary retirement was not permitted as the petitioner had not completed 20-years of service. It ::: Uploaded on - 10/04/2017 ::: Downloaded on - 12/04/2017 00:23:59 ::: wp.622.09 6 is submitted that the punishment imposed upon the petitioner, in the circumstances of the case, is shockingly disproportionate to the act of misconduct proved against him. It is submitted that had the petitioner not suffered from a serious ailment, the petitioner would not have absented himself. It is submitted that the ailment suffered by the petitioner was so severe that the petitioner felt that in case he joins the duty in the P.T. Section at Bhandara he would risk his life or limb. It is submitted that it is well-settled that it would be necessary for the authorities to punish the employee for unauthorised absence only when the authority comes to a conclusion that the unauthorised absence was wilful and without any justification. It is submitted that in the circumstances of the case, the matter may be remanded to the Disciplinary Authority so that the Disciplinary Authority could impose a lesser punishment on the petitioner.
4. Mrs. M.R. Chandurkar, the learned counsel for the respondent has supported the orders of the Disciplinary Authority as also the Central Administrative Tribunal. It is submitted that the petitioner had unauthorisedly remained absent for a long time and it cannot be said that the punishment of removal from service is shockingly disproportionate to the unauthorised absence. It is submitted that the petitioner had no doubt applied for voluntary retirement, but the same could not have been permitted as the petitioner had ::: Uploaded on - 10/04/2017 ::: Downloaded on - 12/04/2017 00:23:59 ::: wp.622.09 7 not completed 20-years' service. It is submitted that the petitioner had sought his transfer in some other Section in the Ordinance Factory at Nagpur, but the request of the petitioner for transfer could not be accepted as there was no post of Chemical Supervisor at Nagpur on which the petitioner could have been worked. It is submitted that in the absence of any vacancy in the Section/Department in which the petitioner could have been accommodated at Nagpur, the respondent was justified in not acceding to his request for transfer to Nagpur. It is submitted that since the petitioner did not present himself before the Doctors in the Hospital of the Ordnance Factory at Bhandara, the respondent has rightly taken a decision of removal of the petitioner from service. The learned counsel however, did not dispute that the petitioner had put in 17-years of unblemished services till he suffered from the ailment in the year 1997-98. The learned counsel sought for dismissal of the Writ Petition.
5. On hearing the learned counsel for the parties and on a perusal of the documents annexed to the petition, which are not disputed by the respondent, it appears that the punishment imposed upon the petitioner, of his removal from service, is shockingly disproportionate to the act of misconduct committed by the petitioner. In the circumstances of the case, when the petitioner had admittedly put in 17-years of unblemished services and the ::: Uploaded on - 10/04/2017 ::: Downloaded on - 12/04/2017 00:23:59 ::: wp.622.09 8 petitioner was admittedly suffering from severe bronchial problems due to the fumes and chemicals in the P.T. Section, which was an explosives section, the respondent could have either transferred the petitioner to any other Section or Department or if at all the petitioner was to be punished for his unauthorised absence, a lesser punishment could have been imposed on the petitioner. No warning, memo, or show-cause notice is issued to the petitioner during his services from the year 1982 till the year 1998-99. It is an admitted position that the petitioner was suffering from severe bronchitis as a result of the fumes and chemicals in the P.T. Section where the petitioner was posted at the relevant time. It could be gathered even from the prescriptions and the certificates issued by the Doctors at the hospital of the respondent-Ordnance Factory at Bhandara that the petitioner was suffering from severe bronchitis and had breathlessness and sickness. The petitioner was regularly administered a dose of deriphyllin and asthalin, in view of the ailment suffered by him. There are, at least, eight certificates and prescriptions of the doctors of the Ordnance Factory at Bhandara pertaining to the initial period of his ailment and they show that the petitioner initially took the treatment from the Hospital of the Ordnance Factory at Bhandara but did not show any improvement. It appears that the health of the petitioner did not improve at Bhandara and the treatment at the Hospital at Bhandara also did not work on him. It appears that he was constrained to come to Nagpur and secure the ::: Uploaded on - 10/04/2017 ::: Downloaded on - 12/04/2017 00:23:59 ::: wp.622.09 9 treatment at the hospitals at Nagpur. Several medical certificates issued by the doctors and super-specialists of the Hospitals at Nagpur, which form a part of the record, clearly show that the petitioner was suffering from severe bronchitis due to the fumes emanating from the chemicals. The respondent could not have expected the petitioner to continue working in the P.T. Section at the risk of his life and limb. There is reason to believe that even the respondent was satisfied that the petitioner suffered a very serious ailment and the said fact could be depicted from the communication-request made by the Deputy General Manager, Ordnance Factory, Bhandara vide communication dated 10.01.2000 to the General Manager, Ordnance Factory, Nagpur that the petitioner could be transferred in another Department/Section of the Ordnance Factory, Nagpur. Copies of the medical certificates were annexed by the Deputy General Manager, Ordnance Factory Bhandara to the said proposal that was sent to the General Manager, Ordnance Factory, Nagpur. This clearly shows that even the Deputy General Manager, Ordnance Factory, Bhandara was convinced that the petitioner suffered from an ailment which was the result of an occupation hazard and the petitioner needed transfer to some other place. It is stated by the learned counsel for the respondent that the request of the petitioner was not accepted as there was no vacancy in which the petitioner could have been accommodated at Nagpur. Be that as it may, merely because the petitioner had not presented himself before the ::: Uploaded on - 10/04/2017 ::: Downloaded on - 12/04/2017 00:23:59 ::: wp.622.09 10 Medical Officer in the Ordnance Factory hospital at Bhandra, the punishment of removal from service cannot be imposed on the petitioner, for his unauthorised absence. There was a genuine cause for the petitioner to remain absent from duty. We have already recorded that there was no blemish in the service record of the petitioner for more than 17-years and the respondent should have at least considered this aspect of the matter while imposing the punishment on the petitioner. As rightly submitted on behalf of the petitioner, it would be necessary in the circumstances of the case, to remand the matter to the Disciplinary Authority to consider imposing a lesser punishment on the petitioner as the petitioner would at least get the benefit of some part of his services if the punishment of compulsory retirement from service is imposed on him. Since we find that the punishment imposed on the petitioner is shockingly disproportionate to the act of misconduct committed by him, in the circumstances of the case, the orders of the Central Administrative Tribunal and the Disciplinary Authority are liable to be quashed and aside and the matter is liable to be remanded to the Disciplinary Authority for imposing a lesser punishment on the petitioner.
6. Hence, for the reasons aforesaid, the Writ Petition is partly allowed. The order of the Central Administrative Tribunal is hereby modified. The Original Application filed by the petitioner is partly allowed. ::: Uploaded on - 10/04/2017 ::: Downloaded on - 12/04/2017 00:23:59 :::
wp.622.09 11 The matter is remanded to the Disciplinary Authority for imposing a lesser punishment on the petitioner. The order should be passed by the Disciplinary Authority in pursuance of our directions as early as possible and positively within three months. Rule is made absolute in the aforesaid terms, with no orders as to costs.
JUDGE JUDGE
sahare
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