wp938.13.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.938/2013
PETITIONERS: 1. Union of India,
Service through its General Manager,
South East Central Railway, Bilaspur.
2. Additional Divisional Railway
Manager, South East Central Railway,
Nagpur.
3. Sr. Divisional Signal and Telecom
Engineer, South East Central Railway, Nagpur.
4. Assistant Divisional Signal and
Telecom Engineer, South East
Central Railway, Nagpur.
...VERSUS...
RESPONDENT : Shri A.K. Das,
aged 42 years, Occupation : Railway
Service, R/o Bhilgaon, Plot No.18-B,
Post : Kamptee, Distt. Nagpur.
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Shri N.P. Lambat, Advocate for petitioners
Ms Nisha Shrivastava, Advocate for respondent
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CORAM : SMT. VASANTI A NAIK, AND
V.M. DESHPANDE, JJ.
DATE : 16.03.2017 ORAL JUDGMENT (PER : SMT. VASANTI A. NAIK, J.) By this petition, the petitioners challenge the order of the Central Administrative Tribunal, dated 10.12.2012 allowing the original application filed by the respondent and directing the petitioners to ::: Uploaded on - 20/03/2017 ::: Downloaded on - 22/03/2017 00:36:21 ::: wp938.13.odt 2 reinstate the respondent in services with back wages from October, 2010 till the respondent is reinstated.
The respondent was appointed as a Section Engineer at Gondia at the relevant time in 2007. When he remained absent from duty from 13.10.2007 to 25.10.2007 without prior permission of the Senior Section Engineer, a charge-sheet was served on the respondent and as the explanation of the respondent was not satisfactory, a Departmental Enquiry was conducted. The charge of remaining unauthorizedly absent from duty was proved against the respondent and considering the fact that at the relevant time, the services of the respondent were required due to the Minister's visit, as also the fact that the respondent had produced the certificate of a Private Medical Officer and not the Railway Medical Officer, his services were terminated. The respondent filed departmental appeals but without success. Being aggrieved by the order of the Disciplinary Authority, the respondent filed the original application before the Central Administrative Tribunal. The Tribunal held that the punishment of removal from services was shockingly disproportionate to the act of misconduct committed by the respondent and hence, the petitioners were directed to reinstate the respondent in service with back wages from the date of filing of the original application till his reinstatement. The order of the Tribunal is challenged by the petitioners ::: Uploaded on - 20/03/2017 ::: Downloaded on - 22/03/2017 00:36:21 ::: wp938.13.odt 3 in the instant petition.
Shri Lambat, the learned Counsel for the petitioners submitted that the Tribunal was not justified in directing the reinstatement of the respondent in services with back wages, specially when the Tribunal had recorded a finding that the enquiry was conducted against the respondent in a fair manner and the charges levelled against the respondent were proved. It is stated that at the relevant time due to the Minister's visit, the services of the respondent were required and the respondent remained unauthorizedly absent without tendering a medical certificate from the Railway Medical Officer and without seeking the leave for the absence. It is submitted that the misconduct on the part of the respondent is grave and serious and since the charge levelled against the respondent was duly proved, the Tribunal could not have interfered with the punishment imposed by the petitioners on the respondent. It is submitted that the Tribunal has wrongly appreciated the law laid down by the Hon'ble Supreme Court in the judgments that were referred before the Tribunal.
Ms Nisha Shrivastava, the learned Counsel for the respondent supported the order of the Tribunal. It is submitted that for unauthorized absence the punishment of removal could not have been imposed and since the said punishment was shockingly disproportionate ::: Uploaded on - 20/03/2017 ::: Downloaded on - 22/03/2017 00:36:21 ::: wp938.13.odt 4 to the act of misconduct, the Tribunal had rightly directed the petitioners to reinstate the respondent in service with back wages. It is stated that the respondent was ill at the relevant time and though he had not produced the certificate of Railway Doctor, he had produced the certificate of a Private Medical Practitioner. It is submitted that in the circumstances of the case, this Court may not interfere with the order of the Tribunal.
Admittedly, the respondent was not granted leave for his absence from 13.10.2007 to 25.10.2007 while he was working as a Section Engineer with the Railways. The respondent did not get himself examined from the Railway Hospital and had not produced the medical certificate from the Railway Hospital to prove that the respondent was ill during the said period. The respondent produced the certificate of a private practitioner. As per the rules, the respondent ought to have got himself examined from the Railway Hospital and ought to have produced the medical certificate of the Doctor in the Railway Hospital to prove his illness. The said charge levelled against the respondent is duly proved. So also, it is proved that the respondent remained unauthorizedly absent for 13 days though there was a visit of the Minister at the relevant time and the presence of the respondent was necessary. In our view, the Tribunal rightly held that the punishment of removal from services is disproportionate to the act of misconduct committed by the respondent. ::: Uploaded on - 20/03/2017 ::: Downloaded on - 22/03/2017 00:36:21 :::
wp938.13.odt 5 We do not find any fault with the order of the Tribunal directing the reinstatement of the respondent in services, as there was no material on record to show that the previous record of the respondent was blemished. The Tribunal rightly directed that the respondent be reinstated in services, but it committed an error in directing the petitioners to pay back wages to the respondent. If the entire order of the Tribunal is accepted, it would be like not imposing any punishment on the respondent though both the charges levelled against the respondent are proved. Granting of reinstatement and back wages would not be proper and if that order is maintained, the respondent would not be punished for the act of misconduct committed by him. In the circumstances of the case, the Tribunal has committed an error in directing the petitioners to pay the back wages to the respondent from October, 2010 till his reinstatement. The respondent would be a happy man without any punishment despite the proof of the serious misconduct against him, if he is reinstated with back wages. In our view, the ends of justice could be met by modifying the order of the Tribunal after maintaining the part of the order granting reinstatement and setting aside the order directing the petitioners to pay back wages to the respondent.
Hence, for the reasons aforesaid, the writ petition is partly allowed. The impugned order of the Tribunal stands modified. The part of ::: Uploaded on - 20/03/2017 ::: Downloaded on - 22/03/2017 00:36:21 ::: wp938.13.odt 6 the order that directs the reinstatement of the respondent in service is upheld. The part of the order that directs the payment of back wages to the respondent is set aside. The respondent should return the amount that was received by the respondent towards terminal benefits after his removal from services, to the petitioners, within four months.
Rule is made absolute in the aforesaid terms with no order as to costs.
JUDGE JUDGE
Wadkar
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