Union Of India , N.C.R. Allahabad ... vs Smt. Bechani Devi
2018 Latest Caselaw 51 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 34								A.F.R
 

 
Case :- WRIT - A No. - 50155 of 2014
 
Petitioner :- Union Of India , N.C.R. Allahabad And 4 Ors
 
Respondent :- Smt. Bechani Devi
 
Counsel for Petitioner :- A.K. Gaur
 
Counsel for Respondent :- Sudama Ram,Anand Kumar
 

 
Hon'ble Sudhir Agarwal,J.

Hon'ble Ifaqat Ali Khan,J.

1. Heard Sri A.K. Gaur, learned counsel for petitioners and Sri Anand Kumar, learned counsel for respondent.

2. This writ petition is directed against judgment and order dated 15.05.2014 passed by Central Administrative Tribunal, Allahabad Bench, Allahabad (hereinafter referred to as "Tribunal") in Original Application (hereinafter referred to as "O.A.") No. 472 of 2005 allowing O.A. and setting aside order of removal from service passed by Assistant Signal & Telecom Engineer, N. Rly Allahabad vide order dated 08.03.1996 and its consequential orders dated 19.04.2004 and 16.03.2005. Petitioners were directed to give all consequential benefits to respondent who is widow of employee concerned, who died during pendency of O.A. and was substituted by present respondent.

3. On the allegation of unauthorized absence from 03.05.1993 to 15.04.1994, a charge sheet was served upon Ram Jiyawan (now deceased) alleging that absence was unauthorized, willful and illegal, therefore, it constituted misconduct. He submitted reply stating that absence during period 03.05.1993 to 15.04.1994 is not disputed but it was not unauthorized and willful but for valid reasons, inasmuch as his wife was seriously ill and for her treatment he was absent for which he had already submitted medical certificates along with written statement. The explanation given by Ram Jiyawan reads as under :-

Þfuosnu gS fd izkFkhZ dk tks c;ku 6-5-95 dks fy;k x;k gSA oks c;ku Li"V ugha gSA D;ksafd izkFkhZ bruk gh Lohdkj djrk gS fd og pktZlhV esa tks vkjksi yxk;k x;k gSa] fd izkFkhZ 3-5-93 ls 18-3-94 rd M~;wVh ls vuqifLFkr Fkk] bruh gh ckr ls lger gSA ysfdu blds vkxs izkFkhZ Li"V dguk pkgrk gSA fd mDr vo/kh ds nkSjku viuh o iRuh dh chekjh ds dkj.k vuqifLFkr jgk] tSlk fd izkFkhZ vius fyf[kr c;ku fnukad 5-5-94 esa fldfQV izek.k i= ds lkFk fn;k gSA

vr% vukf/kd`r :i ls M~;wVh ls vuqifLFkr gksus dk vkjksi Lohdkj ugh gSA

vr% Jheku th ls fuosnu gS fd vxyh lquokbZ ij c;ku dk iwjk ekSdk fn;k tk,saAß

"It is requested that the applicant's statement which has been recorded on6.5.95, is not clear because the applicant merely admits that the charge in the charge-sheet imposed upon him that he was absent from the duty w.e.f. 3.5.93 to 18.3.94. But further the applicant wants to make it clear that he has been absent due to his and his wife's illness, as the applicant has given in his written statement dated 5.5.94 along with sick-fit certificate.

Therefore, the charge of being absent from the duty unauthorizedly is not admitted.

Therefore, it is requested to give opportunity for his statement on next hearing."

(English Translation by Court)

4. Inquiry Officer read the aforesaid statement as admission and held him guilty. Subsequently, Disciplinary Authority passed punishment order dated 08.03.1996 imposing major penalty of removal. Appeal filed before Appellate Authority against punishment order was rejected vide order dated 16.03.2005. Thereafter employee concerned approached Tribunal by means of O.A. No. 472 of 2005. Tribunal vide judgment and order dated 15.05.2014 allowed O.A. and set aside punishment order dated 19.4.2005 and appellate order dated 16.03.2005. Feeling aggrieved, department has preferred this writ petition.

5. Learned counsel for petitioners has submitted that when guilt was admitted by delinquent employee himself, there was no question of holding any disciplinary inquiry and, therefore, judgment of Tribunal is liable to be set aside.

6. We have gone through the impugned judgment of Tribunal. The statement of delinquent employee by no stretch of imagination, can be termed as "admission" on his part. A careful reading of statement dated 05.05.1994 clearly shows that he has only admitted absence for the period in question but simultaneously explained the same stating that it was not willful or unauthorized but there existed valid reasons of serious illness of his wife (respondent herein). Factum that wife of late employee was seriously ill has not been found incorrect by Inquiry Officer or any other Authority, at any point of time.

7. It is well settled that mere absence is not a misconduct but when absence is willful or deliberate only then it would constitute misconduct and the same is punishable under relevant rules.

8. In the instant case, late employee has given specific reason for his absence i.e. serious illness of his wife and without looking into the factum whether absence is willful or not, on mere admission of the factum that late employee was absent from duty, the same has been treated as misconduct and punishment has been inflicted. In our view, authorities have completely erred in law in treating mere absence as misconduct. Therefore, punishment order imposing major penalty of removal from service was patently illegal and unwarranted.

9. In Krushnakant B. Parmar Vs. Union of India and another (2012) 3 SCC 178 in paras 18 and 19 of the judgment Court has held as under:

"18. In a departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove that the absence is willful, in the absence of such finding, the absence will not amount to misconduct.

19. In the present case the inquiry officer on appreciation of evidence though held that the appellant was unauthorisedly absent from duty but failed to hold that the absence was willful; the disciplinary authority as also the appellate authority, failed to appreciate the same and wrongly held the appellant guilty."

(Emphasis added)

10. The aforesaid judgment has also been followed by a Division Bench of this Court (Lucknow Bench) in Rakesh Kumar vs. Union of India Through Chief Post Master General & 3 Others, 2017 (10) ADJ 330.

11. Sri Gaur, learned counsel for petitioners contended that if inquiry was faulty or authority proceeded wrongly on the basis of alleged admission and it vitiated disciplinary proceeding as well as punishment order, Tribunal ought to have directed the authority concerned to proceed with inquiry from the stage it has been found faulty instead of directing for all consequential benefits and to this extent ultimate direction given by Tribunal is liable to be set aside. Reliance has been placed in State of Punjab and Others vs. Dr. Harbhajan Singh Greasy, (1996) 9 Supreme Court Cases 322. He further submits that the impugned order of punishment is set aside by Tribunal also on the ground that inquiry report was not supplied to the delinquent employee relying on the judgment of Supreme Court in Union of India vs. Mohd. Ramzan Khan, (1991) 1 SCC 588. Thus matter was considered by a Constitution Bench in Managing Director ECIL Hyderabad vs. B. Karunakar etc. etc., 1993 (4) SCC 727 wherein it was held that unless it is however shown that some prejudice has caused to the delinquent employee by non supplying of inquiry report and merely factum of inquiry report will have vitiated the order of punishment. He lastly submits that even on this ground if the proceeding are wholly illegal, further direction of all consequential benefits could not have been given at any stage. The authority could have been directed to supply inquiry report complying the principles of natural justice and thereafter pass fresh orders. Reliance has also placed in this regard in Supreme Court judgment in Hiran Mayee Bhattacharyya vs. Secretary, S.M. School For Girls and Others, (2002) 10 Supreme Court Cases 293 and Burdwan Central Cooperative Bank Limited and Another vs. Asim Chatterjee and Others, (2012) 2 Supreme Court Cases 641.

12. The dictum of law laid down in the aforesaid judgments, we find have no application to case in hand for the reasons that in all these cases fresh inquiry could have proceeded since the delinquent employee was alive but in the present case, delinquent employee Ram Jiyawan had died when the matter was pending before Tribunal and he was substituted by his legal representative i.e. respondent Smt. Bachni Devi. Once employee is no more, no direction could have been issued to the authority concerned to proceed with the inquiry afresh since no such inquiry could have continued against a dead person.

13. The legal representative is entitled for all consequential benefits flowing from the result of a case wherein the punishment order is set aside. Therefore, direction issued in the authorities cited by learned counsel for petitioner could not have been issued in the case in hand and in the facts of this case, direction issued by Tribunal cannot be faulted.

14. Writ petition lacks merit. Dismissed.

Order Date :- 18.4.2018/sailesh