Union Of India, vs S. Prasanna Kumar
2023 Latest Caselaw 2275 AP

     THE HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY

                                    AND

          THE HON'BLE SRI JUSTICE V. GOPALA KRISHNA RAO


                    WRIT PETITION No.1981 of 2012

ORDER:- (Per Hon'ble Sri Justice Cheekati Manavendranath Roy)

       Aggrieved by the order dated 24.03.2011 of the Central

Administrative Tribunal, Hyderabad Bench whereby the Tribunal by

the impugned order directed the third respondent therein -

Disciplinary Authority to consider the matter for imposing a lesser

punishment to the applicant by passing a reasoned order within a

period of two months from the date of receipt of a copy of that order,

the present Writ Petition has been preferred by Union of India and

others.

2. Heard learned Deputy Solicitor General of India appearing for

the petitioners and Sri M.R.Tagore, learned counsel appearing for

respondent No.1.

3. The first respondent is an employee, working as Primary

Teacher at Space Central School, SDSC, SHAR, Sriharikota, Nellore

District. Owing to his unauthorized absence from duty for a period

of 96 days, disciplinary proceedings were initiated against him on the

ground that he is an habitual absentee to his duties frequently

without prior permission/ intimation or sanction of leave and

thereby contravened the provisions of Rule 3 (1) (ii) and (iii) of

Central Civil Services (Conduct) Rules, 1964. A charge memo was

issued to him to that effect and thereafter enquiry was conducted.

The first respondent was found to be an unauthorized absentee for

the period from 23.01.2003 to 28.04.2003. Therefore, the

disciplinary authority has imposed the major penalty of compulsory

retirement on the first respondent. Aggrieved by the said penalty

that was imposed against him, he has approached the Central

Administrative Tribunal, Hyderabad Bench at Hyderabad,

questioning the said finding of misconduct recorded against him and

the major punishment that was imposed against him.

4. The Tribunal by the impugned order has confirmed the finding

recorded against him relating to his unauthorized absence from

duty. However, the Tribunal has directed the disciplinary authority

to consider the matter for imposing a lesser punishment on the

applicant and to pass a reasoned order to that effect within a period

of two months from the date of receipt of a copy of that order.

5. Aggrieved by the said direction issued to the third respondent

to impose lesser punishment on the applicant, the Union of India has

filed this writ petition questioning the legal validity of the said

direction given by the Tribunal.

6. The learned Deputy Solicitor General of India appearing for the

petitioners would contend that the Tribunal/High Court cannot

interfere with the discretion of the disciplinary authority or power of

the disciplinary authority in imposing punishment on the employee

relating to the act of misconduct committed by him and that the

Tribunal erred in giving direction to the disciplinary authority to

consider the case of the applicant for imposing lesser punishment.

In support of his contention, he relied on the judgments of Hon'ble

Supreme Court of India reported in Parma Nanda Vs. State of

Haryana and others1, Om Prakash Vs. State of Punjab and

others2 and Chennai Metropolitan Water Supply and Sewerage

Board and others Vs. T.T.Murali Babu3.

7. The purport of the aforesaid judgments as per the ratio laid

down therein is that the Tribunal/ Court should normally not

interfere with the discretion of the disciplinary authority in imposing

punishment against the employee, who is found to have committed

an act of misconduct. But at the same time, it is held that when the

punishment imposed is shockingly disproportionate to the gravity of

the misconduct that was committed, then the Tribunal/ High Court

can to that limited extent examine the proportionality of the

(1989) 2 Supreme Court Cases 177

(2011) 14 Supreme Court Cases 682

(2014) 4 Supreme Court Cases 108

punishment that was imposed and can remit the matter to the

disciplinary authority to reconsider the same for imposing lesser

punishment. It is held that the Tribunal/ High Court cannot directly

reduce or modify the punishment and they have to only remit the

matter to the disciplinary authority, who is the competent authority

to consider the case for imposing lesser punishment.

8. Therefore, in the light of the aforesaid law that has been laid

down and settled, the only issue that is required to be considered in

this writ petition is, whether the punishment of imposing major

penalty of compulsory retirement against the first respondent herein

is proportionate with the gravity of the misconduct committed by him

and whether it shocks the conscience of the Court or not. Further it

has to be seen whether the impugned order of the Tribunal in

directing the disciplinary authority to reconsider the case of the

applicant for imposing lesser penalty on the ground that the major

punishment that was imposed is shocks the conscience of the

Tribunal is legally sustainable or not?

9. As noticed supra, the Act of misconduct that was committed

by the first respondent herein is unauthorized absence from duty for

a period of 96 days from 23.01.2003 to 28.04.2003. Therefore, the

said act of misconduct committed by the first respondent herein is

not a grave misconduct. In the said facts and circumstances of the

case as rightly held by the Tribunal, the major penalty of compulsory

retirement imposed against the first respondent certainly shocks the

conscience of the Court. The said punishment is undoubtedly

shockingly disproportionate with the gravity of the misconduct that

was committed. Therefore, the Tribunal has rightly directed the

disciplinary authority to consider the matter for imposing lesser

punishment on the applicant by passing a reasoned order to that

effect.

10. In fact, the Tribunal has also relied on the judgment of the

Apex Court rendered in the case of State of Tripura and others Vs.

Naresh Chandra Das4.

11. That was also the case where disciplinary proceedings were

initiated against an employee for his unauthorized absence. After

recording a finding that he has resorted to the said act of misconduct

of unauthorized absence from duty, major penalty of removal from

service was imposed against him. When the employee questioned

the same in the High Court, the High Court held that the

punishment is excessive and disproportionate and thereby remitted

the matter to the disciplinary authority to impose any punishment

(2007) 15 SCC 759

except punishment of dismissal or removal from service and

compulsory retirement. However, the High Court ordered payment of

25% of back wages, even though the said employee was previously

awarded punishment 19 times for various types of dereliction of

duties committed by him. Rejecting the contention of the State that

the punishment of the dismissal was not excessive punishment, as

the employee had only two years of service at that time, considering

the facts and circumstances, the apex Court upheld the said

direction to impose lesser punishment and ordered for his

reinstatement. However, the direction of the High Court to pay back

wages was held to be not sustainable and thereby the apex Court

has set aside the said direction.

12. Thus, in a case where an employee was earlier awarded

punishment 19 times for various types of dereliction of duties, the

apex Court upheld the lenient view taken by the High Court in

ordering to impose lesser punishment. In the instant case, the only

act of misconduct committed by the first respondent is remaining

unauthorized absence from duty for a period of 96 days. So, the

employee in the present case stands on better footing than the

employee in the aforesaid reported case.

13. Therefore, considering the facts and circumstances of the case

and the act of misconduct committed by the first respondent herein,

we are of the considered view that imposition of major penalty of

compulsory retirement against the first respondent is shockingly dis

proportionate to the gravity of misconduct committed by him. As

rightly held by the Tribunal the same is harsh and shocks the

judicial conscience. Therefore, we are not inclined to interfere with

the impugned order of the Tribunal. In fact the impugned order is

perfectly sustainable under law and it does not call for any

interference in this writ petition.

14. The disciplinary authority has to reconsider the matter for

imposing lesser punishment as ordered by the Tribunal. It is

brought to the notice of the Court at the time of hearing that only 8

months service is left over and he is going to retire thereafter on

attaining the age of superannuation. Therefore, taking all the said

facts and circumstances of the case, the disciplinary authority has to

impose penalty which is proportionate with the act of misconduct

committed by the first respondent herein other than the major

penalty of dismissal /removal from service or compulsory retirement.

In case the first respondent is reinstated by imposing lesser

punishment, the first respondent is not entitled to any back wages.

15. Resultantly, the writ petition is dismissed. No costs.

Miscellaneous petitions, if any pending, in the Writ Petition,

shall stand closed.

______________________________________________ JUSTICE CHEEKATI MANAVENDRANATH ROY

___________________________________ JUSTICE V. GOPALA KRISHNA RAO

Date: 25.04.2023 sj

THE HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY

AND

THE HON'BLE SRI JUSTICE V. GOPALA KRISHNA RAO

WRIT PETITION No.1981 of 2012

Date: 25-04-2023

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