Bombay High Court
The Union Of India,Ministry Of ... vs Ganesh Vitthal Gondhalekar on 16 April, 2016
Bench: V.A. Naik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 3604 OF 2004
PETITIONERS :- 1) The Union of India, Ministry of Railways,
Through General Manager, Chatrapati
Shivaji Terminus, Mumbai-01.
2) The Chief Work Shop Manager, Traction
Machine Work-sho-, Central Railway, Nasik
Road.
ig 3) The Assistant Works Manager, Traction
Machine Work Shop, Nasik Road.
...VERSUS...
RESPONDENT :- Shri Ganesh Vitthal Gondhalekar S/o Vitthal
Krishna Gondhalekar, aged about 45 yrs.,
Occ. Nil, R/o. C/o. Shri Anil Gedam,
Waghapur Naka, Pimpalgaon Road, Gajanan
Nagar, Yavatmal.
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Mr.M.I.S. Shekhani, counsel for the petitioners.
Mr. S.B.Tiwari, counsel h/f Mr.R.R.Vyas, counsel for the respondent.
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CORAM : SMT. VASANTI A. NAIK &
V. M. DESHPANDE, JJ.
DATED : 16.04.2016
O R A L J U D G M E N T (Per Smt.Vasanti A. Naik, J.)
2. By this writ petition, the petitioner-Union of India and
others challenge the order passed by the Central Administrative
Tribunal, dated 12/11/2003, allowing an original application filed by
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the respondent-employee and directing the petitioners to impose a
minor penalty on the respondent.
3. Few facts giving rise to the petition are stated thus -
The respondent was appointed as a Helper by the
petitioners on 28/06/1978. The respondent was promoted as a Skilled
Fitter in the year 1998. While working as a Skilled Fitter, a charge-
sheet was served on the respondent for remaining unauthorizedly
absent for the period from 12/05/2000 to 11/08/2000, i.e. for a period
of 92 days. The respondent admitted the charge levelled against him.
After the culmination of the enquiry, the respondent was removed from
service. The order of termination was challenged by the respondent in
a departmental appeal and since the appeal was dismissed, the
respondent challenged the order of termination before the Central
Administrative Tribunal. It was the case of the respondent before the
Tribunal that the order of termination was issued by an incompetent
authority. It was stated that the Appointing Authority of the respondent
had not imposed the major penalty of removal from service. It was
stated in the original application that the enquiry proceedings were
conducted in violation of the procedure laid down in the Railway
Servants (Discipline and Appeal) Rules. The respondent pleaded that
his service record was unblemished till the charge-sheet was served on
him.
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4. The petitioners filed the reply to the original application
and stated that as per the Conduct Rules, remaining absent without
leave is a misconduct, punishable under the Disciplinary Rules. It was
stated in the reply that the order of removal was passed by the authority
competent to pass the same. It was stated that the respondent had
admitted the charge. It was stated that the record of the respondent was
not unblemished, though the respondent was again permitted to join his
duty on 12/08/2000, after 92 days absence with an understanding that
he should try to improve his attendance and behaviour, the respondent
did not show any improvement in his attendance and remained absent
for about 247 days during the period from 12/08/2000 to 20/04/2001.
It was stated that during each of the five previous years, the respondent
had absented himself for several days and the said data was mentioned
in paragraph No.4 of the reply. It was stated that the original
application was barred by limitation, as the order of removal was
passed on 17/05/2001 and the original application was filed on
02/01/2003.
5. The Tribunal, on an appreciation of the material on record,
allowed the original application filed by the respondent solely on the
ground that the punishment imposed upon the respondent was
disproportionate to the charge proved against him. The Tribunal relied
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on the judgments, reported in 1996 (32) ATC 44 (B.C.Chaturvedi v.
Union of India) and 2000 SCC (L&S) 468 (Managing Director, UCO Bank
v. P. C. Kakkar) to hold that the petitioners should have imposed a lesser
punishment on the respondent.
6. It is stated on behalf of the petitioners that the Tribunal
did not record any reasons whatsoever for condoning the delay in filing
the original application. It is stated that though the Tribunal held that
the respondent was in a habit of regularly absenting himself and the
misconduct against him was proved, the Tribunal erroneously interfered
with the quantum of punishment against the settled position of law. It
is stated that the respondent was in a habit of remaining absent and he
had absented himself for a period of 92 days without leave and though
he was permitted to join the duties on 12/08/2000, he had absented
himself for about 247 days in broken period during the period from
12/08/2000 to 20/05/2001. It is stated that in this background, the
imposition of penalty of removal could not be said to be harsh or
disproportionate. It is stated that in the circumstances of the case, the
Tribunal ought to have dismissed the original application.
7. On the other hand, it is submitted on behalf of the
respondent that the Tribunal was justified in holding that the
punishment of removal was disproportionate to the charge proved
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against the respondent. It is stated that though the respondent had
raised a ground that the order of removal was passed by an authority
that was not competent to pass the same, this aspect of the matter is not
considered by the Tribunal. It is submitted that the absence from duty
after he was permitted to re-join the duties could not have been
considered while imposing the punishment. The learned counsel relied
on the Master Circular No.67 relating to the procedure that is liable to
be followed by the Disciplinary Authority to substantiate his submission.
8. On hearing the learned counsel for the parties and on a
perusal of the impugned order, it appears that the Tribunal was not
justified in allowing the original application without considering the
grounds raised by the respondent in the original application and the
objections raised by the petitioners in the reply to the original
application. Though an objection was raised by the petitioners about
the original application being barred by limitation, the Tribunal has not
recorded any reasons for condoning the delay. It is only stated in
paragraph No.7 of the impugned order that the respondent had stated
satisfactory reasons for condonation of delay. No reason whatsoever, as
mentioned by the respondent in the original application or in the
condonation of delay application is mentioned in the impugned order
while condoning the delay. Also, after holding that the respondent was
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habitual absentee and the misconduct against him was established, the
Tribunal failed to consider whether any punishment was earlier
imposed upon the respondent. The Tribunal further failed to consider
the statement in the reply that though the respondent was permitted to
join the duty on 12/08/2000, after he returned for joining the duties,
the respondent remained absent for a period of 247 days during the
period from 12/08/2000 to 20/05/2001. These aspects ought to have
been considered by the Tribunal while deciding the original application.
The order of the Tribunal appears to be cryptic. Though several grounds
were raised in the original application and several objections were
raised in the reply to the original application, the Tribunal has recorded
the reasons for allowing the original application only in paragraph No.7
of the impugned order without considering all the aspects of the matter.
The Tribunal ought to have considered whether the previous or
subsequent conduct of the respondent could have been considered
while deciding the question of proportionality of the punishment
imposed upon the respondent. Though a reference is made to two
judgments of the Hon'ble Supreme Court, it is not stated as to how
those judgments could be made applicable to the facts of this case.
Also, the Tribunal could not have quashed the charge-sheet, dated
05/10/2000 and could have at the most directed the petitioners to
consider imposing a lesser penalty on the respondent, even if it was of
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the view that the punishment was shockingly disproportionate to the
charges that were proved. We find that the Tribunal has not decided
the matter in the manner in which it is expected to decide the same. It
would be necessary in the circumstances of the case to quash and set
aside the impugned order and remand the matter to the Tribunal for a
fresh decision on the original application, on merits.
9. Hence, for the reasons aforesaid, the writ petition is partly
allowed. The impugned order is quashed and set aside. The matter is
remanded to the Tribunal for a fresh decision, in accordance with law.
Rule is made absolute in the aforesaid terms with no order as to costs.
JUDGE JUDGE
KHUNTE
