Kishor S/O Sitaramji Gaidhani vs Central Govt. Of India Thr. Min. Of ...
2017 Latest Caselaw 1460 Bom

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                           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;

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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

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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

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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

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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

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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

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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

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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

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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

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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.

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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