Bombay High Court
Union Of India Service Thr. Its ... vs Shri. A.K. Das on 16 March, 2017
Bench: V.A. Naik
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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
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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
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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
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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.
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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
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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
