Union Of India And Anr. vs Darshan Lal
2015 Latest Caselaw 6265 Del

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      * IN THE HIGH COURT OF DELHI AT NEW DELHI
+      W.P.(C) 6782/2014
                                   Date of judgment: 25st August, 2015

       UNION OF INDIA AND ANR.                       ..... Petitioners
                     Through : Mr. J. K. Singh, Advocate.

                                  Versus

       DARSHAN LAL                                        ..... Respondent
                           Through : Mr. G. D. Bhandari, Advocate.

CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL

G.S.SISTANI, J.

1. The present writ petition challenges the correctness of the order dated 04.04.2014 passed by the Central Administrative Tribunal in O.A. No. 47/2012, whereby the Tribunal allowed the said O.A. filed by the respondent herein and issued a direction to the petitioners to reinstate the respondent herein with 50% of the back wages for the period from 05.04.2004 to 15.07.2005.

2. The facts as are necessary for the adjudication of the present writ petition are as follows:

(i) The respondent was appointed as Diesel Assistant on compassionate ground on account of death of the father of the respondent on 11.08.1989. He was working under Crew Controller Dehradun.

(ii) A departmental enquiry was initiated against the respondent vide order dated 16.11.2004 under Rule 9 of the Railway Servants (Discipline & Appeal) Rules, 1968.

(iii) The respondent was charged with unauthorized absence from duty for the following periods:-

       Sr. no            Date of absence     Date of arrival
          1.             16.01.2003          14.02.2003
          2.             14.04.2003          19.04.2003
          3.             08.05.2003          18.05.2003
          4.             13.08.2003          26.02.2004
          5.             05.04.2004          04.12.2004

(iv) The Disciplinary Authority passed the final order dated 15.07.2005, whereby the Disciplinary Authority removed the respondent from service with immediate effect.

(v) The respondent preferred an Appeal to the Appellate Authority which was rejected vide order dated 04.10.2005.

(vi) The respondent also made Revision Petition to Headquarters Office which was rejected vide order dated Nil.7.2006.

(vii) Being aggrieved by the order of the Appellate Authority dated 04.10.2005 and the order of the Revisional Authority dated Nil.7.2006, the respondent filed O.A. No. 47/2012 before the Tribunal.

(viii) The learned Tribunal vide order dated 04.04.2014 allowed O.A. No. 47/2012 on the ground that the respondent had been successful in explaining the reasons for his absence whereas, the learned Tribunal also directed to reinstate the respondent with effect from 15.07.2005 i.e. the date from which the respondent has been removed from services. The petitioners were also directed to pay

50% of the back wages to the respondent for the period from 05.04.2004 to 15.07.2005.

(ix) Aggrieved by the impugned order dated 04.04.2014, the petitioners have filed the present Writ Petition.

3. On behalf of the petitioners it is urged that the impugned order is contrary to the facts of the case and to the settled position of service jurisprudence that Courts and Tribunals cannot re-appreciate the evidence gathered during the course of domestic enquiry and further cannot act as an Appellate Authority.

4. The counsel for the petitioners vehemently argued that the learned Tribunal has committed grave error in awarding 50% of back wages to the respondent for the period from 05.04.2004 to 15.07.2005.

5. Per contra, on behalf of the respondent herein it is urged that the Court/Tribunal may interfere where the Disciplinary Authority came to a conclusion or finding which no reasonable person would ever reach based on the material on record. It was next argued by the counsel for the respondent that merely the fact that the respondent was absent from duty during certain periods does not ipso facto lead to the conclusion that the respondent was guilty of misconduct and that unless the absence is wilful the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a Government servant. In other words, if the allegation of unauthorized absence from duty is made, the Disciplinary Authority is required to prove that the absence is wilful and in the absence of such finding, the absence will not amount to misconduct.

6. Before considering the merits of the rival contentions, it is imperative to consider the conclusions arrived at by the Tribunal in the impugned order for the periods of absence that the respondent was charged with.

7. With regard to the period of absence from 05.04.2004 to 04.12.2004, the Tribunal observed that the respondent had produced all the medical certificates regarding his disease issued by Dr. Manohar Lal Dewan, Dehradun, to the effect that the respondent was suffering from the serious disease of Bhagandar/Fistula/Haemorrage-Piles and he had already undergone operation thereof twice and had been advised bed rest for the above period. The Tribunal noted that in the charge against the respondent, there was not even a mention that his absence from duty was wilful. The Crew Controller sent the respondent for his medical test on 21.12.2004. Thereafter, the Assistant Divisional Mechanical Engineer sent him back for duty on 31.12.2004. The Tribunal also noted that the charge against the respondent was not factually correct and the Inquiry Officer failed to produce any evidence in support of his finding. Furthermore, the report of the Inquiry officer is a non-speaking order and not based on reasons.

8. Thus, the Tribunal came to the conclusion that the respondent had been satisfactorily able to explain the period of his absence and that the conclusion of the Disciplinary Authority in holding the charge to be proved was perverse and arbitrary.

9. Thus, the Tribunal allowed the O.A. and issued the impugned directions.

10. Coming to the contentions of the petitioner herein, it is trite to state that the Court/Tribunal may interfere with the finding of the

Disciplinary Authority where that authority held proceedings against the delinquent officer in a manner inconsistent with the principles of natural justice or in violation of statutory rules prescribing the mode of conduct or where the conclusion or finding reached by the Disciplinary Authority is based on no evidence or if the conclusion or finding be such as could not be reached by any reasonable person.

11. Further a catena of judgments of the Supreme Court have held that, if the conclusion upon consideration of the evidence, reached by the Disciplinary Authority, is perverse or suffers from patent errors on the face of the record or is based on no evidence at all, a writ of certiorari could be issued. In this behalf the decisions of the Supreme Court in B.C. Chaturvedi v. Union of India & Ors AIR 1996 SC 484 and Union of India v. H.C. Goel (1964) 1 LLJ 38 SC can be cited with profit. Therefore, although the Court cannot sit as an appellate authority over the findings of the Disciplinary Authority, it can interfere when the findings of the Disciplinary Authority are illogical or shocking to the conscience of the Court.

12. Evidently, in the present case the evidence recorded by the enquiry officer and the inferences drawn by him were at variance with the material and evidence on record and could be interfered with by the Tribunal on the ground of being perverse and suffering from patent error on the face of the record.

13. Further, in the present case it is observed that although the respondent was absent from duty during certain periods it did not inescapably and inevitably lead to the conclusion that the respondent was guilty of misconduct.

14. In Krushnakant B. Parmar v. Union of India & Anr. reported at 2012 (2) SLJ 19 (SC) the Supreme Court whilst deciding an appeal on unauthorized absence and misconduct observed as under:-

"16. The question whether "unauthorised absence from duty" amounts to failure of devotion to duty or behaviour unbecoming of a Government servant cannot be decided without deciding the question whether absence is wilful or because of compelling circumstances.

17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to be wilful.

18. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean wilful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalisation, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a Government servant.

19. In a departmental proceeding, if allegation of unauthorised absence from duty is made, the Disciplinary Authority is required to prove that the absence is wilful, in absence of such finding, the absence will not amount to misconduct."

15. In the present case there is no finding or even a hint of an allegation that the absence of the respondent was wilful. It was further seen that there were compelling circumstances beyond the control of the respondent i.e. illness, hospitalization etc. which prevented the

respondent from returning to duty. In such a case, as held by the Supreme Court in Krushnakant B. Parmar (supra), the respondent could not be held guilty of wilful absence or failure of devotion to duty or behaviour unbecoming of a Government servant. Therefore, the Disciplinary Authority failed to prove that the absence of the respondent was wilful and in the absence of such finding the absence cannot amount to misconduct.

16. With regard to the back wages, the following view has been taken by the Apex Court in Kendriya Vidyalaya Sangathan & Anr. Vs. S.C. Sharma (2005) 2 SCC 363:

"16. ...When the question of determining the entitlement of a person to backwages is concerned, the employee has to show that he was not gainfully employed. The initial burden is on him. After and if he places materials in that regard, the employer can bring on record materials to rebut the claim. In the instant case, the respondent had neither pleaded nor placed any material in that regard."

17. The issue of payment of back wages on reinstatement of a workman has been discussed by this court in LPA No. 24/2013 titled "Delhi Transport Corporation vs. Sarjeevan Kumar" decided on 21st January, 2013, the legal proposition in this regard was enunciated as under:-

"(i). Payment of full backwages is not automatic on Labour Court/Tribunal granting reinstatement of workman.

(ii). The same principle is equally applicable in case an order of dismissal is set aside by the Labour

Court/Tribunal on the ground of non-compliance of Section 25F of the I.D. Act.

(iii). The Labour Court/Tribunal shall give reasons for determining the specified quantum of backwages.

(iv). The burden is on the workman to show that he is entitled to full backwages or to a reasonable backwages and he is not gainfully employed during the period he was not in service of the management.

(V). Once materials are placed by workman on the above, the burden shifts on to the Management to disprove such claim.

(vi). In the event, the Labour Court/Tribunal fails to give any reason to quantify backwages, the High Court can go into the said issue and decide on quantum."

18. After considering the principals laid down in the above mentioned judgments and after perusing the facts and circumstances of the present case, we are of the considered view that the respondent failed to give any explanation with regard to his gainful employment during the period he was not in service. As it has been held in Kendriya Vidyalaya Sangathan & Anr.(Supra), the burden of proof lies on the employee to show that he has not been gainfully employed during the relevant period when the dispute was pending and equally, while the writ petition was also pending. In the present case there is nothing to show that the respondent had discharged the said burden and accordingly, in the absence of any reason, the respondent is not entitled to any back-wages.

19. In the case of Nicks (India) Tools Vs. Ram Surat & Anr. (2004) 8 SCC 222, the Apex Court held that in the event no reason is adduced

by the Tribunal while awarding the back-wages, the High Court would be justified in going into the reasons and determine the back wages depending upon the facts of the case. We are of the view that it is clear after perusal of the award passed by the Tribunal that no reason at all has been given by the Tribunal for awarding 50% back-wages to the respondent. As noted by us in Sarjeevan Kumar (supra), the absence of reasons for awarding full back-wages itself is a sufficient ground for not sustaining such an award. There is nothing to indicate as to how the Tribunal determined the award of 50% back-wages. Therefore, in our opinion, awarding of 50% back-wages to the respondent cannot be sustained as there has been no reason adduced for such award by the Tribunal. To this extent, the order passed by the Tribunal needs modification. For the reasons stated hereinabove, the writ petition is allowed to the extent that the 50% of back-wages awarded by the Tribunal are set-aside.

20. The writ petition stands disposed of.

G. S. SISTANI, J

SANGITA DHINGRA SEHGAL, J

AUGUST 25, 2015 sc