Gujarat High Court
Union Of India vs Geetaben Atamaram Sharma on 7 February, 2024
Author: Umesh A. Trivedi
Bench: Umesh A. Trivedi, Rajendra M. Sareen
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9249 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE UMESH A. TRIVEDI --Sd/-
and
HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN --Sd/-
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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UNION OF INDIA & 2 others
Versus
GEETABEN ATAMARAM SHARMA
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Appearance:
MS ARCHANA U AMIN(2462) for the Petitioner Nos. 1,2,3
SUNITA S CHATURVEDI(2572) for the Respondent No. 1
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CORAM: HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
and
HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN
Date : 07/02/2024
ORAL JUDGMENT
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(PER : HONOURABLE MR. JUSTICE UMESH A. TRIVEDI)
1. This petition, under Article 227 of the Constitution of
India, is filed by the petitioners challenging the order dated
19th January, 2016 passed by the Central Administrative
Tribunal, Ahmedabad Bench, Ahmedabad (hereinafter
referred to as 'the Tribunal' for the sake of brevity) in Original
Application no.238 of 2012 with MA no.176 of 2012, whereby
the petitioners were directed to reinstate the delinquent in
service. At the same time, the period of his absence was
ordered not to be treated as break in service, but, at the
same time, he was not held eligible for payment of salary. It
is further directed that the delinquent - employee will be
treated as being in service from the time he stopped attending
office until the scheduled date of his retirement or the date of
his demise, whichever came first. The employee was held to
be eligible for concomitant retirement benefits, which can be
claimed by his legal heirs. The petitioners were further
directed to calculate the quantum of such benefits and release
them to the legal heirs of the respondent - employee within
two months of receiving the copy of the order passed by 'the
Tribunal'.
2. As coming-out from the impugned order, Atmaram
Natvarlal Sharma - husband of respondent herein - Geetaben
was working as PP (Platform Porter) at Miyagam, Karjan was
served with a charge-sheet for unauthorised absence for a
total period of 277 days during the year 2005-2006.
According to the case of the employee, he could not attend his
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duties because several persons in his family including his
mother, wife and brother fell sick and thereafter, he himself
fell sick. Pursuant to the charge, an inquiry took place and
Disciplinary Authority concluded charges having been proved
and the employee was removed from the service with
immediate effect vide order dated 25 th October, 2007, which is
at page no.26 of the present compilation.
3. The employee, being aggrieved by and dissatisfied with
the order imposing punishment of removal from service
challenged the same by way of departmental appeal, raising
several grounds. The appeal also came to be rejected by an
order dated 3rd June, 2008, which is at page 35 of the
compilation.
4. Therefore, the respondent herein preferred aforesaid
original application before 'the Tribunal' challenging the
orders passed by the Disciplinary Authority, confirmed by the
Appellate Authority on several grounds including that the
inquiry against the employee was conducted in breach of
principles of natural justice. It was further asserted that no
rules and regulations for conducting the departmental inquiry
were followed by the Inquiry Officer and incomplete or illegal
report of Inquiry Officer given undue weightage de-hors the
rules. It was also the case of the respondent before 'the
Tribunal' that though the order of Disciplinary Authority
claims to be a speaking order, it does not speak anything on
the necessity of removal from service of the employee.
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According to the respondent, the order passed by the
Disciplinary Authority and confirmed by the Appellate
Authority is a non-speaking, un-reasoned and illegal order,
which is required to be quashed and set aside. It was further
contended that Disciplinary Authority had not cared to
consider the statement of the employee, production of
documents in respect of health of the mother etc., and without
addressing, case pleaded by the employee, has awarded
highest punishment of removal from service, which does not
commensurate with the misconduct, even if presumed to be
proved. It is further submitted that instead of explanation
offered for absence and the documents produced being
highlighted by the Inquiry Officer, they were not considered at
all in the report submitted by the Inquiry Officer to the
Disciplinary Authority. It is further submitted that inquiry
was conducted in breach of principles of natural justice. No
copy of deposition of other witnesses, examined by the Inquiry
Officer, provided to the delinquent. At the same time, at the
end of inquiry, though required, the delinquent was never
asked to state anything in his defence and produce the
documents if any, if he wishes to do so. Therefore, according
to the submission of delinquent, the Disciplinary Authority
could not have relied on the report of the Inquiry Officer and
pass the order of removal from service.
5. 'The Tribunal', after considering in detail the documents
produced along with the memo of original application as also
the documents that might be produced by the respondent i.e.
the petitioners herein quashed and set aside the orders as
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aforesaid against which the petitioners are before this Court.
6. Ms. Archana Amin, learned advocate for the petitioners
submitted that very well reasoned orders are passed by the
Disciplinary Authority as also the Appellate Authority and
since on earlier two occasions, the delinquent found to have
committed similar misconduct of absenteeism and punishment
of stoppage of two increments with future effect awarded, had
shown no improvement in his misconduct and therefore,
Disciplinary Authority was justified in imposing punishment of
removal from service. Drawing attention of the Court to the
order of the Disciplinary Authority, it is submitted that
Disciplinary Authority has, after consideration of inquiry
report, documents and the opinion of Inquiry Officer, passed
the order imposing punishment of removal from service of the
delinquent and therefore, it cannot be said that it is not a
speaking order. It is further submitted that delinquent
became habitual in remaining absent from service which
requires no sympathy and has rightly been removed.
Therefore, it is submitted that the petition be allowed.
7. As against that, Ms. Sunita Chaturvedi, learned
advocate for the respondent submitted that the order of the
Disciplinary Authority is a non-speaking order and no reasons
are assigned to impose the maximum penalty of removal from
service for unauthorised absence of only 277 days. It is
further submitted that Disciplinary Authority has also not
cared to even consider the explanation offered by the
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delinquent and documents produced by him in his defence
and therefore there is total non-application of mind by it while
imposing penalty. It is further submitted that there is no
whisper about rejecting the claim of the delinquent saying
that grounds put forth for absenteeism is incorrect. Even
Disciplinary Authority had not cared to look to the documents
reflecting sickness of the mother, the only document
produced, to come to a conclusion that ground pleaded is
incorrect and therefore the order passed by the Disciplinary
Authority is rightly quashed and set aside by 'the Tribunal'. It
is further submitted that neither the Disciplinary Authority
nor the Appellate Authority had cared to take into
consideration the leaves that may be available to the credit of
the delinquent which could be adjusted for the period of
absence. It is further submitted that unauthorised absence
from the duty, even if admitted, will not absolve Disciplinary
Authority from considering the reason that might be put
forward for the same and come to a different conclusion.
However, in this case, there is total non application of mind so
far as defence raised by the delinquent and the documents
produced in support thereof, therefore, it is requested that
this Court may not interfere with the order passed by 'the
Tribunal'.
8. Having heard the learned advocates appearing for the
parties as also going through the reasons assigned by 'the
Tribunal', perusing the documents annexed including order of
the Disciplinary Authority, Appellate Authority and report of
Inquiry Officer, it appears that authorities are bias with the
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fact that on earlier two occasions, minor punishments were
imposed upon the delinquent for the very same misconduct
i.e. absenteeism. It appears to have weighed with the
authority this time to impose the maximum penalty of removal
from service.
9. Though the order of Disciplinary Authority is claimed to
be a speaking order, as rightly held by 'the Tribunal', it is only
a 7 lines order, not considering even the defense raised by the
delinquent and the documents produced by him. Though
Disciplinary Authority may not be required to write a thesis on
it, he is expected to consider the probable defence that might
be pressed into service though he is having all the powers to
reject the same, but in no case, non-consideration thereof, will
lead the Court to the conclusion which is already reached by
'the Tribunal'. Even if the unauthorised absence is admitted
that will not absolve the authority from considering the
defence raised. The absence may be unauthorised when
without previous sanction of leave, the employee proceeds on
leave. When the delinquent without getting his leave
sanctioned, proceeded on leave and he admits that there is an
unauthorised absence, it cannot be said that the explanation
for even unauthorised absence cannot be considered at all. It
is all the more obligatory on the authority to look for reason
for unauthorised absence and if found to be not acceptable
after rejecting the same punishment i.e. likely to be awarded,
has to be awarded but not before. In the present case from
the order of the Disciplinary Authority, it appears, it is not
alive to the defence put forward along with the documents
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produced by the delinquent. If the Medical Certificate in
respect of sickness of mother produced by the delinquent of a
particular date, if delinquent is on duty on that day, it cannot
be said that wrong reason is put forth. The certificate
produced by the delinquent is of the Railway Hospital itself.
The authority could have very well inquired whether the
ailment with which mother of the delinquent was suffering
requires his presence or not. At the same time, because of
ailment of the mother, despite quarter allotted to the
delinquent at Miyagam, he chose to stay at Vadodara so that
his ailing mother can be treated well. At the same time, the
daughter of the delinquent was staying at Surat and his wife,
who is also ailing looking after her. The delinquent appears to
be alone at all the fronts. The said factum is not at all
considered either by the Disciplinary Authority or even by the
Appellate Authority.
10. Though previous misconducts on very same ground and
punishment imposed are to be taken into consideration for the
similar type of misconduct at this occasion, without
considering the case on merit i.e. considering defence and the
documents produced in support thereof, merely, because
twice on earlier occasion, he was punished for same
misconduct, punishment of removal from service could not
have been imposed by the authority. Though, there are
several grounds raised in the appeal memo, even the
Appellate Authority has also failed to consider anyone of them
and it has blindly confirmed the order passed by the
Disciplinary Authority.
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11. Though, on these grounds, proceedings could have been
remanded back to the authority, but with the lapse of time as
also when delinquent himself has expired, even 'the Tribunal'
has not thought of it, we also do not recommend the same.
12. If the order of 'the Tribunal' is seen, more particularly
paras - 8 & 9 thereof, the very well reasoned order is passed
by it. It would be profitable to reproduce para-8 of the order,
which reflects the consideration of Supreme Court's decision
on the issue, which reads as under :
"8. We have perused the pleadings and heard
the learned counsel for both sides. We do not
think the DA issued a speaking order when he
levied the penalty on the applicant (Annexure
A1). The said order bizarrely calls itself a
speaking order but comprises exactly seven
lines. Neither the facts of the case nor the
arguments of both sides nor the weight of
evidence has been even remotely touched. The
order instead refers to the fact that the
applicant was punished on two other occasions
also for same offence and concludes that if
seeming that he is habitual for unauthorized
absent (sic). We assume this means the DA
considered the applicant a habitual offender.
The IO's report (Annexure A4) also refers to the
punishment visited earlier on the applicant
instead of confining itself to the instant cause of
action. Such assumptions are intrinsically
objectionable in any disciplinary proceedings
since they smack of bias. The Hon'ble Apex
Court has also declared that the appellate
authority shall apply his mind to the entire case
and ascertain to consider (a) whether the
procedure laid down in the rules has been
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complied with; and if not, whether such non-
compliance has resulted in violation of any of
the provisions of the Constitution of India or in
failure of justice; (b) whether the findings of the
disciplinary authority are warranted by the
evidence on record; and (c) whether the penalty
imposed is adequate; and thereafter pass orders
confirming, enhancing etc. the penalty, or remit
back the case to the authority which imposed
the same. [Ram Chander Vs. Union of India,
(1986) 3 SCC 103, Narinder Mohan Arya Vs.
United India Insurance Co. Ltd., (2006) 4 SCC
713 Apparel Export Promotion Council Vs. A.K.
Chopra (1999) SCC (L&S) 405."
12. One more factor weighed with 'the Tribunal' is that even
order of Appellate Authority, though claimed to be served on
the delinquent / respondent, whereas, factually the outcome of
the appeal was informed only when delinquent/respondent
received letter dated 15th April, 2010, consequent upon the
intervention of 'the Tribunal'.
13. All these factors weighed with 'the Tribunal' in respect
of fairness of the disciplinary proceedings. 'The Tribunal' has
also considered that if at all the factum of absence, which is
known to the authority, it could have considered the
mitigating circumstances before awarding the severe
punishment of removal from service, which would amount to
economic death. Even, 'the Tribunal' has considered the fact
that the delinquent also doesn't deserve accolades but at the
same time, he has a right to be removed from service, that
too, in accordance with law in a fair inquiry and in a very fair
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manner. Considering the reasons assigned by 'the Tribunal',
we do not propose to interfere with the directions issued by it
in the operative para-11 of the impugned order passed by 'the
Tribunal'.
14. In view thereof, we reject this petition. Rule
discharged. Ad-interim relief granted earlier stands
vacated.
Sd/-
(UMESH A. TRIVEDI, J.)
Sd/-
(RAJENDRA M. SAREEN, J.)
AMAR RATHOD...
