Central Administrative Tribunal - Madras
S Kandaswamy vs M/O Defence on 7 August, 2025
1 OA 495/2019
CENTRAL ADMINISTRATIVE TRIBUNAL
CHENNAI BENCH
OA/310/00495/2019
Dated the 7th day of August, Two Thousand Twenty-Five
CORAM:
HON'BLE MR M. SWAMINATHAN, MEMBER (J)
&
HON'BLE MR. SISIR KUMAR RATHO, MEMBER(A)
S. Kandaswamy,
Door No.11/114, Anna Nagar,
Wellington Bazaar 643 232
The Nilgiris ...Applicant
By Advocate : M/s. Ayyar & Iyer
Vs
1. Union of India, rep by
The Secretary to the Government of India,
Ministry of Defence
Department of Defence Production,
South Block, DHQ (PO)
New Delhi 110 001
2. The DGOF & Chairman
Ordnance Factory Board
10-A, SK Bose Road,
Kolkata 700 001
3. The General Manager,
Cordite Factory,
Aruvankadu 643 201
The Nilgiris ...Respondents
By Advocate : Ms. M. Santhini
2 OA 495/2019
ORDER
(Pronounced by Hon'ble Mr. M. Swaminathan, Judicial Member) This OA has been filed by the applicant seeking the following relief:
"To call for the records pursuant to the 1st respondents impugned order No.22(06)/2018/D (Estt/NG) dated 06.06.2018 and quash the same being contrary to law, arbitrary and passed without application of mind and duly setting aside the impugned extreme penalty of removal from service passed by the 3rd respondent and direct the respondents to reinstate the applicant with all consequential and attendant benefits on the lofty principles of equity, fairness and in the substantial interest of justice, and further direct and pass any such orders or directions that may deem fit in the facts and circumstances of the case and thus render justice".
2. Brief facts of the case, as submitted by the applicant is:
The Applicant was appointed as Safaiwala in the 3 rd respondent's factory on compassionate ground on 16.07.2003.
Initially, the applicant was kept under probation and thereafter he was confirmed in the year 2005. Subsequently the applicant was re designated as MTS in the year 2012. On 19.07.2012, the applicant was issued a charge sheet for unauthorized absence from duty for the period from 05.05.2012 to 06.05.2012 and also from 12.10.2012 to 26.11.2012. The applicant was issued another charge sheet for unauthorized absence from duty for the period from 11.04.2013 to 26.06.2013 during the pendency of the earlier charge sheet. The 3 rd respondent imposed a penalty of 'Removal from Service on 05.06.2014. The applicant filed a Revision petition to the 2 nd respondent on 27.06.2017 and another revision petition before the 1st respondent but there was no reply. The applicant approached this Tribunal in OA No.312/2018 and the same was disposed of 3 OA 495/2019 with a direction to dispose of the revision petition. In compliance of the Tribunal's order, the 1st respondent passed the impugned order on 06.06.2018. Against which the applicant has preferred the present OA.
3. The main contention of the learned counsel for the applicant is that the applicant is the sole bread winner of the family and imposition of the penalty of removal from service is too harsh. He further submitted that the 3 rd respondent has not passed any order on the charge memo dated 25.10.2013. He further submitted that the respondents have not supplied the requisite documents that is Annexure III and Annexure IV. Therefore, it is grossly unfair and against the rules of natural justice.
4. Learned counsel for the applicant further submitted that the 3rd respondent, instead of analysing the allegations with regard to the alleged offence of unauthorized absence from duty for the period from 05.05.2012 to 16.06.2012 & from 12.10.2012 to 26.11.2012 as per the charge memo dated 05.06.2013, travelled beyond the scope of allegation of charges and he was unduly influenced for the applicant's alleged absence form duty for the period from 11.04.2013 to 20.06.2013, from 03.03.2014 to 10.03.2014 & from 01.04.2014 to 03.06.2014, for which the applicant was never tried in any disciplinary proceedings.
4 OA 495/2019
5. Learned counsel for the applicant further submitted that the respondents failed to appreciate the circumstances forcing the applicant to remain absent risking his service. But it never clothed the respondents the power of imposing the penalty of removal from service based on the charge memo dated 25.10.2013 relating to the unauthorized absence from 11.04.2013 to 10.06.2013 which was kept in abeyance without any inquiry. The doctrine of legitimate expectation has been infracted; therefore, the impugned proceedings cannot stand the legal scrutiny hence the impugned order of imposing the punishment of removal from service is liable to be interfered.
6. Learned counsel for the applicant further submitted that the respondents ought to have known that mere warning letter did not constitute a penalty under CCS (CCA) Rules, 1965. Further such a disproportionate punishment of removal from service should have been avoided during the pendency of another charge memo dated 26.10.2013, especially when it has been kept in abeyance. The respondents cannot claim that they have divine right to travel beyond the scope of charge sheet to punish the applicant. Therefore, he prayed for the relief sought in the present OA.
7. Per contra, the learned counsel for the respondents vehemently opposed the submission of the applicant and relied on the reply statement. She contended that the applicant had accepted 5 OA 495/2019 the charges and charge memorandum was issued under Rule 14 for imposing major penalty, the proceedings were continued taking into the cognizance, the provision of sub rule 5 of Rule 14 of CCS (CCA) Rules 1965. Consequently, the finding of the disciplinary authority (DA) was supplied to the applicant vide memo dated 06.04.2013 for making representation if any. In the said finding of the DA it was clearly established that the applicant had committed the misconduct of (i) unauthorized absence for the period from 05.05.2012 to 10.06.2012 & from 12.10.2012 to 16.11.2012 and (ii) habituated in being absence from duty.
8. Learned counsel for the respondents further submitted that the applicant made a representation dated 20.01.2014 after a lapse of 9 months despite repeated reminders. Considering the past disciplinary records of unauthorized absence of the applicant and severity of the charges, which outweighed frivolous arguments for the unauthorized absence, made by the applicant in his representation, the DA imposed the penalty of removed from service vide order dated 05.06.2014.
9. Learned counsel for the respondents further submitted that the 3rd respondent factory is a production unit of the 2 nd respondent organization functioning under the administration under active control of the 1st respondent, the Ministry of Defence, and is engaged in production of vital stores for the armed forces for the 6 OA 495/2019 nation; its responsibility of maintaining the discipline in the employees is paramount in this Defence establishment. Hence keeping in view of the repetition of misconduct of the applicant, the imposition of major penalty of removal from service was inevitable. She further submitted that the revision petition of the applicant was rejected by the 1st respondent. She further relied on the judgement of the Hon'ble Supreme Court in the case of Madan Prasad (Ex Sepoy) Vs Union of India, reported in 2023 INSC 656. Therefore, she prayed for the dismissal of the OA.
10. We have heard the counsel for the applicant Mr. V. Parthiban for M/s. Ayyar & Iyer and the learned counsel for the respondents Ms. M. Santhini at length and perused the pleadings and materials on record and citations cited by the respective parties.
11. In the present case, the issue revolves around is whether the applicant is a habitual absentee or not and the Removal of Service of the applicant by the respondents is in order or not. From the records we could find out that the applicant was unauthorizedly absent from duty for multiple times.
12. The following penalty order were imposed on the applicant for unauthorized absence.
(a) Minor penalty of censure for unauthorized absence from duty and irregular attendance, vide penalty order dated 17.10.2006. 7 OA 495/2019
(b) Minor Penalty of withholding of next increment when due for a period of one year without cumulative effect has been imposed for unauthorized absence from duty, vide penalty order dated 05.01.2009.
(c) The penalty of reduction of pay by one stage from Rs.6040 to Rs.5580 for a period of one year has been imposed for (i) unauthorised absence from duty and (ii) repeated unauthorised absence from duty, vide penalty order dated 04.08.2009.
(d) The penalty of reduction of pay to the minimum of Rs. Rs.6040 to Rs.5200 for a period of two years has been imposed for (i) unauthorised absence from duty and (ii) repeated unauthorised absence from duty, vide penalty order dated 03.10.2009.
(e) The penalty of withholding of one increment for a period of one year with cumulative effect has been imposed for (i) unauthorized absence from duty and (ii) repeated unauthorised absence from duty, vide penalty order dated 13.11.2009.
13. A charge memorandum dated 16.01.2013 under Rule 14 of CCS (CCA) Rules 1965 was issued to the applicant for (i) unauthorized absence from duty for the period from 05.05.2012 to 16.06.2012 and from 12.10.2012 to 26.11.2012 & (ii) habituated in being unauthorized absence from duty-conduct of unbecoming of government servant.
14. A charge memorandum dated 25.10.2013 was also issued 8 OA 495/2019 under Rule 14 of CCS (CCA) Rules 1965 for unauthorized absence from duty for the period from 11.04.2013 to 16.06.2013 & (ii) habituated in being unauthorized absence from duty-conduct of unbecoming of government servant.
15. In the present case, since the applicant had accepted the charges in the charge memorandum dated 16.01.2013 and the disciplinary authority had passed the order after considering all the materials on record, the charge memo dated 25.10.2013, was kept in abeyance. It is also seen from the records that the appellate & revisionary authorities have also considered all the materials and the past records of the applicant and came to a conclusion that the applicant is a habitual absentee, therefore they confirmed the order of the disciplinary authority.
16. The Hon'ble Supreme Court, in a case similar to the applicant's in the present OA, addressed the issue of unauthorized absence of an Armed Forces personnel in Union of India vs. Kulbeer Singh (2019 (13) SCC 20). In this case, the Court held that a punishment order issued by the concerned authority for unauthorized absence of a uniformed personnel was confirmed. The relevant portion of the judgment is extracted as follows:
"7. In so far as the second submission is concerned, it is evident from the statement, which was extracted earlier, that the respondent had admitted his absence for 302 days without leave. The statement contains a justification for the absence. From the record, it is evident that the respondent did not make any effort to apply for extension of 9 OA 495/2019 his leave. Absence of 302 days from his duty by a member of the Armed Force could not be condoned. We are clearly of the view that the Armed Forces Tribunal was in error in coming to the conclusion that the punishment which was imposed was harsh. The only basis for the finding was that the respondent had put in twelve years of service. This was all the more a reason why any responsible member of the Armed Force should not have absented from service without permission. The Tribunal clearly misdirected itself in law in coming to the conclusion that the punishment of dismissal from service was harsh and disproportionate.
8. We accordingly allow the appeal and set aside the impugned judgment and order of the Armed Forces Tribunal dated 21-8-2015 in OA No. 483 of 2012 filed by the respondent shall stand dismissed. However, there shall be no order as to costs."
17. Habitual absenteeism is gross violation of discipline as held by the Hon'ble Madras High Court in the case of S. Rangarajan Vs The, Additional Director General, in WA.No.1500 of 2018, (order dated 18 December, 2018) We extract the relevant portion of the judgment below:
11.In Sri Bhagawan Lal Arya Vs. Commissioner of Police, Delhi and others reported in 2004 (4) SCC 560, relied on the appellant therein was absent for a period two months, 7 days and 17 hours on medical grounds. During the period, he remained under treatment in Government Hospital. Since appellant had applied for leave on medical grounds supported with medical certificates from the competent Medical Officer, the appellate authority passed orders sanctioning leave without pay for the period of illness. However, for the alleged misconduct of absence, disciplinary action was initiated and ultimately, he was removed from service. Considering the facts and circumstances of the said case, the Hon'ble Supreme Court held that the disciplinary authority erred in inflicting a penalty of removal from service and hence set aside the same. However, in the case on hand, the past record of service shows habitual absenteeism. Though the appellate authority has dismissed the appellant from service, later on the same has been modified as compulsory retirement, for the reason stated supra.Sri Bhagawan Lal Arya's case (cited supra) is a solitary incident case and it would not apply to the present case.
12. Habitual absenteeism is a gross violation of discipline, as held in Burn & Co. Ltd. and Ors. Vs. Their Employees reported in AIR 1959 SC
529. In the said case, an employee, who absented without leave or permission, following a domestic enquiry was dismissed from service.10 OA 495/2019
The Industrial Tribunal directed re-instatement. When the matter was adjudicated before the Hon'ble Supreme Court, it was held that absence of a workman without permission and without any leave application for the same, amounts to gross violation of discipline, entailing dismissal from service. The Hon'ble Supreme Court further held that if such a workman is dismissed by his employer, Industrial Tribunal should not order for reinstatement. The Hon'ble Apex Court held that, "Where a workman is almost in the habit of loitering outside his place of work without the permission of his departmental head and does not desist from doing so even though warned, his services can be dispensed with. In such a case, it cannot be said that the employer was actuated by any improper motive to victimise him for his Union activities."
13. Reverting to the case, from the material on record, it could be seen that though the appellant has been inflicted with many penalties, absenteeism, there is no change.
18. Even in the absence of a specific statutory rule, it remains within the discretion of the Disciplinary Authority to consider the past service record of the individual when determining the appropriate penalty. Such consideration serves to strengthen and provide additional justification for the disciplinary decision. If the charge itself warrants a major penalty, independent of any prior misconduct, the disciplinary authority is fully entitled to impose a penalty that aligns with the severity of the current violation, without needing to reference past conduct. Furthermore, with the Constitutional amendment removing the delinquent's right to further representation regarding the penalty, the Disciplinary Authority's reliance on the individual's past record--if it is factored in--does not invalidate the disciplinary proceedings or the penalty imposed. There is no breach of the principles of natural justice in such cases.
11 OA 495/2019
19. In light of the above, the penalty imposed on the applicant is upheld, as it is justified by the applicant's consistent pattern of gross absenteeism, a behavior that is particularly intolerable in a disciplined force. The applicant has failed to establish any grounds that would warrant a different outcome, and thus, the application is dismissed. No costs are awarded.
(Sisir Kumar Ratho) (M. Swaminathan) Member(A) Member(J) MT .08.2025