Bombay High Court
The Union Of India,Ministry Of Rlys. & 2 ... vs Ganesh Vitthal Gondhalekar on 16 April, 2016
Author: V. M. Deshpande
Bench: Vasanti A. Naik, V. M. Deshpande
1/7 WP3604.2004-Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 3604 OF 2004
PETITIONERS :- 1) The Union of India, Ministry of Railways,
Through General Manager, Chatrapati
Shivaji Terminus, Mumbai-01.
2) The Chief Work Shop Manager, Traction
Machine Work-sho-, Central Railway, Nasik
Road.
ig 3) The Assistant Works Manager, Traction
Machine Work Shop, Nasik Road.
...VERSUS...
RESPONDENT :- Shri Ganesh Vitthal Gondhalekar S/o Vitthal
Krishna Gondhalekar, aged about 45 yrs.,
Occ. Nil, R/o. C/o. Shri Anil Gedam,
Waghapur Naka, Pimpalgaon Road, Gajanan
Nagar, Yavatmal.
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Mr.M.I.S. Shekhani, counsel for the petitioners.
Mr. S.B.Tiwari, counsel h/f Mr.R.R.Vyas, counsel for the respondent.
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CORAM : SMT. VASANTI A. NAIK &
V. M. DESHPANDE, JJ.
DATED : 16.04.2016 O R A L J U D G M E N T (Per Smt.Vasanti A. Naik, J.)
2. By this writ petition, the petitioner-Union of India and others challenge the order passed by the Central Administrative Tribunal, dated 12/11/2003, allowing an original application filed by ::: Uploaded on - 21/04/2016 ::: Downloaded on - 29/07/2016 22:33:07 ::: 2/7 WP3604.2004-Judgment the respondent-employee and directing the petitioners to impose a minor penalty on the respondent.
3. Few facts giving rise to the petition are stated thus -
The respondent was appointed as a Helper by the petitioners on 28/06/1978. The respondent was promoted as a Skilled Fitter in the year 1998. While working as a Skilled Fitter, a charge-
sheet was served on the respondent for remaining unauthorizedly absent for the period from 12/05/2000 to 11/08/2000, i.e. for a period of 92 days. The respondent admitted the charge levelled against him.
After the culmination of the enquiry, the respondent was removed from service. The order of termination was challenged by the respondent in a departmental appeal and since the appeal was dismissed, the respondent challenged the order of termination before the Central Administrative Tribunal. It was the case of the respondent before the Tribunal that the order of termination was issued by an incompetent authority. It was stated that the Appointing Authority of the respondent had not imposed the major penalty of removal from service. It was stated in the original application that the enquiry proceedings were conducted in violation of the procedure laid down in the Railway Servants (Discipline and Appeal) Rules. The respondent pleaded that his service record was unblemished till the charge-sheet was served on him.
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4. The petitioners filed the reply to the original application and stated that as per the Conduct Rules, remaining absent without leave is a misconduct, punishable under the Disciplinary Rules. It was stated in the reply that the order of removal was passed by the authority competent to pass the same. It was stated that the respondent had admitted the charge. It was stated that the record of the respondent was not unblemished, though the respondent was again permitted to join his duty on 12/08/2000, after 92 days absence with an understanding that he should try to improve his attendance and behaviour, the respondent did not show any improvement in his attendance and remained absent for about 247 days during the period from 12/08/2000 to 20/04/2001.
It was stated that during each of the five previous years, the respondent had absented himself for several days and the said data was mentioned in paragraph No.4 of the reply. It was stated that the original application was barred by limitation, as the order of removal was passed on 17/05/2001 and the original application was filed on 02/01/2003.
5. The Tribunal, on an appreciation of the material on record, allowed the original application filed by the respondent solely on the ground that the punishment imposed upon the respondent was disproportionate to the charge proved against him. The Tribunal relied ::: Uploaded on - 21/04/2016 ::: Downloaded on - 29/07/2016 22:33:08 ::: 4/7 WP3604.2004-Judgment on the judgments, reported in 1996 (32) ATC 44 (B.C.Chaturvedi v.
Union of India) and 2000 SCC (L&S) 468 (Managing Director, UCO Bank v. P. C. Kakkar) to hold that the petitioners should have imposed a lesser punishment on the respondent.
6. It is stated on behalf of the petitioners that the Tribunal did not record any reasons whatsoever for condoning the delay in filing the original application. It is stated that though the Tribunal held that the respondent was in a habit of regularly absenting himself and the misconduct against him was proved, the Tribunal erroneously interfered with the quantum of punishment against the settled position of law. It is stated that the respondent was in a habit of remaining absent and he had absented himself for a period of 92 days without leave and though he was permitted to join the duties on 12/08/2000, he had absented himself for about 247 days in broken period during the period from 12/08/2000 to 20/05/2001. It is stated that in this background, the imposition of penalty of removal could not be said to be harsh or disproportionate. It is stated that in the circumstances of the case, the Tribunal ought to have dismissed the original application.
7. On the other hand, it is submitted on behalf of the respondent that the Tribunal was justified in holding that the punishment of removal was disproportionate to the charge proved ::: Uploaded on - 21/04/2016 ::: Downloaded on - 29/07/2016 22:33:08 ::: 5/7 WP3604.2004-Judgment against the respondent. It is stated that though the respondent had raised a ground that the order of removal was passed by an authority that was not competent to pass the same, this aspect of the matter is not considered by the Tribunal. It is submitted that the absence from duty after he was permitted to re-join the duties could not have been considered while imposing the punishment. The learned counsel relied on the Master Circular No.67 relating to the procedure that is liable to be followed by the Disciplinary Authority to substantiate his submission.
8. On hearing the learned counsel for the parties and on a perusal of the impugned order, it appears that the Tribunal was not justified in allowing the original application without considering the grounds raised by the respondent in the original application and the objections raised by the petitioners in the reply to the original application. Though an objection was raised by the petitioners about the original application being barred by limitation, the Tribunal has not recorded any reasons for condoning the delay. It is only stated in paragraph No.7 of the impugned order that the respondent had stated satisfactory reasons for condonation of delay. No reason whatsoever, as mentioned by the respondent in the original application or in the condonation of delay application is mentioned in the impugned order while condoning the delay. Also, after holding that the respondent was ::: Uploaded on - 21/04/2016 ::: Downloaded on - 29/07/2016 22:33:08 ::: 6/7 WP3604.2004-Judgment habitual absentee and the misconduct against him was established, the Tribunal failed to consider whether any punishment was earlier imposed upon the respondent. The Tribunal further failed to consider the statement in the reply that though the respondent was permitted to join the duty on 12/08/2000, after he returned for joining the duties, the respondent remained absent for a period of 247 days during the period from 12/08/2000 to 20/05/2001. These aspects ought to have been considered by the Tribunal while deciding the original application.
The order of the Tribunal appears to be cryptic. Though several grounds were raised in the original application and several objections were raised in the reply to the original application, the Tribunal has recorded the reasons for allowing the original application only in paragraph No.7 of the impugned order without considering all the aspects of the matter.
The Tribunal ought to have considered whether the previous or subsequent conduct of the respondent could have been considered while deciding the question of proportionality of the punishment imposed upon the respondent. Though a reference is made to two judgments of the Hon'ble Supreme Court, it is not stated as to how those judgments could be made applicable to the facts of this case.
Also, the Tribunal could not have quashed the charge-sheet, dated 05/10/2000 and could have at the most directed the petitioners to consider imposing a lesser penalty on the respondent, even if it was of ::: Uploaded on - 21/04/2016 ::: Downloaded on - 29/07/2016 22:33:08 ::: 7/7 WP3604.2004-Judgment the view that the punishment was shockingly disproportionate to the charges that were proved. We find that the Tribunal has not decided the matter in the manner in which it is expected to decide the same. It would be necessary in the circumstances of the case to quash and set aside the impugned order and remand the matter to the Tribunal for a fresh decision on the original application, on merits.
9. Hence, for the reasons aforesaid, the writ petition is partly allowed. The impugned order is quashed and set aside. The matter is remanded to the Tribunal for a fresh decision, in accordance with law.
Rule is made absolute in the aforesaid terms with no order as to costs.
JUDGE JUDGE
KHUNTE
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