9911796707
TMI Blog2014 (2) TMI 1271X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent by remaining unauthorisedly absent for such a long period with inadequate reason had not only shown indiscipline but also made an attempt to get away with it. Such a conduct is not permissible and we are inclined to think that the High Court has erroneously placed reliance on the authorities where this Court had interfered with the punishment. We have no shadow of doubt that the doctrine of proportionality does not get remotely attracted to such a case. The punishment is definitely not shockingly disproportionate. Employees in any organization should adhere to discipline for not only achieving personal excellence but for collective good of an organization. When we say this, we may not be understood to have stated that the employers should be harsh to impose grave punishment on any misconduct. An amiable atmosphere in an organization develops the work culture and the employer and the employees are expected to remember the same as a precious value for systemic development. Judged on the anvil of the aforesaid premises, the irresistible conclusion is that the interference by the High Court with the punishment is totally unwarranted and unsustainable, and further the H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1) and 6(2) respectively of the Regulations. Be it noted, though the charge memo was duly acknowledged by the respondent on 19.11.1996, yet he chose not to submit his explanation till 6.1.1997, much after the charge sheet was issued. 4. As the factual matrix would further uncurtain, an enquiry was conducted against therespondent and his explanation in the enquiry was that he could not attend to the duties and could not give explanation to the first charge memo because of ill health. The enquiry officer found charges were proved and, accordingly, submitted the enquiry report which was accepted by the disciplinary authority and after following the due procedure punishment of dismissal was passed on 16.4.1998. In the order of dismissal disciplinary authority observed that belated submission of medical certificate on 1.4.1997 irresistibly led to the conclusion that the respondent employee was unauthorisedly absent from 28.8.1995. A conclusion was also arrived at that the first charge, namely, that he had not responded to the letters and reminders, also stood proved. Being of this view, the disciplinary authority thought it apt to impose the punishment of dismissal from service and h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 MLJ 1231 and opined thus:- 10. Applying the said judgment to the fact of this case and considering the counter filed by the respondents wherein it is not stated as to whether the petitioner has deserted / absented on any previous occasion, this Court is of the view that this writ petition deserves to be allowed. 11. This writ petition is allowed with a direction to the respondent to reinstate petitioner with continuity of service but without backwage, within a period of four weeks from the date of receipt of a copy of this order. 8. Grieved by the aforesaid order the CMWSSB preferred Writ Appeal No. 2531 of 2012 and the Division Bench accepted the conclusion of the learned single Judge by stating thus: - It is not in dispute that the respondent/ writ petitioner was unwell during the said period, though there might have been some discrepancies in the date of the certificate issued, it has not been controverted by the appellant that the respondent/writ petitioner was suffering from depressive psychosis and bronchitis. That apart it has also not been disputed that the respondent/ writ petitioner had not suffered any earlier punishment while in the services of the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12. It is not in dispute that the Inquiry Officer found that both the charges had been proved. The disciplinary authority had ascribed reasons and passed an order of dismissal from service. On a perusal of the order of dismissal it is vivid that the medical certificate was belatedly submitted and he had remained unauthorisedly absent from 28.08.1995. The question that arises is when the charges of unauthorized absence for a long period had been proven, was it justified on the part of the High Court to take resort to the doctrine of proportionality and direct reinstatement in service. That apart, one aspect which has not at all been addressed to by the High Court is that the respondent invoked the extraordinary jurisdiction of the High Court after four years. 13. First, we shall deal with the facet of delay. In Maharashtra State Road Transport Corporation v. Balwant Regular Motor Service, Amravati and others AIR 1969 SC 329 the Court referred to the principle that has been stated by Sir Barnes Peacock in Lindsay Petroleum Co. v. Prosper Armstrong Hurd, Abram Farewall, and John Kemp (1874) 5 PC 221, which is as follows: - Now the doctrine of laches in Courts of Equity is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in the exercise of its writ jurisdiction. Emphasis was laid on the principle of delay and laches stating that resort to the extraordinary remedy under the writ jurisdiction at a belated stage is likely to cause confusion and public inconvenience and bring in injustice. 16. Thus, the doctrine of delay and laches should not be lightly brushed aside. A writ court is required to weigh the explanation offered and the acceptability of the same. The court should bear in mind that it is exercising an extraordinary and equitable jurisdiction. As a constitutional court it has a duty to protect the rights of the citizens but simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, without adequate reason, approaches the court at his own leisure or pleasure, the Court would be under legal obligation to scrutinize whether the lis at a belated stage should be entertained or not. Be it noted, delay comes in the way of equity. In certain circumstances delay and laches may not be fatal but in most circumstances inordinate delay would only invite disaster for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh (supra) the Court took note of the fact that the appellant therein was a sweeper and had remained absent on four spells totalling to fifteen days in all in two months. In that context, the Court observed thus: - The instant case is not a case of habitual absenteeism. The appellant seems to have a good track record from the date he joined service as a sweeper. In his long career of service, he remained absent for fifteen days on four occasions in the months of February and March 2004. This was primarily to sort out the problem of his daughter with her in-laws. The filial bondage and the emotional attachment might have come in his way to apply and obtain leave from the employer. The misconduct that is alleged, in our view, would definitely amount to violation of discipline that is expected of an employee to maintain in the establishment, but may not fit into the category of gross violation of discipline. We hasten to add, if it were to be habitual absenteeism, we would not have ventured to entertain this appeal. 20. If both the decisions are appositely understood, two aspects clearly emerge. In Shri Bhagwan Lal Arya (supra), the Court took note of the fact, that is, produc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom duty is made, the disciplinary authority is required to prove that the absence is willful, in the absence of such finding, the absence will not amount to misconduct. 22. We have quoted in extenso as we are disposed to think that the Court has, while dealing with the charge of failure of devotion to duty or behavior unbecoming of a Government servant, expressed the aforestated view and further the learned Judges have also opined that there may be compelling circumstances which are beyond the control of an employee. That apart, the facts in the said case were different as the appellant on certain occasions was prevented to sign the attendance register and the absence was intermittent. Quite apart from that, it has been stated therein that it is obligatory on the part of the disciplinary authority to come to a conclusion that the absence is willful. On an apposite understanding of the judgment we are of the opinion that the view expressed in the said case has to be restricted to the facts of the said case regard being had to the rule position, the nature of the charge levelled against the employee and the material that had come on record during the enquiry. It cannot be stated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such an approach and attitude of the employee cannot be countenanced. 26. Thus, the unauthorized absence by an employee, as a misconduct, cannot be put into a straight-jacket formula for imposition of punishment. It will depend upon many a factor as has been laid down in Dr. P.L. Singla (supra). 27. Presently, we shall proceed to scrutinize whether the High Court is justified in applying the doctrine of proportionality. Doctrine of proportionality in the context of imposition of punishment in service law gets attracted when the court on the analysis of material brought on record comes to the conclusion that the punishment imposed by the Disciplinary Authority or the appellate authority shocks the conscience of the court. In this regard a passage from Indian Oil Corporation Ltd. and another v. Ashok Kumar Arora (1997) 3 SCC 72 is worth reproducing: - At the outset, it needs to be mentioned that the High Court in such cases of departmental enquiries and the findings recorded therein does not exercise the powers of appellate court/authority. The jurisdiction of the High Court in such cases is very limited for instance where it is found that the domestic enquiry is vitiated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s rules and regulations but the reason was purely personal and beyond his control and, as a matter of fact, he sent his resignation which was not accepted, the order of removal cannot be held to be justified, since in our judgment, no reasonable employer would have imposed extreme punishment of removal in like circumstances. The punishment is not only unduly harsh but grossly in excess to the allegations. 30. After so stating the two-Judge Bench proceeded to say that one of the tests to be applied while dealing with the question of quantum of punishment is whether any reasonable employer would have imposed such punishment in like circumstances taking into consideration the major, magnitude and degree of misconduct and all other relevant circumstances after excluding irrelevant matters before imposing punishment. It is apt to note here that in the said case the respondent had remained unauthorisedly absent from duty for six months and admitted his guilt and explained the reasons for his absence by stating that he neither had any intention nor desire to disobey the order of superior authority or violated any of the rules or regulations but the reason was purely personal and beyo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce from duty, granting six months time to join duty amounts to not only giving premium to indiscipline but is wholly subversive of the work culture in the organization. Article 51-A(j) of the Constitution lays down that it shall be the duty of every citizen to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement. This cannot be achieved unless the employees maintain discipline and devotion to duty. Courts should not pass such orders which instead of achieving the underlying spirit and objects of Part IV-A of the Constitution have the tendency to negate or destroy the same. 32. We respectfully reiterate the said feeling and restate with the hope that employees in any organization should adhere to discipline for not only achieving personal excellence but for collective good of an organization. When we say this, we may not be understood to have stated that the employers should be harsh to impose grave punishment on any misconduct. An amiable atmosphere in an organization develops the work culture and the employer and the employees are expected to remember the same as a prec ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
