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Judgment
Ghulam Mohammed, J.—This writ petition is filed assailing the legality and validity of the order dated 31.01.2001, passed in O.A. No. 1667 of 1999 by the Central Administrative Tribunal, Hyderabad Bench, Hyderabad (for short ''the Tribunal'').
The brief facts are that the first Respondent was appointed in the factory of the Petitioners as Peon (Group ''D'' post) on 20.08.1983. Since he was habitually irregular in attending to duty, several disciplinary proceedings were initiated against him from time to time which culminated in imposition of punishments of stoppage of increments and finally, he was imposed with the punishment of removal from service vide proceedings dated 13.04.1998. He appealed the said order and the appellate authority confirmed the same. Aggrieved by the same, he filed the above said O.A. During the pendency of O.A., he expired on 29.12.1999 and his Legal Representatives were brought on record. Through the impugned order, the Tribunal allowed the O.A. directing the Petitioners to treat the deceased employee as having been reinstated and all the benefits he was entitled to, if he were alive, shall be paid to the Legal Representatives of the deceased employee and in the case of minor children, till they attain majority, all the amounts due to them shall be kept in fixed deposit in a Bank and that the share of the widow may be paid to her. It also directed the Petitioners to complete the said exercise within a period of two months from the date of receipt of a copy of the said order. Aggrieved by the same, the Petitioners filed the present writ petition.
Heard the learned Assistant Solicitor General appearing for the Petitioners and the learned Counsel for the Respondents.
Learned Assistant Solicitor General appearing for the Petitioners contended that the deceased employee had admitted his guilt with regard to his irregular attendance in duty and that the disciplinary authority considering his past conduct imposed the punishment of removal from service. He submitted that the Tribunal ought to have considered the charge memo that the deceased employee was absent from January, 1996 to October, 1997 for a period of 344 days. He relied upon the decision of the Supreme Court in S.B.I. Vs. Hemant Kumar, wherein it was held as under:
We are of the view that both the reasons assigned by the Tribunal for condemning the departmental enquiry as defective are completely untenable. The principles of natural justice cannot be stretched to a point where they would render the in-house proceedings unworkable. Admittedly, the Respondent had not appeared for the enquiry on two earlier dates. On the third date too he was absent and there was no intimation from him before the Enquiry Officer, yet the Tribunal insists that it was the duty of the Enquiry Officer to find out from the concerned department of the bank whether any intimation or application was received from the Respondent. Let us take a case where the enquiry is not being held in the bank premises or even in the same town, where the concerned branch of the bank is located. In such a situation, it may take hours or even a day or two to find out whether any letter or intimation from the person facing the enquiry was received in the bank and for all that time the Enquiry Committee would remain in suspended animation. The Tribunal''s observation that it was only the third date of hearing and hence, it could not be said that the Respondent had adopted dilatory tactics can only be described as unfortunate. We completely reject the notion that three barren dates in an in-house proceeding do not amount to delay. Let the in-house proceedings at least be conducted expeditiously and without in any undue loss of time.
On the other hand, learned Counsel for the Respondents contended that the Tribunal has not considered the admission of guilt of the deceased employee, but it considered that the charge memo was defective since the period of leave, which was granted, was also taken into consideration as unauthorized absence in the charge memo and that the disciplinary authority has taken note of the past conduct of the deceased while imposing the punishment of removal but the Petitioners did not frame any charge to that effect. In support of his contention, he relied upon the judgment of the Supreme Court in State of Mysore Vs. K. Manche Gowda, wherein it was held as under:
It is suggested that the past record of a government servant, if it is intended to be relied upon for imposing a punishment, should be made specific charge in the first stage of the enquiry itself and, if it is not so done, it cannot be relied upon after the enquiry is closed and the report is submitted to the authority entitled to impose the punishment. An enquiry against a government servant is one continuous process, though for convenience it is done in two stages. The report submitted by the Enquiry Officer is only recommendatory in nature and the final authority which scrutinizes it and imposes punishment is the authority empowered to impose the same. Whether a particular person has a reasonable opportunity or not depends, to some extent, upon the nature of the subject matter of the enquiry. But it is not necessary in this case to decide whether such previous record can be made the subject matter of charge at the first stage of the enquiry. But, nothing in law prevents the punishing authority from taking that fact into consideration during the second stage of the enquiry, for essentially it relates more to the domain of punishment rather than to that of guilt. But what is essential is that the government servant shall be given a reasonable opportunity to know that fact and meet the same.
He relied upon another decision of the Supreme Court in Mohd. Yunus Khan Vs. State of U.P. and Others, wherein it was held as under:
the Courts below and the statutory authorities failed to appreciate that if the disciplinary authority wants to consider the past conduct of the employee in imposing a punishment, the delinquent is entitled to notice thereof and generally the charge-sheet should contain such an article or at least he should be informed of the same at the stage of the show-cause notice, before imposing the punishment
Learned Counsel for the Respondents also relied upon the decision of the Supreme Court in State of Punjab Vs. Dr. P.L. Singla, wherein it was held as under:
An employee who remains unauthorisedly absent for some period(or who overstays the period of leave), on reporting back to duty, may apply for condonation of the absence by offering an explanation for such unauthorized absence and seek grant of leave for that period. If the employer is satisfied that there was sufficient cause or justification for the unauthorized absence (or the overstay after expiry of leave), the employer may condone the act of indiscipline and sanction leave post facto. If leave is so sanctioned and the unauthorized absence is condoned, it will not be open to the employer to thereafter initiate disciplinary proceedings in regard to the said misconduct unless it had, while sanctioning leave, reserved the right to take disciplinary action in regard to the act of indiscipline.
The point for consideration is whether the judgment rendered by the Tribunal suffers from any infirmity or not.
We have perused the material on record. The deceased employee was served with the charge memo dated 20.12.1997, which reads as under:
It is alleged that the said Shri Mogulaiah, Peon/P. Coord.P. No. 050300-9 has been extremely irregular in attending duties during the period from 01/96 to 10/97, inasmuch as during the above period the said Shri Mogulaiah, Peon/P. Coord, P. No. 050300-9 has remained absent from duty for 344 days spread over 41 spells on one pretext or other, including 157 days absence on 15 occasions for which no leave application has been submitted by him. The said Shri Mogulaiah, Peon/P. Coord, P. No. 050300-9, has thereby willfully neglected duties assigned to him, which amounts to failure to maintain devotion to duty and conduct unbecoming of a Government servant.
An enquiry was held into the said charge. The disciplinary authority taking into account the past conduct of his irregular absence in duty, imposed on the deceased employee the punishment of removal from service with effect from 30.04.1998. The record shows that the leave period of absence mentioned in the charge memo was regularized as EL/EOL, HPL, but it was shown as unauthorized absence in addition to the days on which he was absent without leave application prior to the issuance of the charge memo. As per the decision of the Apex Court in Dr. P.L.SINGLA,s case cited 3 supra, for the sanctioned leave period, the Petitioners factory does not initiate disciplinary proceedings as unauthorized absence in regard to the past conduct. It cannot be taken into consideration the past conduct while imposing the punishment without bringing it to the notice of the delinquent. Therefore, we are of the view that the Tribunal was justified in allowing the O.A. by the order impugned and we do not find any infirmity in it.
Accordingly, the Writ Petition is dismissed. No costs