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Judgment
O R D E R
By Justice Om Prakash VII, Member (J)
The present O.A has been filed by the applicant under section 19 of the Administrative Tribunal Act, 1985 seeking following reliefs:-
“(i)The Hon’ble Tribunal may graciously be pleased to quash and set aside the impugned charge memo dated 07.01.2013, inquiry report dated 15.5.2014, punishment order dated 22.9.2014 and appellate order dated 30.04.2015 with all consequential benefits including back wages along with 18% interest accrued on it.
(ii)To issue any order, direction or further orders which this Hon’ble Court may deem fit and proper in the present facts and circumstances of the case.
(iii)Award costs in favour of applicant”.
The facts emerges out from the O.A. are that applicant, while working as Gramin Dak Sewak Mail Deliverer at Sub Post Office Jaroda Panda, Saharanpur, was served with charge memo dated 06.08.2012 for unauthorized absence from duty. When applicant submitted his explanation along with medical certificate regarding absence from duty, the respondents dropped the aforesaid charge memo and applicant was permitted to join the duty, thus applicant joined the duty on 29.03.2012. After joining the applicant, he was served with the second chargesheet dated 07.01.2013 wherein it was alleged that applicant was unauthorizedly absence from duty between the period from 21.06.2010 and 28.03.2012, without prior notice or without giving any leave application, which cause disturbance on distribution of postal articles. It has further been alleged in the charge-sheet that prior to his absence, applicant had not handed over the relating register, postal tickets and anticipatory money which were in the custody of applicant. Thus, the applicant had violated Rule 50 of Branch Post Office Manual (8th Edition) as well as Rule 7 and 21 of Gramin Dak Sewak (Conduct & Engagement) Rule 2011. When the applicant denied the charges and submitted a detailed reply, the disciplinary authority appointed the Inquiry Officer and Presenting Officer. Applicant filed representation dated 07.06.2013 whereby he demanded relied upon documents. Only 04 documents out of 8 were supplied to the applicant. Applicant has submitted medical certificate along with representation dated 05.01.2012 regarding absence from duty from the period of 21.06.2010 to 31.12.2011.
Inquiry Officer after holding enquiry proved the charges leveled against the applicant and submitted his report to the disciplinary authority. Upon receipt of report of Inquiry Officer, the disciplinary authority issued a show cause notice to the applicant. Applicant submitted his defence reply against the inquiry report. Without considering the defence reply of the applicant, Disciplinary Authority imposed the harsh punishment of dismissal from service vide impugned order dated 22.09.2014. Applicant submitted his appeal against the impugned punishment order dated 07.10.2014, which was rejected vide order dated 30.04.2015.
Counter Reply has been filed by the respondents, in which it is stated that while working as Gramin Dak Sewak Mail deliverer, Jaroda Panda Post Office Saharanpur Division, the applicant, remained absent from duty on 21.6.2010 to 28.03.2012 without prior information and permission of the competent authority and without exchanging the charge report. The applicant also did not handover the office records and also did not return the advance of postage stationary to SPM Jaroda Panda SO. The SPM Jaroda Panda SO reported to the Inspector of Post office (East) Saharanpur about his absence vide his letter dated 29.6.2010 who issued a notice to the applicant to explain about his unauthorized absence vide letter no. B/Virendra Pundir/10-11 dated 8.12.2010. However, the applicant neither replied to the said letter nor turned up for his duty. Thereafter the SDI (East) Saharanpur again issued a notice to the applicant vide letter no SDI/GDS/Virendra Kumar/2010-11 dated 26.12.2011. The applicant thereafter reported for resumption of his duty on 29.3.2012 with medical certificate issued by a Private Doctor in support of his absence from duty. He was allowed to resume his duty by the SDI (East) Saharanpur and he joined duty on 29.3.2012. Thus the applicant remained unauthorized leave for more than 180 days. As per rules, a GDS who is absent from duty unauthorisedly or remains absent exceeding the prescribed limit of 180 days, he shall be removed from service after following the due procedure as laid down in Rule 10 of GDS (Conduct & Engagement) Rules-2011. For his above lapses and violation of Rule 50 of BO Rules and Rule 7 & 21 of GDS (Conduct & Engagement) Rules-2011, the applicant was issued a charge sheet under Rule 10 of GDS (Conduct and Engagement) Rules-2011 by SDI (East) Saharanpur vide memo no.A/GDS/Jaroda panda /12 dated 7.1.2013. On denial of charges by the applicant, Inquiry Officer and Presenting Officer were appointed in the case. The Inquiry Officer submitted his Inquiry report dated 15.5.2014 wherein charges leveled against the applicant, were found proved. After obtaining the representation of the applicant on Inquiry Officer’s report dated 15-05- 2014, the Disciplinary authority awarded a punishment of dismissal from engagement vide memo no. A/GDS/Jaroda Panda /12 dated 22.9.2014 on the basis of inquiry report and facts and evidences as available on records. The applicant preferred an appeal to the appellate authority i.e. SSPOs Saharanpur which was rejected by the appellate authority vide memo dated 30.4.2015
Rejoinder reply has also been filed by the learned counsel for the applicant, reiterating the facts as stated in the O.A.
We have heard learned counsel for the parties and perused the record as well as written submission filed by the respondents.
Submission of the learned counsel for the applicant is that whole action of the respondents is illegal and wrong and against the principles of natural justice. Respondents have denied reasonable opportunity of hearing. It is contended that if the absence is the result of compelling circumstances under which it was not possible to report or intimate or perform duty, such absence cannot be held to be willful. Learned counsel further contended that in a departmental proceedings, if allegation of unauthorized absence from duty is made, the disciplinary authority is required to prove that the absence is willful, in absence of such finding, the absence will not amount to misconduct.
Learned counsel for the applicant further argued that Senior Superintendent of Post Offices, Saharanpur has no right or authority to impose the punishment upon the applicant as alleged absence is more than six months and as such it ought to have been placed before the competent authority namely Director Postal Services or Post Master General of the Region but they failed to do so. Learned counsel for the applicant also argued that applicant has submitted several important points in his appeal but appellate authority without analyzing the points raised by the applicant in his appeal rejected the appeal vide order dated 30.4.2015, thus appellate authority’s order is illegal, arbitrary and against the principle of natural justice. Learned counsel for the applicant has relied upon the following case laws:-i) Krushnakant B. Parmar Vs. Union of India and others reported in (2012) 1 Supreme Court Cases (L&S) 609. ii) Chhel Singh Vs. M.G.B. Gramin Bank Pali reported in LAWS(SC)-2014-7-36. iii) Rakesh Kumar Vs. Union of India through Chief Post Master General & 3 others decided on 23.8.2017 in Service Bench No. 1344 of 2015 by Hon’ble Allahabad High Court Bench at Lucknow.
Learned counsel for respondents argued that applicant remained absent unauthorizedly. Learned counsel further argued that as per Rule 10 of GDS (Conduct & Engagement) Rules 2011, if the GDS employee is absent unauthorizedly or remains absent exceeding the prescribed limit of 180 days, he shall be removed from service after following the due procedure. It has been argued that applicant did not hand over the office record and also did not return the advance of postage stationary to SPM Jaroda Panda SO, thus the applicant violated Rule 50 of BO Rules for not obtaining prior permission for availing leave and not exchanging the charge report. It has also been argued that proper opportunity was afforded to the applicant before imposing the punishment of dismissal from service upon the applicant. Applicant’s appeal was rejected by the appellate authority on 30.04.2015 after due consideration of the points raised by the applicant. Learned counsel for respondents submitted that due to unauthorized absence from 21.06.2010 to 28.03.2012, disciplinary proceedings were initiated against the applicant. Applicant was advised on many occasions to change his attitude and improve his performance by attending office regularly but he did not paid heed to such directions/ orders/ instructions. Irrespective of these, applicant remained absent unauthorisedly from office very often. Learned counsel for the respondents placed on record the judgment of Hon’ble Supreme Court in the case of Union of India and others Vs. Dalbir Singh passed in Civil Appeal No. 5848 of 2021 on 21.09.2021.
We have considered the rival submissions of the parties and perused the entire records.
First of all, we would like to discuss the case laws referred by the applicant.
In the case of Krushnakant B. Parmar Vs. UOI and another (supra), Hon’ble Supreme Court has observed as under:-
“17.If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence can not be held to be wilful. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean wilful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalisation, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a Government servant.
21.In the present case, the disciplinary authority failed to prove that the absence from duty was wilful, no such finding has been given by the Inquiry Officer or the Appellate Authority. Though the appellant had taken a specific defence that he was prevented from attending duty by Shri P. Venkateswarlu, DCIO, Palanpur who prevented him to sign the attendance register and also brought on record 11 defence exhibits in support of his defence that he was prevented to sign the attendance register, this includes his letter dated 3rd October, 1995 addressed to Shri K.P. Jain, JD, SIB, Ahmedabad, receipts from STD/PCO office of Telephone calls dated 29th September, 1995, etc. but such defence and evidence were ignored and on the basis of irrelevant fact and surmises the Inquiry Officer held the appellant guilty.”
In the case of Chhel Singh (supra), the Hon’ble Supreme Court has held as under:-
“From the plain reading of the charges we find that the main allegation is absence from duty from 11.12.89 to 24.10.90 (approximately 10 and ½ months), for which no prior permission was obtained from the competent authority. In his reply, the appellant has taken the plea that he was seriously ill between 11.12.89 and 24.10.90, which was beyond his control; he never intended to contravene any of the provisions of the service regulations. He submitted the copies of medical certificates issued by Doctors in support of his claim after rejoining the post. The medical reports were submitted after about 24 days. There was no allegation that the appellant’s unauthorized absence from duty was willful and deliberate. The Inquiry Officer has also not held that appellant’s absence from duty was willful and deliberate. It is neither case of the Disciplinary Authority nor the Inquiry Officer that the medical reports submitted by the appellant were forged or fabricated or obtained for any consideration though he was not ill during the said period. In absence of such evidence and finding, it was not open to the Inquiry Officer or the Disciplinary Authority to disbelieve the medical certificates issued by the Doctors without any valid reason and on the ground of 24 days delay”.
The relevant portion of judgment of Rakesh Kumar (supra), the Hon’ble Allahabad High Court Bench at Lucknow has held as under:-
“9. In the present case charge of willful absence or on account of indiscipline has not been found proved.Therefore, no charge of misconduct, we can say was found proved. Hence no punishment could have been imposed upon petitioner. The authorities as well as Tribunal have committed manifest error, hence punishment order as well as order of Tribunal are liable to be set aside.
10.From the report, it is evident that factum of absence was found proved by Enquiry Officer but allegation of absence without information or on account of indiscipline was not found proved. This finding of Enquiry Officer has not been deferred, disagreed or dissented by disciplinary authority. Now the sole question is whether mere absence from duty is a misconduct to justify punishment under the Rules, 2001”.
In the case of Radha Raman Kulshretha Vs. State of U.P. (Service Bench No. 1823 of 1985) decided on14.2.2020 by Hon’ble High Court of Allahabad, Lucknow Bench, Hon’ble High Court of Allahabad, Lucknow Bench has observed that “If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to be willful. Absence from duty without any application or prior permission may amount to unauthorized absence but it does not always mean willful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalization etc, but in such case the employee canoe be held guilty of failure of devotion to duty or behavior unbecoming of a government servant.”
From perusal of record, it is evident that charges leveled against the applicant are for unauthorized absence for the period from 21.06.2010 to 28.03.2012. Charge sheet was issued on 07.01.2013. In the article of charge, it is mentioned that applicant since the period from 2010 to 2012 has been found to be (i) remaining on unauthorized absence from duty (ii) did not handover the office records and also did not return the advance of postage stationary to SPM Jaroda Panda SO. Thus, it is to be seen whether due to compelling circumstances, applicant remained absent from duty for the period of 180 days or absence is willful. In this matter applicant remained absent from duty for the period shown in the chargesheet. Plea of the applicant is that he was suffering from some serious disease, due to this reason he could not report for duty nor information to this effect could be given by him in time to the authority concerned. Inquiry Officer, while considering the plea of the applicant and comparing the same with the evidence collected during the enquiry, was of the opinion that charges leveled against him are proved. Appellate Authority while deciding the appeal was of the view that although applicant remained absent from duty without information and following the relevant rules yet absence was due to compelling circumstances. If the finding of the Appellate Authority on this aspect is taken into consideration in light of the settled legal preposition of law as quoted hereinabove, it is clear that punishment imposed upon the applicant is too harsh. On one hand Appellate Authority observed that absence from duty was due to compelling circumstances. If such is the position, punishment imposed upon the applicant for removal from service is shocking to the conscience of the Court/Tribunal.
Hon’ble Supreme Court in various decisions have considered the power of High Court or the Tribunal to review penalty imposed by the authorities.
The Hon’ble Apex Court in the case of B.C. Chaturvedi Vs. Union of India reported in 1995 Law Suit (SC) 1015 observed as under:-
“18.A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. It the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases. impose appropriate punishment with cogent reasons in support thereof.
22.The aforesaid has, therefore, to be avoided and I have no doubt that a High Court would be within its jurisdiction to modify the punishment/penalty by moulding the relief, which power it undoubtedly has, in view of long line of decisions of this Court, to which reference is not deemed necessary, as the position is well settled in law. It may, however, be stated that this power of moulding relief in cases of the present nature can be invoked by a High Court only when the punishment/penalty awarded shocks the judicial conscience.”
Again in the case of Union of India Vs. S.S. Ahluwalia reported in 2007 Law Suit (SC) 950, the Hon’ble Apex Court has been pleased to observe as under:-
“The scope of judicial review in the matter of imposition of penalty as a result of disciplinary proceedings is very limited. The court can interfere with the punishment only if it finds the same to be shockingly disproportionate to the charges found to be proved. In such a case the court is to remit the matter to the disciplinary authority for reconsideration of the punishment. In an appropriate case in order to avoid delay the court can itself impose lesser penalty.”
In the case of State of Meghalaya Vs. Mecken Singh N Marak reported in 2009 Law Suit (SC) 1935, the Hon’ble Apex Court has also held as under:-
“A court or a tribunal while dealing with the quantum of punishment has to record reasons as to why it is felt that the punishment is not commensurate with the proved charges. In the matter of imposition of sentence, the scope for interference is very limited and restricted to exceptional cases. The jurisdiction of High Court, to interfere with the quantum of punishment is limited and cannot be exercised without sufficient reasons. The High Court, although has jurisdiction in appropriate case, to consider the question in regard to the quantum of punishment, but it has a limited role to play. It is now well settled that the High Courts, in exercise of powers under Article 226, do not interfere with the quantum of punishment unless there exist sufficient reasons therefore. The punishment imposed by the disciplinary authority or the Appellate Authority unless shocking to the conscience of the court, cannot be subjected to judicial review.”
In the case of Director General , RPF Vs. Sai Babu reported in 2003 Law Suit (SC) 117, the Hon’ble Apex Court has been pleased to hold as under:-
“4.Shri Mukul Rohtagi, learned Additional Solicitor General appearing for the appellants urged that the learned Single Judge was not right and justified in modifying the order of punishment, having observed that the respondent was a habitual offender and due to dereliction of duties, the punishment of stoppage of increments for three years was already ordered in 1984 and that there was no improvement in the conduct of the respondent. He alternatively submitted even if the learned Single Judge was of the view that the punishment imposed was grossly or shockingly disproportionate, punishment could not have been modified but the matter could be remitted to the disciplinary authority to re-examine the issue in regard to the imposition of penalty on the respondent. He further submitted that the Division Bench of the High Court did not go into the merits of the contentions and simply endorsed the view taken by the learned Single Judge.”
Broadly speaking, the quantum of punishment ought to have been decided by the authority concerned keeping in view the following six points:-
Gravity of misconduct
ii) Past Conduct
iii) Nature of duties
iv) Position in organization
Previous penalty, if any
vi) Kind of discipline required to be maintained.
From the perusal of the punishment order, it does not appear that any of the above points were considered and discussed. If the Appellate Authority was of the view that absence from duty was not willful but it was due to compelling circumstances then punishment imposed upon the applicant for removal from service appears to be harsh and deserves to be quashed only on the points of quantum of punishment.
Going through the above judgments, the legal position is clear that the power of Hon’ble High Court or the Tribunal is very limited while exercising the power of judicial review, so far as it relates to the quantum of punishment. However, the Supreme Court consistently held that punishment imposed was grossly or shockingly disproportionate, then the court can review the order and remand the matter to the appellate authority or disciplinary authority as the case may be for reconsideration.
Relying on the decisions of the Hon’ble Supreme Court, it is clear that the court has power to remand the matter in case the punishment awarded is not commensurate with the gravity of charge. This Tribunal also finds that the punishment awarded to the applicant is quite harsh and disproportionate to the gravity of offence.
The charge levelled against the applicant is only in respect of unauthorized absence from working place without information. Even if the charge leveled against the applicant stands proved, the offence remained only absence from duty. The Tribunal found that in many cases where the employees remained absent from duty from number of months and year together and reported back to duty, the employer regularize his absence from duty by treating the absence without pay or discontinuance from service but not in any case punishment of removal from services was passed. In the present case, punishment awarded appears to be very harsh and shockingly to the mind of the court especially when the applicant proved the compelling circumstances under which the applicant remain absented. So far as the proof of charge is concerned, the applicant and respondents have their stands but the court without entering into the controversy of proof of charge, considered that even if the charges are proved and the applicant was given ample opportunity to defend his case during the enquiry, still the facts remains that the decision of removal from service is quite harsh and hit conscience of the Court. Hence the court have no option but to quash the order passed by the disciplinary authority only to the extent of awarding of penalty of removal from service and remand the matter to the disciplinary authority for reconsideration of punishment awarded to the applicant. Disciplinary Authority is advised to pass any order except punishment of removal from service.
In view of the above observations, OA is partly allowed. Impugned punishment order dated 22.09.2014 and appellate order dated 30.04.2015 are hereby quashed. Disciplinary Authority is hereby directed to consider the past record of the applicant and other factors as mentioned above in this order and take a decision in respect of punishment considering the gravity of offence levelled against the applicant within a period of 2 months from the date of receipt of certified copy of this order. No order as to costs. All pending MAs in this O.As are also stand disposed off.