service matter - doctrine of proportionality - unauthorised absent for a considerable long period and belated production medical certificate - failure to give reply for earlier memos etc., all clearly shows his indiscipline towards institution - Dismissal was awarded - whether proportionate - High court and D.B. order infavour of worker and order for reinstatement with out back wages - Apex court set aside the orders of high court and D.B and confirmed the orders of dismissal as apt =
the
Division Bench has affirmed the judgment and order dated
21.7.2011 in W.P. No. 25673 of 2007 whereunder the learned
single Judge had allowed the writ petition, and after setting
aside the punishment of dismissal, directed reinstatement of the
respondent with continuity of service but without back wages.=
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 beyond his control.
Regard being
had to the obtaining factual matrix, the Court interfered with
the punishment on the ground of proportionality.
The facts in
the present case are quite different.
As has been seen from the
analysis made by the High Court, it has given emphasis on past
misconduct of absence and first time desertion and thereafter
proceeded to apply the doctrine of proportionality.
The
aforesaid approach is obviously incorrect.
It is telltale that
the respondent had remained absent for a considerable length of
time.
He had exhibited adamantine attitude in not responding to
the communications from the employer while he was unauthorisedly
absent.
As it appears, he has chosen his way, possibly
nurturing the idea that he can remain absent for any length of
time, apply for grant of leave at any time and also knock at the
doors of the court at his own will.
Learned counsel for the
respondent has endeavoured hard to impress upon us that he had
not been a habitual absentee.
We really fail to fathom the said
submission when the respondent had remained absent for almost
one year and seven months.
The plea of absence of “habitual
absenteeism” is absolutely unacceptable and, under the obtaining
circumstances, does not commend acceptation.
We are disposed to
think that the 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.
31. Another aspect needs to be noted.
The respondent was a Junior
Engineer. Regard being had to his official position, it was
expected of him to maintain discipline, act with responsibility,
perform his duty with sincerity and serve the institution with
honesty.
This kind of conduct cannot be countenanced as it
creates a concavity in the work culture and ushers in
indiscipline in an organization. In this context, we may
fruitfully quote a passage from Government of India and another
v. George Philip[18]: -
“In a case involving overstay of leave and absence 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.”
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 High Court was wholly unjustified in entertaining the writ
petition after a lapse of four years. The result of aforesaid
analysis would entail overturning the judgments and orders
passed by the learned single Judge and the Division Bench of the
High Court and, accordingly, we so do.
34. Consequently, the appeal is allowed and the judgments and orders
passed by the High Court are set aside leaving the parties to
bear their respective costs.
2014 (Feb.Part)judis.nic.in/supremecourt/filename=41213
H.L. GOKHALE, DIPAK MISRA
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1941 OF 2014
(Arising out of S.L.P. (C) No. 15530 of 2013)
Chennai Metropolitan Water Supply
and Sewerage Board and others … Appellants
Versus
T.T. Murali Babu …Respondent
J U D G M E N T
Dipak Misra, J.
Leave granted.
2. The present appeal, by special leave, is directed against the
judgment and order dated 22.11.2012 passed by the High Court of
Judicature at Madras in Writ Appeal No. 2531 of 2012 whereby the
Division Bench has affirmed the judgment and order dated
21.7.2011 in W.P. No. 25673 of 2007 whereunder the learned
single Judge had allowed the writ petition, and after setting
aside the punishment of dismissal, directed reinstatement of the
respondent with continuity of service but without back wages.
3. Bereft of unnecessary details, the expose’ of facts that have
been undraped are that the respondent was appointed as a
Surveyor in Chennai Metropolitan Water Supply and Sewerage Board
(for short, “CMWSSB”) and subsequently promoted as Junior
Engineer in 1989. From 28.8.1995 he remained continuously
absent from duty without any intimation to the employer and did
not respond to the repeated memoranda/reminders requiring him to
explain his unauthorized absence from duty and to rejoin duty.
On 1.4.1997 he reported to duty with the medical certificate for
his absence from duty for the period commencing 28.8.1995 to
31.3.1997. As he had already remained unauthorisedly absent and
did not respond to the memos by offering an explanation, a
charge-sheet had already been issued on 11.9.1996 under the
Chennai Metropolitan Water Supply and Sewerage Board Employees
(Discipline and Appeal) Regulations, 1978 (for brevity “the
Regulations”).
The charge memo contained two charges, namely,
that the respondent-herein had failed to submit an explanation
to the first charge memo dated 11.10.1995 inspite of reminders
and
second, he deserted his post by remaining unauthorisedly
absent from duty from 28.8.1995, and thereby committed
misconduct under Regulations 6(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 the respondent 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 he did so.
5. On an appeal being preferred by the respondent the Board
rejected the appeal dated 30.6.1998. Being dissatisfied by the
order of dismissal and the affirmation thereof in appeal, the
respondent preferred W.P. No. 15272 of 1998. The learned Single
Judge, by order dated 12.3.2003, directed re-consideration of
the appeal solely on the ground that the Managing Director who
was the disciplinary authority had taken part in the proceedings
of the Board which decided the appeal. After the said order
came to be passed, the matter was again placed before the Board
and the appellate authority, considering the enquiry report, the
evidence brought on record and after due discussion, affirmed
the order of disciplinary authority and consequently dismissed
the appeal on 1.7.2003.
6. The grievance of re-affirmation of the order of dismissal was
agitated by the respondent in W.P. No. 25673 of 2007 which was
preferred on 7.7.2007. The appellant-Board in the counter
affidavit, defending the order of dismissal, stated that the
only reason given by the employee was that he could not attend
the duties as he was availing continuous treatment for
tuberculosis and, further, he also met with an accident in
September 1995 which was unacceptable. In addition, it was
stated in the counter affidavit that bunch of medical
certificates was produced by him on 1.4.1997 which mentioned
that he was suffering from depressive psychosis and bronchitis
and there was no mention about any accident and injury sustained
by him in September 1995 and treatment availed by him.
7. The learned Single Judge, by the impugned judgment, after
narrating the facts, noted the statement of the learned counsel
for the respondent that even if the employee had absented from
duty, there was no past misconduct of desertion/absence and,
therefore, the punishment of dismissal from service for the
first time desertion/absenteeism is too harsh and
disproportionate and deserved to be interfered with. The
learned Single Judge did not advert to any other facet and
referred to the decisions in Shri Bhagwan Lal Arya v.
Commissioner of Police, Delhi[1], B. C. Chaturvedi v. Union of
India[2], V. Ramana v. A.P. SRTC[3], Jagdish Singh v. Punjab
Engineering College[4] and Division Bench judgment in V.
Senthurvelan v. High Court of Judicature at Madras[5] 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 appellant Board from the
date of his appointment. Therefore, in such circumstances, it
would be very harsh and unreasonable to impose the punishment of
removal from service for the charge of unauthorized absence, as
such punishment is awarded for acts of grave nature or as
cumulative effect of continued misconduct or for such other
reasons, where the charges are very serious and in case where
charge of corruption had been proved. Admittedly, there has
been no such allegation against the respondent/writ petitioner.
Further, the learned single Judge while setting aside the order
of dismissal from service, rightly denied back wages to the
respondent/writ petitioner as the respondent/writ petitioner
failed to discharge duty during the relevant period.”
[Underlining is ours]
9. We have heard the learned counsel for the parties and perused
the material brought on record.
10. On a keen scrutiny of the decision rendered by the learned
single Judge as well as that of the Division Bench it is clearly
demonstrable that there has been no advertence with regard to
the issue whether the charges levelled against the respondent
had been proved or not. It is manifest that there had been no
argument on the said score before the writ court or in intra-
court appeal and hence, we are obliged to state that the only
aspect which was really proponed before the High Court pertains
to the nature of charges and proportionality of punishment.
Therefore, we shall confine our analysis with regard to said
limited sphere and an added facet which the learned counsel for
the appellant has emphatically urged before us, that is, the
belated approach by the respondent in invoking the extraordinary
jurisdiction of the High Court.
11. The charges that were levelled against the respondent-employee
read as follows: -
“CHARGE NO. 1:
That he has failed to offer his explanation to this office
Memo dated 11.10.95 in spite of reminders thereon dated 20.01.96
and 23.04.96 which clearly shows his disobedience to the order
of superior and it amounts to misconduct under Regulation 6(1)
of the MMWSS Board Employees (Discipline and Appeal) Regulations
1978.
CHARGE NO. 2:
That he has deserted the post from 28.08.95 onwards and
remains unauthorisedly absent from duty which amounts to
misconduct under Regulation 6(2) of the MMWSS Board Employees
(Discipline and Appeal) Regulations 1978.”
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[6] 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[7], which is as follows: -
“Now the doctrine of laches in Courts of Equity is not an
arbitrary or a technical doctrine. Where it would be
practically unjust to give a remedy, either because the party
has, by his conduct, done that which might fairly be regarded as
equivalent to a waiver of it, or where by his conduct and
neglect he has, though perhaps not waiving that remedy, yet put
the other party in a situation in which it would not be
reasonable to place him if the remedy were afterwards to be
asserted in either of these cases, lapse of time and delay are
most material. But in every case, if an argument against
relief, which otherwise would be just, is founded upon mere
delay, that delay of course not amounting to a bar by any
statute of limitations, the validity of that defence must be
tried upon principles substantially equitable. Two
circumstances, always important in such cases, are, the length
of the delay and the nature of the acts done during the
interval, which might affect either party and cause a balance of
justice or injustice in taking the one course or the other, so
far as relates to the remedy.”
14. In State of Maharashtra v. Digambar[8], while dealing with
exercise of power of the High Court under Article 226 of the
Constitution, the Court observed that power of the High Court to
be exercised under Article 226 of the Constitution, if is
discretionary, its exercise must be judicious and reasonable,
admits of no controversy. It is for that reason, a person’s
entitlement for relief from a High Court under Article 226 of
the Constitution, be it against the State or anybody else, even
if is founded on the allegation of infringement of his legal
right, has to necessarily depend upon unblameworthy conduct of
the person seeking relief, and the court refuses to grant the
discretionary relief to such person in exercise of such power,
when he approaches it with unclean hands or blameworthy conduct.
15. In State of M.P. and others etc. etc. v. Nandlal Jaiswal and
others etc. etc.[9] the Court observed that it is well settled
that power of the High Court to issue an appropriate writ under
Article 226 of the Constitution is discretionary and the High
Court in exercise of its discretion does not ordinarily assist
the tardy and the indolent or the acquiescent and the lethargic.
It has been further stated therein that if there is inordinate
delay on the part of the petitioner in filing a petition and
such 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 the litigant who knocks at the doors of
the Court. Delay reflects inactivity and inaction on the part
of a litigant – a litigant who has forgotten the basic norms,
namely, “procrastination is the greatest thief of time” and
second, law does not permit one to sleep and rise like a
phoenix. Delay does bring in hazard and causes injury to the
lis. In the case at hand, though there has been four years’
delay in approaching the court, yet the writ court chose not to
address the same. It is the duty of the court to scrutinize
whether such enormous delay is to be ignored without any
justification. That apart, in the present case, such belated
approach gains more significance as the respondent-employee
being absolutely careless to his duty and nurturing a
lackadaisical attitude to the responsibility had remained
unauthorisedly absent on the pretext of some kind of ill health.
We repeat at the cost of repetition that remaining innocuously
oblivious to such delay does not foster the cause of justice.
On the contrary, it brings in injustice, for it is likely to
affect others. Such delay may have impact on others’ ripened
rights and may unnecessarily drag others into litigation which
in acceptable realm of probability, may have been treated to
have attained finality. A court is not expected to give
indulgence to such indolent persons - who compete with
‘Kumbhakarna’ or for that matter ‘Rip Van Winkle’. In our
considered opinion, such delay does not deserve any indulgence
and on the said ground alone the writ court should have thrown
the petition overboard at the very threshold.
17. Having dealt with the doctrine of delay and laches, we shall
presently proceed to deal with the doctrine of proportionality
which has been taken recourse to by the High Court regard being
had to the obtaining factual matrix. We think it appropriate to
refer to some of the authorities which have been placed reliance
upon by the High Court.
18. In Shri Bhagwan Lal Arya (supra) this Court opined that the
unauthorized absence was not a grave misconduct inasmuch as the
employee had proceeded on leave under compulsion because of his
grave condition of health. Be it noted, in the said case, it
has also been observed that no reasonable disciplinary authority
would term absence on medical grounds with proper medical
certificate from Government doctors as a grave misconduct.
19. In Jagdish Singh (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, production of proper medical
certificate from a Government medical doctor and opined about
the nature of misconduct and in Jagdish Singh (supra) the period
of absence, status of the employee and his track record and the
explanation offered by him. In the case at hand, the factual
score being different, to which we shall later on advert, the
aforesaid authorities do not really assist the respondent.
21. Learned counsel for the respondent has commended us to the
decision in Krushnakant B. Parmar v. Union of India and
another[10] to highlight that in the absence of a finding
returned by the Inquiry Officer or determination by the
disciplinary authority that the unauthorized absence was
willful, the charge could not be treated to have been proved.
To appreciate the said submission we have carefully perused the
said authority. In the said case, the question arose whether
“unauthorized absence from duty” did tantamount to “failure of
devotion to duty” or “behavior unbecoming of a Government
servant” inasmuch as the appellant therein was charge-sheeted
for failure to maintain devotion to duty and his behavior was
unbecoming of a Government servant. After adverting to the rule
position the two-Judge Bench expressed thus: -
“16. In the case of the appellant referring to unauthorized
absence the disciplinary authority alleged that he failed to
maintain devotion to duty and his behavior was unbecoming of a
government servant. The question whether “unauthorized absence
from duty” amounts to failure of devotion to duty or behavior
unbecoming of a government servant cannot be decided without
deciding the question whether absence is willful or because of
compelling circumstances.
17. 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 cannot be held guilty of failure of devotion to
duty or behavior unbecoming of a government servant.
18. In a departmental proceeding, if allegation of
unauthorized absence from 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 as an absolute proposition in law
that whenever there is a long unauthorized absence, it is
obligatory on the part of the disciplinary authority to record a
finding that the said absence is willful even if the employee
fails to show the compelling circumstances to remain absent.
23. In this context, it is seemly to refer to certain other
authorities relating to unauthorized absence and the view
expressed by this Court. In State of Punjab v. Dr. P.L.
Singla[11] the Court, dealing with unauthorized absence, has
stated thus: -
“Unauthorised absence (or overstaying leave), is an act of
indiscipline. Whenever there is an unauthorized absence by an
employee, two courses are open to the employer. The first is to
condone the unauthorized absence by accepting the explanation
and sanctioning leave for the period of the unauthorized absence
in which event the misconduct stood condoned. The second is to
treat the unauthorized absence as a misconduct, hold an enquiry
and impose a punishment for the misconduct.”
24. Again, while dealing with the concept of punishment the Court
ruled as follows: -
“Where the employee who is unauthorisedly absent does not report
back to duty and offer any satisfactory explanation, or where
the explanation offered by the employee is not satisfactory, the
employer will take recourse to disciplinary action in regard to
the unauthorized absence. Such disciplinary proceedings may
lead to imposition of punishment ranging from a major penalty
like dismissal or removal from service to a minor penalty like
withholding of increments without cumulative effect. The extent
of penalty will depend upon the nature of service, the position
held by the employee, the period of absence and the
cause/explanation for the absence.”
25. In Tushar D. Bhatt v. State of Gujarat and another[12], the
appellant therein had remained unauthorisedly absent for a
period of six months and further had also written threatening
letters and conducted some other acts of misconduct.
Eventually, the employee was visited with order of dismissal and
the High Court had given the stamp of approval to the same.
Commenting on the conduct of the appellant the Court stated that
he was not justified in remaining unauthorisedly absent from
official duty for more than six months because in the interest
of discipline of any institution or organization 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[13] 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 because of non-observance of
principles of natural justice, denial of reasonable opportunity;
findings are based on no evidence, and/or the punishment is
totally disproportionate to the proved misconduct of an
employee.”
28. In Union of India and another v. G. Ganayutham[14], the Court
analysed the conception of proportionality in administrative law
in England and India and thereafter addressed itself with regard
to the punishment in disciplinary matters and opined that unless
the court/tribunal opines in its secondary role that the
administrator was, on the material before him, irrational
according to Associated Provincial Picture Houses Ltd. v.
Wednesbury Corpn.[15] and Council of Civil Service Unions v.
Minister for Civil Service[16] norms, the punishment cannot be
quashed.
29. In Chairman-cum-Managing Director, Coal India Limited and
another v. Mukul Kumar Choudhuri and others[17], the Court,
after analyzing the doctrine of proportionality at length, ruled
thus: -
“19. The doctrine of proportionality is, thus, well-recognised
concept of judicial review in our jurisprudence. What is
otherwise within the discretionary domain and sole power of the
decision-maker to quantify punishment once the charge of
misconduct stands proved, such discretionary power is exposed to
judicial intervention if exercised in a manner which is out of
proportion to the fault. Award of punishment which is grossly
in excess to the allegations cannot claim immunity and remains
open for interference under limited scope of judicial review.
20. One of the tests to be applied while dealing with the
question of quantum of punishment would be: would any reasonable
employer have imposed such punishment in like circumstances?
Obviously, a reasonable employer is expected to take into
consideration measure, magnitude and degree of misconduct and
all other relevant circumstances and exclude irrelevant matters
before imposing punishment.
21. In a case like the present one where the misconduct of the
delinquent was unauthorized absence from duty for six months but
upon being charged of such misconduct, he fairly admitted his
guilt and explained the reason for his absence by stating that
he did not have intention nor desired to disobey the order of
higher authority or violate any of the Company’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 beyond his control.
Regard being
had to the obtaining factual matrix, the Court interfered with
the punishment on the ground of proportionality.
The facts in
the present case are quite different.
As has been seen from the
analysis made by the High Court, it has given emphasis on past
misconduct of absence and first time desertion and thereafter
proceeded to apply the doctrine of proportionality.
The
aforesaid approach is obviously incorrect.
It is telltale that
the respondent had remained absent for a considerable length of
time.
He had exhibited adamantine attitude in not responding to
the communications from the employer while he was unauthorisedly
absent.
As it appears, he has chosen his way, possibly
nurturing the idea that he can remain absent for any length of
time, apply for grant of leave at any time and also knock at the
doors of the court at his own will.
Learned counsel for the
respondent has endeavoured hard to impress upon us that he had
not been a habitual absentee.
We really fail to fathom the said
submission when the respondent had remained absent for almost
one year and seven months.
The plea of absence of “habitual
absenteeism” is absolutely unacceptable and, under the obtaining
circumstances, does not commend acceptation.
We are disposed to
think that the 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.
31. Another aspect needs to be noted.
The respondent was a Junior
Engineer. Regard being had to his official position, it was
expected of him to maintain discipline, act with responsibility,
perform his duty with sincerity and serve the institution with
honesty.
This kind of conduct cannot be countenanced as it
creates a concavity in the work culture and ushers in
indiscipline in an organization. In this context, we may
fruitfully quote a passage from Government of India and another
v. George Philip[18]: -
“In a case involving overstay of leave and absence 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 re-state 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 precious value for systemic development.
33. 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 High Court was wholly unjustified in entertaining the writ
petition after a lapse of four years. The result of aforesaid
analysis would entail overturning the judgments and orders
passed by the learned single Judge and the Division Bench of the
High Court and, accordingly, we so do.
34. Consequently, the appeal is allowed and the judgments and orders
passed by the High Court are set aside leaving the parties to
bear their respective costs.
…………….……..…..J.
[H.L. Gokhale]
…………………….….J.
[Dipak Misra]
New Delhi;
February 10, 2014.
-----------------------
[1] (2004) 4 SCC 560
[2] (1995) 6 SCC 749
[3] (2005) 7 SCC 338
[4] (2009) 7 SCC 301
[5] (2009) 7 MLJ 1231
[6] AIR 1969 SC 329
[7] (1874) 5 PC 221
[8] (1995) 4 SCC 683
[9] AIR 1987 SC 251
[10] (2012) 3 SCC 178
[11] (2008) 8 SCC 469
[12] (2009) 11 SCC 678
[13] (1997) 3 SCC 72
[14] (1997) 7 SCC 463
[15] (1948) 1 KB 223 : (1947) 2 All ER 680
[16] 1985 AC 374 : (1984) 3 All ER 935
[17] (2009) 15 SCC 620
[18] (2006) 13 SCC 1
-----------------------
28
the
Division Bench has affirmed the judgment and order dated
21.7.2011 in W.P. No. 25673 of 2007 whereunder the learned
single Judge had allowed the writ petition, and after setting
aside the punishment of dismissal, directed reinstatement of the
respondent with continuity of service but without back wages.=
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 beyond his control.
Regard being
had to the obtaining factual matrix, the Court interfered with
the punishment on the ground of proportionality.
The facts in
the present case are quite different.
As has been seen from the
analysis made by the High Court, it has given emphasis on past
misconduct of absence and first time desertion and thereafter
proceeded to apply the doctrine of proportionality.
The
aforesaid approach is obviously incorrect.
It is telltale that
the respondent had remained absent for a considerable length of
time.
He had exhibited adamantine attitude in not responding to
the communications from the employer while he was unauthorisedly
absent.
As it appears, he has chosen his way, possibly
nurturing the idea that he can remain absent for any length of
time, apply for grant of leave at any time and also knock at the
doors of the court at his own will.
Learned counsel for the
respondent has endeavoured hard to impress upon us that he had
not been a habitual absentee.
We really fail to fathom the said
submission when the respondent had remained absent for almost
one year and seven months.
The plea of absence of “habitual
absenteeism” is absolutely unacceptable and, under the obtaining
circumstances, does not commend acceptation.
We are disposed to
think that the 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.
31. Another aspect needs to be noted.
The respondent was a Junior
Engineer. Regard being had to his official position, it was
expected of him to maintain discipline, act with responsibility,
perform his duty with sincerity and serve the institution with
honesty.
This kind of conduct cannot be countenanced as it
creates a concavity in the work culture and ushers in
indiscipline in an organization. In this context, we may
fruitfully quote a passage from Government of India and another
v. George Philip[18]: -
“In a case involving overstay of leave and absence 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.”
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 High Court was wholly unjustified in entertaining the writ
petition after a lapse of four years. The result of aforesaid
analysis would entail overturning the judgments and orders
passed by the learned single Judge and the Division Bench of the
High Court and, accordingly, we so do.
34. Consequently, the appeal is allowed and the judgments and orders
passed by the High Court are set aside leaving the parties to
bear their respective costs.
2014 (Feb.Part)judis.nic.in/supremecourt/filename=41213
H.L. GOKHALE, DIPAK MISRA
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1941 OF 2014
(Arising out of S.L.P. (C) No. 15530 of 2013)
Chennai Metropolitan Water Supply
and Sewerage Board and others … Appellants
Versus
T.T. Murali Babu …Respondent
J U D G M E N T
Dipak Misra, J.
Leave granted.
2. The present appeal, by special leave, is directed against the
judgment and order dated 22.11.2012 passed by the High Court of
Judicature at Madras in Writ Appeal No. 2531 of 2012 whereby the
Division Bench has affirmed the judgment and order dated
21.7.2011 in W.P. No. 25673 of 2007 whereunder the learned
single Judge had allowed the writ petition, and after setting
aside the punishment of dismissal, directed reinstatement of the
respondent with continuity of service but without back wages.
3. Bereft of unnecessary details, the expose’ of facts that have
been undraped are that the respondent was appointed as a
Surveyor in Chennai Metropolitan Water Supply and Sewerage Board
(for short, “CMWSSB”) and subsequently promoted as Junior
Engineer in 1989. From 28.8.1995 he remained continuously
absent from duty without any intimation to the employer and did
not respond to the repeated memoranda/reminders requiring him to
explain his unauthorized absence from duty and to rejoin duty.
On 1.4.1997 he reported to duty with the medical certificate for
his absence from duty for the period commencing 28.8.1995 to
31.3.1997. As he had already remained unauthorisedly absent and
did not respond to the memos by offering an explanation, a
charge-sheet had already been issued on 11.9.1996 under the
Chennai Metropolitan Water Supply and Sewerage Board Employees
(Discipline and Appeal) Regulations, 1978 (for brevity “the
Regulations”).
The charge memo contained two charges, namely,
that the respondent-herein had failed to submit an explanation
to the first charge memo dated 11.10.1995 inspite of reminders
and
second, he deserted his post by remaining unauthorisedly
absent from duty from 28.8.1995, and thereby committed
misconduct under Regulations 6(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 the respondent 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 he did so.
5. On an appeal being preferred by the respondent the Board
rejected the appeal dated 30.6.1998. Being dissatisfied by the
order of dismissal and the affirmation thereof in appeal, the
respondent preferred W.P. No. 15272 of 1998. The learned Single
Judge, by order dated 12.3.2003, directed re-consideration of
the appeal solely on the ground that the Managing Director who
was the disciplinary authority had taken part in the proceedings
of the Board which decided the appeal. After the said order
came to be passed, the matter was again placed before the Board
and the appellate authority, considering the enquiry report, the
evidence brought on record and after due discussion, affirmed
the order of disciplinary authority and consequently dismissed
the appeal on 1.7.2003.
6. The grievance of re-affirmation of the order of dismissal was
agitated by the respondent in W.P. No. 25673 of 2007 which was
preferred on 7.7.2007. The appellant-Board in the counter
affidavit, defending the order of dismissal, stated that the
only reason given by the employee was that he could not attend
the duties as he was availing continuous treatment for
tuberculosis and, further, he also met with an accident in
September 1995 which was unacceptable. In addition, it was
stated in the counter affidavit that bunch of medical
certificates was produced by him on 1.4.1997 which mentioned
that he was suffering from depressive psychosis and bronchitis
and there was no mention about any accident and injury sustained
by him in September 1995 and treatment availed by him.
7. The learned Single Judge, by the impugned judgment, after
narrating the facts, noted the statement of the learned counsel
for the respondent that even if the employee had absented from
duty, there was no past misconduct of desertion/absence and,
therefore, the punishment of dismissal from service for the
first time desertion/absenteeism is too harsh and
disproportionate and deserved to be interfered with. The
learned Single Judge did not advert to any other facet and
referred to the decisions in Shri Bhagwan Lal Arya v.
Commissioner of Police, Delhi[1], B. C. Chaturvedi v. Union of
India[2], V. Ramana v. A.P. SRTC[3], Jagdish Singh v. Punjab
Engineering College[4] and Division Bench judgment in V.
Senthurvelan v. High Court of Judicature at Madras[5] 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 appellant Board from the
date of his appointment. Therefore, in such circumstances, it
would be very harsh and unreasonable to impose the punishment of
removal from service for the charge of unauthorized absence, as
such punishment is awarded for acts of grave nature or as
cumulative effect of continued misconduct or for such other
reasons, where the charges are very serious and in case where
charge of corruption had been proved. Admittedly, there has
been no such allegation against the respondent/writ petitioner.
Further, the learned single Judge while setting aside the order
of dismissal from service, rightly denied back wages to the
respondent/writ petitioner as the respondent/writ petitioner
failed to discharge duty during the relevant period.”
[Underlining is ours]
9. We have heard the learned counsel for the parties and perused
the material brought on record.
10. On a keen scrutiny of the decision rendered by the learned
single Judge as well as that of the Division Bench it is clearly
demonstrable that there has been no advertence with regard to
the issue whether the charges levelled against the respondent
had been proved or not. It is manifest that there had been no
argument on the said score before the writ court or in intra-
court appeal and hence, we are obliged to state that the only
aspect which was really proponed before the High Court pertains
to the nature of charges and proportionality of punishment.
Therefore, we shall confine our analysis with regard to said
limited sphere and an added facet which the learned counsel for
the appellant has emphatically urged before us, that is, the
belated approach by the respondent in invoking the extraordinary
jurisdiction of the High Court.
11. The charges that were levelled against the respondent-employee
read as follows: -
“CHARGE NO. 1:
That he has failed to offer his explanation to this office
Memo dated 11.10.95 in spite of reminders thereon dated 20.01.96
and 23.04.96 which clearly shows his disobedience to the order
of superior and it amounts to misconduct under Regulation 6(1)
of the MMWSS Board Employees (Discipline and Appeal) Regulations
1978.
CHARGE NO. 2:
That he has deserted the post from 28.08.95 onwards and
remains unauthorisedly absent from duty which amounts to
misconduct under Regulation 6(2) of the MMWSS Board Employees
(Discipline and Appeal) Regulations 1978.”
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[6] 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[7], which is as follows: -
“Now the doctrine of laches in Courts of Equity is not an
arbitrary or a technical doctrine. Where it would be
practically unjust to give a remedy, either because the party
has, by his conduct, done that which might fairly be regarded as
equivalent to a waiver of it, or where by his conduct and
neglect he has, though perhaps not waiving that remedy, yet put
the other party in a situation in which it would not be
reasonable to place him if the remedy were afterwards to be
asserted in either of these cases, lapse of time and delay are
most material. But in every case, if an argument against
relief, which otherwise would be just, is founded upon mere
delay, that delay of course not amounting to a bar by any
statute of limitations, the validity of that defence must be
tried upon principles substantially equitable. Two
circumstances, always important in such cases, are, the length
of the delay and the nature of the acts done during the
interval, which might affect either party and cause a balance of
justice or injustice in taking the one course or the other, so
far as relates to the remedy.”
14. In State of Maharashtra v. Digambar[8], while dealing with
exercise of power of the High Court under Article 226 of the
Constitution, the Court observed that power of the High Court to
be exercised under Article 226 of the Constitution, if is
discretionary, its exercise must be judicious and reasonable,
admits of no controversy. It is for that reason, a person’s
entitlement for relief from a High Court under Article 226 of
the Constitution, be it against the State or anybody else, even
if is founded on the allegation of infringement of his legal
right, has to necessarily depend upon unblameworthy conduct of
the person seeking relief, and the court refuses to grant the
discretionary relief to such person in exercise of such power,
when he approaches it with unclean hands or blameworthy conduct.
15. In State of M.P. and others etc. etc. v. Nandlal Jaiswal and
others etc. etc.[9] the Court observed that it is well settled
that power of the High Court to issue an appropriate writ under
Article 226 of the Constitution is discretionary and the High
Court in exercise of its discretion does not ordinarily assist
the tardy and the indolent or the acquiescent and the lethargic.
It has been further stated therein that if there is inordinate
delay on the part of the petitioner in filing a petition and
such 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 the litigant who knocks at the doors of
the Court. Delay reflects inactivity and inaction on the part
of a litigant – a litigant who has forgotten the basic norms,
namely, “procrastination is the greatest thief of time” and
second, law does not permit one to sleep and rise like a
phoenix. Delay does bring in hazard and causes injury to the
lis. In the case at hand, though there has been four years’
delay in approaching the court, yet the writ court chose not to
address the same. It is the duty of the court to scrutinize
whether such enormous delay is to be ignored without any
justification. That apart, in the present case, such belated
approach gains more significance as the respondent-employee
being absolutely careless to his duty and nurturing a
lackadaisical attitude to the responsibility had remained
unauthorisedly absent on the pretext of some kind of ill health.
We repeat at the cost of repetition that remaining innocuously
oblivious to such delay does not foster the cause of justice.
On the contrary, it brings in injustice, for it is likely to
affect others. Such delay may have impact on others’ ripened
rights and may unnecessarily drag others into litigation which
in acceptable realm of probability, may have been treated to
have attained finality. A court is not expected to give
indulgence to such indolent persons - who compete with
‘Kumbhakarna’ or for that matter ‘Rip Van Winkle’. In our
considered opinion, such delay does not deserve any indulgence
and on the said ground alone the writ court should have thrown
the petition overboard at the very threshold.
17. Having dealt with the doctrine of delay and laches, we shall
presently proceed to deal with the doctrine of proportionality
which has been taken recourse to by the High Court regard being
had to the obtaining factual matrix. We think it appropriate to
refer to some of the authorities which have been placed reliance
upon by the High Court.
18. In Shri Bhagwan Lal Arya (supra) this Court opined that the
unauthorized absence was not a grave misconduct inasmuch as the
employee had proceeded on leave under compulsion because of his
grave condition of health. Be it noted, in the said case, it
has also been observed that no reasonable disciplinary authority
would term absence on medical grounds with proper medical
certificate from Government doctors as a grave misconduct.
19. In Jagdish Singh (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, production of proper medical
certificate from a Government medical doctor and opined about
the nature of misconduct and in Jagdish Singh (supra) the period
of absence, status of the employee and his track record and the
explanation offered by him. In the case at hand, the factual
score being different, to which we shall later on advert, the
aforesaid authorities do not really assist the respondent.
21. Learned counsel for the respondent has commended us to the
decision in Krushnakant B. Parmar v. Union of India and
another[10] to highlight that in the absence of a finding
returned by the Inquiry Officer or determination by the
disciplinary authority that the unauthorized absence was
willful, the charge could not be treated to have been proved.
To appreciate the said submission we have carefully perused the
said authority. In the said case, the question arose whether
“unauthorized absence from duty” did tantamount to “failure of
devotion to duty” or “behavior unbecoming of a Government
servant” inasmuch as the appellant therein was charge-sheeted
for failure to maintain devotion to duty and his behavior was
unbecoming of a Government servant. After adverting to the rule
position the two-Judge Bench expressed thus: -
“16. In the case of the appellant referring to unauthorized
absence the disciplinary authority alleged that he failed to
maintain devotion to duty and his behavior was unbecoming of a
government servant. The question whether “unauthorized absence
from duty” amounts to failure of devotion to duty or behavior
unbecoming of a government servant cannot be decided without
deciding the question whether absence is willful or because of
compelling circumstances.
17. 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 cannot be held guilty of failure of devotion to
duty or behavior unbecoming of a government servant.
18. In a departmental proceeding, if allegation of
unauthorized absence from 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 as an absolute proposition in law
that whenever there is a long unauthorized absence, it is
obligatory on the part of the disciplinary authority to record a
finding that the said absence is willful even if the employee
fails to show the compelling circumstances to remain absent.
23. In this context, it is seemly to refer to certain other
authorities relating to unauthorized absence and the view
expressed by this Court. In State of Punjab v. Dr. P.L.
Singla[11] the Court, dealing with unauthorized absence, has
stated thus: -
“Unauthorised absence (or overstaying leave), is an act of
indiscipline. Whenever there is an unauthorized absence by an
employee, two courses are open to the employer. The first is to
condone the unauthorized absence by accepting the explanation
and sanctioning leave for the period of the unauthorized absence
in which event the misconduct stood condoned. The second is to
treat the unauthorized absence as a misconduct, hold an enquiry
and impose a punishment for the misconduct.”
24. Again, while dealing with the concept of punishment the Court
ruled as follows: -
“Where the employee who is unauthorisedly absent does not report
back to duty and offer any satisfactory explanation, or where
the explanation offered by the employee is not satisfactory, the
employer will take recourse to disciplinary action in regard to
the unauthorized absence. Such disciplinary proceedings may
lead to imposition of punishment ranging from a major penalty
like dismissal or removal from service to a minor penalty like
withholding of increments without cumulative effect. The extent
of penalty will depend upon the nature of service, the position
held by the employee, the period of absence and the
cause/explanation for the absence.”
25. In Tushar D. Bhatt v. State of Gujarat and another[12], the
appellant therein had remained unauthorisedly absent for a
period of six months and further had also written threatening
letters and conducted some other acts of misconduct.
Eventually, the employee was visited with order of dismissal and
the High Court had given the stamp of approval to the same.
Commenting on the conduct of the appellant the Court stated that
he was not justified in remaining unauthorisedly absent from
official duty for more than six months because in the interest
of discipline of any institution or organization 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[13] 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 because of non-observance of
principles of natural justice, denial of reasonable opportunity;
findings are based on no evidence, and/or the punishment is
totally disproportionate to the proved misconduct of an
employee.”
28. In Union of India and another v. G. Ganayutham[14], the Court
analysed the conception of proportionality in administrative law
in England and India and thereafter addressed itself with regard
to the punishment in disciplinary matters and opined that unless
the court/tribunal opines in its secondary role that the
administrator was, on the material before him, irrational
according to Associated Provincial Picture Houses Ltd. v.
Wednesbury Corpn.[15] and Council of Civil Service Unions v.
Minister for Civil Service[16] norms, the punishment cannot be
quashed.
29. In Chairman-cum-Managing Director, Coal India Limited and
another v. Mukul Kumar Choudhuri and others[17], the Court,
after analyzing the doctrine of proportionality at length, ruled
thus: -
“19. The doctrine of proportionality is, thus, well-recognised
concept of judicial review in our jurisprudence. What is
otherwise within the discretionary domain and sole power of the
decision-maker to quantify punishment once the charge of
misconduct stands proved, such discretionary power is exposed to
judicial intervention if exercised in a manner which is out of
proportion to the fault. Award of punishment which is grossly
in excess to the allegations cannot claim immunity and remains
open for interference under limited scope of judicial review.
20. One of the tests to be applied while dealing with the
question of quantum of punishment would be: would any reasonable
employer have imposed such punishment in like circumstances?
Obviously, a reasonable employer is expected to take into
consideration measure, magnitude and degree of misconduct and
all other relevant circumstances and exclude irrelevant matters
before imposing punishment.
21. In a case like the present one where the misconduct of the
delinquent was unauthorized absence from duty for six months but
upon being charged of such misconduct, he fairly admitted his
guilt and explained the reason for his absence by stating that
he did not have intention nor desired to disobey the order of
higher authority or violate any of the Company’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 beyond his control.
Regard being
had to the obtaining factual matrix, the Court interfered with
the punishment on the ground of proportionality.
The facts in
the present case are quite different.
As has been seen from the
analysis made by the High Court, it has given emphasis on past
misconduct of absence and first time desertion and thereafter
proceeded to apply the doctrine of proportionality.
The
aforesaid approach is obviously incorrect.
It is telltale that
the respondent had remained absent for a considerable length of
time.
He had exhibited adamantine attitude in not responding to
the communications from the employer while he was unauthorisedly
absent.
As it appears, he has chosen his way, possibly
nurturing the idea that he can remain absent for any length of
time, apply for grant of leave at any time and also knock at the
doors of the court at his own will.
Learned counsel for the
respondent has endeavoured hard to impress upon us that he had
not been a habitual absentee.
We really fail to fathom the said
submission when the respondent had remained absent for almost
one year and seven months.
The plea of absence of “habitual
absenteeism” is absolutely unacceptable and, under the obtaining
circumstances, does not commend acceptation.
We are disposed to
think that the 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.
31. Another aspect needs to be noted.
The respondent was a Junior
Engineer. Regard being had to his official position, it was
expected of him to maintain discipline, act with responsibility,
perform his duty with sincerity and serve the institution with
honesty.
This kind of conduct cannot be countenanced as it
creates a concavity in the work culture and ushers in
indiscipline in an organization. In this context, we may
fruitfully quote a passage from Government of India and another
v. George Philip[18]: -
“In a case involving overstay of leave and absence 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 re-state 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 precious value for systemic development.
33. 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 High Court was wholly unjustified in entertaining the writ
petition after a lapse of four years. The result of aforesaid
analysis would entail overturning the judgments and orders
passed by the learned single Judge and the Division Bench of the
High Court and, accordingly, we so do.
34. Consequently, the appeal is allowed and the judgments and orders
passed by the High Court are set aside leaving the parties to
bear their respective costs.
…………….……..…..J.
[H.L. Gokhale]
…………………….….J.
[Dipak Misra]
New Delhi;
February 10, 2014.
-----------------------
[1] (2004) 4 SCC 560
[2] (1995) 6 SCC 749
[3] (2005) 7 SCC 338
[4] (2009) 7 SCC 301
[5] (2009) 7 MLJ 1231
[6] AIR 1969 SC 329
[7] (1874) 5 PC 221
[8] (1995) 4 SCC 683
[9] AIR 1987 SC 251
[10] (2012) 3 SCC 178
[11] (2008) 8 SCC 469
[12] (2009) 11 SCC 678
[13] (1997) 3 SCC 72
[14] (1997) 7 SCC 463
[15] (1948) 1 KB 223 : (1947) 2 All ER 680
[16] 1985 AC 374 : (1984) 3 All ER 935
[17] (2009) 15 SCC 620
[18] (2006) 13 SCC 1
-----------------------
28
