Writ Petition No.2349 of 2005

25th August, 2008

Petitioner Counsel: Mr. K. R. TIWARI
Respondent Counsel: Mr. T. J. PANDIAN

JUDGMENT

JUDGMENT :- Heard the learned counsel for the parties.

2. The petitioner has approached this court after knocking the court of justice at different forums challenging the punishment and dismissal imposed upon him in a disciplinary enquiry conducted by the respondent employer. The petitioner came to be appointed as a Constable in the Railway Protection Force (RPF) under Badge No.587 in the Central Railway and was posted in Bombay on 29.09.1984. In April, 1991 while the petitioner was working in the RPF at Byculla, he received an intimation from his native place in Uttar Pradesh that his wife was seriously ill and, therefore, the petitioner applied for leave and got sanction from 07.04.91 to 12.04.91 and went to his native place to attend to his wife.

3. It is the case of the petitioner that his wife was seriously ill and required continuous treatment and medication and no one else was there to look after her, his two children being small and widowed mother being old, the petitioner had to overstay beyond his 6 days leave which was informed to the respondents. Though the respondents acknowledged receipt of the petitioners letter dated 15.04.91, the petitioner availed of the leave beyond the sanctioned limit under the impression that his request would be considered as he has sent a medical certificate in support of his application for extension of leave.

4. It is the case of the petitioner that on 25.05.91 rather than considering his case for extension of leave, the respondent charge-sheeted the petitioner and one K. P. Singh was appointed as Enquiry Officer. The Divisional Security Commissioner by his order dated 16.07.91 removed the petitioner from service with immediate effect as per the punishment recommended by the Enquiry Officer. The petitioner preferred an appeal against the said order of dismissal on 11.09.91 but he did not get any response. Therefore, he moved the Allahabad High Court by filing a Writ Petition in the year 1993. On 22.05.93, the Allahabad High Court disposed of the Writ Petition with a direction to the respondents to dispose of the appeal of the petitioner within a period of one month. Pursuant to the said writ of mandamus issued by the Allahabad High Court, the respondent no.5 Asst. Security Commissioner passed an order rejecting the appeal holding that it was time barred. The petitioner was again required to move the Allahabad High Court by filing Writ Petition No.39741 of 1993 but it was turned down by order dated 18.03.05 on the ground of jurisdiction and this is how the petitioner on being advised approached this court by filing this petition.

5. The short issue which arise for our consideration after the completion of the pleadings and hearing the learned counsel for the parties in the matter is whether the punishment imposed on the petitioner was shockingly disproportionate.

6. In our opinion, the case of the petitioner can be considered to be an exception taking into account the misconduct for which he was charged and the fact that the petitioner did not contest the disciplinary proceedings initiated against him which led to the passing of the impugned order of dismissal. The petitioner was charge-sheeted for "unauthorised overstay with effect from 13.04.91 till date in continuation of 6 days APL from 7.4.91 to 12.4.91." We find that though the petitioner has not offered any explanation as to why he failed to defend himself during the enquiry it appears that the petitioner was deprived proper advise in the matter, otherwise there was no reason why the petitioner could not have participated in the departmental enquiry. This resulted in passing of the order dated 16.7.91 by the Divisional Security Commissioner, Bombay V.T. who ordered his removal from service with immediate effect.

7. Even the appellate authority concurred with the order as the petitioner failed to turn up and defend himself during the enquiry and therefore, there was no reason to exonerate him of the charge of unauthorised overstay in continuation of 6 days APL taking into consideration that the unauthorised overstay was not substantial so as to invite the maximum penalty of dismissal and particularly in the background when the petitioner for reasons best known to him could not participate in the departmental proceedings, it was not fair and reasonable to impose such harsh punishment. The respondents have not placed before the court any previous record of the petitioner which could go to show that the petitioner is in the habit of overstaying his leave or has a previous record to his discredit which goes to justify his discontinuation in service.

8. After taking into consideration the fact situation and the well settled principle of service jurisprudence, while imposing punishment, the factors which should be kept in mind by the Disciplinary authorities can be summed up as under:

i. In a disciplinary proceeding for an alleged fault of an employee, punishment is imposed, not in order to seek retribution or to give vent to feeling of wrath.

ii. The main purpose of a punishment is to correct the fault of the employee concerned by making him more alert in the future and to hold out a warning to the other employees to be careful in the discharge of their duties so that they do not expose themselves to similar punishment. And the approach to be made is the approach parents make towards an erring or misguided child.

iii. It is not expedient in the interest of the administration to visit every employee against whom a fault is established with the penalty of dismissal and to get rid of him. It would be counter productive to do so for it would be futile to expect to recruit employees who are so perfect that they would never commit any fault.

iv. When different categories of penalties can be imposed in respect of the alleged fault, one of which is dismissal from service, the disciplinary authority perforce is required to consult itself for selecting the most appropriate penalty from out of the range of penalties available that can be imposed, having regard to the nature, content and gravity of default. Unless the disciplinary authority reaches the conclusion that having regard to the nature, content and magnitude of the fault committed by the employee concerned it would be absolutely unsafe to retain him in the service, the maximum penalty of dismissal cannot be imposed.

v. It cannot be overlooked that by and large it is because the maximum penalty is imposed and total ruination stares one in the eyes that the employee concerned is obliged to approach the Court and avail of the costly and time-consuming machinery to challenge in desperation, the order passed by the disciplinary authority. If a lesser penalty was imposed, he might not have been obliged to take recourse to costly legal proceedings which result in loss of public time and also result in considerable hardship and misery to the employee concerned.

vi. Every harsh order of removal from service creates bitterness and arouses a feeling of antagonism in the collective mind of the workers and gives rise to a feeling of class conflict. It does more harm than good to the employer as also to the society.

9. In the aforesaid circumstances, this court thought it proper that the matter can be sympathetically considered in the case of the petitioner. The learned standing counsel for the Union of India Mr. T. J. Pandian was kind enough to convey the feelings of this court to the authorities and we record our appreciation for the positive approach made by the authority in the matter and they have communicated to Mr. Pandian by their letter dated 20.08.08 that the matter can be worked out and the office of the Chief Security Commissioner has conveyed that they have accepted the suggestion of this court as indicated in his letter under reference but requested that Honourable High Court may be asked to direct petitioner to undergo his initial training once again, so that he can function effectively. The copy of the said communication dated 20.08.08 received by Mr. T. J. Pandian is taken on record and marked 'X' for identification and has been read as part of the record and proceeding of the case.

10. We also feel that due to a gap in service, it will be in the interest of the petitioner to undergo his initial training programme so that he can be useful in the force and that his present age shall be taken into consideration for initial training as the petitioner is not expected to perform like new recruits and the training is a formality for preparing him to discharge his duties properly.

11. We therefore, accept the statement made by the learned standing counsel of the respondent on instruction of the respondent that the petitioner will be taken back in service in the same level as constable and in such an event, the petitioner will not be given any back wages or any other benefits except that the period from the date of dismissal till reinstatement would be taken into account for the purpose of pensionery benefits only.

12. In view of this, we direct the petitioner to report for duty to the Sr. Divisional Security Commissioner, RPF CST, Mumbai on 01.09.2008.

13. Petition is disposed of accordingly with no order as to costs.

Ordered accordingly.