TaxTMI 
TaxTMI 
2014 (2) TMI 1271
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....thout 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 ....
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....s 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, B. C. (2004) 4 SCC 560 Chaturvedi v. Union of India (1995) 6 SCC 749, V. Ramana v. A.P. SRTC (2005) 7 SCC 338, Jagdish Singh v. Punjab Engineering College (2009) 7 SCC 301 and Division Bench judgment in V. Senthurvelan v. High Court of Judicature at Madras (2009) 7 MLJ 1231 and opined thus:- "10. Applying the said judgment to the fact of this case and considering the counter filed by the respondents wherein it is not stated as to whether the petitioner has deserted / absented on any previous occasion, this Court is of the v....
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....lysis 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 su....
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....6 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 AIR 1987 SC 251 Jaiswal and others etc. etc. 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 l....
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....id 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....
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....nts 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 ....
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....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 (2009) 11 SCC 678, 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 sha....
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....legations 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 p....
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....gh 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 (2006) 13 SCC 1: - "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 activi....