ORDER
V.S. Sirpurkar, J.
1. In this writ petition, the petitioner challenges the punishment of dismissal, which has been ordered by the respondent-Corporation and its confirmation in appeal.
2. The petitioner was working as a Junior Engineer. He was Initially appointed as a Company Trainee for a period of one year and thereafter, he was appointed on probation for a period of six months in the post of Junior Engineer. He was confirmed with effect from May 1, 1990. The petitioner claims that he was suffering from various ailments and more particularly he was suffering from heart ailment and, therefore, because of the ailment he was not able to attend the office from May 12, 1991 to May 25, 1991 and from May 27, 1991 to June 4, 1991 meaning thereby, that he actually attended the duty on May 26, 1991 and thereafter again stopped attending the work. He further says that he has been applying for the leave from time to time and on this basis, a charge-sheet came to be filed against him. The charge is only about his unauthorised absence from duty from May 12, 1991 to May 25, 1991 (14 days) and from May 27, 1991 to June 4, 1991 (9 days). He further claimed that though he had made the leave applications, the said leave applications were not considered nor was he paid any salary for that period. After the enquiry he was dismissed. Prior to that, he was given a show cause notice on June 4, 1992 and in reply to which, he stated that he was not given proper opportunity. Even in the enquiry, it seems that his defence was that he was suffering from heart ailment and had to remain absent on account of his illness. It seems that he was dismissed by order dated September 13, 1992. As soon as he was dismissed, he first came to this Court by way of a writ petition. That writ petition was not entertained but the petitioner was given an opportunity to file a statutory appeal, which is provided under the rules. He accordingly filed his appeal. However, even after the appeal the same order of dismissal was continued and confirmed. The dismissal of the appeal is on June 4, 1994.
3. Learned counsel for the petitioner very earnestly argues that this was a case of genuinely and seriously ill person remaining absent for the two spells. He pointed out that in between these two spells, the petitioner did come and attend work on one day. Therefore, it was obvious that unless it was almost impossible for the petitioner, he could not have remained absent. It was pointed out that he was admittedly a heart patient and was used to be on leave from time to time and that he was also receiving regular treatment for his heart ailment. Considering all these, the learned counsel points out that merely on the ground of unauthorised absence for two spells, the punishment of dismissal is shockingly disproportionate.
4. Learned counsel for the respondent-Corporation points out that it is not as if the matters are not considered by the employer and in fact a full-fledged enquiry has been conducted and the finding of guilt has been recorded after giving full opportunity to the petitioner and even before ordering the dismissal of the person concerned, good reasons have been given and, therefore, it cannot be said that the punishment is disproportionately harsh.
5. It is obvious that the petitioner had been working with this Corporation as a “fresh entrant” from April 17, 1987 and that he was ultimately confirmed on May 1, 1990 though once his training was extended by six months. It is also obvious that even prior to that the petitioner was once dismissed from service by order dated December 26, 1984 on account of his “performance not being satisfactory”. However, the Management ultimately entered into a settlement with him and he was engaged as “a fresh entrant” with effect from April 17, 1987. The appellate authority seems to have taken a view that in the appeal memo these facts have been suppressed by the petitioner. It is not understood as to how such a “suppression”, even if it can be called a “suppression”, could be of any relevance. After all, all these facts were bound to be known to the authorities concerned and, therefore, non-mentioning of these facts in his appeal memo would really be of no consequence. The observation by the appellate authority is, therefore, clearly incorrect.
6. The appellate authority thereafter goes on to say that this being an “essential service”, the absence without prior permission affects the routine work of the Corporation and this seems to be the only reason for ordering the punishment of dismissal. The other thing which has been taken into consideration is that the “warnings” issued on three occasions and some other minor punishments inflicted on the petitioner. From the whole conspectus of the facts, it appears that the petitioner is genuinely a heart patient which fact does not seem to have
been controverted very seriously by the respondents. In their counter also there is no specific averment that the petitioner is not a heart patient as has been asserted by him.
7. I have very carefully examined the whole counter and I do not find a specific denial to the assertion of the petitioner made in paragraph 4 of the petition to the effect that the petitioner has been suffering continuously from the heart problem. If this be so, then, according to me, the respondent-Corporation at least the appellate authority, should have taken a “considerate view” regarding the unauthorised absence of the petitioner. After all, the petitioner is not guilty of any misconduct of any
serious nature such as dishonesty, etc. It appears that he has absented on account of his serious ill-health. All that should have been considered by the appellate authority and that precisely has not been considered by the appellate authority. It will be better, therefore, to remand the matter to the appellate authority to pass a fresh order after taking into consideration the fact that the petitioner is a heart patient and that his claim as a heart patient has not been controverted at any point of time. The appellate authority shall be well advised to pass the order within one month from today. Time limit shall be very strictly observed. No costs.