IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 29/11/2004
CORAM
THE HONOURABLE MR. JUSTICE P.K. MISRA
AND
THE HONOURABLE MR. JUSTICE S. ASHOK KUMAR
WRIT PETITION NO.25329 OF 2002
1. Union of India,rep. by the
Divisional Railway Manager,
Southern Railway, Madurai.
2. Assistant Personnel Officer,
Madurai Division,
Southern Railway, Madurai.
3. Senior Divisional Commercial Manager,
Madurai Division,
Southern Railway, Madurai.
4. Assistant Commercial Manager,
Madurai Division,
Southern Railway, Madurai. .. Petitioners
-Vs-
1. The Registrar,
Central Administrative Tribunal,
Madras Bench,
Chennai 600 104.
2. A. Thangavelu,
S/o. Arthanari Asari,
c/o.R. Ganesh,
No.20, Sarojini Street,
Thallakullam Post,
Madurai 625 002. .. Respondents
Petition filed under Article 226 of the Constitution of India for the
issuance of Writ of Certiorari as stated therein.
For Petitioners : Mr.R. Thyagarajan
Senior Counsel for
Mr.V.R. Gopalan
For Respondent-2 : Mr.K. Chandru
Senior Counsel for
Mr.R.Rengaramanujam
:O R D E R
(The order of the Court was made by P.K. MISRA, J)
The Union of India and its subordinate officers of the Railways have
filed this writ petition against the order passed by the Central
Administrative Tribunal in O.A.No.753 of 2001 dated 12.2.2002, where under the
Tribunal has quashed the order dated 27.4.2000 discharging the present
Respondent No.2 from service.
2. The present Respondent No.2 was appointed as a Lascar in April, 1
998 and in August, 1998 he was conferred temporary status. On 5.11.1 999, a
charge memo was issued against the present Respondent No.2 on the allegation
of unauthorised absence from his service from 18.1.199 9 to 27.4.2000.
Subsequently, an enquiry was conducted and the Enquiry Officer found that
Respondent No.2 was guilty of the charges. Such report was communicated to
Respondent No.2. At that time, he has submitted a representation for
production of muster rolls covering the entire period of the alleged
unauthorised absence. While the matter stood thus, on 3.3.2000, the
disciplinary authority withdrew the enquiry report and ordered for a fresh
enquiry. On 15.3.2000, the enquiry officer recorded a finding indicating that
the charges have been proved. At that stage, Respondent No.2 was allowed to
rejoin on 23.4.2000. However, just a few days thereafter, he was discharged
from service as per order dated 27.4.2000. The relevant portion of the said
order is to the following effect :-
… Sr. Divisional Commercial Manager, Madurai, vide his note
No.U/C.325/Sr.DCM/Misc. dated 26.4.2000, has advised that the said Shri A.
Thangavel has been unauthorisedly absenting from duty since 18.01.19 99
onwards and that his performance as Sub.Bungalow Lascar is quite
unsatisfactory and hence he does not require the services of the said Shri A.
Thangavel.
WHEREFORE, in accordance with the terms and conditions of his
engagement, the said A. Thangavel who has not worked for one year
continuously, is discharged from his engagement as Sub.Bungalow Lascar with
immediate effect. He shall be paid a sum equivalent to the amount of his pay
plus allowances for a period of 14 days, calculated at the same rate at which
he was drawing then immediately before his discharge, in lieu of 14 days
notice period.
Thereafter, the present Respondent No.2 preferred appeal before the
Appellate Authority. However, since the appeal had remained pending,
Respondent No.2 filed O.A.No.27 of 2001, which was disposed of on 8.1.2001
directing the authorities to dispose the appeal dated 24.5.2000. Following
the aforesaid direction, the Appellate Authority passed the order dated
12.3.2001 confirming the earlier order of discharge dated 27.4.2000.
Respondent No.2 filed O.A.No.753 of 2001, which has been allowed by the
Tribunal. The Tribunal has come to the conclusion that the order of discharge
passed by the authority has cast stigma on the present Respondent No.2 and
such order cannot be sustained. The Tribunal has directed that the present
Respondent No.2 should be reinstated with all consequential benefits. The
said order is being impugned in the present writ petition.
3. Learned Senior counsel appearing for the petitioners has
submitted that since an order of discharge simplicitor was passed in
accordance with the terms and conditions of the agreement of employment, there
was no illegality in such order and the Tribunal should not have interfered
with the order of discharge.
4. Learned Senior counsel appearing for Respondent No.2 on
the other hand has submitted that in the present case, keeping in view the
background that two enquiries had been held and finding of guilt had been
recorded, the order of discharge amounted to imposing punishment without
following the principles contained in Article 311(2) of the Constitution
inasmuch as no second show cause notice had been issued to Respondent No.2,
and therefore, the order of discharge was illegal.
5. In (1999) 2 SCC 21 (RADHEY SHYAM GUPTA v. U.P. STATE
AGRO INDUSTRIES CORPORATION LTD. AND ANOTHER), it was observed :-
34. But in cases where the termination is preceded by an enquiry and
evidence is received and findings as to misconduct of a definitive nature are
arrived at behind the back of the officer and where on the basis of such a
report, the termination order is issued, such an order will be violative of
the principles of natural justice inasmuch as the purpose of the enquiry is to
find out the truth of the allegations with a view to punish him and not merely
to gather evidence for a future regular departmental enquiry. In such cases,
the termination is to be treated as based or founded upon misconduct and will
be punitive. These are obviously not cases where the employer feels that
there is a mere cloud against the employees conduct but are cases where the
employer has virtually accepted the definitive and clear findings of the
enquiry officer, which are all arrived at behind the back of the employee-
even though such acceptance of findings is not recorded in the order of
termination. That is why the misconduct is the foundation and not merely the
motive in such cases.
6. Similar principles were followed in the subsequent
decisions reported in (1999) 3 SCC 60 (DIPTI PRAKASH BANERJEE v. SATYENDRA
NATH BOSE NATIONAL CENTRE FOR BASIC SCIENCES, CALCUTTA AND OTHERS) and (2000 )
5 SCC 152 (CHANDRA PRAKASH SHAHI v. STATE OF UTTAR PRADESH AND OTHERS).
7. Many of the earlier decisions were analysed and discussed
in the subsequent decision of the Supreme Court reported in (2002) 1 SCC 52 0
(PAVANENDRA NARAYAN VERMA v. SANJAY GANDHI PGI OF MEDICAL SCIENCES AND
ANOTHER), upon which strong reliance is placed by the learned Senior Counsel
for the petitioners. On facts, the ratio of the said decision is not
applicable. Even in the said case, it was observed :-
21. One of the judicially evolved tests to determine whether in
substance an order of termination is punitive is to see whether whether prior
to the termination there was (a) a full-scale formal enquiry (b) into
allegations involving moral turpitude or misconduct which (c) culminated in a
finding of guilt. If all three factors are present the termination has been
held to be puni tive irrespective of the form of the termination order.
Conversely if any one of the three factors is missing, the termination has
been upheld.
8. Following the ratio of the aforesaid decisions, if the
factual backdrop of the present case is analysed, there is no escape from the
conclusion that in the present case the alleged misconduct of the Respondent
No.2, remaining absent, was the foundation for the order of discharge and as
such, since the order of discharge was without completing the enquiry and
without issuing second show cause notice, such order was illegal.
9. In the impugned order of discharge itself, there is
reference to unauthorised absence of the Respondent No.2. A full-fledged
disciplinary proceedings had been initiated, but for some unknown reasons, the
authorities without concluding the enquiry in a manner known to law, allowed
the Respondent No.2 to join and passed the order of discharge within few days
thereafter. Tenor of the order itself casts stigma. Moreover, such order had
been preceded by two abortive disciplinary proceedings.
10. Keeping in view the aforesaid aspects, we agree with the
conclusion of the Tribunal that the order of discharge amounted to a
punishment and was liable to be quashed as the principles under Article 311
(2) had not been followed.
11. Learned Senior counsel for the petitioners has submitted
that even assuming that the order of discharge was improper, the Tribunal was
not justified in directing reinstatement with all consequential benefits,
including the backwages. He has submitted that Respondent No.2 may be allowed
to rejoin, however, backwages should not be paid.
12. Learned Senior Counsel appearing on behalf of Respondent
No.2, on instructions from the Respondent No.2, who was present in Court, has
submitted that the Respondent No.2 should be reinstated with all service
benefits, save and except the payment of backwages.
13. Having regard to the facts and circumstances of the case
and keeping in view the fact that Respondent No.2 was absent for a
considerable period of time and was somewhat responsible for the ultimate
action, he should not be allowed the benefit of backwages. Accordingly, the
order of the Tribunal is modified and it is directed that the Respondent No.2
shall report before the third petitioner, the Senior Divisional Commercial
Manager, Madurai Division, Southern Railway, Madurai on 10th December, 2004.
He shall be deemed to be in service and the entire period shall be taken into
account for all service benefits such as seniority, increments, etc., but he
shall not be entitled to any backwages till he rejoins on 10.12.2004.
14. The writ petition is accordingly disposed of, subject to
the aforesaid direction. No costs.
Index : Yes
Internet: Yes
dpk
To
1. Union of India,rep. by the
Divisional Railway Manager,
Southern Railway, Madurai.
2. Assistant Personnel Officer,
Madurai Division,
Southern Railway, Madurai.
3. Senior Divisional Commercial Manager,
Madurai Division,
Southern Railway, Madurai.
4. Assistant Commercial Manager,
Madurai Division,
Southern Railway, Madurai.