IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 14/12/2004
CORAM
THE HONOURABLE MR. JUSTICE P.K. MISRA
AND
THE HONOURABLE MR. JUSTICE S. ASHOK KUMAR
WRIT PETITION NO.20510 OF 2004
and
WPMP.No.24693 OF 2004
1. UOI rep. by the Secretary
Ministry of Defence (DP&S)
Sena Bhawan, New Delhi 11.
2. The General Manager,
Heavy Vehicles Factory,
Avadi, Chennai 600 054.
3. The Addl. Director General
Ordnance Factory Board,
Armoured Vehicle Headquarters,
Avadi, Chennai 600 054. .. Petitioners
-Vs-
1. M. Mani,
Ex-Supervisor, HVF.
2. The Central Administrative Tribunal,
Rep. By its Registrar,
City Civil Court Buildings,
High Court, Chennai 600 104. .. Respondents
Petition filed under Article 226 of the Constitution of India for the
issuance of Writ of Certiorari to call for the records pertaining to the order
dated 29.4.2004 in O.A.No.933/2003, on the file of Central Administrative
Tribunal and quash the same.
!For Petitioners : Mr.K. Veeraraghavan, SCGSC
^For Respondent-1 : Mr.N. Balamuralikrishnan for
M/s. Krishna Associates
- - -
:O R D E R
(The Order of the Court was made by P.K. MISRA, J)
Though the matter was listed for considering the question of stay and
vacating the stay, on consent of the counsels, the writ petition itself is
taken up for disposal.
2. The present writ petition has been filed by the Union of India and
other subordinate officials for quashing the order dated 29.4.2004 in
O.A.No.933 of 2003.
3. O.A.No.933 of 2003 was filed by the present Respondent No.1
challenging the punishment of removal from service. The present Respondent
No.1 at the relevant time was working as Supervisor in the office of the
second petitioner. The main charge was relating to unauthorised absence from
duty. Upon an enquiry, delinquency was established and the disciplinary
authority imposed the punishment of removal from service. The Appeal and the
Revision having been rejected, O.A. was filed before the Tribunal.
4. The Tribunal passed the following order :-
8. In the light of the discussion above, we hold that the applicant
succeeds and the ends of justice would be met if the following orders are
passed :-
(a) The impugned orders are quashed.
(b) The respondents are directed to consider the case of the applicant
for grant of appropriate leave, if available to his credit, and impose any one
of the penalties on the applicant for the so called absence without leave.
While doing so we make if clear that the period of absence will be treated as
qualifying service for purposes like seniority, promotion, but not for
backwages. This exercise shall be completed within 8 weeks of receipt of a
copy of this order by the respondents.
5. At the time of entertaining the writ petition, while
granting interim stay of the order of the Tribunal for a period of two weeks,
it was further directed :-
In the meantime, the Central Government Standing Counsel shall
obtain instruction as to whether the petitioners are willing to alter the
punishment from removal to any other major penalty which would enable the
employee to receive the terminal benefits, including pension.
Thereafter, no further order had been passed extending the interim stay.
6. At the time of hearing of the matter, learned counsel
appearing for the petitioners has submitted that since the punishment had been
imposed on consideration of the relevant materials, and thereafter the appeal
and the revision having been rejected, there was no scope for the Tribunal to
interfere with such punishment.
7. Learned counsel appearing for Respondent No.1 on the other
hand has submitted that the order passed by the Tribunal was justified in the
peculiar facts and circumstances of the case and, at any rate, the
discretionary order passed by the Tribunal should not be interfered with.
8. We have heard the learned counsels appearing for both the
parties at length and we have perused various materials on record. It is no
doubt true that the present Respondent No.1 had remained absent for a long
period. The Tribunal has found that the absence was on account of the fact
that the present Respondent No.1 was suffering from some ailment. The
Tribunal has further observed that the PMD in charge of the Hospital had given
a certificate subsequently that the employee was fit to rejoin duty, but
inspite of such medical opinion, the present petitioners did not consider the
case of the employee and imposed the extreme punishment of removal from
service, which was not justified.
9. The period of absence was for 14 months. As pointed out
by the learned counsel for the petitioners, on several previous occasions the
present employee had remained absent. On the other hand, the materials on
record indicate that there was some mental depression for which the present
Respondent No.1 was undergoing treatment.
10. Keeping in view the various facts and circumstances of
the case, we are inclined to accept the submission of the learned counsel for
the petitioners that such a person should not be reinstated in service, and
cannot be allowed to continue in view of his chronic absence from time to time
on many occasion. Yet, we feel that the extreme punishment of removal from
service was disproportionate, particularly keeping in view the fact that the
present Respondent No.1 was found to be suffering from bouts of mental
depression intermittently. There is no dispute that except the allegation
relating to absence, there was no other serious allegation against the present
Respondent No.1 at any time. Since the Respondent No.1 had rendered service
for several years, it would be unjust to deprive him at least the pensionary
benefits.
11. Having regard to all these aspects and keeping in view
the peculiar facts and circumstances of the case, we feel interest of justice
would be served by modifying the order of the Tribunal as well as modifying
the order of punishment imposed by the departmental authorities. Accordingly,
the writ petition is disposed of with the direction that the order of removal
from service, as imposed by the disciplinary authority, shall be altered to
that of compulsory retirement from 31.12.2004. The respondent No.1 shall be
deemed to be continuing in service till 31.12.2004. The entire period shall
be notionally calculated for the purpose of increments, etc., without the
benefit of actual payment, and on the basis of such notional calculation,
pension, gratuity, etc., shall be payable. The Respondent No.1 shall be
entitled to all the terminal benefits, including the gratuity. Since the
interim order of stay was passed only for a period of two weeks, the first
respondent is also entitled to salary with effect from 1.8.20 04 till the end
of December, 2004, where after his pension and other terminal benefits shall
be calculated and be paid. This direction shall be implemented within a
period of three months from the date of receipt of the order.
12. With the above directions, the writ petition is disposed
of. No costs. Consequently, WPMP.No.24693 of 2004 is closed.
Index : Yes
Internet: Yes
dpk
To
1. UOI rep. by the Secretary
Ministry of Defence (DP&S)
Sena Bhawan, New Delhi 11.
2. The General Manager,
Heavy Vehicles Factory,
Avadi, Chennai 600 054.
3. The Addl. Director General
Ordnance Factory Board,
Armoured Vehicle Headquarters,
Avadi, Chennai 600 054.
4. The Central Administrative Tribunal,
Rep. By its Registrar,
City Civil Court Buildings,
High Court, Chennai 600 104.