Ashok Kumar vs Union of India

T.S. Doabia, J.

Petition admitted. With the consent of parties taken up for final dsposal.

The petitioner, Ashok Kumar who was working as Mail Overseer, SubDivision Inspector Reasi, was proceeded against departmentally. A finding

has been recorded that he absented from duty with effect from 12th of November, 1993 without any information and without obtaining the

permission of the Competent Authority. On 9th of December 1993, he was asked to resume duties. He failed to do so. As the petitioner remained

absent from duty in an unauthorised manner without sanction of leave and also left the station without permission his period of absence with effect

from 12th of November 1993 to 25th of May 1994 was treated as diesnon without forfeiting his past service and pensionary benefits.

The above order came to be passed on 25th May '95. It appears that the petitioner submitted a representation against the aforementioned action

taken against him. The Director, Postal Service, Jammu and Kashmir Circle, Jammu, however, formed an opinion that the petitioner has been

lightly dealt with. Accordingly the aforementioned Officer formed an opinion that the action was required to be taken under Rule 29(1) of the

Central Civil Service (Classification, Control and Appeal) Rules of 1965. In exercise of powers conferred under R. 29(1)(b) of CCS (CCA)

Rules, the aforementioned authority decided to impose the punishment of compulsory retirement. It is this order passed on 23rd Feb ' 96, which is

the subject matter of challenge in this petition.

The learned counsel for the petitioner submits that too strict a view has been taken in the matter of imposing punishment. He submits that the

absence for a short period of about six months was duly explained. It is accordingly submitted that punishment of compulsory retirement is too

harsh and this aspect of the matter requires to be looked into. He is placing reliance on AIR 1994 SC 215 and AIR 1996 SC 277 and some other

decisions of the Supreme Court. He accordingly submits that the matter requires to be looked into afresh.

Another argument which has been raised is that before enhancing the punishment, the petitioner was not given any opportunity to put across his

point of view. It is submitted that if a major penalty was to be imposed, then the procedure of R. 18 should have been followed. An Enquiry

Officer should have been appointed and only thereafter the severe penalty of compulsory retirement could be imposed.

The stand taken by the respondents is that an Enquiry Officer was appointed. The enquiry was conducted on 5th April and 6th April '95. On the

above dates, the petitioner is said to have made a statement. It is stated that as the petitioner had admitted the factum of his absence, therefore, the

charge of absence was held to be proved. It is under these circumstances, a report is said to have been submitted by the Enquiry Officer. The

report of the Enquiry Officer is Annexure R.7.

Before adverting further in the matter, it would be apt to notice the statement which is said to have been made by the petitioner. This statement is

Annexure R.6 and is being noticed :

Stated that I am working as Mail Overseer Kathua. Total service of 16 years in Department. I have worked as Mail Overseer, Reasi from 1989

to 1994. I remained absent from duty with effect from 12.11.1993 to 22.5.1994, S.D.I. Reasi telegram XP/0930/2/12/93, letter No. B3/Ashok

Kumar 9.12.1993, Letter No. B3/Ashok Kumar 2.2.1994 and letter No. B3/Ashok Kumar 6.4.1994 have been received by me. I could not

apply for leave for this period due to serious illness. I was not in a position to move from the bed.

I also could not resume duty with reference to the letter received from SDI Reasi due to above reason.

A perusal of the aforementioned statement makes it clear that the petitioner was absent from 12th of November 1993 to 26th of May 1994. He

stated that he could not apply for leave as he was seriously ill and was not in a position to move around. This aspect of the matter was required to

be gone into. The legal position is as under:

(i) Absence from duty is not per se misconduct.

(ii) Where an employee proceeds on leave and does not resume duties even then services cannot be brought to an end without holding enquiry.

(iii) Even if there is some service regulation visualising concept of automatic termination in case of absence even then enquiry is required to be held.

(iv) Where order of reinstatement is ordered then preponderance of view is that back wages are not to be allowed.

(v) Again where order of termination is set aside then the competent authority should be left free to decide as to whether it wishes to leave the

matter as it is or wants to hold further enquiry.

(vi) The order of termination has to precede by hearing and the order so passed has to be reasoned one.

(i) Absence from duty is not per se misconduct. See:

(a) Union of India v. J. Ahmed, AIR 1979 SC 1022.

(b) Flaxo Laboratories (P) Ltd. v. Presiding Officer Labour Court, Meerut, AIR 1984 SC 505.

(c) S. Govinda Menon v. Union of India, AIR 1967 SC 1274.

(d) A.L Kalra v. P&E Corpon. of India Ltd, AIR 1984 SC 1361.

(e) Supdt. of Police v. Joy Dev Roy 1996(4) SCT 79.

(f) Kamlesh Sharan v. Executive Director, 1990(3) SLR 616.

(g) Gurcharan Singh v. Presiding Officer, 1997(4) SCT 767.

(h) State of Punjab v. Aman Kumar, 1997(1) SCT 256.

(i) Gurdev Singh v. State, 1976(2) SLR 442.

(j) Bhim Singh v. Haryana State, 1991(3) SLR 721 : 1996(2) SCT 299 (P&H) (D.B).

(k) State of Punjab v. Parkash Chand, 1992(1) SCT 123.

(ii) Where an employee proceeds on leave and does not resume duties even then services cannot be brought to an end without holding enquiry.

See :

(a) Saraswati Industrial Syndicate v. Jai Bhagwan Jain, 1994(4) SCT 25.

(b) A. Sudhakar v. Executive Director, 1994(4) SCT 104.

(c) Nagar Palika Parishad Lahar v. Ram Naresh Rayonya, 1994(4) SCT 261.

(d) Rolston John v. Central Government Industrial Tribunal, AIR 1994 SC 131.

(e) Union of India v. Giriraj Sharma, AIR 1994 SC 215.

(f) Gursewak Singh v. P.O Labour Court, Bhatinda, 1997(1) SCT 661.

(g) T. Jagdishwara v. Nanager Madanpalli Spinning Mills, Chittoor, 1997(1) SCT 319 CAP.

(h) Anjula Pal Roy v. State of W.B., 1996(4) SCT 424.

(i) Dr. (Miss) Malti Batra v. State, 1997(3) SCT 284.

(iii) Even if there is some service regulation visualising concept of automatic termination in case of absence even then enquiry is required to be held.

See :

a) Atul Krishana Kundu v. Union of India, 1994(3) SCT 753.

b)Jai Shankar v. State of Rajasthan, AIR 1966 SC 492.

c) Deokinandan Prasad v. The State of Bihar, AIR 1971 SC 1409.

d) Devi Kewal Ram Madrani v. Premier High School, 1995(2) SCT 514.

e) Pepsu Road Transport Corporation v. Presiding Officer, Labour Court, 1995(1) Lab. IC 88: 1994(4) SCT 444 (P&H) (D.B).

f) Sita Ram v. Presiding Officer Labour Court, 1995(4) SCT 321.

g) Khair Din v. State of Jammu and Kashmir, 1995(1) SCT. 566.

h) Mohd. Aslam v. State of Jammu and Kashmir, 1996(3) SCT 538.

iv) Where order of reinstatment is ordered then preponderance of view is that back wages are not to be allowed. See:

a) State of Punjab v. Om Parkash, 1997(3) SCT 186(P&H).

b) M. Arunachalam v. T.N. Electricity Board, 1997(3) SCT 565 (Mad.)

c) Govt. of Tamil Nadu v. K. Rajaram Appaswami, 1997(3) SCT 57 SC.

d) Punjab State Electricity Board v. Naresh Chand, 1996(1) SCT 832.

e) Smt. Veena Sikha v. State of Haryana, 1996(4) SCT 741.

v) Again where order of termination is set aside then the competent authority should be left free to decide as to whether it wishes to leave the

matter as it is or wants to hold further enquiry.

vi) The order of termination has to be preceded by hearing and the order so passed has to be reasoned one. See:

a) Devi Kewal Ram Madrani v. Sr. High School, 1955(2) SCT 514.

b) Rajesh Kumar Tripathi v. State of U.P., 1993(3) SCT 274.

c) S.N. Mukherjee v. Union of India, 1991(1) SCT 241.

d) A.L. Kalra v. Project Eqipment Corpn., 1990(2) SLR 446.

e) B.P. Chaurasia v. State of M.P., 1983 LCD 169.

f) Bakshak Indra Narain Tripathi v. Union of India, 1987(5) LCD 178.

With regard to the quantum of punishment the Allahabad High Court in Rajesh Kumar v. Tripathi State of U.P, 1993(3) SCT 274, observed that

the punishment of dismissal was not commensurate with the alleged acts of the delinquent. The view expressed in V.R. Katarki v. State of

Karnataka, AIR 1991 SC 1241 was noticed. What was observed by the Supreme Court be noticed again :

Ordinarily justification of the quantum of punishment with a disciplinary action is not for the court to decide and there have been occasions this

Court has taken interference by the High Court on quantum of punishment as an act in excess of jurisdiction while we are prominent of that fact.

Keeping in view the residue of the charges in view we are inclined to hold that the dismissal of the appellant from Service was out of proportion.

In Ved Parkash Gupta v. M/s Delton Cable Co. (P) Ltd, 1984(2) SLR 5, the Supreme Court of India observed that the punishment should not be

disproportionate to the offence proved. Similar view was expressed in State of U.P. v. Sadanand Mishra (1984).

Taking note of above decision the order of dismissal in the case Rajesh Kumar Tripathi, was set aside by the Allahabad High Court.

Where the employee was absent for two days he was ordered to be reinstated but he was held not entitled to back wages. Mandeep Kumar v.

State of Haryana, 1996(2) SCT 306. This view was expressed by the Supreme Court of India.

In Punjab State v. Surjit Singh, 1997(2) SCT 87 where there was absence of 23 hours and 5 minutes reinstatement was ordered without back

wages. See also Malkiat Singh v. State of Punjab, 1996(2) SCT 758 (S.C). See also Joginder Lal v. The Presiding Officer Labour Court,

1996(1) SCT 434. A police constable was absent for 48 days. He suffered 17 punishments in 12 years. He was dismissed. Direction was given to

reconsider the quantum of punishment. See Krishan Lal ExConstable v. State of Punjab, 1996(4) SCT 592 . Reliance was placed on the

observations made by the Supreme Court of India in G.S. Sodhi v. Union of India, 1994(3) SCT 335.

I am accordingly of the view that the respondentauthorities have not properly addressed themselves to the issue in question. After having recorded

a finding that the petitioner was absent, the respondent authorities proceed to impose a punishment. What was required to be gone into was as to

whether the explanation given by the petitioner for his remaining absent was good or bad. This aspect of the matter has neither been dealt with by

the Enquiry Officer nor has been dealt with by the Reviewing Authority. Therefore, the matter requires to be gone into afresh. Independently of

what has been stated above, it be seen that the petitioner had submitted a representation for reduction of quantum of punishment. Instead of

reducing it, a show cause notice was issued for enhancing the punishment. As to what was the nature of punishment, was not indicated in the notice

which is said to have been issued by the Reviewing Authority to the petitioner. The learned counsel appearing for the respondents produced the

original file. The original file does contain the showcause notice which was sent to the petitioner by which the punishment was proposed to be

enhanced. However, there is nothing on the record to indicate that this notice was actually served on the petitioner. Even if it be presumed that this

was served even then this notice is bad because it does not contain the punishment which was supposed to be inflicted on the petitioner. Unless

and until the quantum of punishment was indicated in the notice, it was not possible for the petitioner to put across his point of view.

The giving of notice to show cause against charges of misconduct and proposed punishment in a disciplinary proceeding is not merely a matter of

form but of substance.

It is essential for a show cause notice to indicate the precise scope of the notice and also to indicate the points on which the delinquent concerned

is expected to give a reply. The notice should not be vague. The expression `showcause' has come to acquire a technical meaning in disciplinary

proceedings. Normally it means that adequate opportunity to establish his innocence to the person concerned and to controvert the contentions

raised against him is to be afforded, (Shyam Lal v. State, AIR 1954 All 235). It implies an opportunity to defend against the charges and an

opportunity against the proposed punishment, that is the punishment proposed is unmerited or it is too harsh and excessive and that he should be

given a lesser punishment if he is found guilty. On receipt of the Enquiry Authority's report the punishing authority has to consider the report and

decide whether it agrees with the conclusion of the report or not. If the findings in the report are against the delinquent and the punishing authority

agrees with the said findings a stage is reached for giving another opportunity to the delinquent to show why disciplinary action should not be taken

against him. In issuing the notice, the authority has to come to a tentative or provisional conclusion about the guilt of the public officer as well as

about the punishment which would meet the requirement of the justice in the case. There is no doubt that in response to this notice, the public

officer is entitled to show cause not only against the action proposed to be taken against him but also against the validity or correctness of the

findings recorded by the enquiring officer and provisionally accepted by the dismissing authority. In other words the opportunity enables the public

officer to cover the whole ground and to plead that no case had been made out against him for taking any disciplinary action and then urge that if

he fails in substantiating his innocence, the action proposed to be taken is unduly severe or not called for. State of Assam v. Bimal Kumar Pandit,

AIR 1963 SC 1612.

It is also clear that before a notice is issued to the delinquent to show cause against the proposed punishment the punishing authority must examine

the finding of the enquiring officer for itself and have come to its own conclusion that the charges have been established. After the punishing

authority has come to his own conclusion that the charges have been proved, the notice to show cause against the proposed punishment is to be

issued and the reasons for coming to that conclusion are to be indicated in the notice to enable the delinquent servant to show cause against the

proposed punishment. It is on this ground that the punishing authority failed to mention that it accepted the findings of the Enquiry Officer. B.D.

Gupta v. State of Haryana, AIR 1972 SC 2472.

An opportunity of showing cause against the proposed punishment can be given only after the action proposed has been tentatively decided upon.

The stage for this decision is reached only after the authority has considered the case against the officer charged on merits and has come to the

tentative conclusion that the charges have been established and has also provisionally decided to inflict a particular punishment upon him. It is

obvious, therefore, that the stage of the show cause notice would only arrive when the authority is seized of the case after the enquiry officer has

concluded the departmental enquiry and submitted his findings to the authority. This gets full support from the case of High Commissioner for India

v. I.M. Lall, AIR 1948 SC 121 and the case of Khem Chand v. Union of India, AIR 1958 SC 300 particularly. The Supreme Court's judgment in

Khem Chand's case clearly indicates that the competent authority that is the punishing authority himself who must issue the show cause notice and

provide the opportunity.

Show cause notice must specify punishment. To specify more than one punishment in the alternative does not necessarily make the proposed

action anytheless indefinite; on the contrary it gives the Government servant a better opportunity to show cause against each of those punishments

being inflicted on him which he would not had if only the severest punishment had been mentioned and a lesser punishment not mentioned in the

notice had been inflicted on him. But there should be some indication of nature of punishments. It can accordingly be said that in this case there was

failure to comply with the principles of natural justice. The reviewing authority did not indicate the nature of punishment. To conclude:

(i) In this case finding was not recorded visavis the explanation given by the petitioner.

(ii) Petitioner was not indicated as to what the punishment would await his fate.

The petition is accordingly allowed. The petitioner would be entitled to reinstatement. He would not be entitled to any back wages. He would start

getting his wages with effect from the date he produces the copy of this order before the respondent No. 4. The aforementioned officer if he

proposes to proceed further into the matter would make the petitioner aware of his intention.

This petition is accordingly allowed in the manner indicated above.