Gur Prasad vs State of U.P.& Others

Shobha Dikshit J.

The short question which falls for consideration in this case is as to whether punishment of dismissal awarded to the petitioner is disproportionate and if so, what would be the appropriate punishment to be awarded to the petitioner in the facts and circumstances of this case.

The present writ petition is directed against the judgment and order passed by U.P. Public Services Tribunal dated 2 1990 by which the impugned order dated 211986 dismissing the petitioner from service has been affirmed.

Petitioner was appointed as Assistant Binder, a Class IV post by the Joint Superintendent Incharge, Government Press, Aishbagh, Lucknow. He was confirmed thereafter and while he was working as such, the opposite parties transferred him from Government Press at Hazratganj, Lucknow to Government Press, Roorkee by order dated 30111983. Petitioner instead of proceeding on transfer, challenged the same by filing a writ petition before this Court. Initially, an interim order was passed staying the order of his transfer but lateron the interim order was vacated. Petitioner took the matter to the Hon''ble Supreme Court by filing a Special Leave Petition against the order vacating the interim order which was dismissed. Even after the vacation of interim order staying the operation of the order of transfer, the petitioner did not join at Roorkee and sent an application for leave on the ground of his illness. Medical certificate of a private medical practitioner was sent. Initially, he applied for leave for 67 days and thereafter he extended it. Ultimately, a fitness certificate was submitted by him on 1661985 pursuant to which he was allowed to join the service on 2161985. The opposite parties called upon the petitioner to get the medical certificates given by a private medical practitioner to be countersigned from the Chief Medical Officer, Saharanpur. The said Chief Medical Officer declined to countersign it. However, he recommended that the petitioner''s leave may be regularised in accordance with leave rules vide his order dated 3171985. Since the petitioner had remained on unauthorised leave, therefore, the department served a chargesheet dated 821985 on him for his absence from duty with effect from 811985. Petitioner submitted a reply to the said chargesheet. A departmental enquiry was conducted by the Enquiry Officer who submitted his report finding the petitioner guilty of the charges. The punishing authority thereafter passed the impugned order dated 211986, dismissing the petitioner from service. Aggrieved by the same, the petitioner filed a claim petition challenging the order of dismissal which was contested by the opposite parties on the ground that the petitioner is guilty of remaining absent from duty without proper permission and leave as also he evaded his transfer order and did not join at Roorkee. The claim petition was heard and decided by the learned Tribunal upholding the order of dismissal by passing the impugned judgment.

Sri Amit Bose, Learned counsel appearing for the petitioner has made twofold submissions; firstly, that the punishment awarded to the petitioner is disproportionate to the alleged misconduct and the same does not commensurate with its gravity and as such, the punishment is violative of Article 14 of the Constitution. His second submission is that the petitioner has been discriminated qua one Sri Mitthan Lal who was also a Class IV employee as the charges against both of them being similar, Sri Mitthan Lal has been awarded the lesser punishment by the department itself.

I have heard the learned counsel for the parties.

So far as the second question is concerned, that there has been discrimination, there is no merit in the same. The punishment awarded to an employee cannot be quantified in a manner that similar punishments can be awarded for similar misconduct to different employees. When a punishment is awarded, there are many factors which are to be taken into consideration by the employer. There may be some mitigating circumstances in the case of a particular employee whereas in the case of other employee though guilty of same misconduct, such factors may not be there. The subsequent behaviour, the past conduct and the repentance or tendering apology are also important circumstances which ultimately influence the award of punishment. In the case of Sri Mitthan Lal the facts can easily be distinguished. No doubt, that both the petitioner and Sri Mitthan Lal were transferred to Roorkee but Sri Mitthan Lal initially proceeded on leave for the reason that his wife had fallen ill but lateron he remained ill. However, from the perusal of the order of punishment passed in his case, it is clear that he tendered apology and did not misbehave like the petitioner and was also not found guilty of any indiscipline. Therefore, the authorities took a lenient view whereas in the case of the petitioner, he initially chose to challenge the order of transfer and when he did not succeed even then he did not return on duty, instead he remained absent and obtained medical certificates from a private medical practitioner. The very fact that the Chief Medical Officer, Saharanpur did not countersign for the illness that he had (hydrocele and harnia) shows that the certificates were of doubtful nature, and secondly even when he went to Roorkee to join the post, he was physically fit as he spent a day there in the office but he again gave an application for leave on the ground of his illness. Thus, his behaviour was clearly that of insubordination and indiscipline. In the aforesaid facts and circumstances, the argument that he should have been treated in similar manner as Sri Mitthan Lal was treated is not available to the petitioner, hence this argument raised by the learned counsel for the petitioner is rejected.

So far as the first ground of challenge is concerned that the punishment of dismissal awarded to the petitioner is disproportionate requires consideration. There is no doubt that the petitioner continued on unauthorised leave with a view not to obey the orders of transfer passed by his superior officers. From the facts which have been stated in the written statement filed before the learned Tribunal, it is clear that the petitioner was transferred for administrative reasons after due approval from the concerned Minister was taken. Therefore, the respondents were within their rights to take such an administrative step to shift the petitioner from Lucknow to Roorkee. Petitioner was, therefore, obliged to join at Roorkee pursuant to the orders passed by his superior officers. He however disobeyed the same with impunity and remained on unauthorised leave and thereafter in the departmental enquiry too, he neither participated nor cooperated as has been mentioned in the enquiry report. The enquiry was, there fore, conducted ex parte finding him guilty of the charges. Therefore, so far as the conduct of enquiry and the compliance of the principles of natural justice therein are concerned, nothing illegal about the same has been pointed out. However, learned counsel for the petitioner lastly contended that the petitioner has been punished enough as he is out of job for all these years for his mistake of absenting himself without prior permission or leave, therefore, his punishment be reduced and be permitted to work as his family is starving.

I have given my anxious consideration to the submissions made by the learned counsel for the petitioner and am of the view that the punishment of dismissal from service indeed is too harsh for the nature of misconduct committed by the petitioner and therefore, the ends of justice would be met if a lesser punishment of withholding of three increments with cumulative effect for future be substituted in place of punishment of dismissal from service. The order of the learned Tribunal is set aside and the order of dismissal dated 211986 is hereby substituted by the aforesaid punishment.

Learned Standing Counsel at this stage submitted that since petitioner has not rendered service from the date he was dismissed from service till the implementation of this order, therefore, he should not be paid salary for this period. Learned counsel for the petitioner did not oppose to the same, therefore, it is provided that the petitioner shall not be entitled to salary for the period he remained out of service. However, the said period shall be counted in the service period for pension purposes.

Writ petition is accordingly allowed in the aforesaid terms with no order as to costs. Since the petitioner was dismissed from service while posted at Roorkee, it is therefore, open for the respondents to reinstate him at Roorkee or pass a fresh order of posting, if post is not available there at any other place except Lucknow and the petitioner shall comply the same by joining there forthwith.

(Ordered accordingly)