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Judgment
Pradeep Nandrajog, J.—Petitioner who was a permanent employee under the respondent was working as a confirmed L.D.C. On 12.9.1994, a charge-sheet was issued to her. It contained three charges. Same were:- Article of charge-I
That Ms. Shakuntla Navani while functioning as LDC in the IIT Hospital of the Institute absent herself from the duty without prior permission/sanction of leave w.e.f. 1.8.94. Ms. Shakuntla Navani by her above act failed to maintain proper conduct thereby contravening para 3(e) of he Conduct Rules given in Schedule ''B'' to the statutes of the Institute.
Article charge-II
That Ms. Shakuntla Navani while functioning as LDC in the IIT Hospital of the Institute did not observe the scheduled hours of work. Ms. Shakuntla Navani by her above act failed to maintain proper conduct thereby contravening para 3(d) of the Conduct Rules given in Schedule ''B'' to the statutes of the Institute.
Article of charge-III
That Ms. Shakuntla while functioning as Lower Division Clerk in the IIT Hospital of the Institute did not complete even a small work given to her.
On 12.12.1994, petitioner was placed under suspension. 2. After recording evidence, the enquiry officer submitted his report on 21.12.1995. Findings were:-
On the basis of documentary and oral evidence adduced in the case before me and in view of the analysis given above. I have come to the conclusion that article of charge I against Ms. Shakuntala Navani stands established and article of charge II & III could not be established.
Agreeing with the enquiry report, the disciplinary authority issued a show cause to the petitioner on 30.1.1996. Following was stated:
A copy of the Inquiry Report submitted by the Officer appointed to inquire into the charges framed against Ms. Shakuntala Navani, LDC, is enclosed.
After due consideration of the report aforesaid, the Director in exercise of the powers conferred on him under Statutes 13(9) has tentatively decided that the penalty of "Compulsory Retirement" be imposed on Ms. Shakuntala Navani, LDC.
Ms. Shakuntala Navani is hereby given an opportunity of making representation on the penalty proposed, but only on the basis of the evidence adduced during the inquiry. Any representation which she may wish to make on the penalty proposed will be considered by the Director. Such representation, if any, should be made in writing and submitted so as to reach the undersigned not later than 15 days from the date of receipt of this Memo by Ms. Shakuntala Navani.
The receipt of this Memo be acknowledged.
(By order and in the name of the Director)
Petitioner submitted a reply. It did not find favour with the disciplinary authority. Penalty was imposed. Petitioner was inflicted the penalty of Compulsory Retirement. Appeal, as provided under the rules was filed on 23.12.1996. Same was rejected vide memo dated 12.12.1997.
Petitioner prays that order of penalty be set aside.
Since only charge No. 1 stood proved and the penalty was imposed on the findings pertaining to charge No. 1, petitioner argued that the order imposing penalty be quashed. Two submissions were made: (A) As per evidence on record the charge was not established; (B) Punishment, in any case, was too harsh.
Charge qua which the petitioner was indicted pertained to petitioners absence without prior permission/sanction w.e.f. 1.8.1994. Finding of the enquiry officer is that petitioner remained absent from 1.8.1994 to 7.8.1994. Prior permission was not taken. Petitioner joined duty on 8.8.1994, on which date she applied for leave. Period from 1.8.1994 to 7.8.1994 was held to be unauthorized absence.
Defence of the petitioner was that due to sudden illness of her mother, she could not report for work on 1.8.1994 nor could she obtain sanctioned leave. She reported for work on 8.8.1994, 6th and 7th August, 1994 were holidays. Therefore, she remained on leave only for 5 days. As on that day she had 21 days earned leave to her credit and 94 days extra ordinary leave due to her. When she reported for work on 8.8.1994 she applied for leave which was sanctioned. The period of 5 days was debited to her leave account. Thus the period stood regularized.
The enquiry officer has noted the aforesaid defence under the head ''case of the defendant''. I may extract from the report, the defence, noted in the language of the enquiry officer himself:-
The charged officer did not make any statement or produced any document in her defence during the course of enquiry and also did not cross-examine the only prosecution witness. But she has defended the charges framed against her in her defence brief along with some documentary evidences in respect of her defence. According to the charged officer, her absence from duty from 01.08.94 to 07.08.94 was regularized by grant of EL from 01.08.94 to 04.08.94 and E.O.LO. From 05.08.94 to 07.08.94 and the same could be done only after leave application was forwarded by C.M.O. to Establishment Section. Therefore she has stated that the article of charge I could not be proved.
The enquiry officer has analysed the evidence under the head ''Analysis and Assessment of Evidence''. Pertaining to Charge-I, the report records as under:-
Although the charged officer admitted the article of charge during the preliminary held on 17.11.94 but she refuted the same in her defence brief to the extent that she had come to the office but she had submitted her application for the same. On perusal of document bearing Sr. No. 1 in Annexure III and the statement of the charged officer in response to Article of charge No. II in her defence brief it appears that she had applied for leave on 01.08.94 after expiry of her absence for the period from 01.08.94 to 07.08.94.
Finding of the enquiry officer has been noted by me in para 3 above.
Counsel for the petitioner contended that report of the enquiry officer ex facie shows that two aspects have not been considered by him. The first was the reason as to why the petitioner could not come to office from 1.8.1994 to 7.8.1994 and secondly what was the effect of the said period being treated as on leave and adjusted against the leave due to the petitioner. The respondent had regularized the prior to issue of the charge-sheet. Even the disciplinary authority and the appellate authority have ignored this.
Unfortunately, none appeared for the respondent when the matter was heard and I do not have the benefit of the respondent''s submission on this count. The counter affidavit filed, is once again silent on the point.
In 1969 SLR 274 (SC) State of M.P. Vs. Harihar Gopal the Hon''ble Supreme Court had clearly stated that where a person is unauthorisedly absence, an order which has the effect or regularising the period of unauthorised absence is only for purposes of regularizing the leave and does not condone the act of unauthorized absence. In Maan Singh Vs. Union of India (UOI) and Others, the judgment in The State of Punjab and Others Vs. Bakshish Singh, was explained. The latest on the point is the judgment reported as State of Punjab and Others Vs. Charanjit Singh, In para 5 it was held:-
In the The State of Punjab and Others Vs. Bakshish Singh, which was relied upon by the Courts below in holding that the Misconduct stood condoned, was explained in Maan Singh (supra). No law has been laid down in Bakshish Singh (supra) to the effect that only in the event, leave without pay is directed to be granted while passing an order of punishment, the leave having been regularized the order of punishment also becomes bad in law and void ab initio. While deciding Bakshish Singh (supra), this Court had not taken into consideration an earlier binding precedent in State of Madhya Pradesh V. Harihar Gopal, 1969 SLR 274 (SC) wherein it has clearly been stated that such an order is passed only for the purpose of regularising the leave and thereby the effect of punishment is not wiped out. In Maan Singh (supra), it was held that the period of absence when treated as leave without pay, was with a view to regularize the leave and not for condonation of misconduct.
Merely because a person has leave to his credit does not mean that leave can be availed of at the sole discretion of the employee as and when he choses to get on leave. Ordinarily leave would no be denied as per wishes of the employee but exigencies of work may require the presence of the employee. Besides, during the leave period, work being performed by the employee has to be entrusted to someone else. This is the reason why leave requires prior sanction. The employer has to reorganize work or make alternative arrangement. Availing of leave without prior sanction or at least prior intimation is indeed a misconduct. There may be sudden illness or unforeseen calamity. The employee did not foresee it. He could not obtain prior sanction. Quite true. But then, at least an intimation needs to be sent. The employer knows that the employee would not be available. Alternative arrangement could be made. Evidence on record does not show that petitioner sent intimation of her being unable to report. She absented till 8.8.1994. There is indeed a misconduct.
Normally, a writ court would not sit in judgment over the punishment inflicted by the disciplinary authority. But that does not mean that the writ court has no jurisdiction to interfere with the quantum of punishment. In a given set of facts where it is evident on record that the quantum of punishment is disproportionate to the gravity of the offence or is shocking to the conscience of the court, same can be interfered with, Bhagat Ram Vs. State of Himachal Pradesh and Others, Ranjit Thakur Vs. Union of India (UOI) and Others, U.P. State Road Transport Corporation and Others Vs. Mahesh Kumar Mishra and Others, are authorities on this proposition.
In Dev Singh Vs. Punjab Tourism Development Corporation Ltd. and Another, ., it was held that where a penalty shocks the conscience of the court, relief has to be moulded. Two means could be adopted. One, remit the matter to the disciplinary authority to reconsider the penalty. Two, shorten the litigation, carve out an exception in rare cases and impose appropriate punishment with cogent reasons in support thereof.
Applying the principle noted above, I see that in this case, the Petitioner had served the respondent since 21.6.1980. By August 1994 she had served for over 14 years. She had an unblemished record. The present charge sheet was the only time she was proceeded against. Misconduct found is that she remained absent without prior sanction for 5 days. 6th and 7th day, I may note were holidays. She had leave to her credit. Reasons for not taking prior sanction was sudden illness of mother. Reason has not been disbelieved. The misconduct does not relate to a grave offence. Taking into account all these factors and the short period of leave, is the penalty of Compulsory Retirement justified ?
Keeping in view that petitioner, hithertofore, had an unblemished carrier; the nature of the misconduct; short period of being absent; leave being otherwise due; had she applied; leave would have been normally granted; I am of the view that the punishment is so strikingly disproportionate and shocking to the judicial conscience that it requires corrective action and justifies interference. To allow it to remain uncorrected in judicial review would be denial of Article 14 of the Constitution to the petitioner. In Bhagat Ram (Supra) the Hon''ble Supreme Court held:
It is equally true that the penalty imposed must be commensurate with the gravity of the misconduct, and that any penalty disproportionate to the gravity of the misconduct would be violative of Article 14 of the Constitution.
Nine years have gone by. Ends of justice require that proceedings be brought to an end. In my view, keeping in view the totality of circumstances the fact on record, at best, attract a minor penalty. I quash the order dated 30.9.1996 passed by the disciplinary authority and the order dated 11.12.1997 passed by the appellate authority. The matter is remanded to the disciplinary authority to rehear the petitioner after giving notice for levy of a minor penalty and pass an order.
Directions are issued to the respondent to forthwith take back, in service, the petitioner.
Normally, when a suspended employee is visited with a penalty, it is for the disciplinary authority or appropriate authority to decide as to in what manner the period of suspension is to be treated. Since I am remanding the matter to the disciplinary authority to decide on the penalty afresh, the said authority had to decide as to in what manner the period of suspension has to be treated. It would be for the disciplinary authority to decide how the period of suspension has to be treated. Why so deciding, the authority shall take into consideration the penalty imposed by it. It would be open to the authority to consider and pass an order treating the petitioner under deemed suspension till the date of passing of the order of penalty. Before parting, I may note that though it is mentioned in the writ petition that on 11.12.1997, the appeal was rejected but strangely enough the order in appeal was not challenged. In view of the well recognised principle of law that an order passed by the original authority merges into an order passed by the appellate authority and the latter has to be challenged, the writ petition may have merited a rejection. I have refrained from so doing for two reasons. Firstly, rules of procedure should not come in the way of doing substantive justice. Penalty imposed is too disproportionate and shocking. It required judicial correction. Secondly, necessary pleadings are made in the petition. Only thing missing is a prayer being made to quash the order in appeal. In my view where necessary pleadings exist, it is for the court to decide on the relief to be granted. Defect in the prayer clause would not be fatal. Indeed, prayer clause is not pleadings. A caution to the counsel. Take care while drafting.
Writ petition is allowed as indicated in paras 21, 22 and 23 above. No costs.