Union of India & Others v. Yashpal

WP 15295/2023 before Hon'ble Allahabad High Court

Gravity of misconduct, past conduct, nature of duties, position in organization, previous penalty, if any and requirement of discipline to be enforced are relevant to be considered by the disciplinary authority before awarding the punishment to the employee.

 Case of the Petitioner-Union of India

1.     This is a case where a khalasi of the Railway was dismissed from service on the ground of being habitual absentee.

2.     He was dismissed by the Disciplinary Authority on 29.05.2023 as he was absent without any intimation for about 10 months.

3.     He was asked by the Department to Report to the Railway Hospital but he failed to comply with the Directions and continued to remain on unexplained leave.

4.     Hence, it was necessary to award major punishment of dismissal from service for continued and repeated acts of remaining absent without leave.

 Case of the Respondent-Employee

1.     He joined service on 22.10.1999.

2.     He was absent from work for nine months from 09.05.2005 to 18.2.2006.

3.     He joined on 29.06.2006 and he remained on duty without any further complaint of absenteeism. He was not unwell which had prevented him from performing his duties. Respondent had produced medical certificate in support of his claim of illness, there was prima facie evidence in support of the explanation furnished by the Employee-Respondent.

 Central Administrative Tribunal

1.     Looking into the facts and evidence in support of the submission of the Employee-Respondent, the Central Administrative Tribunal had set aside the punishment ordered and remitted the matter back to the disciplinary authority to pass a fresh order which is proportionate to the misconduct found proven.

 Argument of the Counsel of the Petitioner-Union of India

1.     The Tribunal has completely erred in setting aside the punishment, and in remitting the matter back to the Disciplinary authority.

 Argument on behalf of the Petitioner

1.     No accentuating fact or circumstances was found proven in the enquiry report which may have warranted the wholly disproportionate punishment of dismissal from service. The fact of the respondent that he remained ill was not found to be false.

2.     These mitigating circumstances haven’t been considered by the disciplinary authority. Thus, wholly excessive punishment of dismissal from service was awarded to the respondent after he had joined back in service and had continued to work without break.

Observation of the Hon’ble Court

 1.     Tribunal has not committed any error in setting aside the orders of punishment, appeal and revision and remitting the matter to the disciplinary authority to consider the matter afresh.

 2.     Gravity of misconduct, past conduct, nature of duties, position in organisation, previous penalty, if any and requirement of discipline to be enforced are relevant to be considered by the disciplinary authority before the punishment was awarded to the respondent-employee.

 3.     It is undisputed that the respondent was appointed as a Khalsi on 22.10.1999. In the context of the present proceedings, he was found absent from work for nine months from 9.5.2005 to 18.2.2006. Thereafter, there was a brief break up to 28.06.2006 but there is no dispute to the fact that the respondent had worked continuously from 29.06.2006 onwards.

 4.     In the context of absence from duty without leave, all factors should have been examined by the disciplinary authority before award of major punishment of dismissal.

 5.     The Tribunal has protected the interest of the present petitioner by taking note of all the relevant factor and by observing that the disciplinary authority may observe the past record of the respondent.

 Order of the court

The writ petition was dismissed by Division Bench of the Allahabad High Court comprising Hon’ble Mr. Justice Saumitra Dayal Singh J & on’ble Mr. Justice Arun Kumar Singh Deshwal J on 20.09.2023.