V. Munirathinam v. The RegistrarCentral Administrative Trib

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 31..3..2008Coram:The Honourable Mr.Justice P.K. MISRAandThe Honourable Mr.Justice K.CHANDRUW. P. No. 10138 of 2003andW.P.M.P. No. 12857 of 20031.Union of IndiaRep. by the Divisional Railway Manager / Personnel Chennai Division, Chennai2.The Additional Divisional Railway Manager / MASChennai Division, Chennai3.The Chief Electrical EngineerRailway Head Quarters OfficePersonnel Branch, Chennai4.The Senior Divisional Electrical EngineerElectrical (RS) BranchArakkonam.. Petitionersvs.1.V. Munirathinam2.The RegistrarCentral Administrative TribunalChennai – 104 .. RespondentsPetition under Article 226 of the Constitution of India praying toissue a writ of Certiorari calling for the records on the file of theTribunal pertaining to the order dated 30.10.2002 passed in O.A. No.352 of 2002 and quash the same. For Petitioners: Mr. VellaichamyFor Respondent 1 : Mr. Ramasamy Rajarajan https://hcservices.ecourts.gov.in/hcservices/ ORDER(Order of the Court was made by K. CHANDRU, J.)Heard the arguments of Mr. Vellaichamy, learned counsel appearingfor the petitioners and Mr. Ramasamy Rajarajan, learned counselappearing for the first respondent and perused the records.2.Challenging the order of the Central Administrative Tribunal[for short, 'CAT'] dated 30.10.2002 passed in O.A. No. 352 of 2002, theUnion of India represented by Divisional Railway Manager / Personnel,Chennai Division and three other officers have filed the present writpetition.3.The writ petition was admitted on 03.4.2003 and an interimstay of the operation of the order of the Central AdministrativeTribunal (CAT) for twelve weeks alone was granted. Subsequently, itwas not extended by this Court.4.The first respondent, who was working as a Kalasi, was charge-sheeted by a charge-memo dated 27.7.1999 in terms of Rule 9 of theRailway Servants (Discipline and Appeal) Rules, 1968. The chargeagainst him was that during the year 1998, he was absent from duty fornearly 181 days and in the year 1999, from January to July alone, he wasabsent for 136 days. Within a period of 1-1/2 years, he had absentedhimself from duty for more than 317 days. A departmental enquiry wasordered against him. Though he was offered the assistance of a co-employee, he defended himself without any assistance. When he wasquestioned in the enquiry with reference to his absence, he informedthat his wife was a TB patient and he had to take care of her whichresulted in his absence. He also stated that since he was havingfamily problem, he could not inform his superior about his absence. Themuster roll extract showing his attendance was produced in the enquiry.He also accepted the charge against him and stated that in future, hewill attend properly. The Senior Divisional Electrical Engineer, onthe basis of the said findings, called for his further explanation.The same was not forthcoming from the first respondent and, therefore,by an order dated 01.8.2000, he was removed from service w.e.f.25.8.2000. The first respondent filed an appeal dated 21.8.2000 andthe second petitioner dismissed the appeal vide order dated 24.11.2000confirming the punishment order. Thereafter, the first respondentpreferred a revision petition and the revisional authority, viz., thefirst petitioner, dismissed the revision by an order dated 10.7.2001.5.The first respondent originally moved the CAT in O.A. No. 352of 2002 against the original order of removal and sought for waiver ofappellate remedy in M.A. No. 557 of 2000. The CAT refused to waive thesaid pre-condition and dismissed the Miscellaneous Application by itsorder dated 24.8.2000. It was thereafter, after exhausting theappellate and revisional remedies, he moved the CAT with the present O.A. https://hcservices.ecourts.gov.in/hcservices/

6.It was pointed out by the petitioners in the reply statementthat the first respondent had suppressed this information. They alsopointed out that in the year 1996, the first respondent even before theissuance of charge-memo, had absented for 176 days. Even after theissuance of charge-memo, and during the period from 01.7.1999 to30.6.2000, he again absented for 123 days. He was a chronic absenteeand that no sympathy should be shown to him. Since the charges againstthe first respondent was proved, the competent authority imposed aproper punishment and that it was not open to the CAT to interfere withthe quantum of punishment by the exercise of its power of judicialreview under Section 19 of the Administrative Tribunals Act. In thiscontext, a reference was also made to the judgment of the Supreme Courtin B.C. Chaturvedi v. Union of India [(1995) 6 SCC 749]. He alsosubmitted that the first respondent was working in a sensitiveDepartment, viz., Electrical Rolling Stock Branch where the locos wereperiodically overhauled and maintained and his frequent absence hadcaused considerable dislocation in work. 7.However, the CAT, by placing reliance upon two decisions ofthe Supreme Court, viz., Pyare Lal Sharma v. Managing Director, Jammuand Kashmir Industries Ltd., Srinagar [(1989) 3 SCC 448] and 1996 (2)SLR 17, held that since the first respondent had put in 20 years ofservice and that his absence was consequent on the illness of his wife,the punishment of removal from service was disproportionate and,therefore, it directed the reinstatement. However, it granted libertyto the petitioners to impose a minor penalty. It also held that theperiod of absence should be adjusted against his leave entitlement andthat he will not be given the benefit of backwages. It is against thisorder, the present writ petition has been filed.8.Mr. Vellaisamy, learned counsel relied upon the decision ofthe Supreme Court in Union of India v. Sardar Bahadur [(1972) 4 SCC618] and submitted that the CAT cannot interfere with the quantum ofpunishment imposed by the employer. He also submitted that thereasons given by the CAT to interfere with the punishment imposed by theRailways was not proper. In fact, even before the period covered bythe charge-memo, the firs respondent was absent and he further absentedhimself subsequent to the period covered by the charge-memo. Hefurther submitted that it is not a case of a single instance of absencebut the first respondent had absented himself in bits and pieces spreadover a whole year thereby preventing the Department from even makingalternative arrangement. He also never furnished any proof of illnessof his wife in the enquiry and nothing prevented him from applying forleave. He further submitted that his habitual absence calls for adeterrent punishment. 9.Mr. Ramasamy Rajarajan, learned counsel for the firstrespondent supported the stand of the CAT and submitted that mere https://hcservices.ecourts.gov.in/hcservices/ absence should not result the first respondent being deprived of hisservice put in for more than 20 years. 10.We have given our anxious consideration to the rivalsubmissions. In this context, it is necessary to refer to certaindecisions of the Supreme Court, which has dealt with the cases ofpunishment given to employees on charge of misconduct relating tohabitual absence.(i)Burn & Co. Ltd. v. Workmen [AIR 1959 SC 529], Para 6:".... There should have been an application for leave butRoy thought that he could claim, as a matter of right,leave of absence though that might be without permissionand though there might not be any application for thesame. This was gross violation of discipline. Accordingly,if the Company had placed him under suspension that was inorder. On these findings, it seems to us that the Tribunalerred in holding that it could not endorse the Company’sdecision to dispense with his services altogether. In ouropinion, when the Tribunal upheld the order of suspensionit erred in directing that Roy must be taken back in hisprevious post of employment on the pay last drawn by himbefore the order of suspension...."(ii)LIC of India v. R. Dhandapani [(2006) 13 SCC 613]Para 7:"It is not necessary to go into detail regarding the powerexercisable under Section 11-A of the Act. The power underthe said Section 11-A has to be exercised judiciously andthe Industrial Tribunal or the Labour Court, as the casemay be, is expected to interfere with the decision of themanagement under Section 11-A of the Act only when it issatisfied that punishment imposed by the management iswholly and shockingly disproportionate to the degree ofguilt of the workman concerned. To support its conclusionthe Industrial Tribunal or the Labour Court, as the casemay be, has to give reasons in support of its decision.The power has to be exercised judiciously and mere use ofthe words “disproportionate” or “grossly disproportionate”by itself will not be sufficient.Para 8:"In recent times, there is an increasing evidence of this,perhaps well-meant but wholly unsustainable, tendencytowards a denudation of the legitimacy of judicialreasoning and process. The reliefs granted by the courtsmust be seen to be logical and tenable within theframework of the law and should not incur and justify thecriticism that the jurisdiction of the courts tends todegenerate into misplaced sympathy, generosity and private https://hcservices.ecourts.gov.in/hcservices/ benevolence. It is essential to maintain the integrity oflegal reasoning and the legitimacy of the conclusions.They must emanate logically from the legal findings andthe judicial results must be seen to be principled andsupportable on those findings. Expansive judicial mood ofmistaken and misplaced compassion at the expense of thelegitimacy of the process will eventually lead to mutuallyirreconcilable situations and denude the judicial processof its dignity, authority, predictability andrespectability. (See Kerala Solvent Extractions Ltd. v. A.Unnikrishnan [(2006) 13 SCC 619])"(iii)State of Punjab v. Sukhwinder Singh [1999 SCC (L&S) 1234] Para 5:"The High Court was right in noting that the respondentwas a member of a disciplined force and that absence fromduty was unbecoming of a member of such force. It was inthat light that the High Court should have looked at therepeated acts of the respondent’s absence from duty. Thefact that the respondent is a member of the ScheduledCastes is neither here nor there for the purposes ofconsidering whether or not he is guilty of misconduct andbreach of discipline, nor the fact that he had gone togive his pay to his mother and was detained on account ofher illness. It is necessary that members of the policeforces should attend the duties which they have beenallocated and not absent themselves. This is a paramountpublic interest that must overweigh privateconsiderations. The High Court was, therefore, in patenterror in looking benignly at the numerous acts of absenceof the respondent.Para 6:That the order of dismissal did not use the “mantra” of“gravest act of misconduct” is not determinative. Thesubstance of that conclusion is to be found in that order.When a policeman is repeatedly absent from duty, it cannotbut be reasonably concluded that there is incorrigibilityin his continued misconduct.Para 7:We are unable to accept the submission of learned counselfor the respondent that we should also take a lenient viewof the matter in view of the circumstances that impelledthe High Court to pass the order under challenge."11.The judgments in Burn & Co. Ltd. Case and LIC of India case(cited supra) recently came to be quoted with approval by the SupremeCourt in L&T Komatsu Ltd. v. N. Udayakumar [(2008) 1 SCC 224]. https://hcservices.ecourts.gov.in/hcservices/

12.Likewise, the judgment in Sukhwinder Singh's case (citedsupra) came to be quoted with approval by the Supreme Court in HarjitSingh v. State of Punjab [(2007) 9 SCC 582]. 13.Therefore, both on the ground of jurisdiction lining thejudicial review to interfere with the quantum of punishment and alsothe premise on which the CAT had interfered with the punishment byholding that the habitual absence of the first respondent was not grave,it must be held that the order of the CAT is clearly erroneous and isliable to be interfered with by this Court.14.In that view of the matter, the writ petition will standallowed and the order of the CAT dated 30.10.2002 in O.A. No. 352 of2002 will stand quashed. However, there will be no order as to costs.Connected Miscellaneous Petition is closed.Sd/Asst. Registrar/true copy/Sub Asst.RegistrargriToThe RegistrarCentral Administrative TribunalChennai – 104LA (CO)KRD / 18.6.08 W. P. No. 10138 of 2003