A. Francis v. The Chief Administrative Officer Department of Atomic Energy

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 11..01..2008CoramThe Honourable Mr.Justice P.K. MISRAandThe Honourable Mr.Justice K.CHANDRUW.P. No. 19679 of 2004A. Francis ... Petitioner-vs-1.The Chief Administrative OfficerDepartment of Atomic EnergyIndira Gandhi Centre for Atomic ResearchKalpakkamKancheepuram District2.DirectorDepartment of Atomic EnergyIndira Gandhi Centre for Atomic ResearchKalpakkamKancheepuram District3.Union of India Rep. by its SecretaryDepartment of Atomic EnergyR&D - I Section, Anushakti Bhavan, CSM MargMumbai4.The RegistrarCentral Administrative TribunalMadras Bench, Chennai..RespondentsPetition under Article 226 of the Constitution of Indiapraying to issue a writ of Certiorarified Mandamus calling for therecords pertaining to the order of the fourth respondent in O.A.No. 345 of 2002 dated 18.10.2002 and quash the latter portion ofthe order which disentitles the petitioner from claiming thebackwages and consequently, to direct the respondents 1 to 3 todisburse the backwages to the petitioner from the date of removaltill the date of reinstatement. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Mr. C.K.M. AppajiFor Respondents 1-3 : Mr. T.S. Sivagnanam, ACGSCORDER(Order of the Court was made by K.CHANDRU, J.)Heard the arguments of Mr. C.K.M. Appaji, learned counselappearing for the petitioner and Mr. T.S. Sivagnanam, learnedAdditional Central Government Standing Counsel representing therespondents 1 to 3 and have perused the records.2.The petitioner filed the Original Application before theCentral Administrative Tribunal being O.A. No. 345 of 2002 seekingto set aside the order of the first respondent dated 31.01.1997imposing a penalty of removal from service, which was confirmed bythe order of the second respondent dated 27.6.1997 and the revisionwas also dismissed by the third respondent vide order dated04.9.2001. The petitioner was employed as a Tradesman in theIndira Gandhi Centre for Atomic Research [for short, 'IGCAR']coming under the Department of Atomic Energy and by an order dated31.01.1997, he was removed from service for unauthorised absence.The petitioner was charge-sheeted by a charge-memo dated 14.02.1996in which it was stated that he was absent from duty without priorapproval from 27.4.1995. Inspite of a registered letter havingbeen sent to him on 28.6.1995, he did not report for duty and hewas further informed to report for duty immediately. Thereafter,the petitioner sent a letter requesting grant of leave on medicalgrounds from 27.4.1995 to 25.8.1995 for 121 days which was notconsidered. An enquiry was held by the Administrative Officerwherein the petitioner admitted the articles of charge levelledagainst him. The copy of the enquiry report was furnished to him.But even against that, the petitioner did not send anyrepresentation. It was thereafter, the punishment of removalfrom service was ordered by the authorities on the ground that theunauthorised absence from duty is a serious offence and calls forsevere punishment. The petitioner's appeal dated 25.3.1997 wasrejected by the appellate authority by his order dated 27.6.1997and review petition filed by him was also rejected by the ReviewingAuthority, viz., the President of India, by order dated 02.9.2001.3.Before the Tribunal, even though attempts were made toimpeach the enquiry, the same was rejected since the petitioner had https://hcservices.ecourts.gov.in/hcservices/ no grievance at any point of time regarding the formal enquiry.There was no clear cut admission on the part of the petitioner andwhat was admitted was about his absence. To make itunauthorised absence, there should have been material and even ifthe petitioner had admitted the charge of absence, the disciplinaryauthority should have conducted the enquiry and should have provedthat the absence was unauthorised especially when the petitionerhimself was seeking for Medical Leave of some sort with somesupporting documents. Therefore, there was an infraction ofrules in the matter of conducting the enquiry. But, however, theTribunal instead of remanding the matter back to the authorities,held that the removal of the petitioner from service was notappropriate and directed the petitioner to be reinstated in servicewithin eight weeks from the date of the order. It was alsodirected that the period of absence will be adjusted against hisleave entitlement and the period of absence till his reinstatementwill be counted as service only for pensionary benefits and he willnot be entitled for any backwages. 4.We are informed that the petitioner has been reinstatedpursuant to the order of the Tribunal. It is only against thedenial of backwages, the petitioner has filed the present writpetition.5.Mr. C.K.M. Appaji, learned counsel appearing for thepetitioner relied upon a series of decisions to contend that theTribunal ought not to have denied backwages and once the order oftermination is held to be invalid, then automatically, the employeeis entitled for full backwages. 6.We are afraid that such a contention is very vague andcannot be countenanced by this Court. In the present case, the Tribunal after holding that there must have been an enquirypreceding the dismissal, should have left the matter at that pointand should have allowed the respondents to conduct a denovaenquiry, but, however, in order to cut short a further trial, setaside the punishment and ordered reinstatement. It was onlybecause the respondents have not challenged that portion of theorder, the petitioner is now in service. Having taken theadvantage of the order of the Tribunal, the petitioner cannotimprove the said situation by contending that he is entitled forfull wages. In fact, the charge against the petitioner is thathe was unauthorisedly absent and he was not granted leave by theauthorities. In effect, the petitioner had not worked during theperiod and, therefore, the claim backwages for the said period cannever be countenanced by this Court. In any event, the Tribunal https://hcservices.ecourts.gov.in/hcservices/ did not even recommend to the authorities to even impose any lesserpunishment and to that extent, the petitioner was fortunate to getrelief from the Tribunal, which, otherwise, would have beeninterfered by this Court. Even the decisions produced by thepetitioner from various High Courts do not indicate that there wasany binding precedent to show that in every case, there must bebackwages followed by the order of reinstatement. In fact, mostof the decisions arose under the Industrial Disputes Act, 1947where the Labour Court / Industrial Tribunals were entrusted withthe power to mould the relief in passing the final award.Neither the Tribunal under Section 19 of the AdministrativeTribunals Act, 1995 nor this Court under Article 226 of theConstitution of India has power for granting wages by a rule ofthumb. It all depends on the factual situation of each case andwe find from the records that even though the Tribunal had exceededits limit, has granted broad justice to the petitioner by directinghis non-employment to be treated as service for the purpose ofpension and other terminal benefits, which itself is a big reliefto him and we do not think that any case is made out to interferewith that portion of the order passed by the Tribunal. 7.In view of the above, the writ petition is misconceivedand devoid of merits. Accordingly, it will stand dismissed. Nocosts. griSd/-Asst. Registrar./true copy/Sub Asst. Registrar.To1.The Chief Administrative OfficerDepartment of Atomic EnergyIndira Gandhi Centre for Atomic ResearchKalpakkamKancheepuram District https://hcservices.ecourts.gov.in/hcservices/

2.DirectorDepartment of Atomic EnergyIndira Gandhi Centre for Atomic ResearchKalpakkamKancheepuram District3.The Secretary Department of Atomic EnergyR&D - I Section, Anushakti Bhavan, CSM MargMumbai4.The RegistrarCentral Administrative TribunalMadras Bench1 cc to Mr.T.S.Sivagnanam, Advocate, SR.1603bk (co)dv/12.3.W.P. No. 19679 of 2004