"Big Fish Are Not Caught, You Are After Small Level Employee" : Supreme Court Grants Relief To Class-4 Officer Against Dismissal Order
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Orally remarking that "missing from duty is a major misconduct in paramilitary forces or the army, but may not be so in a civilian employment", the Supreme Court last week(June 30) criticised the Central Government for imposing the penalty of dismissal from service for unauthorised absence from duty on a Grade-IV employee in the Ministry of Steel."Missing from duty is a major misconduct...
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Orally remarking that "missing from duty is a major misconduct in paramilitary forces or the army, but may not be so in a civilian employment", the Supreme Court last week(June 30) criticised the Central Government for imposing the penalty of dismissal from service for unauthorised absence from duty on a Grade-IV employee in the Ministry of Steel.
"Missing from duty is a major misconduct in paramilitary forces or the army. Had it been that kind of duty, we would have immediately agreed. But in a civilian employment, in some mines department, that too a class four employee? It is not that he was handling some sensitive kind of assignments where he compromised with his duties. We are agreeable that he had absented from duty, so retire him compulsorily, throw him out, don't keep him there, but allow his family to survive!", orally observed the Court.
The Court recorded in its order that advocates for the appellants (the UOI through Ministry of Steel and the Director of the said Ministry) pointed out that besides the absence period, the respondent-employee had on several occasions remained on Casual Leave/Earned Leave or other sanctioned leave also and that such leave was sanctioned by the officers who were not competent to do so. However, the court asserted that the appellants have not proved that the respondent was "willfully" absent from service during those periods. "It remains a possibility that respondent merely acted under the faith that the officer in question had the power to approve his requests for leave. It is also undeniable that no action was taken against the officers who purportedly granted leave to the respondent despite not being competent to sanction the same", stated the Court in its order.
"The big fish are not caught and you are after the blood of the small-level employee...Did you take action against the undersecretary or the section officer who granted the leave in excess of their powers?", the Court orally asked ASG Jayant Sud and Senior Advocate R. Balasubramanian for the appellants.
In its order, the Court declared that it is of the considered opinion that no misconduct can be attributed to the respondent for the periods he availed one or the other sanctioned leave. As regards to the period for which the respondent was absent from duty, the Court noted in its order that it is satisfied that the punishment of dismissal from service is "too harsh, disproportionate and not commensurate with the nature of the charge proved against the respondent", and that "the ends of justice would have been adequately met by imposing some lesser but major penalty upon the respondent"
The Court then invoked its powers under Article 142 to uphold the setting aside of the dismissal order and to direct that the respondent-employee (who was not even represented before the top court) is to be reinstated in service but he shall be deemed to have remained in service till he completed minimum "qualifying service" of 20 years to earn pension and other retiral benefits, and that he shall be deemed to have been 'compulsorily retired from service' with entitlement to pension, gratuity and other retiral benefits on completion of minimum qualifying service.
The bench of Justices Surya Kant and J. B. Pardiwala was hearing the UOI's appeal against the 2012 decision of the Delhi High Court whereby the High Court had set aside the dismissal order of 14.07.2000 as well as the order of 18.02.2002 passed by the Central Administrative Tribunal upholding the said dismissal order passed against the respondent. In the impugned judgment, the High Court had said, "It is apparent that before it could be held that the petitioner is guilty of misconduct and is liable for the punishment of dismissal from service, it was incumbent upon the disciplinary authority to return a clear finding that the absence was willful. If there is no such finding, the absence of the petitioner from work, although it may be unauthorised, would not amount to misconduct. In the present case we find that there is no clear finding that the petitioner was willfully absent from work. It is true that some part of his absence was unauthorised but that by itself would not be sufficient, in view of the Supreme Court's decision in Krushnakant B. Parmar (supra), for returning the finding of misconduct and for foisting the punishment of dismissal from service on the petitioner"
As recorded by the bench of Justices Surya Kant and Pardiwala in its order, the respondent was working as a Daftry (appears to be Grade-IV post). After the respondent had served for about seven years or so, he was served with a charge-memo of 04.12.1998 proposing to hold an inquiry under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. An inquiry was conducted and after concluding that charge Nos. I, III and IV had been proved, the Disciplinary Authority concurred with the Inquiry Report and imposed the punishment of dismissal from service of the respondent by order of 14.07.2000. The respondent assailed the dismissal order before the Tribunal but his Original Application was turned down by order of 18.02.2002. Still aggrieved, the respondent approached the High Court. The Division Bench of the High Court by impugned judgment of 06.12.2012 allowed the Writ Petition and set aside the orders impugned therebefore. As a consequence thereto, the respondent was directed to be reinstated in service but without any back-wages. The appellants before the Supreme Court had laid challenge to the aforesaid order of the High Court through the instant appeal.
The bench of Justices Surya Kant and Pardiwala said in its order that the misconduct attributed to the respondent is based on the charge-memo of 04.12.1998 with respect to which he was dismissed from service in the year 2000, and therefore, it does not deem it necessary to remit the case to the disciplinary authority after such a long spell of 22 years.
It went on to observe in its order that instead, it is inclined to invoke the power under Article 142 of the Constitution, "keeping in mind the doctrine of proportionality and with a view to do complete justice between the parties"; that "this Court has utilised Article 142 on numerous occasions in the past, such as in Hind Construction & Engineering v. Their Workmen and Management of the Federation of Indian Chambers of Commerce v. Their Workmen to ensure that the punishment meted out to a public sector employee for a violation of the applicable service laws/rules is not disproportionate to the infraction that he/she has committed"; and that "the doctrine of proportionality is employed to examine whether the penalty that is imposed upon is congruent with the charges brought against the delinquent employee"
In directing that the order of the High Court of 06.12.2012 to the extent of setting aside the dismissal is upheld, the bench further ordered that no arrears of pay shall be paid to the respondent from the date of dismissal from service i.e. 14.07.2000 till he is deemed to have completed the minimum "qualifying service"; that the respondent, however, shall be entitled to arrears of pension and other retiral benefits, without any interest, provided that such arrears are paid within a period of four months from today, and that in the event of delay, the respondent shall be entitled to interest @ 6% per annum on delayed payment.
"It is made clear that the above stated order shall not constitute a precedent as the same has been passed by invoking power under Article 142 of the Constitution", added the bench.
The bench had recorded that the charge-memo contained the following articles of charge against the respondent: "Article I: That Shri R.K. Sharma while functioning as Daftry was absent from duty during following periods without prior permission of the competent authority: From 09.02.1998 to 23.03.1998
From 24.03.1998 to 23.05.1998
Article II: That Shri R.K. Sharma while functioning as Daftry did not receive intentionally the letter No. 11(6)/98-HSM dated 16.04.1998 sent to him by registered post and in this manner he kept the office in dark about his residential address.
Article III: That Shri R.K. Sharma functioning as Daftry/Adhoc LDC was absent continuously from duty without prior sanction and intimation during the period 1993-98.
Article IV: That Shri R.K. Sharma while functioning as adhoc LDC/Daftry was not loyal towards his duties by keeping himself continuously absent from duty without prior sanction of leave"
The bench was considering the short question whether the punishment of dismissal from service on account of absence from duty for the period mentioned in Article 1 of the Charge-memo, is proportionate, reasonable and in conformity with Articles 14 and 16 of the Constitution.
Case Title: UNION OF INDIA & ANR. v. R.K SHARMA
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