S.B. Sinha, J.
1. Leave granted.
2. Respondent herein was appointed as a Technician (Mechanical) on
11.10.1989. He was placed on probation for a period of 12 months. During
the period of probation, he was found to be absent for a period from
11.6.1990 to 27.6.1990. He was warned. A lenient view was taken. He was
informed that recurrence of such act would be viewed seriously. Period of
probation was extended as he was found to be irregular in attendance.
3. On 9.1.1991, he applied for leave on medical grounds. He failed to
appear before the Chief Medical Officer of the petitioner despite having
been asked in that behalf and as he failed to do so, his leave was not
sanctioned. Despite the same, he sought another extension of leave upto
28.2.1991. He was asked to report immediately before the Chief Medical
Officer. He was furthermore informed that failure to comply therewith
would result in refusal of leave. He did not report to the Chief Medical
Officer.
4. A charge sheet was issued to him for absence without leave for a
period of 53 days, namely 28.12.1990 to 28.2.1991. His explanation to the
said charge sheet was found to be unsatisfactory. He was found guilty of
continuous unauthorized absence by the Enquiry Officer in his report dated
18.6.1991. Respondent was called upon to join his duties as he continued to
remain absent without sanctioned leave from 2.7.1991 to 11.7.1991. He
again remained absent from 13.8.1991 to 30.8.1991.
A departmental proceeding was again initiated against him and upon
considering the enquiry report submitted in that behalf, yet again a lenient
view was taken and a punishment of reduction of basic pay by one stage in
terms of the Certified Standing Order was imposed by order dated
16.4.1992. Despite the same, he remained absent for a period of 99 days
from April 1992 to September 1992. A disciplinary proceeding was initiated
against him. He admitted the charges and promised to be regular in future.
However, he was found guilty and a punishment of censure was imposed.
5. Yet again, on his remaining absent for the period of 20 days in April
1995 and from 1.5.1995 till the date of drawing of the charge-sheet, i.e.
30.5.1995, a disciplinary proceeding was initiated against him. He was
asked to submit his explanation. The said charge sheet was served upon him
on or about 9.6.1995.
6. In his show cause which was filed on 19.6.1995, the respondent
stated:
"I have gone through the chargesheet dated
13.6.95 and understood the contents. It is true that
I was absent to duties in the dates mentioned by
you, however, I could not attend to duties during
the above period due to the ill health of my mother
who was in the village of Mukkillapadu, Nuzivedu
Mandalam, Krishna District.
Sir, absenting from duties for these many
days may be treated as a mistake on my part. I
assure you through this letter that it will never be
repeated again. I may be excused for this fault of
mine and I may be given an opportunity."
7. A disciplinary proceeding was initiated, wherein again, he accepted
his guilt whereupon the enquiry proceeding was closed stating :
"When asked whether he accepts or denied (sic)
the charges as contained in the charge sheet
No.WK/TPP/107613/95/2255 dated 5.6.1995, it is
true that he has not attended duties during the
period mentioned in the charge sheet i.e., thirty
days in April 1995 and 30 days from 1.5.1995 to
30.5.1995 for the reasons mentioned in his
explanation dated 19.6.95 submitted in reply to the
above charge sheet. A photocopy of the above
referred explanation has been produced by the CE
in the enquiry. The same has been taken on
record. The CW has stated that due to his
mother's severe illness at his native place, he could
not attend his duties as his presence was necessary
there to attend his ailing mother. The CW further
stated that the CE was facing financial problem as
he has not declared his mother as his dependant
due to which he was facing lot of mental strain.
The CE has stated that he accepted the charges
voluntarily and without pressure from any side.
In view of the voluntary admission of the charges,
the enquiry is closed."
8. The disciplinary authority, upon consideration of the said enquiry
report, found the respondent guilty of the said charges and an order of
removal from service was passed by it on 9.7.1996, stating :
"I find from your personal records, that even after
issue of the above three charge sheets dated
18.3.91, 22.9.92 and 5.6.95 and also after enquiries
were conducted, there is no improvement in your
attendance and I am constrained to observe that
you are absenting from duty unauthorisedly
without prior sanction of leave from duty
unauthorisedly without prior sanction of leave
from June 95 to July 96 as shown below. This was
even after a commitment made by you that you
will be regular in attending to duties and that an
opportunity should be given to you to improve
upon."
9. The said order is a detailed one. It was passed upon taking into
consideration the entire service records, the period of absence of the
respondent, the explanations offered by him, result of the enquiry
proceedings as also the punishments imposed and the assurance and
commitments made by him to improve himself. It was opined :
"This habitual absence from duty is an act of
misconduct as per the Certified Standing Orders of
the Company, which has become a part of your
nature. As the charges established against you i.e.
"Habitual Absence" from duty and continuous
absence without prior sanction of leave is serious
in nature and also as there is no improvement on
your part, stringent punishment is warranted.
Therefore, taking all the aspects into consideration,
I am of the considered opinion that the punishment
of "Removal from service of the Company" be
imposed on you for your misconduct and
accordingly. I, in exercise of the powers delegated
to me, hereby impose on you the punishment of
"Removal from the services of the Company" as
per Clause No.28, 16 of the certified standing
orders of the company with effect from 9.7.96 as a
disciplinary measure.
This issues without prejudice to the right of the
Company to recover any amount payable by you or
due from you to the Company. Finally payment of
amounts due to the Company will be made on
receipt of Demand/No Demand certificates from
the concerned authorities."
10. He filed a writ petition before the High Court of Andhra Pradesh and
by an order dated 11.3.1997, the said writ petition was directed to be treated
as an appeal. An opportunity of personal hearing was granted to him by the
appellate authority and by an order dated 10.5.1997, the order of punishment
imposed by the disciplinary authority was affirmed. He filed a review
application which was also dismissed by order dated 6.8.1997.
11. He questioned the validity of the said orders by filing a writ
application before the High Court. A learned Single Judge of the High
Court dismissed the said writ application stating :
"During the enquiry it was found that the petitioner
was absent in the years 1990, 1991, 1993, 1995
and 1996. The very charge itself is that the
petitioner is habitual absentee from duty and his
absence is continuous one without prior sanction,
which is in violation of the standing orders of the
respondents. Though the petitioner has filed an
explanation, however, the same was found to be
not satisfactory. Even taking into consideration
the reasons shown at this stage, it cannot be said
that the petitioner's continuous absence can be
justified more so in view of the specific standing
orders and also the obligation cast on him. Having
regard to the findings as arrived at by the
authorities at all levels about the continuous
absence of the petitioner, it clearly shows that he is
habitual in absence for which there cannot be any
justification. In view of the same, except seeking
indulgence, noother valid point has been raised by
the petitioner to show any irregularity in the
procedure adopted by the respondents and
ultimately removing him from service. Thus, it
has to be held that the finding as arrived at the
removal of the petitioner from the services is
perfectly justified."
12. On an intra court appeal preferred thereagainst, a Division Bench of
the said Court reversed the said judgment and order of the learned Single
Judge, opining :
"In the absence of any consideration of the
explanation, which goes to show that the appellant
could not attend the duty because of the ill health
of his mother, the action of the respondents would
amount to violation of principles of natural justice.
Further, it has to be observed that the appellate
authority also has not considered the factum of
submitting the explanation by the appellant and
conducted an enquiry as if he had not submitted
his explanation and that the action of the
respondents in considering the action taken on the
earlier charge is not acceptable. In the absence of
any material before this Court that the appellant
was continuously absent from duty from the last
date of the issuance of the charge sheet in the year
1992 till 1995, he cannot be termed as habitual
absentee and in view of the factum of his absence
as was explained by him through his explanation
dated 19.6.1995, which was not taken into
consideration by the disciplinary authority as well
as the appellate authority, it has to be held that the
action of the respondents in terminating the
services of the petitioner is in violation of
principles of natural justice."
13. Mr. Venugopal, learned counsel appearing on behalf of the appellant,
would submit that the High Court committed a serious error in passing the
impugned judgment insofar as it failed to take into consideration that while
exercising the power of judicial review, its role was limited.
14. Mr. Rao, learned counsel appearing on behalf of the respondent, on
the other hand, would support the judgment.
15. Indisputably, respondent was a habitual absentee. He in his
explanation, in answer to the charge sheet pleaded guilty admitting the
charges. In terms of Section 58 of the Indian Evidence Act, charges having
been admitted were not required to be proved. It was on that premise that the
enquiry proceeding was closed. Before the enquiry officer, he did not
submit the explanation that his mother being ill. He, despite opportunities
granted to report to duty, did not do it. He failed to explain even his prior
conduct.
In Sangramsinh P. Gaekwad & Ors. v. Shantadevi P. Gaekwad (Dead)
through LRs & Ors. 2005 (11) SCC 314, this Court noticing Section 58 of
the Indian Evidence Act, held :
"214. In terms of the aforementioned provision,
things admitted need not be proved. In view of the
admission of Respondent 1 alone, the issue as
regards allotment of 6475 shares should have been
answered in favour of the appellants. The company
petitioner at a much later stage could not be
permitted to take a stand which was contrary to or
inconsistent with the original pleadings nor could
she be permitted to resile from her admissions
contained therein."
It was observed that judicial admissions can be made the foundation
of the rights of the parties.
16. A subsequent explanation before another authority, which had not
been pleaded in the departmental proceedings, cannot by itself a ground to
hold that the principles of natural justice had not been complied with in the
disciplinary proceedings.
The jurisdiction of the High Court in this regard is rather limited. Its
power to interfere with disciplinary matters is circumscribed by well known
factors. It cannot set aside a well reasoned order only on sympathy or
sentiments. [See Maruti Udyod Ltd. v. Ram Lal and Others [(2005) 2 SCC
638]; State of Bihar & Ors. v. Amrendra Kumar Mishra [2006 (9) SCALE
549]; Regional Manager, SBI v. Mahatma Mishra [2006 (11) SCALE 258];
State of Karnataka v. Ameerbi & Ors. [2006 (13) SCALE 319]; State of
M.P. and Ors. v. Sanjay Kumar Pathak and Ors. [2007 (12) SCALE 72] and
Uttar Haryana Bijli Vitran Nigam Ltd. & Ors. v. Surji Devi [CA No.576 of
2008 decided on 22.1.2008].
17. Once it is found that all the procedural requirements have been
complied with, the Courts would not ordinarily interfere with the quantum of
punishment imposed upon a delinquent employee. The Superior Courts only
in some cases may invoke the doctrine of proportionality. If the decision of
an employer is found to be within the legal parameters, the jurisdiction
would ordinarily not be invoked when the misconduct stands proved. {[See
Sangeroid Remedies Ltd. v. Union of India & Ors. [(1999) 1 SCC 259]}.
The High Court in exercise of its jurisdiction under Article 226 of the
Constitution of India also cannot, on the basis of sympathy or sentiment,
overturn a legal order.
21. For the reasons aforementioned, impugned judgment cannot be
sustained. It is set aside accordingly. Appeal is allowed. In the facts and
circumstances of the case, however, there shall be no order as to costs.
