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2013 DIGILAW 656 (GUJ)

Girish J. Sharma v. Union of India

2013-11-11

MOHINDER PAL, RAVI R.TRIPATHI

body2013
JUDGMENT : Ravi R. Tripathi, J. The petitioner is before this Court being aggrieved by judgment and order dated 28.03.2011 passed by the Hon'ble Central Administrative Tribunal, Ahmedabad Bench, Ahmedabad (hereinafter referred to as "the Hon'ble Tribunal") in O.A. No.340 of 2009. The Hon'ble Tribunal after taking into consideration all the relevant aspects of the matter was pleased to dismiss the O.A. The facts giving rise to the present petition are that the petitioner was serving as Goods Guard in Railways. He was under suspension and on 01.02.2007 his suspension was revoked. Normally, on revocation of suspension any employee would have immediately joined duty. The petitioner, as submitted by the learned advocate, was under mental torture which the learned advocate then has improved it by saying that he was under mental depression, applied for 30 hours leave. On expiry of that he was to report for duty on 03.02.2007. But instead of reporting for duty he sent a request that he should be granted five days sickness leave. It is submitted that not only the petitioner but his wife, who was pregnant at the relevant time, was also under mental torture. Again the learned advocate improved it by saying that she was under mental depression. It is only after expiry of 10 days that the petitioner reported for duty on 13.02.2007. It is the say of the learned advocate for the petitioner that the petitioner has submitted fitness certificate. The learned advocate insisted that this fitness certificate should be treated equivalent to the medical certificate of illness/sickness of the employee. The learned advocate then clarified that as the petitioner was hospitalized under a private doctor, he had obtained fitness certificate from the private doctor, which was then countersigned by the Railway Doctor. On the basis of that countersigned fitness certificate the petitioner was allowed to resume duty. It is really surprising that the learned advocate is not able to give any details of the period for which the petitioner was hospitalized. This Court is not making any comment on the nature of sickness which is advanced by the petitioner, viz. On the basis of that countersigned fitness certificate the petitioner was allowed to resume duty. It is really surprising that the learned advocate is not able to give any details of the period for which the petitioner was hospitalized. This Court is not making any comment on the nature of sickness which is advanced by the petitioner, viz. mental torture, which was then improved to be mental depression; whether hospitalization is required for a sickness – mental depression, if at all any hospitalization was required, then why was it required only for the petitioner and not for the wife, who too is stated to have been suffering from the same illness. Be that as it may, as the facts stand on record, the petitioner has not produced any document in support of his case before the Investigating Officer nor he made any submissions to that effect. It was only at the appellate stage that he produced a certificate of a private doctor. 2. The submission of the learned advocate for the petitioner is that the Hon'ble Tribunal committed an error in not properly appreciating the decisions of the Hon'ble the Apex Court in the case of The State of Mysore v. Manche Gowda, reported in A.I.R. 1964 SC 506. The learned advocate relied upon Head Note and also relied upon para 7 of the judgment. Para 7 of the judgment reads as under: "Under Article 311(2) of the Constituting, as interpreted by this Court, a Government servant must have a reasonable opportunity not only to prove that he is not guilty of the charges levelled against him, but also to establish that the punishment proposed to be imposed is either not called for or excessive. The said opportunity is to be a reasonable opportunity and therefore, it is necessary that the Government servant must be told of the grounds on which it is proposed to take such action: see the decision of this Court in The State of Assam v. Bimal Kumar Pandit, Civil Appeal No.832 of 1962, D/d- 12-2-1963 : ( AIR 1963 SC 1612 ). If the grounds are not given in the notice, it would be well nigh impossible for him to predicate what is operating on the mind of the authority concerned in proposing a particular punishment: he would not be in a position to explain why he does not deserve any punishment at all or that the punishment proposed is excessive. If the proposed punishment was mainly based upon the previous record of a Govt servant and that was not disclosed in the notice, it would mean that the main reason for the proposed punishment was withheld from the knowledge of the Govt servant. It would be no answer to suggest that every Govt servant must have had knowledge of the fact that his past record would necessarily be taken into consideration by the Govt in inflicting punishment on him; nor would it be an adequate answer to say that he knew as a matter of fact that the earlier punishments were imposed on him or that he knew of his past record. This contention misses the real point, namely, that, what the Govt servant is entitled to is not the knowledge of certain facts, but the fact that those facts will be taken into consideration by the Govt in inflicting punishment on him. It is not possible for him to know what period of his past record or what acts or omissions of his in a particular period would be considered. If that fact was brought to his notice, he might explain that he had no knowledge of the remarks of his superior officers, that he had adequate explanation to offer for the alleged remarks or that his conduct subsequent to the remarks had been exemplary or at any rate approved by the superior officers. Even if the authority concerned took into consideration only the facts for which he was punished, it would be open to him to put forward before the said authority many mitigating circumstances or some other explanation why those punishments were given to him or that subsequent to the punishments he had served to the satisfaction of the authorities concerned till the time of the present enquiry. He may have many other explanations. The point is not whether his explanation would be acceptable, but whether he has been given an opportunity to give his explanation. He may have many other explanations. The point is not whether his explanation would be acceptable, but whether he has been given an opportunity to give his explanation. We cannot accept the doctrine of "presumptive knowledge" or that of "purposeless enquiry", as their acceptance will be subversive of the principle of "reasonable opportunity". We, therefore, hold that it is incumbent upon the authority to give the Government servant at the second stage reasonable opportunity to show cause against the proposed punishment and if the proposed punishment is also based on his previous punishments or his previous bad record, this should be included in the second notice so that he may be able to given an explanation." (Emphasis supplied) 2.1. The aforesaid judgment is not applicable to the facts of the present case, because in the present case instances are mentioned in the speaking order which are in the nature of justification of punishment imposed. It is too high a claim to make that those punishments were the basis for imposing punishment of removal from service. In fact the authorities having come to the conclusion that the petitioner is guilty of unauthorized absence, more particularly that absence was wilful and the reasons for absence were tried to be advanced only at a later stage, viz. appellate stage without pleading the same before the Investigating Officer, the authority had decided to impose punishment of removal. To say that punishment was excessive is not proper, especially when the authority gave justifying reasons for imposing maximum punishment of removal and reasons are set out by speaking order. To say that the speaking order is vitiated on the ground that the authority has taken into consideration the past conduct of the petitioner is not correct. This Court is of the opinion that the disciplinary authority while imposing punishment has given reasons to justify that order and that justification is found acceptable by the Hon'ble Tribunal and also by this Court. The petition is therefore, without any merit and deserves to be dismissed. 2.2. The learned advocate for the petitioner next relied upon a decision of the Hon'ble the Apex Court in the matter of State of Uttaranachal and others v. Kharak Singh, reported in (2008) 8 SCC 236 . The learned advocate relied upon Head Note 'D' and also relied upon para 20 of the judgment. 2.2. The learned advocate for the petitioner next relied upon a decision of the Hon'ble the Apex Court in the matter of State of Uttaranachal and others v. Kharak Singh, reported in (2008) 8 SCC 236 . The learned advocate relied upon Head Note 'D' and also relied upon para 20 of the judgment. The learned advocate could not make out successfully the case for acceptance of this Court that the facts before the Hon'ble the Apex Court are similar to the facts of the case on hand. Hence that decision is not of any help to the petitioner. Last, but not the least the learned advocate relied upon decision of the Hon'ble the Apex Court in the case of Krushnakant B. Parmar v. Union of India and another, reported in (2012) 3 SCC 178 . The learned advocate, when pointed out that the facts before the Hon'ble the Apex Court are different than the facts of the case on hand, is not able to satisfy this Court as to how that decision is applicable to the facts of the present case. At this juncture, it is relevant to reproduce hereunder a part of the judgment of the Hon'ble Tribunal, which is part of para 7 of the judgment. "7. Some background aspects which need to be noticed are that initially applicant was placed under suspension, which order had been revoked and message was sent by Sr. DOM through DTI Rajkot on 1.2.2007. This had been acknowledged by him at 22.15 hrs on 1.2.2007. He demanded 30 hrs rest, which was allowed and on completion of 30 hrs he was required to report at 4.15 hrs AM, on 3.2.2007. However he did not report for duty. Kantilal M. Mochi, CYM/SMII in his deposition clearly stated that though applicant acknowledged memo regarding revocation of suspension but did not report for duty. He had informed the authorities on this count on 5th as well as 8th of February 2007. His request regarding leave was not accepted. On 8.2.2007 his wife gave information that her husband was taking treatment under Dr. Booch, which information had been passed on to DRM Rajkot & Sr.DOM. He had informed the authorities on this count on 5th as well as 8th of February 2007. His request regarding leave was not accepted. On 8.2.2007 his wife gave information that her husband was taking treatment under Dr. Booch, which information had been passed on to DRM Rajkot & Sr.DOM. Applicant in his deposition dated 24.11.2007, during course of enquiry in reply to question no.9, candidly admitted that he did not take step to ensure confirmation of grant of leave with Station Manager, Hapa, but explained that he had talked directly to Sr.DOM, who conveyed him that he will go through his request and instruct appropriately. In response to question 11, he had answered that no medical certificate of private/railway doctor was submitted by him during the period 1.2.07 to 11.2.07. Learned counsel for the respondents, with reference to appellate order dated 4.6.2008, pointed out that only medical certificate produced by him was of private doctor and that too was submitted at the stage of appeal and not during the course of enquiry. Therefore, it was emphasised that applicant is most in disciplined official and had been punished on various occasion in the past. (Emphasis supplied) On examination of matter with reference to orders passed by the authorities, viz-a-viz statement made by applicant, we are of the considered view that projection made by him that he applied leave due to delivery of his wife is clearly misrepresentation of fact. In reply to question 19 he had in unequivocal term stated that he did not turn up for duty because he was seriously upset. [The term used by the learned advocate is 'mental torture', which later on improved to be 'mental depression] During the enquiry he made no such projection. In other words conclusion reached by the authorities that applicant was unauthorisedly absent from 3.2.07 to 15.2.07 is duly established and on that count the respondents were justified to inflict penalty. The severest penalty of removal had already been reduced and modified by the Appellate Authority as well as Revisional Authority. . ." (Emphasis supplied) 3. In view of the aforesaid observations made by the Hon'ble Tribunal in its judgment, this Court finds that no case is made out for interference with the judgment and order of the Hon'ble Tribunal. The petition is found without any substance. The same is dismissed. Petition dismissed.