Supreme Court: Deciding the case relating to long unauthorised absence
from work and causing delay in submitting explanation to the charge memo
issued thereupon on pretext of ill health, the 2- judge bench of
Hon’ble H.L. Gokhale and Dipak Misra, JJ delay by such indolent persons
does not deserve any indulgence and on the said ground alone the writ
court should throw the petition overboard at the very threshold. Stating
that Delay brings in hazard and causes injury to the lis,
it was held that as a constitutional court, the writ court has a duty
to protect the rights of the citizens but simultaneously it is to keep
itself alive to the primary principle that when an aggrieved person,
without adequate reason, approaches the court at his own leisure or
pleasure, the Court would be under legal obligation to scrutinize
whether the lis at a belated stage should be entertained or not.
In the present case, the respondent, a Junior Engineer with the appellants, had remained on an unauthorised leave for almost 2 years and had approached the Court to seek remedy after a delay of 4 years. Taking note of the said fact, the Court held that regard being had to his official position, it was expected of him to maintain discipline, act with responsibility, perform his duty with sincerity and serve the institution with honesty. [Chennai Metropolitan Water Supply and Sewerage Board v. T.T. Murali Babu, Civil Appeal No. 1941 of 2014, decided on February 10, 2014]1
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1941 OF 2014
(Arising out of S.L.P. (C) No. 15530 of 2013)
Dipak Misra, J.
2. The present appeal, by special leave, is directed
against the judgment and order dated
22.11.2012 passed by the High Court of
Judicature at Madras in Writ Appeal No. 2531 of
2012 whereby the Division Bench has affirmed
Page 2
the judgment and order dated 21.7.2011 in W.P.
No. 25673 of 2007 whereunder the learned
single Judge had allowed the writ petition, and
after setting aside the punishment of dismissal,
directed reinstatement of the respondent with
continuity of service but without back wages.
3. Bereft of unnecessary details, the expose’ of
facts that have been undraped are that the
respondent was appointed as a Surveyor in
Chennai Metropolitan Water Supply and
Sewerage Board (for short, “CMWSSB”) and
subsequently promoted as Junior Engineer in
1989. From 28.8.1995 he remained
continuously absent from duty without any
intimation to the employer and did not respond
to the repeated memoranda/reminders requiring
him to explain his unauthorized absence from
duty and to rejoin duty. On 1.4.1997 he
reported to duty with the medical certificate for
his absence from duty for the period
commencing 28.8.1995 to 31.3.1997. As he had
2
Page 3
already remained unauthorisedly absent and did
not respond to the memos by offering an
explanation, a charge-sheet had already been
issued on 11.9.1996 under the Chennai
Metropolitan Water Supply and Sewerage Board
Employees (Discipline and Appeal) Regulations,
1978 (for brevity “the Regulations”). The
charge memo contained two charges, namely,
that the respondent-herein had failed to submit
an explanation to the first charge memo dated
11.10.1995 inspite of reminders and second, he
deserted his post by remaining unauthorisedly
absent from duty from 28.8.1995, and thereby
committed misconduct under Regulations 6(1)
and 6(2) respectively of the Regulations. Be it
noted, though the charge memo was duly
acknowledged by the respondent on
19.11.1996, yet he chose not to submit his
explanation till 6.1.1997, much after the chargesheet
was issued.
3
Page 4
4. As the factual matrix would further uncurtain,
an enquiry was conducted against the
respondent and his explanation in the enquiry
was that he could not attend to the duties and
could not give explanation to the first charge
memo because of ill health. The enquiry officer
found charges were proved and, accordingly,
submitted the enquiry report which was
accepted by the disciplinary authority and after
following the due procedure punishment of
dismissal was passed on 16.4.1998. In the
order of dismissal disciplinary authority
observed that belated submission of medical
certificate on 1.4.1997 irresistibly led to the
conclusion that the respondent employee was
unauthorisedly absent from 28.8.1995. A
conclusion was also arrived at that the first
charge, namely, that he had not responded to
the letters and reminders, also stood proved.
Being of this view, the disciplinary authority
4
Page 5
thought it apt to impose the punishment of
dismissal from service and he did so.
5. On an appeal being preferred by the respondent
the Board rejected the appeal dated 30.6.1998.
Being dissatisfied by the order of dismissal and
the affirmation thereof in appeal, the
respondent preferred W.P. No. 15272 of 1998.
The learned Single Judge, by order dated
12.3.2003, directed re-consideration of the
appeal solely on the ground that the Managing
Director who was the disciplinary authority had
taken part in the proceedings of the Board
which decided the appeal. After the said order
came to be passed, the matter was again placed
before the Board and the appellate authority,
considering the enquiry report, the evidence
brought on record and after due discussion,
affirmed the order of disciplinary authority and
consequently dismissed the appeal on 1.7.2003.
6. The grievance of re-affirmation of the order of
dismissal was agitated by the respondent in
5
Page 6
W.P. No. 25673 of 2007 which was preferred on
7.7.2007. The appellant-Board in the counter
affidavit, defending the order of dismissal,
stated that the only reason given by the
employee was that he could not attend the
duties as he was availing continuous treatment
for tuberculosis and, further, he also met with
an accident in September 1995 which was
unacceptable. In addition, it was stated in the
counter affidavit that bunch of medical
certificates was produced by him on 1.4.1997
which mentioned that he was suffering from
depressive psychosis and bronchitis and there
was no mention about any accident and injury
sustained by him in September 1995 and
treatment availed by him.
7. The learned Single Judge, by the impugned
judgment, after narrating the facts, noted the
statement of the learned counsel for the
respondent that even if the employee had
absented from duty, there was no past
6
Page 7
misconduct of desertion/absence and, therefore,
the punishment of dismissal from service for the
first time desertion/absenteeism is too harsh
and disproportionate and deserved to be
interfered with. The learned Single Judge did
not advert to any other facet and referred to the
decisions in Shri Bhagwan Lal Arya v.
Commissioner of Police, Delhi1, B. C.
Chaturvedi v. Union of India2, V. Ramana v.
A.P. SRTC3, Jagdish Singh v. Punjab
Engineering College4 and Division Bench
judgment in V. Senthurvelan v. High Court
of Judicature at Madras5 and opined thus:-
“10. Applying the said judgment to the fact
of this case and considering the counter
filed by the respondents wherein it is not
stated as to whether the petitioner has
deserted / absented on any previous
occasion, this Court is of the view that this
writ petition deserves to be allowed.
11. This writ petition is allowed with a
direction to the respondent to reinstate
petitioner with continuity of service but
without backwage, within a period of four
1 (2004) 4 SCC 560
2 (1995) 6 SCC 749
3 (2005) 7 SCC 338
4 (2009) 7 SCC 301
5 (2009) 7 MLJ 1231
7
Page 8
weeks from the date of receipt of a copy of
this order.”
8. Grieved by the aforesaid order the CMWSSB
preferred Writ Appeal No. 2531 of 2012 and the
Division Bench accepted the conclusion of the
learned single Judge by stating thus: -
“It is not in dispute that the respondent/
writ petitioner was unwell during the said
period, though there might have been
some discrepancies in the date of the
certificate issued, it has not been
controverted by the appellant that the
respondent/writ petitioner was suffering
from depressive psychosis and bronchitis.
That apart it has also not been disputed
that the respondent/ writ petitioner had
not suffered any earlier punishment while
in the services of the appellant Board from
the date of his appointment. Therefore, in
such circumstances, it would be very harsh
and unreasonable to impose the
punishment of removal from service for
the charge of unauthorized absence, as
such punishment is awarded for acts of
grave nature or as cumulative effect of
continued misconduct or for such other
reasons, where the charges are very
serious and in case where charge of
corruption had been proved. Admittedly,
there has been no such allegation against
the respondent/writ petitioner. Further,
the learned single Judge while setting
aside the order of dismissal from service,
rightly denied back wages to the
respondent/writ petitioner as the
respondent/writ petitioner failed to
discharge duty during the relevant period.”
8
Page 9
[Underlining is ours]
9. We have heard the learned counsel for the
parties and perused the material brought on
record.
10. On a keen scrutiny of the decision rendered by
the learned single Judge as well as that of the
Division Bench it is clearly demonstrable that
there has been no advertence with regard to the
issue whether the charges levelled against the
respondent had been proved or not. It is
manifest that there had been no argument on
the said score before the writ court or in intracourt
appeal and hence, we are obliged to state
that the only aspect which was really proponed
before the High Court pertains to the nature of
charges and proportionality of punishment.
Therefore, we shall confine our analysis with
regard to said limited sphere and an added
facet which the learned counsel for the
appellant has emphatically urged before us, that
is, the belated approach by the respondent in
9
Page 10
invoking the extraordinary jurisdiction of the
High Court.
11. The charges that were levelled against the
respondent-employee read as follows: -
“CHARGE NO. 1:
That he has failed to offer his
explanation to this office Memo dated
11.10.95 in spite of reminders thereon
dated 20.01.96 and 23.04.96 which clearly
shows his disobedience to the order of
superior and it amounts to misconduct
under Regulation 6(1) of the MMWSS Board
Employees (Discipline and Appeal)
Regulations 1978.
CHARGE NO. 2:
That he has deserted the post from
28.08.95 onwards and remains
unauthorisedly absent from duty which
amounts to misconduct under Regulation
6(2) of the MMWSS Board Employees
(Discipline and Appeal) Regulations 1978.”
12. It is not in dispute that the Inquiry Officer found
that both the charges had been proved. The
disciplinary authority had ascribed reasons and
passed an order of dismissal from service. On a
perusal of the order of dismissal it is vivid that
the medical certificate was belatedly submitted
and he had remained unauthorisedly absent
1
Page 11
from 28.08.1995. The question that arises is
when the charges of unauthorized absence for a
long period had been proven, was it justified on
the part of the High Court to take resort to the
doctrine of proportionality and direct
reinstatement in service. That apart, one
aspect which has not at all been addressed to
by the High Court is that the respondent
invoked the extraordinary jurisdiction of the
High Court after four years.
13. First, we shall deal with the facet of delay. In
Maharashtra State Road Transport
Corporation v. Balwant Regular Motor
Service, Amravati and others6 the Court
referred to the principle that has been stated by
Sir Barnes Peacock in Lindsay Petroleum Co.
v. Prosper Armstrong Hurd, Abram
Farewall, and John Kemp7, which is as
follows: -
6 AIR 1969 SC 329
7 (1874) 5 PC 221
1
Page 12
“Now the doctrine of laches in Courts of
Equity is not an arbitrary or a technical
doctrine. Where it would be practically
unjust to give a remedy, either because
the party has, by his conduct, done that
which might fairly be regarded as
equivalent to a waiver of it, or where by his
conduct and neglect he has, though
perhaps not waiving that remedy, yet put
the other party in a situation in which it
would not be reasonable to place him if the
remedy were afterwards to be asserted in
either of these cases, lapse of time and
delay are most material. But in every
case, if an argument against relief, which
otherwise would be just, is founded upon
mere delay, that delay of course not
amounting to a bar by any statute of
limitations, the validity of that defence
must be tried upon principles substantially
equitable. Two circumstances, always
important in such cases, are, the length of
the delay and the nature of the acts done
during the interval, which might affect
either party and cause a balance of justice
or injustice in taking the one course or the
other, so far as relates to the remedy.”
14. In State of Maharashtra v. Digambar8, while
dealing with exercise of power of the High Court
under Article 226 of the Constitution, the Court
observed that power of the High Court to be
exercised under Article 226 of the Constitution,
if is discretionary, its exercise must be judicious
and reasonable, admits of no controversy. It is
8 (1995) 4 SCC 683
1
Page 13
for that reason, a person’s entitlement for relief
from a High Court under Article 226 of the
Constitution, be it against the State or anybody
else, even if is founded on the allegation of
infringement of his legal right, has to
necessarily depend upon unblameworthy
conduct of the person seeking relief, and the
court refuses to grant the discretionary relief to
such person in exercise of such power, when he
approaches it with unclean hands or
blameworthy conduct.
15. In State of M.P. and others etc. etc. v.
Nandlal Jaiswal and others etc. etc.9 the
Court observed that it is well settled that power
of the High Court to issue an appropriate writ
under Article 226 of the Constitution is
discretionary and the High Court in exercise of
its discretion does not ordinarily assist the tardy
and the indolent or the acquiescent and the
lethargic. It has been further stated therein that
9 AIR 1987 SC 251
1
Page 14
if there is inordinate delay on the part of the
petitioner in filing a petition and such delay is
not satisfactorily explained, the High Court may
decline to intervene and grant relief in the
exercise of its writ jurisdiction. Emphasis was
laid on the principle of delay and laches stating
that resort to the extraordinary remedy under
the writ jurisdiction at a belated stage is likely to
cause confusion and public inconvenience and
bring in injustice.
16. Thus, the doctrine of delay and laches should
not be lightly brushed aside. A writ court is
required to weigh the explanation offered and
the acceptability of the same. The court should
bear in mind that it is exercising an
extraordinary and equitable jurisdiction. As a
constitutional court it has a duty to protect the
rights of the citizens but simultaneously it is to
keep itself alive to the primary principle that
when an aggrieved person, without adequate
reason, approaches the court at his own leisure
1
Page 15
or pleasure, the Court would be under legal
obligation to scrutinize whether the lis at a
belated stage should be entertained or not. Be
it noted, delay comes in the way of equity. In
certain circumstances delay and laches may not
be fatal but in most circumstances inordinate
delay would only invite disaster for the litigant
who knocks at the doors of the Court. Delay
reflects inactivity and inaction on the part of a
litigant – a litigant who has forgotten the basic
norms, namely, “procrastination is the greatest
thief of time” and second, law does not permit
one to sleep and rise like a phoenix. Delay does
bring in hazard and causes injury to the lis. In
the case at hand, though there has been four
years’ delay in approaching the court, yet the
writ court chose not to address the same. It is
the duty of the court to scrutinize whether such
enormous delay is to be ignored without any
justification. That apart, in the present case,
such belated approach gains more significance
1
Page 16
as the respondent-employee being absolutely
careless to his duty and nurturing a
lackadaisical attitude to the responsibility had
remained unauthorisedly absent on the pretext
of some kind of ill health. We repeat at the cost
of repetition that remaining innocuously
oblivious to such delay does not foster the
cause of justice. On the contrary, it brings in
injustice, for it is likely to affect others. Such
delay may have impact on others’ ripened rights
and may unnecessarily drag others into
litigation which in acceptable realm of
probability, may have been treated to have
attained finality. A court is not expected to give
indulgence to such indolent persons - who
compete with ‘Kumbhakarna’ or for that matter
‘Rip Van Winkle’. In our considered opinion,
such delay does not deserve any indulgence
and on the said ground alone the writ court
should have thrown the petition overboard at
the very threshold.
1
Page 17
17. Having dealt with the doctrine of delay and
laches, we shall presently proceed to deal with
the doctrine of proportionality which has been
taken recourse to by the High Court regard
being had to the obtaining factual matrix. We
think it appropriate to refer to some of the
authorities which have been placed reliance
upon by the High Court.
18. In Shri Bhagwan Lal Arya (supra) this Court
opined that the unauthorized absence was not a
grave misconduct inasmuch as the employee
had proceeded on leave under compulsion
because of his grave condition of health. Be it
noted, in the said case, it has also been
observed that no reasonable disciplinary
authority would term absence on medical
grounds with proper medical certificate from
Government doctors as a grave misconduct.
19. In Jagdish Singh (supra) the Court took note of
the fact that the appellant therein was a
sweeper and had remained absent on four spells
1
Page 18
totalling to fifteen days in all in two months. In
that context, the Court observed thus: -
“The instant case is not a case of habitual
absenteeism. The appellant seems to
have a good track record from the date he
joined service as a sweeper. In his long
career of service, he remained absent for
fifteen days on four occasions in the
months of February and March 2004. This
was primarily to sort out the problem of his
daughter with her in-laws. The filial
bondage and the emotional attachment
might have come in his way to apply and
obtain leave from the employer. The
misconduct that is alleged, in our view,
would definitely amount to violation of
discipline that is expected of an employee
to maintain in the establishment, but may
not fit into the category of gross violation
of discipline. We hasten to add, if it were
to be habitual absenteeism, we would not
have ventured to entertain this appeal.”
20. If both the decisions are appositely understood,
two aspects clearly emerge. In Shri Bhagwan
Lal Arya (supra), the Court took note of the
fact, that is, production of proper medical
certificate from a Government medical doctor
and opined about the nature of misconduct and
in Jagdish Singh (supra) the period of absence,
status of the employee and his track record and
the explanation offered by him. In the case at
1
Page 19
hand, the factual score being different, to which
we shall later on advert, the aforesaid
authorities do not really assist the respondent.
21. Learned counsel for the respondent has
commended us to the decision in Krushnakant
B. Parmar v. Union of India and another10
to highlight that in the absence of a finding
returned by the Inquiry Officer or determination
by the disciplinary authority that the
unauthorized absence was willful, the charge
could not be treated to have been proved. To
appreciate the said submission we have
carefully perused the said authority. In the said
case, the question arose whether “unauthorized
absence from duty” did tantamount to “failure
of devotion to duty” or “behavior unbecoming of
a Government servant” inasmuch as the
appellant therein was charge-sheeted for failure
to maintain devotion to duty and his behavior
was unbecoming of a Government servant.
10 (2012) 3 SCC 178
1
Page 20
After adverting to the rule position the two-
Judge Bench expressed thus: -
“16. In the case of the appellant referring
to unauthorized absence the disciplinary
authority alleged that he failed to maintain
devotion to duty and his behavior was
unbecoming of a government servant. The
question whether “unauthorized absence
from duty” amounts to failure of devotion
to duty or behavior unbecoming of a
government servant cannot be decided
without deciding the question whether
absence is willful or because of compelling
circumstances.
17. If the absence is the result of
compelling circumstances under which it
was not possible to report or perform duty,
such absence cannot be held to be willful.
Absence from duty without any application
or prior permission may amount to
unauthorized absence, but it does not
always mean willful. There may be
different eventualities due to which an
employee may abstain from duty,
including compelling circumstances
beyond his control like illness, accident,
hospitalization, etc., but in such case the
employee cannot be held guilty of failure
of devotion to duty or behavior
unbecoming of a government servant.
18. In a departmental proceeding, if
allegation of unauthorized absence from
duty is made, the disciplinary authority is
required to prove that the absence is
willful, in the absence of such finding, the
absence will not amount to misconduct.”
2
Page 21
22. We have quoted in extenso as we are disposed
to think that the Court has, while dealing with
the charge of failure of devotion to duty or
behavior unbecoming of a Government servant,
expressed the aforestated view and further the
learned Judges have also opined that there may
be compelling circumstances which are beyond
the control of an employee. That apart, the
facts in the said case were different as the
appellant on certain occasions was prevented to
sign the attendance register and the absence
was intermittent. Quite apart from that, it has
been stated therein that it is obligatory on the
part of the disciplinary authority to come to a
conclusion that the absence is willful. On an
apposite understanding of the judgment we are
of the opinion that the view expressed in the
said case has to be restricted to the facts of the
said case regard being had to the rule position,
the nature of the charge levelled against the
employee and the material that had come on
record during the enquiry. It cannot be stated
as an absolute proposition in law that whenever
there is a long unauthorized absence, it is
obligatory on the part of the disciplinary
authority to record a finding that the said
absence is willful even if the employee fails to
show the compelling circumstances to remain
absent.
23. In this context, it is seemly to refer to certain
other authorities relating to unauthorized
absence and the view expressed by this Court.
In State of Punjab v. Dr. P.L. Singla11 the
Court, dealing with unauthorized absence, has
stated thus: -
“Unauthorised absence (or overstaying
leave), is an act of indiscipline. Whenever
there is an unauthorized absence by an
employee, two courses are open to the
employer. The first is to condone the
unauthorized absence by accepting the
explanation and sanctioning leave for the
period of the unauthorized absence in
which event the misconduct stood
condoned. The second is to treat the
unauthorized absence as a misconduct,
11 (2008) 8 SCC 469
2
Page 23
hold an enquiry and impose a punishment
for the misconduct.”
24. Again, while dealing with the concept of
punishment the Court ruled as follows: -
“Where the employee who is
unauthorisedly absent does not report
back to duty and offer any satisfactory
explanation, or where the explanation
offered by the employee is not
satisfactory, the employer will take
recourse to disciplinary action in regard to
the unauthorized absence. Such
disciplinary proceedings may lead to
imposition of punishment ranging from a
major penalty like dismissal or removal
from service to a minor penalty like
withholding of increments without
cumulative effect. The extent of penalty
will depend upon the nature of service, the
position held by the employee, the period
of absence and the cause/explanation for
the absence.”
25. In Tushar D. Bhatt v. State of Gujarat and
another12, the appellant therein had remained
unauthorisedly absent for a period of six months
and further had also written threatening letters
and conducted some other acts of misconduct.
Eventually, the employee was visited with order
of dismissal and the High Court had given the
stamp of approval to the same. Commenting on
12 (2009) 11 SCC 678
the conduct of the appellant the Court stated
that he was not justified in remaining
unauthorisedly absent from official duty for
more than six months because in the interest of
discipline of any institution or organization such
an approach and attitude of the employee
cannot be countenanced.
26. Thus, the unauthorized absence by an
employee, as a misconduct, cannot be put into a
straight-jacket formula for imposition of
punishment. It will depend upon many a factor
as has been laid down in Dr. P.L. Singla
(supra).
27. Presently, we shall proceed to scrutinize
whether the High Court is justified in applying
the doctrine of proportionality. Doctrine of
proportionality in the context of imposition of
punishment in service law gets attracted when
the court on the analysis of material brought on
record comes to the conclusion that the
punishment imposed by the Disciplinary
2
Page 25
Authority or the appellate authority shocks the
conscience of the court. In this regard a
passage from Indian Oil Corporation Ltd.
and another v. Ashok Kumar Arora13 is
worth reproducing: -
“At the outset, it needs to be mentioned
that the High Court in such cases of
departmental enquiries and the findings
recorded therein does not exercise the
powers of appellate court/authority. The
jurisdiction of the High Court in such cases
is very limited for instance where it is
found that the domestic enquiry is vitiated
because of non-observance of principles of
natural justice, denial of reasonable
opportunity; findings are based on no
evidence, and/or the punishment is totally
disproportionate to the proved misconduct
of an employee.”
28. In Union of India and another v. G.
Ganayutham14, the Court analysed the
conception of proportionality in administrative
law in England and India and thereafter
addressed itself with regard to the punishment
in disciplinary matters and opined that unless
the court/tribunal opines in its secondary role
that the administrator was, on the material
13 (1997) 3 SCC 72
14 (1997) 7 SCC 463
2
Page 26
before him, irrational according to Associated
Provincial Picture Houses Ltd. v.
Wednesbury Corpn.15 and Council of Civil
Service Unions v. Minister for Civil
Service16 norms, the punishment cannot be
quashed.
29. In Chairman-cum-Managing Director, Coal
India Limited and another v. Mukul Kumar
Choudhuri and others17, the Court, after
analyzing the doctrine of proportionality at
length, ruled thus: -
“19. The doctrine of proportionality is,
thus, well-recognised concept of judicial
review in our jurisprudence. What is
otherwise within the discretionary domain
and sole power of the decision-maker to
quantify punishment once the charge of
misconduct stands proved, such
discretionary power is exposed to judicial
intervention if exercised in a manner which
is out of proportion to the fault. Award of
punishment which is grossly in excess to
the allegations cannot claim immunity and
remains open for interference under
limited scope of judicial review.
15 (1948) 1 KB 223 : (1947) 2 All ER 680
16 1985 AC 374 : (1984) 3 All ER 935
17 (2009) 15 SCC 620
2
Page 27
20. One of the tests to be applied while
dealing with the question of quantum of
punishment would be: would any
reasonable employer have imposed such
punishment in like circumstances?
Obviously, a reasonable employer is
expected to take into consideration
measure, magnitude and degree of
misconduct and all other relevant
circumstances and exclude irrelevant
matters before imposing punishment.
21. In a case like the present one where
the misconduct of the delinquent was
unauthorized absence from duty for six
months but upon being charged of such
misconduct, he fairly admitted his guilt and
explained the reason for his absence by
stating that he did not have intention nor
desired to disobey the order of higher
authority or violate any of the Company’s
rules and regulations but the reason was
purely personal and beyond his control
and, as a matter of fact, he sent his
resignation which was not accepted, the
order of removal cannot be held to be
justified, since in our judgment, no
reasonable employer would have imposed
extreme punishment of removal in like
circumstances. The punishment is not only
unduly harsh but grossly in excess to the
allegations.”
30. After so stating the two-Judge Bench proceeded
to say that one of the tests to be applied while
dealing with the question of quantum of
punishment is whether any reasonable
employer would have imposed such punishment
2
Page 28
in like circumstances taking into consideration
the major, magnitude and degree of misconduct
and all other relevant circumstances after
excluding irrelevant matters before imposing
punishment. It is apt to note here that in the
said case the respondent had remained
unauthorisedly absent from duty for six months
and admitted his guilt and explained the
reasons for his absence by stating that he
neither had any intention nor desire to disobey
the order of superior authority or violated any of
the rules or regulations but the reason was
purely personal and beyond his control. Regard
being had to the obtaining factual matrix, the
Court interfered with the punishment on the
ground of proportionality. The facts in the
present case are quite different. As has been
seen from the analysis made by the High Court,
it has given emphasis on past misconduct of
absence and first time desertion and thereafter
proceeded to apply the doctrine of
2
Page 29
proportionality. The aforesaid approach is
obviously incorrect. It is telltale that the
respondent had remained absent for a
considerable length of time. He had exhibited
adamantine attitude in not responding to the
communications from the employer while he
was unauthorisedly absent. As it appears, he
has chosen his way, possibly nurturing the idea
that he can remain absent for any length of
time, apply for grant of leave at any time and
also knock at the doors of the court at his own
will. Learned counsel for the respondent has
endeavoured hard to impress upon us that he
had not been a habitual absentee. We really fail
to fathom the said submission when the
respondent had remained absent for almost one
year and seven months. The plea of absence of
“habitual absenteeism” is absolutely
unacceptable and, under the obtaining
circumstances, does not commend acceptation.
We are disposed to think that the respondent by
2
Page 30
remaining unauthorisedly absent for such a long
period with inadequate reason had not only
shown indiscipline but also made an attempt to
get away with it. Such a conduct is not
permissible and we are inclined to think that the
High Court has erroneously placed reliance on
the authorities where this Court had interfered
with the punishment. We have no shadow of
doubt that the doctrine of proportionality does
not get remotely attracted to such a case. The
punishment is definitely not shockingly
disproportionate.
31. Another aspect needs to be noted. The
respondent was a Junior Engineer. Regard
being had to his official position, it was expected
of him to maintain discipline, act with
responsibility, perform his duty with sincerity
and serve the institution with honesty. This kind
of conduct cannot be countenanced as it creates
a concavity in the work culture and ushers in
indiscipline in an organization. In this context,
3
Page 31
we may fruitfully quote a passage from
Government of India and another v.
George Philip18: -
“In a case involving overstay of leave and
absence from duty, granting six months’
time to join duty amounts to not only
giving premium to indiscipline but is wholly
subversive of the work culture in the
organization. Article 51-A(j) of the
Constitution lays down that it shall be the
duty of every citizen to strive towards
excellence in all spheres of individual and
collective activity so that the nation
constantly rises to higher levels of
endeavour and achievement. This cannot
be achieved unless the employees
maintain discipline and devotion to duty.
Courts should not pass such orders which
instead of achieving the underlying spirit
and objects of Part IV-A of the Constitution
have the tendency to negate or destroy
the same.”
32. We respectfully reiterate the said feeling and restate
with the hope that employees in any
organization should adhere to discipline for not
only achieving personal excellence but for
collective good of an organization. When we
say this, we may not be understood to have
stated that the employers should be harsh to
impose grave punishment on any misconduct.
18 (2006) 13 SCC 1
3
Page 32
An amiable atmosphere in an organization
develops the work culture and the employer and
the employees are expected to remember the
same as a precious value for systemic
development.
33. Judged on the anvil of the aforesaid premises,
the irresistible conclusion is that the
interference by the High Court with the
punishment is totally unwarranted and
unsustainable, and further the High Court was
wholly unjustified in entertaining the writ
petition after a lapse of four years. The result of
aforesaid analysis would entail overturning the
judgments and orders passed by the learned
single Judge and the Division Bench of the High
Court and, accordingly, we so do.
34. Consequently, the appeal is allowed and the
judgments and orders passed by the High Court
are set aside leaving the parties to bear their
respective costs.
3
Page 33
…………….……..…..J.
[H.L. Gokhale]
…………………….….J.
[Dipak Misra]
New Delhi;
February 10, 2014.
3
In the present case, the respondent, a Junior Engineer with the appellants, had remained on an unauthorised leave for almost 2 years and had approached the Court to seek remedy after a delay of 4 years. Taking note of the said fact, the Court held that regard being had to his official position, it was expected of him to maintain discipline, act with responsibility, perform his duty with sincerity and serve the institution with honesty. [Chennai Metropolitan Water Supply and Sewerage Board v. T.T. Murali Babu, Civil Appeal No. 1941 of 2014, decided on February 10, 2014]1
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1941 OF 2014
(Arising out of S.L.P. (C) No. 15530 of 2013)
Dipak Misra, J.
2. The present appeal, by special leave, is directed
against the judgment and order dated
22.11.2012 passed by the High Court of
Judicature at Madras in Writ Appeal No. 2531 of
2012 whereby the Division Bench has affirmed
Page 2
the judgment and order dated 21.7.2011 in W.P.
No. 25673 of 2007 whereunder the learned
single Judge had allowed the writ petition, and
after setting aside the punishment of dismissal,
directed reinstatement of the respondent with
continuity of service but without back wages.
3. Bereft of unnecessary details, the expose’ of
facts that have been undraped are that the
respondent was appointed as a Surveyor in
Chennai Metropolitan Water Supply and
Sewerage Board (for short, “CMWSSB”) and
subsequently promoted as Junior Engineer in
1989. From 28.8.1995 he remained
continuously absent from duty without any
intimation to the employer and did not respond
to the repeated memoranda/reminders requiring
him to explain his unauthorized absence from
duty and to rejoin duty. On 1.4.1997 he
reported to duty with the medical certificate for
his absence from duty for the period
commencing 28.8.1995 to 31.3.1997. As he had
2
Page 3
already remained unauthorisedly absent and did
not respond to the memos by offering an
explanation, a charge-sheet had already been
issued on 11.9.1996 under the Chennai
Metropolitan Water Supply and Sewerage Board
Employees (Discipline and Appeal) Regulations,
1978 (for brevity “the Regulations”). The
charge memo contained two charges, namely,
that the respondent-herein had failed to submit
an explanation to the first charge memo dated
11.10.1995 inspite of reminders and second, he
deserted his post by remaining unauthorisedly
absent from duty from 28.8.1995, and thereby
committed misconduct under Regulations 6(1)
and 6(2) respectively of the Regulations. Be it
noted, though the charge memo was duly
acknowledged by the respondent on
19.11.1996, yet he chose not to submit his
explanation till 6.1.1997, much after the chargesheet
was issued.
3
Page 4
4. As the factual matrix would further uncurtain,
an enquiry was conducted against the
respondent and his explanation in the enquiry
was that he could not attend to the duties and
could not give explanation to the first charge
memo because of ill health. The enquiry officer
found charges were proved and, accordingly,
submitted the enquiry report which was
accepted by the disciplinary authority and after
following the due procedure punishment of
dismissal was passed on 16.4.1998. In the
order of dismissal disciplinary authority
observed that belated submission of medical
certificate on 1.4.1997 irresistibly led to the
conclusion that the respondent employee was
unauthorisedly absent from 28.8.1995. A
conclusion was also arrived at that the first
charge, namely, that he had not responded to
the letters and reminders, also stood proved.
Being of this view, the disciplinary authority
4
Page 5
thought it apt to impose the punishment of
dismissal from service and he did so.
5. On an appeal being preferred by the respondent
the Board rejected the appeal dated 30.6.1998.
Being dissatisfied by the order of dismissal and
the affirmation thereof in appeal, the
respondent preferred W.P. No. 15272 of 1998.
The learned Single Judge, by order dated
12.3.2003, directed re-consideration of the
appeal solely on the ground that the Managing
Director who was the disciplinary authority had
taken part in the proceedings of the Board
which decided the appeal. After the said order
came to be passed, the matter was again placed
before the Board and the appellate authority,
considering the enquiry report, the evidence
brought on record and after due discussion,
affirmed the order of disciplinary authority and
consequently dismissed the appeal on 1.7.2003.
6. The grievance of re-affirmation of the order of
dismissal was agitated by the respondent in
5
Page 6
W.P. No. 25673 of 2007 which was preferred on
7.7.2007. The appellant-Board in the counter
affidavit, defending the order of dismissal,
stated that the only reason given by the
employee was that he could not attend the
duties as he was availing continuous treatment
for tuberculosis and, further, he also met with
an accident in September 1995 which was
unacceptable. In addition, it was stated in the
counter affidavit that bunch of medical
certificates was produced by him on 1.4.1997
which mentioned that he was suffering from
depressive psychosis and bronchitis and there
was no mention about any accident and injury
sustained by him in September 1995 and
treatment availed by him.
7. The learned Single Judge, by the impugned
judgment, after narrating the facts, noted the
statement of the learned counsel for the
respondent that even if the employee had
absented from duty, there was no past
6
Page 7
misconduct of desertion/absence and, therefore,
the punishment of dismissal from service for the
first time desertion/absenteeism is too harsh
and disproportionate and deserved to be
interfered with. The learned Single Judge did
not advert to any other facet and referred to the
decisions in Shri Bhagwan Lal Arya v.
Commissioner of Police, Delhi1, B. C.
Chaturvedi v. Union of India2, V. Ramana v.
A.P. SRTC3, Jagdish Singh v. Punjab
Engineering College4 and Division Bench
judgment in V. Senthurvelan v. High Court
of Judicature at Madras5 and opined thus:-
“10. Applying the said judgment to the fact
of this case and considering the counter
filed by the respondents wherein it is not
stated as to whether the petitioner has
deserted / absented on any previous
occasion, this Court is of the view that this
writ petition deserves to be allowed.
11. This writ petition is allowed with a
direction to the respondent to reinstate
petitioner with continuity of service but
without backwage, within a period of four
1 (2004) 4 SCC 560
2 (1995) 6 SCC 749
3 (2005) 7 SCC 338
4 (2009) 7 SCC 301
5 (2009) 7 MLJ 1231
7
Page 8
weeks from the date of receipt of a copy of
this order.”
8. Grieved by the aforesaid order the CMWSSB
preferred Writ Appeal No. 2531 of 2012 and the
Division Bench accepted the conclusion of the
learned single Judge by stating thus: -
“It is not in dispute that the respondent/
writ petitioner was unwell during the said
period, though there might have been
some discrepancies in the date of the
certificate issued, it has not been
controverted by the appellant that the
respondent/writ petitioner was suffering
from depressive psychosis and bronchitis.
That apart it has also not been disputed
that the respondent/ writ petitioner had
not suffered any earlier punishment while
in the services of the appellant Board from
the date of his appointment. Therefore, in
such circumstances, it would be very harsh
and unreasonable to impose the
punishment of removal from service for
the charge of unauthorized absence, as
such punishment is awarded for acts of
grave nature or as cumulative effect of
continued misconduct or for such other
reasons, where the charges are very
serious and in case where charge of
corruption had been proved. Admittedly,
there has been no such allegation against
the respondent/writ petitioner. Further,
the learned single Judge while setting
aside the order of dismissal from service,
rightly denied back wages to the
respondent/writ petitioner as the
respondent/writ petitioner failed to
discharge duty during the relevant period.”
8
Page 9
[Underlining is ours]
9. We have heard the learned counsel for the
parties and perused the material brought on
record.
10. On a keen scrutiny of the decision rendered by
the learned single Judge as well as that of the
Division Bench it is clearly demonstrable that
there has been no advertence with regard to the
issue whether the charges levelled against the
respondent had been proved or not. It is
manifest that there had been no argument on
the said score before the writ court or in intracourt
appeal and hence, we are obliged to state
that the only aspect which was really proponed
before the High Court pertains to the nature of
charges and proportionality of punishment.
Therefore, we shall confine our analysis with
regard to said limited sphere and an added
facet which the learned counsel for the
appellant has emphatically urged before us, that
is, the belated approach by the respondent in
9
Page 10
invoking the extraordinary jurisdiction of the
High Court.
11. The charges that were levelled against the
respondent-employee read as follows: -
“CHARGE NO. 1:
That he has failed to offer his
explanation to this office Memo dated
11.10.95 in spite of reminders thereon
dated 20.01.96 and 23.04.96 which clearly
shows his disobedience to the order of
superior and it amounts to misconduct
under Regulation 6(1) of the MMWSS Board
Employees (Discipline and Appeal)
Regulations 1978.
CHARGE NO. 2:
That he has deserted the post from
28.08.95 onwards and remains
unauthorisedly absent from duty which
amounts to misconduct under Regulation
6(2) of the MMWSS Board Employees
(Discipline and Appeal) Regulations 1978.”
12. It is not in dispute that the Inquiry Officer found
that both the charges had been proved. The
disciplinary authority had ascribed reasons and
passed an order of dismissal from service. On a
perusal of the order of dismissal it is vivid that
the medical certificate was belatedly submitted
and he had remained unauthorisedly absent
1
Page 11
from 28.08.1995. The question that arises is
when the charges of unauthorized absence for a
long period had been proven, was it justified on
the part of the High Court to take resort to the
doctrine of proportionality and direct
reinstatement in service. That apart, one
aspect which has not at all been addressed to
by the High Court is that the respondent
invoked the extraordinary jurisdiction of the
High Court after four years.
13. First, we shall deal with the facet of delay. In
Maharashtra State Road Transport
Corporation v. Balwant Regular Motor
Service, Amravati and others6 the Court
referred to the principle that has been stated by
Sir Barnes Peacock in Lindsay Petroleum Co.
v. Prosper Armstrong Hurd, Abram
Farewall, and John Kemp7, which is as
follows: -
6 AIR 1969 SC 329
7 (1874) 5 PC 221
1
Page 12
“Now the doctrine of laches in Courts of
Equity is not an arbitrary or a technical
doctrine. Where it would be practically
unjust to give a remedy, either because
the party has, by his conduct, done that
which might fairly be regarded as
equivalent to a waiver of it, or where by his
conduct and neglect he has, though
perhaps not waiving that remedy, yet put
the other party in a situation in which it
would not be reasonable to place him if the
remedy were afterwards to be asserted in
either of these cases, lapse of time and
delay are most material. But in every
case, if an argument against relief, which
otherwise would be just, is founded upon
mere delay, that delay of course not
amounting to a bar by any statute of
limitations, the validity of that defence
must be tried upon principles substantially
equitable. Two circumstances, always
important in such cases, are, the length of
the delay and the nature of the acts done
during the interval, which might affect
either party and cause a balance of justice
or injustice in taking the one course or the
other, so far as relates to the remedy.”
14. In State of Maharashtra v. Digambar8, while
dealing with exercise of power of the High Court
under Article 226 of the Constitution, the Court
observed that power of the High Court to be
exercised under Article 226 of the Constitution,
if is discretionary, its exercise must be judicious
and reasonable, admits of no controversy. It is
8 (1995) 4 SCC 683
1
Page 13
for that reason, a person’s entitlement for relief
from a High Court under Article 226 of the
Constitution, be it against the State or anybody
else, even if is founded on the allegation of
infringement of his legal right, has to
necessarily depend upon unblameworthy
conduct of the person seeking relief, and the
court refuses to grant the discretionary relief to
such person in exercise of such power, when he
approaches it with unclean hands or
blameworthy conduct.
15. In State of M.P. and others etc. etc. v.
Nandlal Jaiswal and others etc. etc.9 the
Court observed that it is well settled that power
of the High Court to issue an appropriate writ
under Article 226 of the Constitution is
discretionary and the High Court in exercise of
its discretion does not ordinarily assist the tardy
and the indolent or the acquiescent and the
lethargic. It has been further stated therein that
9 AIR 1987 SC 251
1
Page 14
if there is inordinate delay on the part of the
petitioner in filing a petition and such delay is
not satisfactorily explained, the High Court may
decline to intervene and grant relief in the
exercise of its writ jurisdiction. Emphasis was
laid on the principle of delay and laches stating
that resort to the extraordinary remedy under
the writ jurisdiction at a belated stage is likely to
cause confusion and public inconvenience and
bring in injustice.
16. Thus, the doctrine of delay and laches should
not be lightly brushed aside. A writ court is
required to weigh the explanation offered and
the acceptability of the same. The court should
bear in mind that it is exercising an
extraordinary and equitable jurisdiction. As a
constitutional court it has a duty to protect the
rights of the citizens but simultaneously it is to
keep itself alive to the primary principle that
when an aggrieved person, without adequate
reason, approaches the court at his own leisure
1
Page 15
or pleasure, the Court would be under legal
obligation to scrutinize whether the lis at a
belated stage should be entertained or not. Be
it noted, delay comes in the way of equity. In
certain circumstances delay and laches may not
be fatal but in most circumstances inordinate
delay would only invite disaster for the litigant
who knocks at the doors of the Court. Delay
reflects inactivity and inaction on the part of a
litigant – a litigant who has forgotten the basic
norms, namely, “procrastination is the greatest
thief of time” and second, law does not permit
one to sleep and rise like a phoenix. Delay does
bring in hazard and causes injury to the lis. In
the case at hand, though there has been four
years’ delay in approaching the court, yet the
writ court chose not to address the same. It is
the duty of the court to scrutinize whether such
enormous delay is to be ignored without any
justification. That apart, in the present case,
such belated approach gains more significance
1
Page 16
as the respondent-employee being absolutely
careless to his duty and nurturing a
lackadaisical attitude to the responsibility had
remained unauthorisedly absent on the pretext
of some kind of ill health. We repeat at the cost
of repetition that remaining innocuously
oblivious to such delay does not foster the
cause of justice. On the contrary, it brings in
injustice, for it is likely to affect others. Such
delay may have impact on others’ ripened rights
and may unnecessarily drag others into
litigation which in acceptable realm of
probability, may have been treated to have
attained finality. A court is not expected to give
indulgence to such indolent persons - who
compete with ‘Kumbhakarna’ or for that matter
‘Rip Van Winkle’. In our considered opinion,
such delay does not deserve any indulgence
and on the said ground alone the writ court
should have thrown the petition overboard at
the very threshold.
1
Page 17
17. Having dealt with the doctrine of delay and
laches, we shall presently proceed to deal with
the doctrine of proportionality which has been
taken recourse to by the High Court regard
being had to the obtaining factual matrix. We
think it appropriate to refer to some of the
authorities which have been placed reliance
upon by the High Court.
18. In Shri Bhagwan Lal Arya (supra) this Court
opined that the unauthorized absence was not a
grave misconduct inasmuch as the employee
had proceeded on leave under compulsion
because of his grave condition of health. Be it
noted, in the said case, it has also been
observed that no reasonable disciplinary
authority would term absence on medical
grounds with proper medical certificate from
Government doctors as a grave misconduct.
19. In Jagdish Singh (supra) the Court took note of
the fact that the appellant therein was a
sweeper and had remained absent on four spells
1
Page 18
totalling to fifteen days in all in two months. In
that context, the Court observed thus: -
“The instant case is not a case of habitual
absenteeism. The appellant seems to
have a good track record from the date he
joined service as a sweeper. In his long
career of service, he remained absent for
fifteen days on four occasions in the
months of February and March 2004. This
was primarily to sort out the problem of his
daughter with her in-laws. The filial
bondage and the emotional attachment
might have come in his way to apply and
obtain leave from the employer. The
misconduct that is alleged, in our view,
would definitely amount to violation of
discipline that is expected of an employee
to maintain in the establishment, but may
not fit into the category of gross violation
of discipline. We hasten to add, if it were
to be habitual absenteeism, we would not
have ventured to entertain this appeal.”
20. If both the decisions are appositely understood,
two aspects clearly emerge. In Shri Bhagwan
Lal Arya (supra), the Court took note of the
fact, that is, production of proper medical
certificate from a Government medical doctor
and opined about the nature of misconduct and
in Jagdish Singh (supra) the period of absence,
status of the employee and his track record and
the explanation offered by him. In the case at
1
Page 19
hand, the factual score being different, to which
we shall later on advert, the aforesaid
authorities do not really assist the respondent.
21. Learned counsel for the respondent has
commended us to the decision in Krushnakant
B. Parmar v. Union of India and another10
to highlight that in the absence of a finding
returned by the Inquiry Officer or determination
by the disciplinary authority that the
unauthorized absence was willful, the charge
could not be treated to have been proved. To
appreciate the said submission we have
carefully perused the said authority. In the said
case, the question arose whether “unauthorized
absence from duty” did tantamount to “failure
of devotion to duty” or “behavior unbecoming of
a Government servant” inasmuch as the
appellant therein was charge-sheeted for failure
to maintain devotion to duty and his behavior
was unbecoming of a Government servant.
10 (2012) 3 SCC 178
1
Page 20
After adverting to the rule position the two-
Judge Bench expressed thus: -
“16. In the case of the appellant referring
to unauthorized absence the disciplinary
authority alleged that he failed to maintain
devotion to duty and his behavior was
unbecoming of a government servant. The
question whether “unauthorized absence
from duty” amounts to failure of devotion
to duty or behavior unbecoming of a
government servant cannot be decided
without deciding the question whether
absence is willful or because of compelling
circumstances.
17. If the absence is the result of
compelling circumstances under which it
was not possible to report or perform duty,
such absence cannot be held to be willful.
Absence from duty without any application
or prior permission may amount to
unauthorized absence, but it does not
always mean willful. There may be
different eventualities due to which an
employee may abstain from duty,
including compelling circumstances
beyond his control like illness, accident,
hospitalization, etc., but in such case the
employee cannot be held guilty of failure
of devotion to duty or behavior
unbecoming of a government servant.
18. In a departmental proceeding, if
allegation of unauthorized absence from
duty is made, the disciplinary authority is
required to prove that the absence is
willful, in the absence of such finding, the
absence will not amount to misconduct.”
2
Page 21
22. We have quoted in extenso as we are disposed
to think that the Court has, while dealing with
the charge of failure of devotion to duty or
behavior unbecoming of a Government servant,
expressed the aforestated view and further the
learned Judges have also opined that there may
be compelling circumstances which are beyond
the control of an employee. That apart, the
facts in the said case were different as the
appellant on certain occasions was prevented to
sign the attendance register and the absence
was intermittent. Quite apart from that, it has
been stated therein that it is obligatory on the
part of the disciplinary authority to come to a
conclusion that the absence is willful. On an
apposite understanding of the judgment we are
of the opinion that the view expressed in the
said case has to be restricted to the facts of the
said case regard being had to the rule position,
the nature of the charge levelled against the
employee and the material that had come on
record during the enquiry. It cannot be stated
as an absolute proposition in law that whenever
there is a long unauthorized absence, it is
obligatory on the part of the disciplinary
authority to record a finding that the said
absence is willful even if the employee fails to
show the compelling circumstances to remain
absent.
23. In this context, it is seemly to refer to certain
other authorities relating to unauthorized
absence and the view expressed by this Court.
In State of Punjab v. Dr. P.L. Singla11 the
Court, dealing with unauthorized absence, has
stated thus: -
“Unauthorised absence (or overstaying
leave), is an act of indiscipline. Whenever
there is an unauthorized absence by an
employee, two courses are open to the
employer. The first is to condone the
unauthorized absence by accepting the
explanation and sanctioning leave for the
period of the unauthorized absence in
which event the misconduct stood
condoned. The second is to treat the
unauthorized absence as a misconduct,
11 (2008) 8 SCC 469
2
Page 23
hold an enquiry and impose a punishment
for the misconduct.”
24. Again, while dealing with the concept of
punishment the Court ruled as follows: -
“Where the employee who is
unauthorisedly absent does not report
back to duty and offer any satisfactory
explanation, or where the explanation
offered by the employee is not
satisfactory, the employer will take
recourse to disciplinary action in regard to
the unauthorized absence. Such
disciplinary proceedings may lead to
imposition of punishment ranging from a
major penalty like dismissal or removal
from service to a minor penalty like
withholding of increments without
cumulative effect. The extent of penalty
will depend upon the nature of service, the
position held by the employee, the period
of absence and the cause/explanation for
the absence.”
25. In Tushar D. Bhatt v. State of Gujarat and
another12, the appellant therein had remained
unauthorisedly absent for a period of six months
and further had also written threatening letters
and conducted some other acts of misconduct.
Eventually, the employee was visited with order
of dismissal and the High Court had given the
stamp of approval to the same. Commenting on
12 (2009) 11 SCC 678
the conduct of the appellant the Court stated
that he was not justified in remaining
unauthorisedly absent from official duty for
more than six months because in the interest of
discipline of any institution or organization such
an approach and attitude of the employee
cannot be countenanced.
26. Thus, the unauthorized absence by an
employee, as a misconduct, cannot be put into a
straight-jacket formula for imposition of
punishment. It will depend upon many a factor
as has been laid down in Dr. P.L. Singla
(supra).
27. Presently, we shall proceed to scrutinize
whether the High Court is justified in applying
the doctrine of proportionality. Doctrine of
proportionality in the context of imposition of
punishment in service law gets attracted when
the court on the analysis of material brought on
record comes to the conclusion that the
punishment imposed by the Disciplinary
2
Page 25
Authority or the appellate authority shocks the
conscience of the court. In this regard a
passage from Indian Oil Corporation Ltd.
and another v. Ashok Kumar Arora13 is
worth reproducing: -
“At the outset, it needs to be mentioned
that the High Court in such cases of
departmental enquiries and the findings
recorded therein does not exercise the
powers of appellate court/authority. The
jurisdiction of the High Court in such cases
is very limited for instance where it is
found that the domestic enquiry is vitiated
because of non-observance of principles of
natural justice, denial of reasonable
opportunity; findings are based on no
evidence, and/or the punishment is totally
disproportionate to the proved misconduct
of an employee.”
28. In Union of India and another v. G.
Ganayutham14, the Court analysed the
conception of proportionality in administrative
law in England and India and thereafter
addressed itself with regard to the punishment
in disciplinary matters and opined that unless
the court/tribunal opines in its secondary role
that the administrator was, on the material
13 (1997) 3 SCC 72
14 (1997) 7 SCC 463
2
Page 26
before him, irrational according to Associated
Provincial Picture Houses Ltd. v.
Wednesbury Corpn.15 and Council of Civil
Service Unions v. Minister for Civil
Service16 norms, the punishment cannot be
quashed.
29. In Chairman-cum-Managing Director, Coal
India Limited and another v. Mukul Kumar
Choudhuri and others17, the Court, after
analyzing the doctrine of proportionality at
length, ruled thus: -
“19. The doctrine of proportionality is,
thus, well-recognised concept of judicial
review in our jurisprudence. What is
otherwise within the discretionary domain
and sole power of the decision-maker to
quantify punishment once the charge of
misconduct stands proved, such
discretionary power is exposed to judicial
intervention if exercised in a manner which
is out of proportion to the fault. Award of
punishment which is grossly in excess to
the allegations cannot claim immunity and
remains open for interference under
limited scope of judicial review.
15 (1948) 1 KB 223 : (1947) 2 All ER 680
16 1985 AC 374 : (1984) 3 All ER 935
17 (2009) 15 SCC 620
2
Page 27
20. One of the tests to be applied while
dealing with the question of quantum of
punishment would be: would any
reasonable employer have imposed such
punishment in like circumstances?
Obviously, a reasonable employer is
expected to take into consideration
measure, magnitude and degree of
misconduct and all other relevant
circumstances and exclude irrelevant
matters before imposing punishment.
21. In a case like the present one where
the misconduct of the delinquent was
unauthorized absence from duty for six
months but upon being charged of such
misconduct, he fairly admitted his guilt and
explained the reason for his absence by
stating that he did not have intention nor
desired to disobey the order of higher
authority or violate any of the Company’s
rules and regulations but the reason was
purely personal and beyond his control
and, as a matter of fact, he sent his
resignation which was not accepted, the
order of removal cannot be held to be
justified, since in our judgment, no
reasonable employer would have imposed
extreme punishment of removal in like
circumstances. The punishment is not only
unduly harsh but grossly in excess to the
allegations.”
30. After so stating the two-Judge Bench proceeded
to say that one of the tests to be applied while
dealing with the question of quantum of
punishment is whether any reasonable
employer would have imposed such punishment
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in like circumstances taking into consideration
the major, magnitude and degree of misconduct
and all other relevant circumstances after
excluding irrelevant matters before imposing
punishment. It is apt to note here that in the
said case the respondent had remained
unauthorisedly absent from duty for six months
and admitted his guilt and explained the
reasons for his absence by stating that he
neither had any intention nor desire to disobey
the order of superior authority or violated any of
the rules or regulations but the reason was
purely personal and beyond his control. Regard
being had to the obtaining factual matrix, the
Court interfered with the punishment on the
ground of proportionality. The facts in the
present case are quite different. As has been
seen from the analysis made by the High Court,
it has given emphasis on past misconduct of
absence and first time desertion and thereafter
proceeded to apply the doctrine of
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proportionality. The aforesaid approach is
obviously incorrect. It is telltale that the
respondent had remained absent for a
considerable length of time. He had exhibited
adamantine attitude in not responding to the
communications from the employer while he
was unauthorisedly absent. As it appears, he
has chosen his way, possibly nurturing the idea
that he can remain absent for any length of
time, apply for grant of leave at any time and
also knock at the doors of the court at his own
will. Learned counsel for the respondent has
endeavoured hard to impress upon us that he
had not been a habitual absentee. We really fail
to fathom the said submission when the
respondent had remained absent for almost one
year and seven months. The plea of absence of
“habitual absenteeism” is absolutely
unacceptable and, under the obtaining
circumstances, does not commend acceptation.
We are disposed to think that the respondent by
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remaining unauthorisedly absent for such a long
period with inadequate reason had not only
shown indiscipline but also made an attempt to
get away with it. Such a conduct is not
permissible and we are inclined to think that the
High Court has erroneously placed reliance on
the authorities where this Court had interfered
with the punishment. We have no shadow of
doubt that the doctrine of proportionality does
not get remotely attracted to such a case. The
punishment is definitely not shockingly
disproportionate.
31. Another aspect needs to be noted. The
respondent was a Junior Engineer. Regard
being had to his official position, it was expected
of him to maintain discipline, act with
responsibility, perform his duty with sincerity
and serve the institution with honesty. This kind
of conduct cannot be countenanced as it creates
a concavity in the work culture and ushers in
indiscipline in an organization. In this context,
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we may fruitfully quote a passage from
Government of India and another v.
George Philip18: -
“In a case involving overstay of leave and
absence from duty, granting six months’
time to join duty amounts to not only
giving premium to indiscipline but is wholly
subversive of the work culture in the
organization. Article 51-A(j) of the
Constitution lays down that it shall be the
duty of every citizen to strive towards
excellence in all spheres of individual and
collective activity so that the nation
constantly rises to higher levels of
endeavour and achievement. This cannot
be achieved unless the employees
maintain discipline and devotion to duty.
Courts should not pass such orders which
instead of achieving the underlying spirit
and objects of Part IV-A of the Constitution
have the tendency to negate or destroy
the same.”
32. We respectfully reiterate the said feeling and restate
with the hope that employees in any
organization should adhere to discipline for not
only achieving personal excellence but for
collective good of an organization. When we
say this, we may not be understood to have
stated that the employers should be harsh to
impose grave punishment on any misconduct.
18 (2006) 13 SCC 1
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An amiable atmosphere in an organization
develops the work culture and the employer and
the employees are expected to remember the
same as a precious value for systemic
development.
33. Judged on the anvil of the aforesaid premises,
the irresistible conclusion is that the
interference by the High Court with the
punishment is totally unwarranted and
unsustainable, and further the High Court was
wholly unjustified in entertaining the writ
petition after a lapse of four years. The result of
aforesaid analysis would entail overturning the
judgments and orders passed by the learned
single Judge and the Division Bench of the High
Court and, accordingly, we so do.
34. Consequently, the appeal is allowed and the
judgments and orders passed by the High Court
are set aside leaving the parties to bear their
respective costs.
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…………….……..…..J.
[H.L. Gokhale]
…………………….….J.
[Dipak Misra]
New Delhi;
February 10, 2014.
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