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Article 226 in The Constitution Of India 1949
Mr. C vs The Advocate-General Of Madras on 6 May, 1957

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Bombay High Court
Nagpur Bench : Nagpur vs District Nagpur on 25 January, 2012
Bench: P. B. Majmudar, A.P. Bhangale

1 WP 2965/01

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH : NAGPUR

Writ Petition No. 2965 of 2001

Petitioner : Shivdas son of Dodku Borkar, aged adult, occupation : nil, resident of Ward No. 1,

Chicholi, Khaparkheda, Tahsil Saoner,

District Nagpur

versus

Respondents : 1) The District and Sessions Judge, Nagpur 2) The Registrar, High Court (Appellate Side),

Mumbai-32

Mr I. S. Charlewar, Advocate for petitioner

Mr P. D. Kothari, AGP for respondent no. 1

Mr S. V. Manohar, Senior Advocate for respondent no.2

Coram : P. B. Majmudar & A. P. Bhangale, JJ

Dated : 24th January 2012

Oral Judgment (Per P. B. Majmudar, J)

1. By way of this petition, the petitioner, who was serving as a Junior Clerk and at the relevant time was attached to the Court of Civil 2 WP 2965/01

Judge, (Junior Division) & Judicial Magistrate, First Class, Narkhed, District Nagpur has challenged order of his removal from service dated 29.4.2000 in Departmental Enquiry No. 13/99 conducted by the District & Sessions Judge, Nagpur/Disciplinary Authority. The Administrative Appeal preferred by the petitioner was dismissed by the Appellate Authority and petitioner was informed accordingly by communication dated 28.8.2000 by the Additional Registrar to that effect, which is produced at page 80 (Annexure-G) on record.

2. The petitioner was initially appointed in July 1991 as a Junior Clerk in the Office of District & Sessions Judge, Chandrapur. The services of the petitioner were transferred to the establishment of the District & Sessions Judge, Nagpur by way of inter-district transfer in March 1999. The petitioner was thereafter posted in the Court of Civil Judge, JD & JMFC, Narkhed which is under the control of District and Sessions Judge, Nagpur. The petitioner took over the charge at the place of transfer on 11.5.1999. At the time when the petitioner was discharging his duties at the aforesaid place, he was subjected to the disciplinary proceedings in connection with the misconduct, which is alleged to have been committed by the petitioner at the relevant time. Petitioner was served with a Memorandum dated 4th August 1999 along with Articles of Charge as also relevant documents. Nine charges were framed against the petitioner which read as under:

3 WP 2965/01

"(1) That, as per office order dt. 31.7.91 you were appointed as Jr. Clerk in the office of District & Sessions Judge, Chandrapur. As per High Court Resolution No. C (F) 1006/1999 dated 17/3/1999 you were transferred from District Court Chandrapur to District Court Nagpur as an Inter District transfer arrangement. In view of the High Court Resolution, this office has issued an office order No. B-4 (1)/590/1999, dated 29th April 1999, and you have been appointed and posted in the Court of Civil Judge Jr. Dn., Narkhed as Suit Shirestedar in place of Shri K. B. Datir, Jr. Clerk. On 11/5/1999 you have taken over the charge of the post at Narkhed.

(2) The office time in the Nagpur Judicial District is from 10.30 A.M. To 5-30 P.M. You are well aware of it. It is the duty of all the subordinate officials to attend the office in time and take their seats sharply at 10-30 A.M. On 24/5/1999 Shri B. S. Mahajan, Civil Judge, Narkhed came on Dias at 11-00 A.M. You were not found on your seat. On enquiry he came to know that you were taking meal. At 11-15 A.M. You came in the Court and after signing left the Court hall without permission of the presiding officer. Due to such act on your part, it has caused inconvenience to the presiding officer in the Administration of Justice. This shows you have no respect to your superior officer which is a 4 WP 2965/01

serious misconduct, misbehaviour and insubordination.

(3) on 25/5/1999 the Presiding Officer of the Court was performing his Judicial work on Dias. At 1-15 P. M. you left the seat and went to the table of Shri Kumbhare, Jr. Clerk and there you took out a "Gutkha" pouch from your pocket, torn it with your teeth and eaten in presence of the Presiding Officer in Court Room. You are aware that chewing of "Pan" and "Gutkha" is prohibited in Court Room and any breach of it amounts to Contempt of Court and by such act you have committed serious misconduct, misbehaviour ad insubordination. The Presiding Officer issued a show cause notice for such misconduct. On 11/6/1999 you have submitted reply to the Show Cause Notice dated 15/5/1999 and 25/5/1999. In the said reply you have used threatening and insulting languages against the Presiding Officer. This shows that you have no regard and respect to the Court and Presiding Officer which amounts to serious misconduct, misbehaviour and insubordination.

(4) On 13/7/1999 the Presiding Officer of the Court issued a Circular directing all the officials to submit compliance report of Inspection Note on or before 17/7/1999. On 17/7/1999 you did not report the compliance of Inspection Note, hence the Presiding Officer issued an Office Order dated 17/7/1999 drecting you to 5 WP 2965/01

remain present in the office on 18/7/1999 (Sunday) for compliance of Inspection Note. This order was brought to your notice through the peon but you deliberately avoided to note it down. At 5-20 P the Presiding Officer called the staff .M.

members to give reminder about the compliance of Inspection Note to be done on 18/7/1999. The Presiding Officer noticed that you left the office without informing to anybody. Hence, the Presiding Officer issued a notice dated 19/7/1999. Thus, it shows that you have no regard to the orders of the Presiding Officer which amounts to disobediance of order carelessness, negligence, misconduct, misbehaviour and dereliction of duty.

(5) On 26/7/1999 you have made an application to the Presiding Officer for supply of Marathi transferred copy of notice dated 19/7/1999. You are aware that the language of the Court is English. The class III employees must know the language English. By letter dated 26/7/1999 you have tried to create obstacle in the Administration of office which amounts to serious misconduct and misbehaviour.

(6) You were working as Suit Shirestedar in the Court and it was your duty to keep all Civil matters before the Presiding Officer. On 26/7/1999 two Civil Suits were fixed for evidence of parties. The said Civil Suits were not on daily board and were 6 WP 2965/01

not put up before the Presiding Officer till 2-00 P.M. which has caused inconvenience and obstacle in the Administration of Justice which amounts to carelessness and negligence in your duties.

(7) On 30/7/1999 you had submitted explanation to the Show Cause Notices dated 19/7/99 and 29/7/99. In the said reply you have used insulting and threatening languages against the Presiding Officer which amounts to insubordination, serious misconduct and misbehaviour.

(8) On 30/7/1999 you have issued a notice in the name of Presiding Officer using insulting and threatening languages against him. This amounts to no regard to your superior officer, serious misconduct, misbehaviour and insubordination.

(9) On 30/7/1999 you have made an application to the Presiding Officer for supply of Almirah for keeping records. In the said application you have used insulting and threatening language against the Presiding Officer which amounts to no regard to your superior officer, serious misconduct, misbehaviour and insubordination".

3. After recording evidence and plea of the petitioner, the Enquiry Officer submitted a final report to the Disciplinary Authority. The Enquiry 7 WP 2965/01

Officer framed the following points and recorded his findings against each of them as under :

"POINTS FINDINGS

1. Whether it is proved that on 24.5.99 the delinquent was not found on his seat at 11 a.m. and he came in

the Court at 11.15 a.m. and after signing he left the

court hall without permission of the Presiding Officer ? .. Proved.

2. Whether it is further proved that on 25.5.99

at about 1.15 p.m. the delinquent took out a

Ghutaka pouch from his pocket, torn it with his

teeth and eaten the same in presence of Presiding

Officer in court room ? .. Proved

3. Whether it is proved that the delinquent used

threatening and insulting language against the

Presiding Officer in his reply dated 11.6.99 which

amounts to serious misconduct, misbehaviour and

insubordination ? .. Proved

4. Whether it is proved that the delinquent did not

report the compliance of the inspection note on

17.7.99 as per circular dated 13.7.99 and also

avoided to note the another office order dated 17.7.99

directing the staff to remain present on 18.7.99

and left the office on 17.7.99 before office hours

without informing to anybody ? .. Proved

5. Whether by giving application dated 26.7.99

given by the delinquent for supply of marathi

translation of notice dated 19.7.99 tried to create

obstacle in the administration of office ? .. Not proved

6. Whether it is proved that on 26.7.99 the delin-

quent failed to take two civil suits on board and

failed to put up before presiding officer till 2 p.m.

and it caused inconvenience and obstacle in the

administration of justice as alleged ? .. Not proved

7. Whether it is proved that in the explanation

dated 30.7.99 given by the delinquent, he used

8 WP 2965/01

insulting and threatening language against the

presiding officer which amounts to insubordination,

serious misconduct and misbehaviour ? .. Proved

8. Whether it is proved that the delinquent

used insulting and threatening language by issuing

notice dated 30.7.99 ? .. Proved

9. Whether it is proved that the delinquent

used insulting and threatening language against the

presiding officer in his application dated 30.7.99

in respect of supply of Almirah for keeping

records ? .. Proved 3A. On conclusion of the enquiry, the Enquiry Officer submitted his report to the Disciplinary Authority. The Enquiry Officer came to the conclusion that charge nos. 1 to 4 and 7 to 9 are proved, meaning thereby that charge nos. 5 and 6 were held not proved against the petitioner. The Disciplinary Authority, thereafter, after hearing the petitioner-delinquent, passed the impugned order by which the petitioner was removed from service. As pointed out earlier, the administrative appeal against the said order was also dismissed by the Appellate Authority.

4. Learned counsel for the petitioner submits that at the relevant time, the petitioner had put in more than nine years of service. At the relevant time, the petitioner was not in a proper frame of mind and the incident in question happened for the first time in his service career. He fairly submits that it cannot be said that it is a case of "no evidence" or that 9 WP 2965/01

the petitioner was denied the opportunity of being heard and defend his case. The Enquiry Officer after considering the documentary evidence on record and after considering the evidence of witnesses and more particularly, the evidence of concerned Judicial Officer Mr B.S. Mahajan came to the conclusion that except charge nos. 5 and 6, rest of the charges are proved. As regards chewing of ghutka, the Enquiry Officer has observed in his report that the petitioner has not denied, in his reply, as to taking out pouch of ghutka and eating it in the Court hall in presence of the Presiding Officer. The presiding Judge Mr Mahajan also gave a notice to the petitioner on 10.6.1999. The allegation against the petitioner was that during court hours, he took out ghutka pouch from his pocket, tore it by his teeth and ate it and not only the Presiding Officer, but the concerned bench clerk also noticed the incident. As regards subsequent charge about non- compliance of the inspection note is concerned, the Enquiry Officer has found that the said fact has been established on record. The Enquiry Officer has found that the Presiding Officer Mr Mahajan had issued a circular dated 13.7.1999 directing all the staff members to comply with the inspection note by 17.7.1999. This fact is admitted by the petitioner in his Written Statement. Moreover, petitioner was a signatory to the said circular. The defence of the petitioner is that there was no work pending compliance of inspection note on his table. Presiding Officer Mr Mahajan stated before the Enquiry Officer that when he called all the staff members 10 WP 2965/01

in his chamber at about 05.20 pm, however, the petitioner did not come and it was reported to him that petitioner had left the office. The Enquiry Officer observed in his report that the petitioner did not deny leaving office early, but it was his defence that he left the office early, because his father was admitted in the hospital at Nagpur and he left the office after informing the Assistant Superintendent. The Enquiry Officer has further observed in his report that the Presiding Officer had issued circular dated 17.7.1999 (exhibit 22) and petitioner was aware of the same, but he refused to sign the circular. Learned counsel for the petitioner contends that there was no necessity for the petitioner to sign the circular and attend the office on Sunday since there was no compliance of inspection note to be made by the petitioner as far as work on his table was concerned. The Enquiry Officer also observed that he had full sympathy about the family problems of the petitioner, but the petitioner could have apprised the Presiding Officer of the ailment of his father and brother. However, since the petitioner did not do so, the Enquiry Officer found that it amounted to dereliction and disobediance of duty. Learned counsel for the petitioner contends that it was at the most a carelessness or negligence and not the disobediance or dereliction of duty.

As regards Articles 7, 8 and 9 of the charges, it is alleged that in his explanation and notice dated 30.7.1999, petitioner used insulting and threatening language against the Presiding Officer. Petitioner in his 11 WP 2965/01

reply alleged that the Presiding Officer was pressurising him since he did not work at his residence. He further threatened that the Presiding Officer should not disturb his mental balance. Learned counsel for the petitioner contends that what the Presiding Officer could have instructed orally, was given in writing in the form of notice and, therefore, petitioner was compelled to give such reply and notice. He submits that even though the language used by the petitioner could not be justified, the finding of the Enquiry Officer that it amounted to misbehaviour, misconduct and insubordination was not proper. Learned counsel further submits that on 30.7.1999 petitioner submitted an application (exhibit 30) for supplying almirah to him for keeping the disposed of cases. He submits that words used by the petitioner that he should not be held responsible if some cases go missing in absence of almirah (cupboard) should not have been viewed as misbehaviour or serious misconduct, as has been done by the Enquiry Officer. Learned counsel further submits that the Enquiry Officer has appreciated that an employee is within his right to place demand for additional cupboard if the one provided to him is insufficient to accommodate all the cases at his disposal.

5. Since on the basis of evidence on record the Enquiry Officer has found that particular charges against the petitioner are proved, in our view, it is not open to High Court in writ jurisdiction under Article 226 of 12 WP 2965/01

the Constitution of India to examine findings recorded by the Enquiry Officer as a court of appeal and reach to its conclusions. Even on perusal of the report of Enquiry Officer and material placed on record, it cannot be held that the findings are perverse or based on "no evidence". The Disciplinary Authority, in our view, has not committed any error in agreeing with the findings reached by the Enquiry Officer so far as proving the charges against the petitioner-delinquent is concerned. As pointed out earlier, learned counsel for the petitioner also has not argued that it is a case based on no evidence.

6. Learned counsel for the petitioner contends that at the relevant time, petitioner's father was seriously ill as he was suffering from kidney ailment and that the petitioner was not in a proper state of mind and, therefore, he left the office early after informing the Assistant Superintendent about leaving the office early. It is further submitted that it was no doubt a mistake on the part of the petitioner to leave the office early without informing the Presiding Officer. He submits that it has not come on record that leaving office early was a regular feature as far as petitioner is concerned. He further submits that even if the factum of chewing ghutka in the court hall, though the petitioner has denied the allegation, is said to have been proved, it was also a solitary incident in the service career of the petitioner and there was no complaint against him in 13 WP 2965/01

the past that he used to eat or chew pan ghutka or tobacco in the office. Regarding writing a letter to the Presiding Officer stating that he was exerting pressure on him and that he was disturbing his mind set, learned counsel submits that it was only because of serious ailments of his father and brother and since the petitioner was totally disturbed. As regards provision for almirah to keep the files, learned counsel submits that the petitioner merely raised a grievance that if any record is lost in future, he should not be held responsible since there was no adequate space available with him.. He submits that it cannot be said to be a misconduct. Learned counsel also submits that subsequently, petitioner's father died and because of disturbed family circumstances, the unfortunate incidents happened. It is argued by learned counsel for the petitioner that the penalty of removal from service is on higher side and it is required to be reduced suitably.

7. Mr S.V Manohar, learned Senior Advocate for High Court .

administration, in his turn, submits that charges levelled against the petitioner are proved on the basis of evidence on record. It is submitted that it is true that prior to the said incident, petitioner had put in nine years of service in earlier district from where he was transferred to Nagpur district vide order dated 17.3.1999 and within a short period the incidents happened. It is submitted by Mr Manohar that it is no doubt true that there is nothing on record to show that the petitioner was habitual of 14 WP 2965/01

chewing pan ghutka. Learned Senior Advocate further submits that since the petitioner was serving as a Clerk in the Judiciary, his conduct should have been more exemplary and he should have worked carefully and was required to show respect towards his superiors and colleagues. Learned Advocate further submits that it may be true that because of circumstances prevailing in the family, petitioner might have been disturbed mentally on the relevant day, but when misconduct is proved on evidence, the findings given by the Enquiry Officer are not required to be disturbed by this Court. Mr Manohar submits that whether the penalty is disproportionate or not, is a question to be decided by the Court in the light of the facts of each case. Learned counsel submits that since the petitioner was serving as a Clerk in the Court, it was all the while expected that he should not indulge into an act of chewing ghutka in the court hall and indulge into misbehaviour, misconduct or insubordination. He submits that if the petitioner wanted to leave the Court earlier, he should have informed the Presiding Officer instead of leaving the court by informing his colleague. It is submitted that ultimately it is for the Court to consider as to whether the penalty inflicted on the delinquent is just and proper or whether it is shockingly disproportionate. He submitted that in case. this Court comes to a conclusion that the penalty inflicted can be said to be on higher side as compared to the alleged misconduct which is proved, the Court may, if so desired, pass appropriate orders, but in such eventuality, no order of 15 WP 2965/01

back-wages should be passed by this Court. Though learned Senior Advocate submits that the question about adequacy of penalty depends upon the facts of each case, according to him, since the petitioner was working in the Court at the relevant time, he had not shown proper diligence and he had not maintained decorum in the court by chewing ghutka in the Court and, therefore, no relief as prayed for, should be granted to him.

8. We have heard learned counsel for the parties on the question of punishment awarded to the petitioner by the Disciplinary Authority. As pointed out earlier, so far as the report of the Enquiry Officer is concerned, in our view, the Disciplinary Authority has rightly accepted the same, as from the evidence on record, charges levelled against the petitioner can be said to have been proved and it can never be said that it is a case of "no evidence". We have to consider the question as to the adequacy of punishment. The only question to be considered is, whether punishment awarded is adequate or it is disproportionate to the charges proved.

9. It is no doubt true that normally in writ jurisdiction under Article 226 of the Constitution of India this Court may not interfere with the award of punishment inflicted by the Disciplinary Authority unless the punishment awarded is shockingly disproportionate or that looking to the 16 WP 2965/01

misconducts, which are proved, such punishment is not warranted. In a given case, if the Court comes to a conclusion that the penalty awarded is not justified on the ground that it is shockingly disproportionate, the Court may interfere with such punishment either by remanding the matter back to the Disciplinary Authority to reconsider the same or may substitute the same. The last course is required to be adopted in exceptional cases where the circumstances so exist. In order to examine this aspect about punishment, the charges levelled against the petitioner, which are proved, are required to be considered.

10. So far as first charge, which is proved against the petitioner is concerned, the same is in connection with reporting late on duty on the relevant day. As per the said charge, the petitioner was required to take his seat sharply by 10.30 am. On the relevant date i.e. on 24.5.1999, petitioner was not found in his seat at 11.00 am when the Presiding Officer came on dias and on enquiry it was noticed that petitioner was taking meals. Petitioner then came to his seat at 11.15 am, meaning thereby, he was late by 45 minutes. So far as this charge is concerned, no doubt, it is proved against the petitioner. Learned counsel for the petitioner submits that father of the petitioner was admitted in the hospital at Nagpur for kidney problem and the Court where he was working at Narkhed is 90 kms away from Nagpur and, therefore, petitioner was late to 17 WP 2965/01

the office on the said date and since he was hungry, before occupying chair, he ate some food. It is fairly submitted by the learned senior counsel for respondent no. 2 that there is no past history that the petitioner was attending the office late and this seems to be a solitary incident. So far as next charge relating to chewing of ghutka is concerned, it is no doubt true that the petitioner was not supposed to chew ghutka during office hours, but it is required to be noted that at the relevant time, petitioner had put in more than nine years of service and except the incident of chewing ghutka on the relevant day, which was only once during the entire day, there is nothing to show that he used to chew ghutka in the court hall regularly or even occasionally. Even though he was found chewing ghutka only once, still it is a misconduct, but it has to be seen whether that by itself would be such a misconduct by which the petitioner is required to be sent home after putting in service of about ten years. It is unfortunate that there is tendency in the service class to have pan masala, tobacco, ghutka or to have coffee or tea during the office hours which conduct is required to be deprecated. The employees must learn that during office hours, they have to give hundred percent work, but it is unfortunate that even during office hours Government servants are found taking tea, coffee, pan, pan masala etc. Such practice is required to be deprecated for which strict action needs to be taken and corrective measures are necessary to be adopted with the object that they do not repeat such things in future. 18 WP 2965/01

Regarding writing letters in insulting and threatening language, it is the say of the petitioner's Advocate that petitioner was mentally disturbed that he wrote that he will have to take appropriate proceedings, civil or criminal. This, of course, was misconduct which was nearer to serious misconduct. But, ultimately, the question which is required to be considered is, what had prompted petitioner-delinquent to write such a letter and whether he was aware of the consequences in this behalf. If, in a given case, on the relevant day the person is mentally disturbed and without understanding the consequences if something is written, it may be treated as misconduct, but whether extreme view in the matter of punishment should be taken, is to be seen. Regarding circular dated 17.7.1999 which the petitioner refused to sign and failed to attend the office on 18.7.1999 (Sunday) to report compliance of inspection note, it is alleged that the petitioner left the office by informing his colleague and without informing the Presiding Officer, petitioner submitted explanation that there was no compliance to be done on his part and, therefore, he did not sign the circular and did not attend the office on Sunday. Regarding writing of threatening letters is concerned, in one letter, petitioner has stated that due to 5-6 notices, his mental condition may get disturbed and, therefore, he may take civil or criminal action against the Presiding Officer. In another letter, he writes that if no additional cupboard is supplied to him to keep the cases, he will not be responsible for loss of any case. It is no doubt true that the 19 WP 2965/01

language of both the letters was such that it amounted to insubordination and misconduct. However, considering the aforesaid charges which are proved regarding writing of the letters as well as chewing ghutka and reaching late by 45 minutes on the relevant day once in entire service record upto the date of incident, it cannot be said to be such a serious misconduct so as to remove the petitioner from service.

11. So far as inflicting appropriate punishment is concerned, the said aspect is required to be considered in a scientific manner. In a given case if it is not possible to retain a person in service, then there is no option but to remove such element e.g. in a case where the delinquent is found to have indulged in corruption, financial misdeeds, criminal activity, immoral conduct. In such cases, even a single or solitary act is adequate enough to remove such delinquent from service as retaining such employee in service would be against the interest of administration. However, in a case where reformation in the attitude or improvement in conduct is possible and if there is no likelihood of repetition of misconduct in future, the Disciplinary Authority is required to find out as to whether any other punishment than the removal or dismissal from service is possible. At this stage, it is required to be noted that in the Statement of Delinquent recorded by the Enquiry Officer, petitioner-delinquent answered question no. 32, viz. "Do you want to say anything more ?" as under: "I was facing some household difficulties. My brother was Cancer 20 WP 2965/01

Patient and my father was suffering Kidney problem. I am being elder one in my family, the entire responsibility is on me. Due to their treatment I was financially pressurise. I lost my mental balance due to frequent notices issued by the Presiding Officer and hence I given notice to the Presiding Officer. I was not having any intention to take action against the Presiding Officer. However, only with a view to stop this thing hence, I had issued notice to the Presiding Officer. If any mistake committed by me then I may be pardon".

12. It is not in dispute that during the relevant period, petitioner's father was seriously ill as he was suffering from kidney problem to which he succumbed later on, as pointed out to us, and the petitioner was required to attend the duties 90 kms away from Nagpur where his father was admitted in a hospital. If the petitioner attended the duty late by 45 minutes on a relevant day and that too after taking food, in our view is a misconduct, but it is not such type of serious or grave misconduct which justifies removal order, as prior to that the petitioner had already served for about nine years and was not having any bad record and his service record was unblemished. As argued by learned counsel for the petitioner, after inter-district transfer of the petitioner that unfortunately for the first time the incident in question happed at the place of transfer. As regards 21 WP 2965/01

chewing of ghutka is concerned, it is no doubt a misconduct, but since it is established that it happened only once in the service career of the petitioner and that too on the relevant day only once he was found chewing ghutka, in our view, the said misconduct of the petitioner is not such a serious one by which one chance could not have been given to him for improvement of his character. Writing of a letter by which petitioner allegedly threatened the Presiding Officer that he will file criminal and civil proceedings against him, was out of frustration because of the earlier incident. Writing letter to the Presiding Officer to arrange for additional almirah and he will not be responsible for loss of any case, is not such a serious insubordination on the part of the petitioner which justified extreme punishment of removal from service. There are various punishments provided in the Disciplinary and Appeal Rules. Removal from service is an extreme penalty and before inflicting such a punishment, the Disciplinary Authority is required to examine as to whether any lesser punishment can be inflicted considering the misconduct of an employee. If there are chances of reformation and improvement in conduct, one chance can be given to the employee. Punishment of removal or dismissal, in a given case, may affect the entire family members of the employee as the family members will also be put to ruinous financial condition. If the delinquent has school or college going children, their education is bound to be affected. If the delinquent has marriageable daughter, because of 22 WP 2965/01

ruinous financial condition, he may have to face problems. Though, of course, this may not be the sole criteria for deciding the question of punishment, but, at least these factors are required to be kept in mind as, in a given case, the entire life of not only the delinquent but his family members is likely to be disturbed.

13. Considering the charges levelled against the petitioner and misconduct proved, punishment of removal, in our view, is on excessive side and it can be said to be nearer to the aspect of "shockingly disproportionate punishment", as it is not a case where, after giving appropriate punishment, one chance should not be given to the petitioner to find out whether he has improved himself or not. It is required to be noted that punishment should neither be too lenient nor severe and it should be as per misconduct proved. Punishment should be such that it deserves to be inflicted on the basis of misconduct of a particular nature.

14. In Chairman-cum-MD, CIL & anr v. Mukul and ors reported in (2009) 15 SCC 620, the Supreme Court has dealt with the aspect of punishment after considering various judgments on the question, and in paragraphs 19, 20 and 21 it is observed thus :

"19. The doctrine of proportionality is, thus, well-recognised 23 WP 2965/01

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 matter 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.

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 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 unauthorised absence from duty for six months but upon being charged of such misconduct, he fairly admitted his guilt and explained the reasons of his absence by stating that he did not have any 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 24 WP 2965/01

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".

15. In this case also, we find that the punishment of removal from service is unduly harsh. A 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. So far as misconduct in the present case is concerned, considering the past service record and considering the fact that there is nothing to suggest that the petitioner is likely to repeat the same, in our considered view, one chance should be given to the petitioner. Learned counsel for the petitioner has frankly stated that in case reinstatement order is passed, petitioner is giving up his claim for back-wages for entire period. Affidavit of the petitioner is also filed today to that effect. In the said affidavit petitioner has stated that at the relevant time he was mentally disturbed as his father was suffering from kidney ailment and his brother was suffering from cancer. He has realized his mistake and has tendered apology to the Presiding Officer. Petitioner has expressed regrets. Petitioner is present in 25 WP 2965/01

the Court and in the affidavit, he has also undertaken to behave properly with staff and superiors in future. Affidavit is taken on record copy of which may be given to the counsel for respondents.

16. In the result, we partly allow the petition. We substitute the penalty of removal of petitioner from service by permanently withholding two annual increments of the petitioner with future effect. Petitioner will not be entitled to claim any back-wages during the period he was out of employment. Orders passed by the Disciplinary Authority and Appellate Authority are set aside. Petitioner shall be reinstated in service within a period of one month from today. Rule is made absolute accordingly with no order as to costs.

A. P. BHANGALE, J P. B. MAJMUDAR, J joshi