Ambika Prasad Singh Vs Union of India and Ors.

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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 ORDINARY ORIGINAL CIVIL JURISDICTION

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 WRIT PETITION NO.2349 OF 2005

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 Ambika Prasad, s/o Sher Bahadur
 Singh .. Petitioner
 Vs.

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 Union of India & Ors. .. Respondents

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 Mr.K.R.Tiwari for the petitioners

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 Mr.T.J.Pandian for respondent nos.1 to 5

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 CORAM : J.N.PATEL &
 K.K.TATED, JJ.

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DATED : 25TH AUGUST, 2008

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 P.C.:

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 1. Heard the learned counsel for the parties.

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 2. The petitioner has approached this court
 after knocking the court of justice at different
 forums challenging the punishment and dismissal
 imposed upon him in a disciplinary enquiry
 conducted by the respondent employer. The
 petitioner came to be appointed as a Constable in
 the Railway Protection Force (RPF) under Badge

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 No.587 in the Central Railway and was posted in
 Bombay on 29.09.1984. In April, 1991 while the
 petitioner was working in the RPF at Byculla, he
 received an intimation from his native place in
 Uttar Pradesh that his wife was seriously ill and,
 therefore, the petitioner applied for leave and got
 sanction from 07.04.91 to 12.04.91 and went to his
 native place to attend to his wife.

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 3. It is the case of the petitioner that his
 wife was seriously ill and required continuous
 treatment and medication and no one else was there
 to look after her, his two children being small and
 widowed mother being old, the petitioner had to
 overstay beyond his 6 days leave which was informed
 to the respondents. Though the respondents
 acknowledged receipt of the petitioner’s letter
 dated 15.04.91, the petitioner availed of the leave
 beyond the sanctioned limit under the impression
 that his request would be considered as he has sent
 a medical certificate in support of his application
 for extension of leave.

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 4. It is the case of the petitioner that on

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 25.05.91 rather than considering his case for

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 extension of leave, the respondent charge sheeted
 the petitioner and one K.P.Singh was appointed as
 Enquiry Officer. The Divisional Security
 Commissioner by his order dated 16.07.91 removed
 the petitioner from service with immediate effect
 as per the punishment recommended by the Enquiry
 Officer. The petitioner preferred an appeal
 against the said order of dismissal on 11.09.91 but
 he did not get any response. Therefore, he moved
 the Allahabad High Court by filing a Writ Petition
 in the year 1993. On 22.05.93, the Allahabad High
 Court disposed of the Writ Petition with a
 direction to the respondents to dispose of the
 appeal of the petitioner within a period of one
 month. Pursuant to the said writ of mandamus
 issued by the Allahabad High Court, the respondent
 no.5 Asst.Security Commissioner passed an order
 rejecting the appeal holding that it was time
 barred. The petitioner was again required to move
 the Allahabad High Court by filing Writ Petition
 No.39741 of 1993 but it was turned down by order
 dated 18.03.05 on the ground of jurisdiction and
 this is how the petitioner on being advised

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 approached this court by filing this petition.

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 5. The short issue which arise for our
 consideration after the completion of the pleadings
 and hearing the learned counsel for the parties in
 the matter is whether the punishment imposed on the
 petitioner was shockingly disproportionate.

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 6. In our opinion, the case of the petitioner
 can be considered to be an exception taking into
 account the misconduct for which he was charged and
 the fact that the petitioner did not contest the
 disciplinary proceedings initiated against him
 which led to the passing of the impugned order of
 dismissal. The petitioner was charge-sheeted for
 "unauthorised overstay with effect from 13.04.91
 till date in continuation of 6 days APL from 7.4.91
 to 12.4.91." We find that though the petitioner has
 not offered any explanation as to why he failed to
 defend himself during the enquiry it appears that
 the petitioner was deprived proper advise in the
 matter, otherwise there was no reason why the
 petitioner could not have participated in the
 departmental enquiry. This resulted in passing of

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 the order dated 16.7.91 by the Divisional Security
 Commissioner, Bombay V.T. who ordered his removal
 from service with immediate effect.

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 7. Even the appellate authority concurred with
 the order as the petitioner failed to turn up and
 defend himself during the enquiry and therefore,
 there was no reason to exonerate him of the charge
 of unauthorised overstay in continuation of 6 days
 APL taking into consideration that the unauthorised
 overstay was not substantial so as to invite the
 maximum penalty of dismissal and particularly in
 the background when the petitioner for reasons best
 known to him could not participate in the
 departmental proceedings, it was not fair and
 reasonable to impose such harsh punishment. The
 respondents have not placed before the court any
 previous record of the petitioner which could go to
 show that the petitioner is in the habit of
 overstaying his leave or has a previous record to
 his discredit which goes to justify his
 discontinuation in service.

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 8. After taking into consideration the fact

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 situation and the well settled principle of service

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 jurisprudence, while imposing punishment, the
 factors which should be kept in mind by the
 Disciplinary authorities can be summed up as under:

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 i. In a disciplinary proceeding for an
 alleged fault of an employee, punishment is
 imposed, not in order to seek retribution
 or to give vent to feeling of wrath.

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 ii. The main purpose of a punishment is to
 correct the fault of the employee concerned
 by making him more alert in the future and
 to hold out a warning to the other
 employees to be careful in the discharge of
 their duties so that they do not expose
 themselves to similar punishment. And the
 approach to be made is the approach parents
 make towards an erring or misguided child.

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 iii. It is not expedient in the interest
 of the administration to visit every
 employee against whom a fault is

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 established with the penalty of dismissal
 and to get rid of him. It would be counter
 productive to do so for it would be futile
 to expect to recruit employees who are so
 perfect that they would never commit any
 fault.

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 iv. When different categories of penalties
 can be imposed in respect of the alleged
 fault, one of which is dismissal from
 service, the disciplinary authority
 perforce is required to consult itself for
 selecting the most appropriate penalty from
 out of the range of penalties available
 that can be imposed, having regard to the
 nature, content and gravity of default.
 Unless the disciplinary authority reaches
 the conclusion that having regard to the
 nature, content and magnitude of the fault
 committed by the employee concerned it
 would be absolutely unsafe to retain him in

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 the service, the maximum penalty of

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 dismissal cannot be imposed.

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 v. It cannot be overlooked that by and
 large it is because the maximum penalty is
 imposed and total ruination stares one in
 the eyes that the employee concerned is
 obliged to approach the Court and avail of
 the costly and time-consuming machinery to
 challenge in desperation, the order passed
 by the disciplinary authority. If a lesser
 penalty was imposed, he might not have been
 obliged to take recourse to costly legal
 proceedings which result in loss of public
 time and also result in considerable
 hardship and misery to the employee
 concerned.

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 vi. Every harsh order of removal from
 service creates bitterness and arouses a
 feeling of antagonism in the collective

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 mind of the workers and gives rise to a
 feeling of class conflict. It does more
 harm than good to the employer as also to
 the society.

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 9. In the aforesaid circumstances, this court
 thought it proper that the matter can be
 sympathetically considered in the case of the
 petitioner. The learned standing counsel for the
 Union of India Mr.T.J.Pandian was kind enough to
 convey the feelings of this court to the
 authorities and we record our appreciation for the
 positive approach made by the authority in the
 matter and they have communicated to Mr.Pandian by
 their letter dated 20.08.08 that the matter can be
 worked out and the office of the Chief Security
 Commissioner has conveyed that they have accepted
 the suggestion of this court as indicated in his
 letter under reference but requested that
 Honourable High Court may be asked to direct
 petitioner to undergo his initial training once

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 again, so that he can function effectively. The
 copy of the said communication dated 20.08.08
 received by Mr.T.J.Pandian is taken on record and
 marked ’X’ for identification and has been read as
 part of the record and proceeding of the case.

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 10. We also feel that due to a gap in service,
 it will be in the interest of the petitioner to
 undergo his initial training programme so that he
 can be useful in the force and that his present age
 shall be taken into consideration for initial
 training as the petitioner is not expected to
 perform like new recruits and the training is a
 formality for preparing him to discharge his duties
 properly.

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 11. We therefore, accept the statement made by
 the learned standing counsel of the respondent on
 instruction of the respondent that the petitioner
 will be taken back in service in the same level as
 constable and in such an event, the petitioner will

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 not be given any back wages or any other benefits
 except that the period from the date of dismissal
 till reinstatement would be taken into account for
 the purpose of pensionery benefits only.

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 12. In view of this, we direct the petitioner to
 report for duty to the Sr.Divisional Security
 Commissioner, RPF CST, Mumbai on 01.09.2008.

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 13. Petition is disposed of accordingly with no
 order as to costs.

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 ( J.N. PATEL, J )

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 ( K.K. TATED, J )

Ambika Prasad Singh v. Union of India and Ors.

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Ambika Prasad Singh v. Union of India and Ors.

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