Sri C Ramesh Vs M/S Hindustan Aeronautics Limited

PRESENTLY R/AT NO.101, MARS RESIDENCY, SECOND FLOOR, PATEL MARAPPA LAYOUT, ELLAMMA TEMPLE STREET, NEAR GANESHA TEMPLE, S.G.PALYA, C.V.RAMAN NAGAR POST, BENGALURU – 560 093.

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(BY SMT. S. MUBARAK BEGUM, ADVOCATE)

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…PETITIONER

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AND:

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M/S HINDUSTAN AERONAUTICS LIMITED, (A GOVERNMENT OF INDIA UNDERTAKING) REP. BY ITS CHAIRMAN AND MANAGING DIRECTOR, HAVING ITS CORPORATE OFFICE AT NO.1, RAJ BHAVAN ROAD, BENGALURU – 560 001.

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THE GENERAL MANAGER (O) AND DISCIPLINARY AUTHORITY

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M/S HINDUSTAN AERONAUTICS LIMITED, BENGALURU COMPLEX, BENGALURU – 560 017.

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THE CHIEF EXECUTIVE OFFICER (BC) AND APPELLATE AUTHORITY M/S HINDUSTAN AERONAUTICS LIMITED, BENGALURU COMPLEX, BENGALURU – 560 017.

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THE EXECUTIVE DIRECTOR (ENGINES AND IMGT DIVISION) ENGINES DIVISION, HAL (BC) M/S HINDUSTAN AERONAUTICS LIMITED, BENGALURU COMPLEX, BENGALURU – 560 093

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HEAD OF HR DEPARTMENT (IMGT DIVISION) M/S HINDUSTAN AERONAUTICS LIMITED, BENGALURU COMPLEX, BENGALURU – 560 093

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THE CHIEF OF PROJECTS (IMGT DIVISION) M/S HINDUSTAN AERONAUTICS LIMITED, BENGALURU COMPLEX, BENGALURU – 560 093

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…RESPONDENTS

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(BY SRI. PRADEEP S. SAWKAR, ADVOCATE)

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THIS W.P. IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO QUASHING THE REVISED ORDER OF PUNISHMENT NO. O/HR/532(A)/1602/2021, DATED 25/09/2021 PASSED BY THE GENERAL MANAGER (O) AND DISCIPLINARY AUTHORITY (R-2) ORIGINAL OF WHICH IS PRODUCED AS ANNEXURE-E AND ORDER NO. CEO(BC)/A26/179/2022, DATED 30/11/2022 PASSED BY THE CHIEF EXECUTIVE OFFICER (BC), AND APPELLATE AUTHORITY (R-3) ORIGINAL OF WHICH IS PRODUCED AS ANNEXURE-K AS BOTH THESE ORDERS ARE ILLEGAL, ARBITRARY AND OPPOSED TO THE PRINCIPLES OF NATURAL JUSTICE AND ETC.,

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

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ORAL ORDER

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In this petition, petitioner seeks the following reliefs:

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“a. Issue a writ of certiorari or any other appropriate writ or order or direction “quashing” the Revised Order of Punishment No.O/HR/532(a)/1602/2021, dated 25.09.2021 passed by the General Manager (O) & Disciplinary Authority (Respondent No.2), original of which is produced as Annexure – E and Order No.CEO(BC)/A-26/179/2022, dated 30.11.2022 passed by the Chief Executive Officer (BC) & Appellate Authority (Respondent No.3), original of which is produced as Annexure – K as both these orders are illegal, arbitrary and opposed to the principles of natural justice;

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b. Issue a writ of Mandamus or any other appropriate writ or order or direction directing the HAL – respondents to “grant full Backwages” for the period from 30.12.2016 to 23.09.2021 and “regularize the leave period” with continuity of service and all other consequential benefits including seniority, promotion which he would be entitled to on quashing the Revised Order of Punishment No.O/HR/532(a)/1602/2021, dated 25.09.2021 passed by the General Manager (O) & Disciplinary Authority

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(Respondent No.2), original of which is produced at Annexure – E and Order No.CEO(BC)/A-26/179/2022, dated 30.11.2022 passed by the Chief Executive Officer (BC) & Appellate Authority (Respondent No.3) which is produced at Annexure – K.

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c. Direct the HAL to provide him year-wise PF statement showing the opening balance at the beginning of the period, amount contributed during the year, the total amount of interest credited at the end of the period and the closing balance at the end of the period standing to his credit right from 2007 to till date;

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d. Direct HAL to provide year-wise break-up details to the petitioner about his contribution made and also total amount standing to his credit in HAL Employee Pension Scheme as well as in LIC Pension (Defined Contribution Pension Scheme for Officer) right from 2007 to till date; and

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e. Pass such other order or orders as this Hon’ble Court may deem fit to grant on the facts and circumstances of the case including the costs of these proceedings, in the interest of justice and equity.”

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2. Heard learned counsel for the petitioner and learned counsel for the respondent and perused the material on record.

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A perusal of the material on record will indicate that the petitioner joined the services of Hindustan Aeronautics Limited in Research and Design Division as Engineer, Grade – II in Bangalore for about 1 year 6 months. Subsequently, the petitioner having been dismissed from service, the petitioner preferred W.P.No.43283/2017 which was allowed by this Court in part by invoking/applying the doctrine of proportionality and by setting aside the order of dismissal and remitting the matter back to the respondent - HAL for reconsideration of the penalty of dismissal from service by imposition of any lesser penalty upon the petitioner within a stipulated period of three months and that all consequential benefits would flow from the quashing of the order of penalty shall be subject to further orders to be passed by the Disciplinary Authority. The said order passed by this Court in W.P.No.43283/2017 is as under:

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“The petitioner in this writ petition has called in question the order of dismissal dated 30.12.2016, passed by the respondents - Hindustan Aeronautics Limited (hereinafter referred to as ‘HAL’ for short) dismissing the petitioner from service on the allegations of unauthorized absence and the order of the Appellate Authority dated 06.07.2017, affirming the order of dismissal.

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2. Brief facts of the case leading to the filing of the writ petition, borne out from the pleadings are as follows:-

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The petitioner joined the services of the HAL in Research and Design Division as Engineer, Grade – II and worked at the Division located in Bengaluru for about one year and six months. During his service at Bengaluru, the petitioner developed serious health issues and got affected with chronic bronchitis and asthma. The problem of the petitioner was attributed to the weather of the City of Bengaluru.

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3. The petitioner submitted a representation to the respondents - HAL to transfer him to the Detachment Air Force Station at Tambaram, Chennai. The request was acceded to and the petitioner was transferred to Chennai in the month of July, 2008 and worked in the same cadre upto 07.05.2015. During his tenure at Chennai, the petitioner was issued with a charge sheet dated 15.02.2012, alleging unauthorised absence for 53 days which culminated in imposition of penalty of censure. After which, again on the misconduct of the unauthorized absence, another charge sheet was issued on 10.03.2015, which culminated in imposition of penalty of stoppage of one increment with cumulative effect. Appeal filed challenging the aforesaid penalties were also rejected.

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4. It is after these proceedings, the petitioner was again posted back to Bengaluru. At Bengaluru, the petitioner

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again remained unauthorisedly absent for about 103 days, which lead to issuance of another charge sheet dated 30.01.2016, which culminated in imposition of a penalty of dismissal from service in terms of the order of the Disciplinary Authority dated 30.12.2016. The appeal filed by the petitioner against the said order also came to be dismissed. It is these orders that are called in question by the petitioner in the subject writ petition.

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5. Heard Sri Subba Rao, learned senior counsel for Sri Satheesha N., learned counsel for petitioner and Sri Syed Kashif Ali, learned counsel for the second respondent.

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6. Learned senior counsel appearing for the petitioner would submit that the unauthorized absence of the petitioner was on account of severe bronchitis that was brought about due to weather conditions prevailing in the City of Bengaluru and with regard to certain periods of unauthorized absence from the workplace at Tambaram, Chennai and he has justified the same with adequate medical certificates.

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7. He would contend that unauthorised absence that led to imposition of dismissal from service was on account of severe bronchitis again which cannot by any stretch of imagination said to be willful. Unless the misconduct is said to be willful, it cannot result in extreme penalty of dismissal from service. The learned senior counsel would place reliance upon the judgments of the Apex Court in the cases of COAL INDIA LTD. V. MUKUL KUMAR CHOUDHURI reported in (2009) 15 SCC 620 and KRUSHNAKANT B.

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PARMAR V. UNION OF INDIA reported in (2012) 3 SCC 178 .

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8. On the other hand, learned counsel for the second respondents would vehemently argue and contend that the petitioner has been in the habit of remaining unauthorisedly absent right from the date of his employment. The assessment of the doctor that the petitioner should seek transfer to some other place other than Bengaluru was of the year 2008 and the same cannot be pressed into service in the year 2015. He would place reliance upon the judgments of the Apex Court in the cases of NORTH-EASTERN KARNATAKA RT CORPN. VS. ASHAPPA reported in (2006) 5 SCC 137, UNION OF INDIA AND OTHERS VS. BISHAMBER DAS DOGRA reported in (2009) 13 SCC 102 and UNION OF INDIA VS. P. GUNASEKARAN reported in (2015) 2 SCC 610 and submits that misconduct of unauthorized absence cannot be pardoned and the dismissal is the only penalty that can be imposed upon for such unauthorised absence.

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9. I have given my anxious consideration to the rival submission made by the learned counsel for the parties and perused the material on record.

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10. The petitioner joined the services of the respondents – HAL as Engineer, Grade II in Research and Design Division at Bengaluru, in the year 2007. While working at Bengaluru, the problem of asthma which the petitioner was suffering became chronic and began to remain absent on account of asthma. The petitioner was examined

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by the doctor of the HAL Hospital and on such examination, the doctor advised the petitioner to seek transfer to some other place as he had by then became a chronic patient of asthma. The opinion of the doctor reads as follows:

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“The patient is a chronic patient of Br. Asthma and the B’lore weather is unsuitable. He is advised to go on leave and visit a dry area like Chennai which he is willing to go. So kindly he needs leave further & visit his native place CHENNAI.

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Dr. HCAS for needful

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It is after this examination by the doctor, the petitioner gave a representation seeking transfer from HAL, Bengaluru, to the Detachment Air Force Station, Tambaram, Chennai.

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11. When the petitioner was working at Tambaram, Chennai, he remained unauthorisedly absent on two occasions of 52 and 122 days, which culminated in issuing two charge sheets respectively. Both the charge sheets resulted in imposition of penalty of censure and stoppage of one increment respectively. In the month of March, 2014, the petitioner was retransferred back to Bengaluru before he could complete his seven years tenure that he was posted to work at Tambaram, Chennai. On coming back to Bengaluru, he joined the duties and the petitioner again began to remain absent due to chronic asthma for different spells between February, 2015 to January, 2016, totaling 103 days.

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12. On an allegation that the petitioner remained absent without any prior sanction of leave / permission, a charge sheet was issued against him on 30.01.2016. The petitioner gave an explanation in reply to the charge sheet on 08.03.2016 for unauthorised absence of 103 days. The explanation given in the reply for the charge sheet reads as follows:

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“2) In this connection, I submit my explanation for taking leave for above periods as noted below:

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Feb. 2015: For all the spells of leave, I have produced medical certificates along with leave applications.

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March 2015: For all the days noted in the charge sheet, I have submitted leave applications along with medical certificates.

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May 2015: I have submitted leave applications for 1/05, 4/05, 5/05, & 6/05 with medical certificates. From 13/05 to 15/05, I was admitted as Inpatient in HAL Hospital in Bangalore and copy of History Sheet is attached herewith for proving that fact. Moreoever, I have intimated about my inpatient treatment to the Officer Incharge over phone on 13.05.2015 morning itself.

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June 2015: I submit that I have sent intimation over phone for 23/06, 24/06, 27/06 & 30/06 and message also sent for those days.

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July 2015, Aug.2015, Sep.2015, Oct.2015, Nov.2015 and Dec.2015: I have availed leave by giving intimation for all spells of leave mentioned in the charge sheet, for those days and message also sent.

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Jan. 2016: I have intimated availing of leave on medical ground for 02.01.2016, 05.01.2016, 06.01.2016, 22.01.2016 and 25.01.2016. On 27th January 2016, I attended office and fallen ill suddenly and admitted as inpatient in the HAL Hospital, ICU and I was discharged on 28.01.2016.

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3) From my above submission, it will be evident that I have taken leave on medical ground and not on any personal ground. I may add that taking of frequent spells of leave caused on account of I am being Acute Exacerbate of Bronchial Asthma and the climate condition of Bangalore is not suitable for a patient like me. For that purpose only, I sought for the transfer to Tambaram base during March 2014, but I was reposted to Bangalore during May 2015 and within one year period, before completion of my tenure. This will prove that I was purposely given inconveniences only on account of I am belonging to poor Dalit community. This will be known from the fact that no officer of my rank has been disturbed like me from Tambaram Base, before completion of tenure. One official even after completion of tenure is being allowed to remain at Tambaram base till date. By showing favouritism to one official, I am denied of my legitimate right to get transfer to Tambaram base.”

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In terms of the afore-extracted explanation, the petitioner accepted that he was absent without prior permission or applying leave before hand but submits that he has given leave applications along with the medical certificates and records of treatment taken at the HAL Hospital itself for all the spells of his unauthorized absence and prayed that the charge sheet be withdrawn. Not being satisfied with the reply given by the petitioner, enquiry proceedings were sought to be conducted by the Enquiry Officer and Presenting Officer. Petitioner again replied for sympathetic consideration on the ground that he was suffering from Acute Bronchial Asthma and also furnished the medical certificates evidencing the said problem.

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13. The Enquiry Officer held the petitioner exparte on the ground that the petitioner has failed to appear on several adjournments and held that the allegations against the petitioner as proved by the following findings.

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“ III. Analysis and findings.

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As per the evidence given by the MW-1. CSO has remained unauthorizedly absent for duty between 07 May 2015 (Date of reporting to duty at Overhaul Division, Bangalore) to 28 Jan, 2016 without prior intimation / sanction of leave due to which the day to day departmental work got affected. Further, MW-1 has also stated that CSO was in the habit of submitting his medical certificates in few occasions issued by Doctors of Primary Health Centre of Tamilnadu for regularizing the unauthorized absence which was not considered and sanctioned as it was not as per the Company policy.

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As per the evidence given by the MW-2, CSO remained absent for 103 days during the period from February 14, 2015 to January 28, 2016. MW-2 did not receive any sanctioned leave letters against the days mentioned in the Charge Sheet.

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From the above, it is established that CSO remained unauthorizedly absent from February 14, 2015 to January 28, 2016.

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As CSO is not attending the enquiry proceedings inspite of receiving sufficient communication, the committee has placed him ex-parte.

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IV. Findings

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Committee is convinced that the charges leveled against CSO in the Charge Sheet are proved. Hence, committee holds CSO guilty of all charges leveled against him in the Charge Sheet referred in the preamble.”

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Noticing that the petitioner was given time to reply to the findings of the Enquiry Officer and the fact that the petitioner had not replied, considered the past records of the petitioner in respect of unauthroised absence for 56 days and 103 days on which proceedings had already been conducted and penalty had been imposed, imposed an extreme penalty of dismissal from service. The petitioner filed a detailed appeal against the order of the Disciplinary Authority again narrating all the reasons stated in the leave

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application enclosing all the medical certificates obtained from time to time and the misconduct was not willful. The appeal also came to be rejected.

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14. It is required to be noticed in terms of what is narrated hereinabove is that, the petitioner though remained unauthorisedly absent, admits the factum of being unauthorisedly absent, but justifies the same on the ground that it was not willful but due to Chronic Bronchial Asthma that he suffered had resulted in unauthorized absence. In view of the aforesaid explanation given by the petitioner to all the spells of absence pursuant to the charge sheet dated 30.01.2016, which alleged unauthorized absence of 103 days, I am of the considered view that the misconduct of the petitioner was not willful. He had a plausible explanation for remaining absent, the problem of the petitioner was known to the respondents as it is the doctor of the respondent – HAL itself who had recommended that the petitioner should seek transfer outside Bengaluru in view of the weather at the Bengaluru not being conducive to the problem of the petitioner.

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15. It is germane to consider the facts of the case at hand in the light of the law laid down by the Apex Court in the case of COAL INDIA LTD. V. MUKUL KUMAR CHOUDHURI reported in (2009) 15 SCC 620 , has held as follows:

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“21. In the present case, the disciplinary authority failed to prove that the absence from duty was wilful, no such finding has been given by the inquiry officer or the appellate authority. Though the appellant had taken a

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specific defence that he was prevented from attending duty by Shri P. Venkateswarlu, DCIO, Palanpur who prevented him to sign the attendance register and also brought on record 11 defence exhibits in support of his defence that he was prevented to sign the attendance register, this includes his letter dated 3-10-1995 addressed to Shri K.P. Jain, JD, SIB, Ahmedabad, receipts from STD/PCO office of telephone calls dated 299-1995, etc. but such defence and evidence were ignored and on the basis of irrelevant fact and surmises the inquiry officer held the appellant guilty.”

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The Apex Court in the subsequent judgment in the case of KRUSHNAKANT B. PARMAR V. UNION OF INDIA

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reported in (2012) 3 SCC 178, has held as follows:

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“16. In the case of the appellant referring to unauthorised absence the disciplinary authority alleged that he failed to maintain devotion to duty and his behaviour was unbecoming of a government servant. The question whether “unauthorised absence from duty” amounts to failure of devotion to duty or behaviour unbecoming of a government servant cannot be decided without deciding the question whether absence is wilful or because of compelling circumstances.

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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 wilful. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean wilful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalisation, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a government servant.

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18. In a departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove that the absence is wilful, in the absence of such finding, the absence will not amount to misconduct.

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19. In the present case the inquiry officer on appreciation of evidence though held that the

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appellant was unauthorisedly absent from duty but failed to hold that the absence was wilful; the disciplinary authority as also the appellate authority, failed to appreciate the same and wrongly held the appellant guilty.

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20. The question relating to jurisdiction of the court in judicial review in a departmental proceeding fell for consideration before this Court in M.V. Bijlani v. Union of India [(2006) 5 SCC 88 : 2006 SCC (L&S) 919] wherein this Court held: (SCC p. 95, para 25)

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“25. It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidence to prove the charge. Although the charges in a departmental proceeding are not required to be proved like a criminal trial i.e. beyond all reasonable doubt, we cannot lose sight of the fact that the enquiry officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with.”

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21. In the present case, the disciplinary authority failed to prove that the absence from duty was wilful, no such finding has been given by the inquiry officer or the appellate authority. Though the appellant had taken a specific defence that he was prevented from attending duty by Shri P. Venkateswarlu, DCIO, Palanpur who prevented him to sign the attendance register and also brought on record 11 defence exhibits in support of his defence that he was prevented to sign the attendance register, this includes his letter dated 3-101995 addressed to Shri K.P. Jain, JD, SIB, Ahmedabad, receipts from STD/PCO office of telephone calls dated 299-1995, etc. but such defence and evidence were ignored and on the basis of irrelevant fact and surmises the inquiry officer held the appellant guilty.

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22. Mr P. Venkateswarlu, DCIO, Palanpur, who was the complainant and against whom the appellant alleged bias refused to appear before the inquiry

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officer in spite of service of summons. Two other witnesses, Shri Jivrani and Shri L.N. Thakkar made no statement against the appellant, and one of them stated that he had no knowledge about the absence of the appellant. Ignoring the aforesaid evidence, on the basis of surmises and conjectures, the inquiry officer held the charge proved.”

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(emphasis supplied)

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In the light of the law laid down by the Apex Court in the afore-extracted judgments and in the facts of the case at hand, the misconduct of the petitioner was not willful. It is not proved or held to be willful by the Disciplinary Authority even in the order of penalty. The order of penalty impugned herein reads as follows:

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“Reference is made to the letter No.O/HR/531(a)/3920/2016 dated 24.11.2016 forwarding a copy of the enquiry reports to you, seeking representation if any, against the findings of the Enquiry on or before 08.12.2016. you did not submit any representation.

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2. I have gone through the Charge Sheet, Proceedings of the Enquiry, report of the Enquiry Officer and all other connected papers/records of the case afresh. I observe from the records that you have not participated in the enquiry despite providing ample opportunities to defend your case. The enquiry was held in a fair manner following the Principles of Natural Justice. From the records, it is seen that the charges leveled against you are conclusively proved in the enquiry and the proven charges constitute misconducts under the purview of HAL CDA Rules 1984.

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3. On perusal of your past records, it reveals that you were awarded with the following:

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i) Charge sheeted during February 2012 for unauthorized absence of 121 days during the period from 01.01.2011 to 31.12.2011. Subsequently, letter of Censure was issued during October 2012.

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ii) You were counseled on 26.02.2014 for unauthorized absence and you had committed during the counseling that you will be regular for duty failing which action can be initiated.

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iii) Charge Sheeted during March, 2015 for unauthorized absence for 56 days during the period from March 2014 to Feb 2015 and imposed with a punishment of “Stoppage of one Increment with cumulative effect during September, 2015.

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iv) Considering all aspects, past records and also taking into consideration the gravity of the misconduct, I hereby impose the punishment of “Dismissal from service which shall ordinarily be a disqualification for future employment under the Government or a Corporation / Company owned or controlled by the Government” as a specific punishment under Rule 6(ii) (j) OF HAL CDA Rules, 1984 of the Company as amended from time to time.”

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(emphasis added)

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The other factor that would vitiate the order of penalty is that, the order takes within its sweep past misconduct and penalty is imposed upon such past misconduct without issuing a notice to the petitioner for the same. The second show cause notice issued to the petitioner enclosing the report of the Enquiry Officer, reads as follows:

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“This has reference to the Charge Sheet No.O/HR/531(a)/323/2016 dated 30.01.2016 issued to you and the Departmental Enquiry held into the charges leveled against you. The Departmental Enquiry Committee has, after holding the enquiry into the charges in which you have not participated, submitted its report. A copy of the reports of the enquiry is sent herewith.

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2. If you have any representation to make against the findings of the enquiry you are required to do so in writing so as to reach the undersigned by 08.12.2016before a decision is taken on the said enquiry report.”

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The notice nowhere indicates that the Disciplinary Authority would take into consideration of the past misconduct of the petitioner and without putting the petitioner to notice, the order of penalty (supra) could not have been imposed on the basis of the past misconduct. Therefore, the order of penalty stands vitiated as it considers the misconduct of unauthorized absence in the month of February, 2012, which ended in imposition of censure and of 56 days which ended in stoppage of one increment with cumulative effect and does not speak about present misconduct. Therefore, the imposition of the penalty on past misconduct without putting the petitioner on notice of the same is in violation of principles of natural justice. The Apex Court in the case of INDU BHUSHAN DWIVEDI V. STATE OF JHARKHAND, reported in (2010) 11 SCC 278, read as follows:

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“13. The Division Bench of the High Court first considered the question whether the past adverse record could be considered for imposing the punishment of dismissal, referred to the judgment of the Constitution Bench in State of Mysore v. K. Manche Gowda [AIR 1964 SC 506 : (1964) 4 SCR 540] as also the judgment in State of U.P. v. Harish Chandra Singh [(1969) 1 SCC 403 : AIR 1969 SC 1020] and held that when the High Court proposed the punishment of dismissal from service and the appellant himself made a request in Para 17 of his reply that his past record may be considered, no prejudice can be said to have been caused to him on account of consideration of the adverse reports.

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21. This Court approved the view taken by the High Court and observed: (Manche Gowda case [AIR 1964 SC 506 : (1964) 4 SCR 540] , AIR pp. 509-10, para 7)

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“7. Under Article 311(2) of the Constitution, as interpreted by this Court, a government servant must have a reasonable opportunity not only to prove that he is not guilty of the charges levelled against him, but also to establish that the punishment proposed to be imposed is either not called for or excessive. The said opportunity is to be a reasonable opportunity and, therefore, it is necessary that the government servant must be told of the grounds on which it is proposed to take such action: see the decision of this Court in State of Assam v. Bimal Kumar Pandit [AIR 1963 SC 1612] . If the grounds are not given in the notice, it would be well nigh impossible for him to predicate what is operating on the mind of the authority concerned in proposing a particular punishment: he would not be in a position to explain why he does not deserve any punishment at all or that the punishment proposed is excessive. If the proposed punishment was mainly based upon the previous record of a government servant and that was not disclosed in the notice, it would mean that the main reason for the proposed punishment was withheld from the knowledge of the government servant. It would be no answer to suggest that every government servant must have had knowledge of the fact that his past record would necessarily be taken into consideration by the Government in inflicting punishment on him; nor would it be an adequate answer to say that he knew as a matter of fact that the earlier punishments were imposed on him or that he knew of his past record. This contention misses the real point, namely, that what the government servant is entitled to is not the knowledge of certain facts but the fact that those facts will be taken into consideration by the Government in inflicting punishment on him. It is not possible for him to know what period of his past record or what acts or omissions of his in a particular period would be considered. If that fact was brought to his notice, he might explain that he had no knowledge of the remarks of his superior officers, that he had adequate explanation to offer for the alleged remarks or that his conduct subsequent to the remarks had been exemplary or at any rate approved by the superior officers. Even if the authority concerned took into consideration only the facts for which he was punished, it would be open to him to put forward before the said authority many mitigating circumstances or some other explanation why those punishments were given to him or that subsequent to the punishments he had served to the satisfaction of the authorities concerned till the time of the present enquiry. He may have many other explanations. The point is not whether his explanation would be acceptable, but whether he has been given an opportunity to give his explanation. We cannot accept the doctrine of ‘presumptive knowledge’ or that of ‘purposeless enquiry’, as their acceptance will be

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subversive of the principle of ‘reasonable opportunity’. We, therefore, hold that it is incumbent upon the authority to give the government servant at the second stage reasonable opportunity to show cause against the proposed punishment and if the proposed punishment is also based on his previous punishments or his previous bad record, this should be included in the second notice so that he may be able to give an explanation.”

¶163

(emphasis supplied)

¶164

The proposition laid down in the abovenoted judgment represents one of the basic canons of justice that no one can be condemned unheard and no order prejudicially affecting any person can be passed by a public authority without affording him reasonable opportunity to defend himself or represent his cause.

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27. The Court referred to the arguments urged on behalf of the State and observed: (Harish Chandra Singh case [(1969) 1 SCC 403 : AIR 1969 SC 1020] , SCC p. 406, paras 8-9)

¶166

“8. The learned counsel for the State contends that on the facts of this case it is clear that the plaintiff had notice that his record would be taken into consideration because the Superintendent of Police had mentioned it towards the end of his order, a copy of which was supplied to the plaintiff. In the alternative he contends that if the record is taken into consideration for the purpose of imposing a lesser punishment and not for the purpose of increasing the quantum or nature of punishment, then it is not necessary that it should be stated in the show-cause notice that his past record would be taken into consideration.

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9. It seems to us that the learned counsel is right on both the points. The concluding para of the report of the Superintendent of Police, which we have set out above, clearly gave an indication to the plaintiff that his record would be considered by the Deputy Inspector General of Police, and we are unable to appreciate what more notice was required. There is also force in the second point urged by the learned counsel. In State of Mysore v. K. Manche Gowda [AIR 1964 SC 506 : (1964) 4 SCR 540] , the facts were that the government servant was misled by the show-cause notice issued by the Government, and but for the previous record of the government servant the Government might not have imposed the penalty of dismissal on him. This is borne out

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by the following observations of Subba Rao, J., as he then was: (AIR p. 510, para 9)

¶172

‘9. In the present case the second show-cause notice does not mention that the Government intended to take his previous punishments into consideration in proposing to dismiss him from service. On the contrary, the said notice put him on the wrong scent, for it told him that it was proposed to dismiss him from service as the charges proved against him were grave. But, a comparison of paras 3 and 4 of the order of dismissal shows that but for the previous record of the government servant, the Government might not have imposed the penalty of dismissal on him and might have accepted the recommendation of the enquiry officer and the Public Service Commission. This order, therefore, indicates that the show-cause notice did not give the only reason which influenced the Government to dismiss the respondent from service.’ ”

¶173

28. An analysis of the two judgments shows that while recommending or imposing punishment on an employee, who is found guilty of misconduct, the disciplinary/competent authority cannot consider his past adverse record or punishment without giving him an opportunity to explain his position and considering his explanation. However, such an opportunity is not required to be given if the final punishment is lesser than the proposed punishment.”

¶174

(emphasis supplied)

¶175

In the light of the law laid down by the Apex Court, the order of penalty becomes illegal and unsustainable for the aforesaid reason.

¶176

16. Insofar as the judgments relied on by the learned counsel for the respondents – HAL, in the case of GUNASEKARAN (supra) or UNION OF INDIA AND OTHERS VS. BISHAMBER DAS DOGRA reported in (2009) 13 SCC 102 and NORTH-EASTERN KARNATAKA RT CORPN. VS. ASHAPPA reported in (2006) 5 SCC 137. Those judgments are rendered on the facts obtaining in

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those cases as the misconduct alleged was of unauthorized absence which was held to be habitual and in gross violation of discipline. In the case of BISHAMBER DAS DOGRA ( supra ), the Apex court in the paragraphs 22 and 23, has held as follows:

¶181

22. This Court in State of Assam v. Bimal Kumar Pandit [AIR 1963 SC 1612] considered the issue as to whether while imposing the punishment it is permissible to take into consideration the past conduct of an employee if it is not so mentioned in the second showcause notice.

¶182

The Apex Court in the later decision in the case of INDU BHUSAN (supra) has held after considering the judgment of BIMAL KUMAR PANDIT (supra) has held to the contrary that an employee has to be put on notice if past conduct is forming a part of the final order of penalty.

¶183

17. In view of the preceding analysis, in my considered view the extreme penalty of dismissal from service upon the petitioner is disproportionate, to the alleged misconduct in the peculiar facts and circumstances of this case as the absence is not held or proved to be willful. The penalty of dismissal of service imposed upon the petitioner being disproportionate to the misconduct requires to be modified with the imposition of a lesser penalty which will not amount to cessation of service. The modification of penalty that is imposed by the disciplinary authority unless, in an exceptional circumstances, is a realm of the powers of the Disciplinary Authority. Therefore, the matter is to be remitted back to the Disciplinary Authority for reconsideration of the

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penalty imposed and for imposition of a lesser penalty which will not amount to cessation of service of the petitioner.

¶188

18. For the aforesaid reasons, the following:

¶189

ORDER

¶190

a. The writ petition is allowed in part.

¶191

b. The order of dismissal dated 30.12.2016 of the second respondent, which is confirmed by the order dated 06.07.2017, of the third respondent are quashed.

¶192

c. The matter is remitted back to the respondents - HAL to reconsider the penalty of dismissal from service by imposition of any lesser penalty upon the petitioner, within a period of three months from the date of receipt of a copy of the order.

¶193

d. All consequential benefits that would flow from the quashing of the order of penalty shall be subject to further orders passed by the Disciplinary Authority in terms of clause (c).

¶194

Ordered accordingly.”

¶195

Aggrieved by the said order of the learned Single Judge, the respondent - HAL preferred an appeal in W.A.No.385/2021, in which the Hon'ble Division Bench of this Court came to the conclusion that the major penalty/punishment of dismissal of the petitioner and subsequent order of removal was shockingly disproportionate to the guilt of the petitioner and the

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matter was remitted back to the Disciplinary Authority to pass any other order of punishment other than dismissal, removal or compulsory retirement and directed reinstatement of the Petitioner into service. The said order passed by the Hon’ble Division Bench is at Annexure – B, which reads as under:

¶199

“The appellant before this Court - Hindustan Aeronautics Limited, which is a Government of India undertaking along with its officers has filed this present petition being aggrieved by the judgment delivered by the learned Single Judge in W.P. No.43283/2017 dated 18.02.2021 (Sri C. Ramesh vs. M/s.Hindustan Aeronautics Limited and others).

¶200

2. The facts of the case reveal that the respondent - employee started his service career at Hindustan Aeronautics Limited (HAL) as Engineer Grade-II and was posted at Bengaluru for a period of one year and six months. At Bengaluru, he developed chronic bronchitis resulting into asthma and the same was attributed to the weather of the city of Bengaluru. He submitted a representation to the employer to transfer him to some other place and as requested by the employee, he was posted to HAL Detachment Air Force Station at Tambaram, Chennai. He worked at Chennai up to 07.05.2015 and as he was not well, he was absent for 103 days during the period from February 2015 to January 2016. A chargesheet was issued and the chargesheet is also on record. The imputation of

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misconduct reveals that he was absent for 15 days and 17 days in the months of February 2015 and March 2015 respectively and thereafter for few days up to January 2016.

¶205

The details of his absence are reproduced as under:

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Month and Year	Unauthorized absent on	Days
Feb 2015	14,15,16,17,18,19,20,21,22,23, 24,25,26,27,28	15
Mar 2015	1,2,3,4,5,6,7,8,9,10,11,12,13, 14,15,16,17	17
May 2015	1,4,5,6,13,14,15	7
June 2015	23,24,27,30	4
July 2015	1,7,8,9,13,14,15,22,23,24,25,28,31	13
Aug 2015	3,4,8,11,27,28	6
Sep 2015	3,8,29	3
Oct 2015	_5,13,16,19,20,27,28,31 _	8
Nov 2015	4,5,6,9,12,13,14,18,19,20,25, 26,27,28	14
Dec 2015	3,5,8,15,18,19,24,29,30	9
Jan 2016	2,5,6,20,22,25,28	_07 _
	_Total _	103

¶207

3. The employee in question did submit a reply to the charge sheet and categorically stated that he has submitted medical certificates along with leave application and leave has not been sanctioned. However, the Disciplinary Authority did not accept the reply of the petitioner and a departmental enquiry was held and the misconduct was proved and finally, an order of punishment was passed on 30.12.2016 inflicting a punishment of dismissal against which an appeal was preferred and the Appellate Authority has converted the punishment of dismissal to removal by an order dated 06.07.2017 meaning thereby in respect of absence for 103 days, the respondent – employee who was

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suffering from chronic asthma has been thrown out of the job.

¶212

4. The learned Single Judge has gone into the details in respect of the enquiry proceedings also and has also observed that the employee did submit medical certificates and leave applications to the employer. The learned Single Judge has arrived at the conclusion that the punishment awarded is shockingly disproportionate to the guilt of the employee (See Coal India Ltd. v. Mukul Kumar Choudhuri [(2009) 15 SCC 620] ; Krushnakanth B. Parmar v. Union of India [(2012) 3 SCC 178] and Indu Bhushan Dwivedi v. State of Jharkhand [(2010) 11 SCC 278]) and quashed the orders impugned in the petition. The learned Single Judge has finally remanded the matter back to the Disciplinary Authority to pass appropriate order to reconsider the penalty of dismissal by imposing any lesser penalty upon the respondent – employee.

¶213

5. The Hon’ble Supreme Court in the case of B.C. Chaturvedi vs. Union of India [AIR 1996 SC 484] in paragraphs 22 and 23 has held as under:

¶214

“22. The aforesaid has, therefore, to be avoided and I have no doubt that a High Court would be within its jurisdiction to modify the punishment/penalty by moulding the relief, which power it undoubtedly has, in view of long lines of decisions of this Court, to which reference is not deemed necessary, as the position is well settled in law. It may, however, be stated that this power of moulding relief in cases of the present nature can be invoked by a High Court only when the punishment/penalty awarded shocks the judicial conscience.

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23. It deserves to be pointed out that the mere fact that there is no provision parallel to Article 142 relating to the High Courts, can be no ground to think that they have not to do complete justice and if moulding of relief would do complete justice between the parties, the same cannot be ordered. Absence of provisions like Article 142 is not material, according to me. This may be illustrated by pointing out that despite there being no provision in the Constitution parallel to Article 137 conferring power of review on the High Court, this Court held as early as 1961 in Shivdeo Singh's case, AIR 1963 SC 1909, that the High Courts too can exercise power of review, which inheres in every court of plenary jurisdiction. I would say that power to do complete justice also inheres in every court, not to speak of a court of plenary jurisdiction like of High Court. of course, this power is not as wide which this Court has under Article 142. That, however, is a different matter.”

¶219

6. In light of the aforesaid case, though it was permissible for the learned Single Judge to substitute the punishment, however, the learned Single Judge has remanded the matter back to the Disciplinary Authority to reconsider the penalty of dismissal (which was moderated to that of removal in appeal). This Court is also of the view that the punishment of dismissal and the subsequent order of removal is shockingly disproportionate to the guilt of the Government servant and therefore, the matter is remanded back to the Disciplinary Authority as directed by the learned Single Judge to pass any other order of punishment other than dismissal, removal and compulsory retirement. The employee in question is out of job. He needs financial assistance for his treatment and therefore, he deserves to be reinstated forthwith enabling him to survive and thereafter, the Disciplinary Authority should certainly be free to pass an appropriate order within a period of 60 days in respect of the quantum of punishment. The reinstatement

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be done forthwith and two months time is granted to pass a fresh order. The order passed by the Disciplinary Authority dated 30.12.2016 and the order passed by the Appellate Authority dated 06.07.2017 of dismissal and removal respectively are hereby quashed. The Disciplinary Authority shall also pass an appropriate order in the matter of grant of backwages and for regularizing the period of leave in accordance with law. Accordingly, the Writ Appeal stands disposed of.

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Pending application stands disposed of.”

¶225

It is an undisputed fact and a matter of record that respondent-HAL challenged the said order before the Hon’ble Apex Court, which dismissed the said petition vide Annexure - C dated 31.08.2021, which reads as under:

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ORDER

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“We are not inclined to interfere with the impugned judgment passed by the High Court. Special Leave Petition is dismissed.

¶228

Pending applications, if any, also stand disposed of.”

¶229

It is a matter of record that the petitioner was reinstated and rejoined service on 24.09.2021. In pursuance to which the respondents proceeded to pass the impugned order at Annexure - E, passing a revised order of punishment dated

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25.09.2021, by reducing the basic pay by 15 stages in the same scale of pay with cumulative effect under relevant rules. The impugned order reads as under:

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HAL

¶235

O/HR/532(a)/1602/2021 Confidential 25^th Sep, 2021

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Sub: Disciplinary Action Revised Order of punishment

¶237

Ref: 1. Charge Sheet No. O/HR/531(a)/323/2016 dtd. 30.01.2016

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2. Order of Punishment No O/HR/531(a)/ 4293/2016 dtd 30.12.2016

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3. Order of Appellate Authority No CEO(BC)/A26/116/2017 dtd. 06.07.2017.

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4. Letter No. O/HR/532(a)/ 1547/2021 dtd. 15.09.2021

¶241

You were issued with a Charge Sheet dated 30.01.2016 cited at ref(1)above in respect of your frequent absence from duty without prior sanction of leave permission for 103 days during the period from 14.02.2015 to 28.01.2016. Subsequently, a Departmental Enquiry was also conducted into the charges levelled against you on being found guilty of the charges and considering the past records & the gravity of misconduct, the Disciplinary Authority vide order cited at ref (2) above imposed the punishment of "Dismissal from service which shall ordinarily be a disqualification for future employment under the Government or a Corporation/Company owned or controlled

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by the Government” under Rule 6 (ii) (j) of HAL Conduct, Discipline & Appeal Rules, 1984 (as amended) of the Company.

¶246

2. The Appeal filed by you against the order passed by the Disciplinary Authority was considered and disposed of by the Appellate Authority vide order dated 06.07.2017cited at ref. (3), reducing the punishment to "Removal from service which shall not be a disqualification for the future employment under government or a Corporation/Company owned or controlled by the Government” under Rule 6 (ii) (i) of HAL Conduct Discipline & appeal Rules, 1984 (as amended) of the Company.

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3. Aggrieved by the above orders, you filed Writ Petition No 43283/2017 before the Hon'ble High Court of Karnataka and the Court vide order dated 18.02.2021 directed the followings:-

¶248

a. The writ petition is allowed in part

¶249

b. The order of dismissal dated 30.12.2016 of the second respondent, which is confirmed by the order dtd. 06.07.2017 of the third respondent are quashed.

¶250

c. The matter is remitted back to the respondents-HAL to recon enter the penalty of dismissal from service by imposition of any lesser penalty upon the petitioner, within a period of three months from the date of receipt of a copy of the order.

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D. All consequential benefits that would flow from the quashing of the order of penalty shall be subject to further orders passed by the Disciplinary Authority in terms of clause (c).

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4. Aggrieved by the above order, Management filed Writ Appeal No 385/2021 before The Hon'ble High Court of Karnataka and the Court disposed of the appeal vide order 2021. The gist of the order is as follows:

¶255

“......the matter is remanded back to the Disciplinary Authority as directed by the earned Single Judge to pass any other order of punishment other than dismissal, removal and compulsory retirement. The Disciplinary Authority should certainly be free to pass an appropriate order within a period of 60 days in respect of the quantum of punishment. The reinstatement be done forthwith and two months time is granted to pass a fresh order. The order passed by the Disciplinary Authority dated 30.12.2016 and the order passed by the Appellate Authority dated 06.07.2017 of dismissal and removal respectively are hereby quashed. The Disciplinary Authority shall also pass an appropriate order in the matter of grant of back wages and for regularizing the period of leave in accordance with law"

¶256

5. Subsequently, Management has filed a Special Leave Petition No.012970/2021before the Hon'ble Supreme Court of India challenging the above order and same has been disposed of vide order dtd. 31.08.2021.

¶257

6. In compliance to the Order dated 06.07.2021 passed in the Writ Appeal No. 385/2021 by the Hon'ble High Court of Karnataka, you have been allowed to join duty as Engineer (Gr-11), IMGT Division Bangalore with immediate effect vide our letter dtd. 15.09.2021cited at ref (4) and you have reported for duty on 24.09.2021 at IMGT Division. It

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was also informed to you therein that a fresh order regarding other aspects as directed by the Hon'ble High Court of Karnataka will be issued to you subsequently,

¶262

7. Accordingly, the matter has been reconsidered in compliance of the Order of the Hon’ble High Court and the following orders are hereby passed-

¶263

(i) The punishment is revised to "Reduction of Basic Pay by 15 (Fifteen) Stages in the same scale of pay, with cumulative effect, under Rule 6 (ii) (f) of the HAL. Conduct Discipline and Appeal rules 1984 (as amended). Your Basic Pay of Rs. 25290/-drawn in 2007 pay scale, has been fixed at Rs. 63,840/- in the Revised Scale of Pay of Rs. 40000-140000 in 2017 pay scales, is reduced by 15 stages and re-fixed at Rs. 40,900/- in the same scale of pay, with immediate effect.

¶264

(ii) Your 103 days of absence during the period from 14.02.2015 to 28.01.2016 as brought out in the Charge Sheet is treated as unauthorized absence from duty and to be considered as Dies-non period

¶265

(iii) Further, the intervening period between the date of issuance of the charge sheet and imposition of punishment (Dismissal) is also treated as unauthorized absence from duty and to be considered as Dies-non period.

¶266

(iv) The period from the date of your dismissal from the services of the Company i.e 30.12.2016 till the date of your reporting back for duty, i.e. 24.09.2021 is considered as not on duty for all purposes including payment of salary/back wages, Promotions, Increments, Leave, PRP, Gratuity etc. Accordingly, you are not entitled for any Pay, Allowances, benefits etc for the period from 30.12.2016 to 23.09.2021as brought out above.”

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The petitioner having filed an appeal, the same came to be dismissed by the appellate authority vide impugned order at Annexure – K dated 30.11.2022, which reads as under:

¶270

HAL

¶271

CONFIDENTIAL

¶272

CEO(BC)/A-26/179/2022 30^th November, 2022

¶273

Sub: Appeal against the Revised Order of Punishment dated 25.09.2021.

¶274

------------

¶275

Reference is made to the appeal dated 22.09.2022 against the Revised Order of Punishment dated 25.09.2021 issued by the General Manager (O) & Disciplinary Authority (DA). You have submitted the appeal directly to MCD-HAL. Since, as per extant rule, CEO(BC) is the Appellant Authority in the instant case, the matter was forwarded to the undersigned by Corporate Office for necessary action.

¶276

2. You were issued a charge sheet dated 30.01.2016 for allegedly remaining absent from duty without prior sanction of leave/permission for 103 days during the period 14.02.2015 to 28.01.2016. After departmental enquiry, punishment of “dismissal from service, which shall ordinarily be a disqualification for future employment under the Government or a Corporation/Company owned or controlled by the Government” was imposed by the DA vide letter dated 30.12.2016. Subsequently, after consideration of the appeal

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filed by you, the then Appellate Authority vide order dated 06.07.2017 reduced the punishment to “removal from service which shall not be a disqualification for future employment under Government or a Corporation/Company owned or controlled by the Government”.

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3. You had filled a Writ Petition No.43283/2017 before the Hon’ble High Court of Karnataka at Bangalore, challenging the order passed by the Disciplinary Authority and the Appellate Authority. The High Court vide order dated 18.02.2021 quash the orders passed by the Disciplinary Authority and Appellate Authority. Further, the High Court remitted back the matter to reconsider the penalty by imposition of a lesser penalty. The Court also ordered that all consequential benefits that would flow from the quashing of the order of penalty shall subject to further orders passed by the Disciplinary Authority. The said order dated 18.02.2021 was challenged by teh Management by filing a Writ Appeal No.385/2021 before the High Court of Karnataka. The High Court vide order dated 06.07.2021 disposed teh appeal and remanded back the matter to the Disciplinary Authority to pass any other order of punishment other than dismissal, removal and compulsory retirement. The Court also ordered to reinstate you forthwith and to pass an appropriate order by Disciplinary Authority within 60 days in respect of quantum of punishment. The High Court also directed that the Disciplinary Authority shall also pass an appropriate order in the matter of grant of back wages and for regularizing the period of leave in accordance of law. Thereafter Management has filed a Special Leave Petition

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No.12970/2021 before the Hon’ble Supreme Court, challenging the above order. The SLP was dismissed by the Supreme Court vide order dated 31.08.2021.

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4. In compliance to the order dated 06.07.2021 passed in the Writ Appeal, you were allowed to join duty and you had reported for duty on 24.09.2021 at IMGT Division. Further, the Disciplinary Authority vide order dated 25.09.2021 has passed an order with revised punishment of 'reduction of Basic Pay by 15(Fifteen) stages in the same scale of pay with cumulative effect'. The Disciplinary Authority also passed the order that 103 days of absence during the period 14.02.2015 to 28.01.2016 are to be treated as unauthorized absence from duty and considered as Dies-non period. Further, the intervening period between the date of issuance of charge sheet and imposition of punishment of dismissal is also treated as unauthorized absence from duty and to be considered as Dies-non period. The period from the date of dismissal from the service of the company l.e., 30.12.2016 till the date of reporting back for duty l.e., 24.09.2021 is also considered as not on duty for all purposes including payment of salary/back wages, promotions, increments, leave, PRP, Gratuity, etc. Accordingly, it was ordered that you are not entitled for any Pay, allowances, benefits etc., for the period from 30.12.2016 to 23.09.2021.

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5. Thereafter, you had submitted a representation dated 12.03.2022 to the Disciplinary Authority to review the revised order of punishment dated 25.09.2021 and to pay all

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consequential benefits/back wages etc. The said representation was disposed by the Disciplinary Authority vide letter dated 25.03.2022 and not acceded to your request.

¶292

6. Subsequently, you had also filed a Contempt Petition No. CCC 504/2022 (Civil) in the High Court of Karnataka. The Hon'ble High Court vide order dated 15.06.2022 dismissed the Contempt Petition and observed that there is no willful disobedience or non-compliance of the order passed in the Writ Appeal. However, the High Court viewed that in case you are aggrieved by the order dated 25.09.2021, you are at liberty to challenge the same before the appropriate forum. Accordingly, you have filed the instant appeal dated 22.09.2022.

¶293

7. You have submitted the Appeal dated 22.09.2022. As per Rule 14 of HAL Conduct, Discipline and Appeal Rules 1984 (as amended), an aggrieved officer may appeal against an order imposing of any of the punishment to the Appellate Authority within 45 days of imposition of the punishment. The revised order of punishment was passed on 25.09.2021 against which you have preferred the appeal on 22.09.2022. However, you have prayed to hold that the limitation period for filing is inapplicable in view of the High Court order dated 15.06.2022. I have examined your request and found that the certified copy of the High Court order dated 15.06.2022 was issued on 23.07.2022. Even if the interim period from the date of revised punishment to the date of receipt of the certified copy of the High Court order is ignored, still the

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appeal has been filed after the limitation period of 45 days, for which no explanation has been given by you. However, your request has been considered sympathetically and the delayed appeal is being considered for decision on merit.

¶298

8. You, in the covering letter to the appeal dated 22.09.2022 had also desired to be heard in person before the appeal is disposed by the Appellate Authority. In this regard, it is noted that personal hearing before disposal of the appeal is outside the purview of the HAL CDA Rule 1984 (as amended) which is framed considering the principles of natural justice at appropriate stage. The said rules are applicable to you and the appeal has also been preferred under the said rule. Hence, your request to be heard personally cannot be acceded to.

¶299

9. I have examined the appeal under the provisions of Rule-15 of the HAL CDA Rules. I have also considered the relevant documents and records viz. the charge sheet, the enquiry proceedings, enquiry report, the punishment order passed by the Disciplinary Authority, the orders of the Hon'ble High Court, the revised order of punishment, the instant appeal and the comments of Disciplinary Authority on the appeal etc. and dispose the appeal on its merits as follows:

¶300

i. You have stated that by judgment and order dated 06.07.2021 the Division Bench of High Court directed the Disciplinary Authority to reinstate you forthwith and grant two months time to pass fresh order and also to grant back wages and regularize the leave period.

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However, on perusal of the order, it is seen that the High Court has directed the Disciplinary Authority to pass an appropriate order in the matter of the grant of back wages and for regularizing the period of leave in accordance with law. Therefore, it is not correct that the High Court has ordered the Disciplinary Authority to grant back wages and regularize the leave period, as claimed by you.

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ii. You have stated that the Disciplinary Authority vide letter dated 25.03.2022 rejected your representation dated 12.03.2022 on the ground that you didn't file appeal to the Appellate Authority within the stipulated time. In this regard, on perusal of the letter dated 25.03.2022 it can be seen that the allegation is not correct. The Disciplinary Authority, while disposing your representation on each point, has communicated you the provisions of appeal prescribed in the HAL CDA Rules 1984 (as amended) which doesn't provide for review of the punishment passed by himself. However, on the subsequent para of the said letter 25.03.2022 the Disciplinary Authority has disposed off the representation on each point represented by you.

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iii. You have submitted that the order dated 25.09.2021 of the Disciplinary Authority is misconceived and legally not sustainable as he didn't implement the order dated 06.07.2021 of High Court in full. In this regard, it is noted that the Hon'ble High Court of Karnataka vide order dated 15.06.2022 in Contempt Petition No. 504/2022 (Civil), after considering your submission and going through the records, satisfied themselves that there is no non-compliance of the order passed in the Writ Appeal.

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iv. You have stated that your absence from duty was due to chronic bronchial asthma that you suffered. In this regard, it is noted that you had produced medical certificate for majority period related to infertility treatment and the medical certificate in support of asthma is only for 03 days.

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v. You have submitted that the Disciplinary Authority has failed to appreciate the legal position of back wages to an employee who's services are wrongfully terminated

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by quoting certain Judgments of the courts. In this regard, it is to be noted that the judgment pronounced by the court in a case based on the facts and circumstances of that particular case. There are various judgments which decide that grant of back wages is not automatic. It is a settled law that where any court interfere with the punishment on the ground that it is excessive and the employee deserve a lesser punishment, and a consequential direction is issued for reinstatement, the court is not holding that the employer was wrong or that the dismissal was illegal and Invalid. The Court is merely exercising its discretion to award a lesser punishment. Therefore, where reinstatement is a consequence of imposition of a lesser punishment, back wages could not follow as a necessary consequence of such reinstatement. In cases where the misconduct is held to be proved and the reinstatement is itself a consequential benefit arising from imposition of a lesser punishment, award of back wages for the period when the employee has not worked, amount to rewarding the delinquent employee and punishing the employer for taking action for the misconduct committed by the employee, which should be avoided. In a catena of judgments the Apex Court has settled that grant of back wages is not automatic entitlement, rather it is discretionary depending upon the facts and circumstances of the case. Nobody can claim wages for the period of his absence from the employment without leave or any justification and the principle of 'no work no wages' will apply. In your case also, the Division Bench of the High Court has directed the Disciplinary Authority to pass an appropriate order in the matter of grant of back wages and regularizing the period of leave. Accordingly, the Disciplinary Authority vide order dated 25.09.2021, while revised the quantum of punishment, passed appropriate order stating that you would not be entitled for getting salary/back wages for the period you were not on duty.

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vi. You have submitted that you are entitled for 30 days vacation leave, 12 days casual leave per year during the period from the date of dismissal till date of reporting back for duty. It is claimed that you are entitled for a total of 142.50 days of vacation leave and 57 days of

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casual leave during the said period totaling 199.50 days of leave. You have alleged that the Disciplinary Authority ignored this aspect and not followed the direction of the High Court to regularize the leave period. In this regard, it is to be noted that you, being an officer of the Company is governed by the Leave Rules of the Company. As per the Leave Rule, two and half days vacation leave is credited for every 30 days of attendance/reckonable service of an employee. Since the period in question was ordered to be Dies-non by the Disciplinary Authority and you didn't attend the duties, you are not entitled for such vacation leave. Similarly, when you were not on duty, not entitled for the casual leave also. It is pertinent to mention here that the unutilized casual leave is lapsed at the end of the calendar year.

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vii. You have submitted that, you have been on duty uptill March 2016. Thereupon you were on leave till the punishment date. The Disciplinary Authority without checking the records had treated this periods as unauthorized absence from duty and Dies-non period. In this regard, it is seen from the records that you were Issued with charge sheet dated 30.01.2016 and submitted a letter dated 08.03.2016 denying the charges. However, when the Departmental Enquiry was constituted to enquire into the charges leveled, you did not participate in the enquiry proceeding despite receiving the communications sent with regard to the date of enquiry proceedings. As a result, the enquiry proceeded ex-parte. Total 07 sitting where conducted by the enquiry officer starting from 31.05.2016 till 30.09.2016. You could have attended the enquiry and put up your defense before the enquiry officer, which you didn't do. As far as your claim that you were on leave till the punishment date, it is a matter of fact that any employee desire to be on leave, require to apply for the leave and only on sanction, he can be treated as on leave. However, you were not with sanctioned leave.

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10. The appeal preferred by you is against the revised order of punishment dated 25.09.2021 passed by the Disciplinary Authority, in compliance to the order passed by

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the Division Bench of Hon'ble High Court of Karnataka. The allegations of non-compliance of the order and prayer for the back wages & consequential benefits has already been examined by the High Court in the Contempt Petition and negated the same. You could not brought out any other new points in this appeal which necessitate to interference the revised punishment order dated 25.09.2021 passed by the Disciplinary Authority.

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11. On careful examination of the appeal dated 22.09.2022 and all other relevant documents available on records and also in view of the facts enumerated in the previous paragraphs, I hereby confirm the revised punishment order dated 25.09.2021 passed by the Disciplinary Authority, under rule 15 (c) (i) of HAL CDA Rule.

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12. The appeal dated 22.09.2022 submitted by you is disposed off accordingly.

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Sd/-

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(MIHIR KANTI MISHRA) CHIEF EXECUTIVE OFFICER(BC) & APPELLATE AUTHORITY”

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A perusal of the aforesaid facts and circumstances and

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the material on record including the impugned orders at Annexure - E dated 25.09.2021 passed by the Disciplinary Authority and Annexure - K dated 30.11.2022 is sufficient to come to the conclusion that the respondents have correctly and properly considered and appreciated the material on record as well as, the

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relevant facts and circumstances obtained in the case and have revised/reduced the punishment to be imposed upon the petitioner from that of dismissal, removal and compulsory retirement to one of the reduction of basic pay.

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Upon re-appreciation, re-evaluation and

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reconsideration of the entire material on record, I am of the considered view that the impugned order passed by the respondent does not suffer from any illegality or infirmity nor can the same be said to be perverse or capricious warranting interference by this

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Court in the exercise of its jurisdiction under Articles 226 and 227 of the Constitution of India. Consequently, the petition being devoid of merits is liable to be dismissed.

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9. In the result, I pass the following:

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ORDER

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i) The petition is hereby dismissed .

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ii) The impugned orders dated 25.09.2021 and 30.11.2022 at Annexures-E and K passed by the respondent Nos.2 and 3 respectively are hereby confirmed.

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iii) Liberty is however reserved in favour of the petitioner to submit a representation ventilating all his grievances which shall be considered by the respondents in accordance with law.

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iv) If such a representation is submitted within a period of six weeks from today together with all relevant documents, respondents shall consider the same and proceed further in accordance with law.

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Sd/(S.R.KRISHNA KUMAR) JUDGE

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MDS List No.: 1 Sl No.: 43

Sri C Ramesh v. M/S Hindustan Aeronautics Limited

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Sri C Ramesh v. M/S Hindustan Aeronautics Limited

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