Government
of India & Anr Vs. George Philip [2006] Insc
816 (16 November 2006)
G.P.
Mathur & Dalveer Bhandari
(Arising
out of SLP (C) No.2023 of 2006) G. P. MATHUR, J.
Leave
granted.
2.
This appeal, by special leave, has been preferred against the judgment and
order dated 10.8.2005 of High Court of Kerala, by which the writ petition filed
by the appellants challenging the order dated 17.9.1999 of the Central
Administrative Tribunal, Ernakulam Bench, was disposed of with a direction that
if Shri George Philip, respondent in the present appeal, reports for duty
within a period of six months, he shall be reinstated in service but will not
be entitled to any back wages and thereby order of the Tribunal which had
awarded full back wages was modified.
3.
Before dealing with the issue raised, it is necessary to mention the essential
facts. The respondent herein, Shri George Philip, was working as Scientific
Officer in Plasma Physics Division, Bhabha Atomic Research Centre, Trombay, Mumbai
(for short 'BARC'). He applied for and was granted Commonwealth Scholarship by
the Ministry of Education for advance research training in Plasma Physics. He
moved an application in the prescribed proforma seeking permission of the
Central Government for being given leave for two years for the said purpose.
The application form contained several columns and in the column "duration
and purpose of visit" it was mentioned "about two years for advance
research training in Plasma Physics" and again in the column meant for
aims and objects, the same thing was repeated viz. "advance research
training in Plasma Physics". The department of Atomic Energy, Government
of India, vide order dated 8.2.1982 granted permission to the respondent to
accept the Commonwealth Scholarship for a period of two years and he was
granted extraordinary leave for the said period, subject to the conditions laid
down in the Ministry of Finance O.M. No.11(1)- E(B)/67 dated June 25, 1970. The order has some bearing and,
therefore, it is being reproduced below :- "Government of India Department
of Atomic Energy C.S.M. Marg Bombay -400
039 Sub : Commonwealth Scholarship offered by the Govt. of Canada - Shri George Philips SO(C), Plasma
Physics Section.
Reference
is invited to BARC ID Note No.9/20/TSC/80/4922 dated 7.12.1981 on the above
subject.
The
proposal to permit Shri George Philips, SO(SC), BARC to accept the Commonwealth
Scholarship awarded by the Ministry of Education for a period of 2 years is
approved in the Department. He will be granted extraordinary leave for the said
period subject to the conditions laid down in the Ministry of Finance O.M. No.11(1)-E(B)/67
dated June 25, 1970 as amended from time to time.
Sd/- (
P.B. Desai ) Director Secretary, TC & TSC, BARC, Bombay 400 085 DAE ID No.36/1/81-BARC
Vol. II dated February
4, 1982 ...
Government
of India Bhabha Atomic Research Centre TC
& TSC Ref: 9/20/TSC/80/540 February 8, 1982 Copy forwarded to :
1.
Head, Plasma Physics Section Leave order granting EOL for two years may be
issued under intimation to this section subject to the condition that Shri
George Philips should not register for Ph.D. degree and that no extension of
leave beyond two years will be granted. An undertaking to this effect may
please be obtained from Shri George Philips and forwarded to this section for
record. A service bond for Rs.10,000/- in the enclosed form may also please be
obtained in triplicate and forwarded to this section.
2.
...........................
3.
...........................
4.
...........................
5. Shri
George Philips, SO (SC) Plasma Physics Section.
Sd/-
8.2.82 (G. Sethuraman) Secretary, TC & TSC" In accordance with the
order issued by the Government of India, the respondent gave an undertaking on
9.2.1982, which reads as under :- "UNDERTAKING Consequent to the
acceptance of the scholarship awarded by the Ministry of Education (Department
of Education) for training in Canada and the grant of extra ordinary leave for
a period of two years, this undertaking is given that I am not registering for
a Ph.D. degree and will not request extension beyond the leave granted during
the training abroad.
Signature Sd/- Name : George Philip Designation : SO(SC) Comp. Code : G602/114 Dated
: 9.2.82 Trombay, Bombay." Thereafter, the respondent
proceeded on leave with effect from 24.8.1982 and the leave was to expire on
23.8.1984. The Bhabha Atomic Research Centre of Government of India issued a
leave order on 6.9.1982, which specifically mentioned that the grant of leave
to the respondent is subject to the conditions laid down in the Ministry of
Finance O.M. No.11(1)-E(B)/67 dated June 25, 1970 as amended from time to time
and as approved by Department of Atomic Energy vide its ID No. 36/1/81-BARC
Vol. II dated February 4, 1982. The period of leave of two years from 24.8.1982
to 23.8.1984 was to be treated as extraordinary leave. It was further mentioned
that but for proceeding on leave Shri George Philip would have continued to
officiate on the said post and that the period of leave will count for
increment. The respondent, however, did not return to India and did not report for duty after
expiry of leave on 23.8.1984. He applied for extension of leave which was
refused and he continued to overstay the leave. The department sent him as many
as 8 notices and telegrams wherein it was clearly mentioned that his request
for extension of leave had been refused and he should immediately report back
for duty. After more than two years of expiry of leave, he came back to India and reported for duty on
10.12.1986. He was placed under suspension pending enquiry by the order dated
2.1.1987. An enquiry was accordingly held under Rule 14 of the Central Civil
Services (Classification and Control of Appeal) Rules, 1965 (for short 'CCS(CCA)
Rules') on the ground that by overstaying the leave w.e.f. 24.8.1984 onwards,
the respondent is acting in a manner unbecoming of a government servant and had
thereby contravened the provisions of Sub-rule (1)(iii) of Rule 3 of Central
Civil Services (Conduct) Rules, 1964. Shri George Philip submitted his written
statement of defence wherein it was mentioned that he had enrolled himself for
a Ph.D. degree in the University of Alberta and as he had not been able to complete his work for award
of the degree, he had not returned to India and had not joined duty. In the departmental enquiry copies of all the
documents were supplied to the respondent and he was afforded opportunity to
cross-examine the witnesses examined on behalf of the department. After a
detailed consideration of the material on record, the enquiry officer gave his
findings on 15.11.1989 to the effect that the respondent had overstayed the
leave granted to him and the charge was fully established. The Secretary,
Government of India, exercising powers under Rule 15(4) of CCS(CCA) Rules, after
taking into consideration the representation made by the respondent and after
consultation with Union Public Service Commission, imposed a penalty of removal
from service with immediate effect upon the respondent by order dated
18.12.1990.
4. The
respondent filed O.A. No.56 of 1992 before Central Administrative Tribunal, Ernakulam
Bench (for short 'Tribunal') challenging the punishment awarded to him. The
Tribunal recorded a finding that there can be no doubt that the respondent did
not report for duty as he should have at the end of the period of leave and
that he is guilty of abandoning the post of duty. However, it was of the
opinion that having regard to the facts of the case the punishment imposed upon
the respondent was harsh. Accordingly, the Tribunal by its order dated 6.1.1994
held "that the punishment imposed upon the respondent is quashed while the
findings of facts are affirmed" and further directed that if the
respondent moves the competent authority under Rule 29-A of the CCS(CCA) Rules
within one month, the competent authority will consider the question of quantum
of punishment afresh. The appellants herein filed a review petition before the
Tribunal but the same was dismissed on 2.8.1994. The Secretary to the
Government of India, thereafter, passed a fresh order on 3.4.1996 after
consultation with the Union Public Service Commission imposing the penalty of
compulsory retirement from service upon the respondent with effect from the
date when the original order of punishment was passed i.e. 18.12.1990. This
order was again challenged by the respondent by filing O.A. No.1127 of 1996
before the Tribunal. The Tribunal by its order dated 17.9.1999 allowed the
O.A., set aside the penalty of compulsory retirement from service imposed upon
the respondent and directed his reinstatement with full back wages for the
period between the date of removal from service and reinstatement and treating
the said period as duty for all purposes. It was also observed in the operative
part of the order that the appellants may pass an appropriate order awarding
penalty to the respondent commensurate with the proved misconduct keeping in
view the observations made in this regard. The appellants challenged the
aforesaid order of the Tribunal before the High Court of Kerala by filing a
writ petition which was disposed of by the impugned order dated 10.8.2005,
whereby it was directed that if the respondent reports for duty within a period
of six months, he shall be reinstated in service, but he will not be entitled
to any back wages. The present appeal has been filed challenging the order
dated 17.9.1999 passed by the Tribunal and the order dated 10.8.2005 passed by
the High Court in the writ petition filed by the appellants.
5. Shri
Vikas Singh, learned Additional Solicitor General, has submitted that while
seeking prior permission of the Central Government for availing the
Commonwealth Scholarship awarded by the Ministry of Education, the respondent
had stated in unambiguous terms that he was going to join a University in
Canada for advance research training in Plasma Physics and the duration of the
said training was about two years. He had never indicated at any point of time
that he wanted to enroll himself for a Ph.D. degree. The Department of Atomic
Energy, Government of India, had by order dated 8.2.1982 sanctioned leave to
the respondent for a period of two years. In the said order it was clearly
mentioned that the extraordinary leave was being granted for a period of two
years subject to the condition that the respondent should not register himself
for Ph.D. degree and that no extension of leave beyond two years will be
granted and an undertaking in that regard may be obtained. The respondent gave
an undertaking on the very next day i.e. on 9.2.1982, wherein he clearly stated
that "I am not registering for a Ph.D. degree and will not request
extension beyond the leave granted during the training abroad." However,
the respondent did not report for duty after his leave expired on 23.8.1984 and
he requested for extension of leave on the ground that he had enrolled himself
for Ph.D. degree and his work was not complete. The request of the respondent
was turned down and the department sent him 8 notices and telegrams asking him
to report for duty, but he did not comply with the directions issued and
instead reported for duty on 10.12.1986, after more than two years of expiry of
leave. In the departmental enquiry the respondent was held guilty of the
charges and accordingly the punishment of removal from service was imposed by
the competent authority on 18.12.1990. The Tribunal in its judgment and order
dated 6.1.1994 had affirmed the findings recorded by the enquiry officer but
had merely quashed the order of punishment, as in its opinion, it was
disproportionate to the charge and had directed for a fresh consideration
limited to the question of punishment. Thereafter, an order of compulsory
retirement from service was passed against the respondent. This order was also
challenged by the respondent before the Tribunal and curiously enough this time
the Tribunal passed an order of reinstatement with full back wages treating the
period of removal from service till reinstatement as period spent on duty for
all purposes. Learned counsel has submitted that the Tribunal having affirmed
the findings recorded by the enquiry officer in its first order dated 6.1.1994,
it was not open to the Tribunal to take a contrary view at the second stage
when the order of compulsory retirement was challenged by the respondent and it
could not have gone into the merits of the case.
Learned
counsel has further submitted that having regard to the facts and circumstances
of the case the punishment of compulsory retirement form service imposed upon
the respondent could not be said to be disproportionate to the gravamen of the
charge and the High Court erred in setting aside the said order and directing
reinstatement of the respondent.
6. Shri
Raju Ramachandran, learned senior counsel for the respondent, has submitted
that the respondent had joined for a Ph.D. degree in a University in Canada and as he had not been able to
complete the work required for the said degree, he had no option but to stay
there even after expiry of leave. Learned counsel has submitted that it was a
case of helplessness of a scientist who was keen to do research work and to get
a Ph.D. degree and if the respondent had obtained the said degree, it would
have been of immense value to Bhabha Atomic Research Centre as well. Learned
counsel has thus submitted that the requirement of discipline will be satisfied
by the order passed by the High Court, whereby the penalty of compulsory
retirement has been set aside and the respondent has been directed to be
reinstated but without any back wages.
7. We
have given our anxious consideration to the submissions made by learned counsel
for the parties. It requires to be noticed that while seeking permission of the
Central Government to proceed to Canada, the respondent had clearly mentioned that the purpose of his visit was
"for advance research training in Plasma Physics" and the duration of
the training was "two years". In the order dated 8.2.1982 passed by
the Department of Atomic Energy, Government of India, it was clearly mentioned
that the respondent is being sanctioned extraordinary leave for a period of two
years and this was subject to the condition that he should not register for
Ph.D. degree and that no extension of leave beyond two years will be granted.
The respondent also gave an undertaking on 9.2.1982 that he would not register
himself for a Ph.D. degree and that he would not request extension of leave
during the training abroad. In fact, the leave order dated 6.9.1982 clearly
specified that the period of leave was from 24.8.1982 to 23.8.1984 and the said
period of leave will count for increment.
The
fact that the respondent enrolled himself for a Ph.D. degree shows that he did
not state the correct facts while moving the application to the Ministry of
Education for award of Commonwealth Scholarship and while seeking permission to
go abroad and applying for leave.
His
intention right from the beginning was to somehow get a scholarship in order to
join a University in Canada for award of a Ph.D. degree. There
can be no manner of doubt that he violated the undertaking given by him that he
would not register for a Ph.D. degree and would not request for extension of
leave. Though as many as 8 notices and telegrams were sent to the respondent
refusing his request for extension of leave and asking him to report for duty,
but he chose to overstay the leave by over two years. In the enquiry the
charges were found to have been proved and this finding was affirmed by the
Tribunal in its first order dated 6.1.1994. It is indeed surprising that when
the respondent challenged the order of compulsory retirement passed thereafter,
the Tribunal went into the question as to whether the charges are proved or not
and after examining the evidence again which it was not entitled to do,
directed for reinstatement with full back wages and issued a further direction
that the period of his absence shall be counted as period on duty for all
purposes. This is clearly illegal as the order dated 6.1.1994 passed by the
Tribunal affirming the findings recorded in the enquiry had not been challenged
by the respondent and the only issue before the Tribunal was the quantum of
punishment which had been imposed upon the respondent as a consequence of the
direction issued in the first order of the Tribunal dated 6.1.1994. The High
Court has observed that the benefit granted by the Tribunal cannot be denied to
the respondent since it did not find any illegality in its approach excepting
the direction regarding the wholesale back wages. With respects, the High Court
failed to notice that the findings in enquiry having been affirmed by the
Tribunal at the first stage, it was not open to the Tribunal while hearing the
O.A. challenging the award of punishment of compulsory retirement, to go into
the question regarding establishment of charge against the respondent. Thus,
the second order of the Tribunal dated 17.9.1999 and the order passed by the
High Court dated 10.8.2005 in that regard are clearly illegal.
8.
Another question which arises for consideration is whether in view of the
findings recorded in the enquiry, which were affirmed by the Tribunal in its
first order dated 6.1.1994 that the respondent violated the undertaking given
by him by registering himself for a Ph.D. degree and further in not reporting
for duty after expiry of leave on 23.8.1984 and overstaying his leave by more
than two years, the punishment of compulsory retirement imposed upon him can be
said to be suffering from such illegality which may warrant interference either
by the Tribunal or by the High Court in exercise of jurisdiction under Article
226 of the Constitution.
9. It
is trite that the Tribunal or the High Court exercising jurisdiction under
Article 226 of the Constitution are not hearing an appeal against the decision
of the disciplinary authority imposing punishment upon the delinquent employee.
The jurisdiction exercised by the Tribunal or the High Court is a limited one
and while exercising the power of judicial review, they cannot set aside the
punishment altogether or impose some other penalty unless they find that there
has been a substantial noncompliance of the rules of procedure or a gross
violation of rules of natural justice which has caused prejudice to the
employee and has resulted in miscarriage of justice or the punishment is
shockingly disproportionate to the gravamen of the charge. The scope of
judicial review in matters relating to disciplinary action against employees
has been settled by a catena of decisions of this Court and reference to only
some of them will suffice. In B.C. Chaturvedi v. Union of India (1995) 6 SCC
749, it was observed as under in para 18 of the reports :-
"18.
A review of the above legal position would establish that the disciplinary
authority, and on appeal the appellate authority, being fact-finding
authorities have exclusive power to consider the evidence with a view to
maintain discipline. They are invested with the discretion to impose
appropriate punishment keeping in view the magnitude or gravity of the
misconduct. The High Court/Tribunal, while exercising the power of judicial
review, cannot normally substitute its own conclusion on penalty and impose
some other penalty. If the punishment imposed by the disciplinary authority or
the appellate authority shocks the conscience of the High Court/Tribunal, it
would appropriately mould the relief, either directing the
disciplinary/appellate authority to reconsider the penalty imposed, or to
shorten the litigation, it may itself, in exceptional and rare cases, impose
appropriate punishment with cogent reasons in support thereof." In Om
Kumar v. Union of India (2001) 2 SCC 386, after considering large number of
cases, the principle was summarized as under in para 71 of the reports:-
"71.
Thus, from the above principles and decided cases, it must be held that where
an administrative decision relating to punishment in disciplinary cases is
questioned as "arbitrary" under Article 14, the court is confined to Wednesbury
principles as a secondary reviewing authority. The court will not apply
proportionality as a primary reviewing court because no issue of fundamental freedoms
nor of discrimination under Article 14 applies in such a context. The court
while reviewing punishment and if it is satisfied that Wednesbury principles
are violated, it has normally to remit the matter to the administrator for a
fresh decision as to the quantum of punishment. Only in rare cases where there
has been long delay in the time taken by the disciplinary proceedings and in
the time taken in the courts, and in such extreme or rare cases can the court
substitute its own view as to the quantum of punishment." In Damoh Panna Sagar
Rural Regional Bank & Anr. v. Munna Lal Jain (2005) 10 SCC 84, it was
observed that the Court should not interfere with the administrator's decision
unless it was illogical or suffers from procedural impropriety or was shocking
to the conscience of the Court, in the sense that it was in defiance of logic
or moral standards. The Court would not go into the correctness of the choice
made by the administrator open to him and the Court should not substitute its
decision to that of the administrator. The scope of judicial review is limited
to the deficiency in decision-making process and not the decision.
In Mahindra
and Mahindra Ltd. v. N.B. Narawade (2005) 3 SCC 134, the respondent was
dismissed from service on the charge of having used abusive and filthy language
against his supervisor. The labour Court on the finding that the punishment of
dismissal was harsh and improper, directed his reinstatement with continuity of
service and two-third back wages. The writ petition filed by the employer was
dismissed both by the learned Single Judge and also by the Division Bench of
the High Court. In appeal a three Judge Bench of this Court set aside the
judgments of the High Court and also the award of the labour Court and upheld
the order of the disciplinary authority dismissing the respondent from service.
In Bharat Forge Co. Ltd. v. Uttam Manohar Nakate (2005) 2 SCC 489, the
respondent workman was found sleeping at about 11.40 a.m. while he was on duty in the first shift. On some earlier
occasions also he was found guilty of similar misconduct. After domestic
enquiry wherein he was found guilty, he was dismissed from service. The labour
Court held that the punishment of dismissal was harsh and disproportionate and
no reasonable employer could impose such punishment for the proved misconduct
and accordingly directed reinstatement with fifty per cent back wages. There
was a revision to the Industrial Tribunal and then a writ petition and finally
in letters patent appeal the Division Bench of the High Court modified the
award of the labour Court by directing the employer to pay a sum of Rs.2,50,000/-
to the workman. In appeal this Court, after referring to large number of
earlier decisions, set aside the judgment of the Division Bench and restored
the order passed by the employer.
10.
There are several decisions of this Court wherein the order of disciplinary
authority directing removal or dismissal of an employee on the ground of long
absence or overstay of leave has been upheld.
In Mithilesh
Singh v. Union of India & Ors. (2003) 3 SCC
309, the appellant who was constable in Railway Protection Special Force left
duty without leave being granted and returned after 25 days and then sought
leave. The order of removal from service passed by the authorities was set
aside by a learned Single Judge in a writ petition filed by the employee who
directed that some punishment other than order of removal or dismissal or
compulsory retirement from service may be passed. The Division Bench of the High
Court restored the order passed by the disciplinary authority and the said
judgment was affirmed by this Court in appeal on the ground that the scope of
interference with punishment awarded by the disciplinary authority is very
limited and unless the punishment is shockingly disproportionate, the Court
cannot interfere with the same and the employee having failed to show any
mitigating circumstances in his favour, the punishment awarded by the
authorities could not be characterized as disproportionate or shocking. In
Delhi Transport Corporation v. Sardar Singh (2004) 7 SCC 574, several cases of
conductors involving absence from duty ranging from 45 days to 294 days without
sanctioned leave were considered. The order of the Single Judge of the High
Court holding that the employer was justified in passing the order of
termination/removal was affirmed by this Court reversing the order of Division
Bench of the High Court, wherein the order of the Industrial Tribunal refusing
to accord approval to the punishment had been approved. In Union of India & Ors. v. Ghulam Mohd. Bhat (2005) 13
SCC 228, the order of removal from service passed against the respondent, who
was a constable in CRPF on the ground that he had overstayed his leave by 315
days was affirmed by this Court reversing the decision of the High Court, by
which it was held that the misconduct alleged called for a minor punishment and
not a punishment of removal from service. In State of Rajasthan & Anr. v. Mohd. Ayub Naz (2006)
1 SCC 589, the respondent who was an employee of cooperative department
remained absent for about 3 years and his service was terminated after a
departmental enquiry. The learned Single Judge of the High Court took the view
that the facts and circumstances of the case called for a lesser punishment and
thus directed that the employee shall be deemed to have retired after having
put in 20 years of service with all retiral benefits, which order was affirmed
in letters patent appeal before the Division Bench. This Court set aside the
order of the High Court with the observation that while considering the quantum
of punishment, the role of administrative authority is primary and that of
Court is secondary, confined to see if discretion exercised by the disciplinary
authority caused extensive infringement of rights and held that the punishment
of removal was absolutely correct.
11.
The contention of Shri Raju Ramachandran, learned senior counsel that
respondent was in a dilemma as he had not been able to complete the research
work for award of a Ph.D. degree and, therefore, he could not return to India
to join duty and also that if the respondent had completed his Ph.D., he would
have been more useful and advantageous to BARC, cannot be accepted. Bhabha
Atomic Research Centre is a premier scientific institution of the country where
research is conducted in the field of atomic energy. The work is basically of
experimental nature for which very expensive equipment has to be acquired. If
the employees of BARC are allowed to proceed on long leave in order to acquire
some higher degree or expertise which may advance their own career prospects,
the ultimate sufferer would be BARC as the equipment on which they are working
would lie idle for a long period. The nature of work being highly specialized,
there would not be many people in the organisation who may carry on the work in
that particular field unlike a factory where one workman may be substituted by
another to work on a particular machine. By the time the employee returns for
work, the equipment may become obsolete resulting in wastage of public money.
The fact that while sanctioning leave a specific undertaking was sought from
the respondent that he would not register for a Ph.D. degree and that he would
not ask for extension of leave, clearly shows that BARC was guarding against
such a contingency as for completing Ph.D. in the field of atomic energy and
related subjects requires considerable amount of practical work, which cannot
normally be completed in two years. At any rate, the respondent being fully
aware of the conditions under which he was sanctioned leave, viz., that he was
not to register for Ph.D. degree and was not to make a request for extension of
leave beyond two years, it was not open to him to enroll himself for Ph.D. and
then seek extension of leave on the ground that he had not been able to
complete the research work for award of the degree and should not be compelled
to leave his work midway.
12. We
are, therefore, of the opinion that in the facts and circumstances of the case,
the punishment of compulsory retirement imposed upon the respondent cannot be
held to be disproportionate, much less shockingly disproportionate, and there
was absolutely no ground on which the Tribunal or the High Court could
interfere with the order passed by the appellants.
13.
Before parting with the case we consider it our duty to refer to a rather
unusual one-sided approach of the High Court. In the penultimate paragraph of
the judgment, the High Court has observed "that the respondent was not personally
representing himself in the proceedings and he had authorized throughout his
power of attorney holder, obviously indicating that he was not available for
being considered for employment". Then in the operative portion of the
order six months' time is granted to the respondent to report for duty.
It
appears that this long period of time was granted to the respondent as he was
not present in India and was abroad. In a case involving
overstay of leave and absence from duty, granting six months' time to join duty
amounts to not only giving premium to indiscipline but is wholly subversive of
the work culture in the organization. Article 51A(j) of the Constitution lays
down that it shall be the duty of every citizen to strive towards excellence in
all spheres of individual and collective activity so that the nation constantly
rises to higher levels of endeavour and achievement. This cannot be achieved
unless the employees maintain discipline and devotion to duty. Courts should
not pass such orders which instead of achieving the underlying spirit and
objects of Part IV-A of the Constitution has the tendency to negate or destroy
the same.
14. In
the result, the appeal is allowed with costs. The judgment and order dated
17.9.1999 of the Tribunal and the judgment and order dated 10.8.2005 of the
High Court are set aside and the order of compulsory retirement passed by the
appellants is affirmed.
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