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Sri Ram Yadav v. Central Administrative Tribunal & Ors. - WRIT - A No. 20873 of 2002  RD-AH 2366 (5 September 2005)
Civil Misc. Writ Petition No.20873 of 2002
Sri Ram Yadav
The Central Administrative Tribunal, Allahabad & Ors.
Hon'ble Dr. B.S. Chauhan, J.
Hon'ble Shishir Kumar, J.
This writ petition has been filed for setting aside the judgment and order of the learned Tribunal dated 14.01.2002 by which the application of the petitioner for quashing the order of dismissal dated 19.11.1990 and the appellate order dated 02.02.1994 has been rejected.
The facts and circumstances giving rise to this case are that the petitioner had been appointed as a Safai Karamchari in the Civil Wing of the Army. He was served with a charge sheet dated 24.05.1990 for not obeying the order on 19th and 21st May, 1990 and carrying out his trade work of cleaning. He submitted the reply to the said charge sheet on 15.06.1990. The petitioner was asked to participate in the disciplinary proceedings initiated against him. However, on the request of the petitioner, a defence nominee was appointed. During the course of the enquiry, the defence nominee sought an adjournment on the ground of his non-availability on the occasion Puja in Nauratra and Dushehra, on the date fixed from the Inquiry Officer. In stead of granting adjournment on that ground, the Inquiry Officer withdrew the defence nominee vide order dated 25.09.1990 holding that he was adopting the delaying tactics. Subsequently, the petitioner sought time for making some alternative arrangement, however, the Inquiry Officer concluded the enquiry and submitted the enquiry report dated 12.10.1990. After considering the said report, the petitioner was dismissed from service vide impugned order dated 15.11.1990 (Annex.12) passed by the respondent no.3. Against the aforesaid order dated 15.11.1990, the petitioner preferred an appeal. As the appeal was not decided, the petitioner preferred Original Application No. 744 of 1991 before the Central Administrative Tribunal and the same was disposed of vide order dated 03.09.1993 directing the Appellate Authority to decide the appeal within a period of three months after giving an opportunity of hearing to the present petitioner. However, his appeal was rejected as communicated vide order dated 02.02.1994 (Annex.15). The petitioner filed Original Application No. 746 of 1994 challenging the said impugned orders which was decided on 28.08.1998 by the learned Tribunal on the ground that the Appellate Authority did not examine the issue of quantum of punishment. Thus, the matter was remanded to the Appellate Authority to reconsider the case specifically on the quantum of punishment after granting an opportunity of hearing to the petitioner. In pursuance of the said order, the matter was reconsidered by the Appellate Authority and the appeal was rejected vide order dated 27th February, 1999. The petitioner again filed Original Application No. 1349 of 1999, which has been dismissed by the learned Tribunal vide judgment and order dated 14.01.2002. Hence the present petition.
Shri Arun Kumar, learned counsel for the petitioner has raised large number of issues including the locus of the inquiry report and submitted that large number of grounds have been established by the Inquiry Officer which could not be the subject matter of the charge sheet. Therefore, the inquiry report itself stood vitiated and there was no occasion for the Disciplinary Authority to consider the same and pass the order of dismissal. More so, the charge was limited only for not carrying out the orders of doing his trade work on 19th and 21st May, 1990. Even if the charge stood proved, the punishment of dismissal from service is disproportionate to the delinquency. Undoubtedly, the petitioner was serving in the Civil Wing of the Army and was a Member of the disciplined force but the rigour of punishment could not have been so harsh that it warranted the dismissal from service. Thus, the orders impugned are liable to be set aside.
On the other hand, Shri Deepak Verma, learned counsel appearing for the respondents submitted that the petitioner had been working in the disciplined force and disobedience of order of carrying out the trade work for two days warranted his dismissal from service and the petition is liable to be dismissed.
We have considered the rival submissions made by learned counsel for the parties and perused the record.
There was only one charge against the petitioner for not carrying out the trade work on 19th and 21st May, 1990 and there was no charge against him that he had been disobeying the order or was a habitual offender in this respect. The defence nominee appointed by the authority concerned was withdrawn on the ground that he was delaying the matter under the pretext of Puja holiday etc. and in spite of the fact that the learned Tribunal has remanded the case to the Appellate Authority for considering the quantum of punishment, the Appellate Authority rejected the appeal without giving any reason, whatsoever. The charge sheet did not make reference to any other earlier instance of misconduct committed by the petitioner. The Inquiry Officer in paragraph 11 of the inquiry report recorded a finding that the petitioner had been found to be non-cooperative and quarrelsome by nature. He had also committed misconduct on 12th October, 1990 as there are records of non-performance of trade work by him on previous occasions also and record of warning letter was also issued with the consequence of termination of service, if failed to perform his duty. There had been record of gross misconduct and negligence of duty by him on previous occasions. In the totality of the circumstances, if all the incidents and misconduct committed by the petitioner are taking into consideration, the punishment of dismissal may be justified but in a case where the earlier conduct of the petitioner has not been a part of the charge sheet and no opportunity had been given to the petitioner to furnish any explanation of the same, we are of the considered opinion that the same could not be taken consideration and in view thereof, the misconduct committed by the petitioner on 19th and 21st May, 1990 could only have been taken in to consideration. Petitioner did not carry the trade work only for two days. He belongs to the Civil Wing of the Army, therefore, we are of the considered opinion that the punishment of dismissal is disproportionate to the delinquency committed by him and is liable to be set aside. The best course would have been to remain the case to the authority to impose the proper punishment, however, a period of 15 years has already passed and the facts of the case require that we should substitute the punishment by imposing the punishment of three annual grade increments with cumulative effect and in view thereof, the petition deserves to be allowed and the orders impugned are liable to be set aside to that extent.
The writ petition succeeds and is allowed. The orders dated 14.01.2002 (Annex.19) is set aside and the 02.02.1994, 27.02.1999 and 24.06.1999 (Annex. 15, 17 and 18) are hereby quashed. As the petitioner is out of employment for the last 15 years and there is nothing on record to show that he was not gainfully employed, he shall be entitled for 25 percent of the total back wages.
There shall be no order as to costs.
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