IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF JULY, 2019 PRESENT THE HON’BLE MR. JUSTICE L.NARAYANA SWAMY AND THE HON’BLE MR. JUSTICE R DEVDAS WRIT PETITION No.5295/2019 (S-CAT) Between:
Deepa Sharma, W/o Subramanya M.S., Aged about 38 years, Ward Sahayika (Now under Removal from Service), Command Hospital, A.F., Agaram Post, Bengaluru – 560 007.
R/at No.1602, Vashthavya, 1st A Cross, Chandra Layout, Bengaluru – 560 010.
(By Sri. Ranganath S Jois, Advocate) And :
1. The Union of India, Represented by its Secretary, …Petitioner Ministry of Defense, “Raksha Bhavan”, New Delhi – 110 001.
2. The Air Vice Marshall, Senior Officer –in-charge Administration, Training Command, Indian Air Force, JC Nagar Post, Bengaluru – 560 006.
3. The Commandant and the Disciplinary Authority, Command Hospital, Air Force, Bengaluru – 560 007.
4. The Civil Administrator, Command Hospital, Air Force, Bengaluru – 560 007.
(By Sri. B.Pramod, CGC) ...Respondents This Writ Petition is filed under Articles 226 and 227 of the Constitution of India praying to call for the entire records relating to the imposing of the order of removal from service by order dated 20.08.2018 made in O.A.No.170/000501/2017 passed by the Central Administrative Tribunal, Bengaluru Bench, vide Annexure – A peruse the same and set aside the order of the tribunal as erroneous and untenable in law and etc., This Writ Petition coming on for Preliminary Hearing in 'B' Group this day, Devdas J, made the following:
ORDER The petitioner herein is working as Ward Sahayak in the Command Hospital, Indian Air Force, Bangalore The petitioner was issued with charge memo for having remained absent from duty for a period of 120 days. After disciplinary enquiry, the charge was held to be proved and therefore, the punishment of removal from service was imposed on the petitioner.
2. On earlier occasion, the petitioner was before this Court. This Court in W.P. No.44337/2016 (S-CAT) disposed of on 15.12.2016, set aside the order dated 11.7.2014 passed by the Appellate Authority as well as the order dated 9.2.2016 passed by the Tribunal while directing the appellate authority to examine the matter afresh in the light of the observations made by the Court. It was specifically directed that the appellate authority has to independently consider the gravity of punishment limited to the charge and whether the charge was proved in the inquiry. Thereafter the impugned order dated 20.4.2017 was by the Appellate Authority.
3. The learned counsel Sri B. Pramod appearing for respondents draws the attention of this Court to paragragh 6(g) of the impugned order and submits that the Appellate Authority has in fact kept in mind the direction and observations made by this Court and thereafter passed the order in accordance with law. It is submitted that the past conduct of the petitioner having remained absent and punishment imposed earlier has not been taken into consideration while passing the impugned order. It has been stated that the duty assigned to the petitioner requires dedicated service on the part of the petitioner as Ward Sahayak. It is submitted that the absence of the petitioner on duty will hamper the work of the hospital. It is therefore, submitted to dismiss the writ petition.
4. The learned counsel for the petitioner would submit that the petitioner has indeed explained her predicament that she had to take care of two children and an elderly father in law aged about 84 years, while the husband was frequently traveling, not only out of station but also out of country . The learned counsel submits that a last opportunity be given to the petitioner. If the petitioner is removed from service, it will affect her family. It is also submitted that though the punishment of removal from service is imposed without affecting her future employment under Government, the petitioner is age barred and she will not be eligible for further appointment under the Government.
5. We have heard the learned counsel for both the parties and perused the writ petition papers.
6. It is our considered opinion in the facts and circumstances of the case that removal of the petitioner from service is not proportionate to the charges leveled against the petitioner. On humanitarian consideration, the appellate authority could have imposed lesser punishment. However, since the petitioner was removed from service by order dated 11.2.2014 and she was without employment for 5 years, we deem it proper to set aside the impugned order and other orders including the order of the Tribunal while directing the respondent to reinstate the petitioner without back wages or any financial benefits for the period when she has not served in the hospital. The petitioner shall be imposed punishment of reduction to lower stage in the time scale of pay for a period of 5 years. If the same misconduct is repeated, the petitioner will not be entitled to sympathetic consideration. With these observations the petition is disposed of.
SD/- JUDGE SD/- JUDGE nm