(Per : HONOURABLE MR.JUSTICE G.B.SHAH) 1. We have heard the learned counsel for the parties.
By way of this petition, the petitioners have challenged the judgment and order dated 3.4.2012 passed by the Central Administrative Tribunal, Ahmedabad in Original Application No.406 of 2010.
2. Deceased Champakbhai Roopa Damor, husband of the respondent was serving under present petitioner No.2- original respondent No.2, DRM, Western Railway, Vadodara on regular basis. He was issued charge sheet on 22.5.1998 for alleged unauthorised absence for 8 days and after ex-parte inquiry, initially he was awarded punishment of removal from service vide order dated 20.5.1999. The said order was challenged in O.A. No. 44/2001 after which on being allowed, the deceased employee filed statutory appeal. Being aggrieved by the subsequent order, the deceased employee had approached the Central Administrative Tribunal (for short, “the Tribunal”) by filing OA No.315/2007 wherein the Tribunal directed to remit the matter back to the appellate authority for deciding the appeal on merits in the light of the discussions made in the order. The revisional authority considered the appeal and passed order dated 24.1.2009 modifying the punishment as “compulsory retirement” w.e.f. 20.5.1999. Thereafter the respondent requested for retirement dues as per the order dated 6.1.2009 and has stated that despite the family pension scheme, she was informed that as her husband had not completed the requisite qualifying service for pension of 10 years the competent authority had not sanctioned the pension. According to the petitioners, the deceased employee had completed only 8 years, 1 month and 20 days. The deceased employee died before the order of compulsory retirement was passed on 6.1.2009 and the settlement dues were paid to the widow of the deceased employee. The respondent approached the Tribunal for not granting the family pension consequent to the order of compulsory retirement w.e.f. 20.5.1999 vide order dated 6.1.2009. The Tribunal vide order dated 3.4.2012 disposed of the Original Application No. 406 of 2010 with direction to pay the salary and allowances as admissible from the date of punishment i.e. 5.9.1999 till his death or superannuation from service whichever is earlier. It was further directed that the orders of the Tribunal shall be complied with within a period of three months from the date of receipt of copy of the order. This order is challenged in this petition.
3. Learned counsel Ms. Reeta Chandarana for the petitioners submitted that the Tribunal has erred in holding that the disciplinary proceedings stood closed on the date from which the penalty order was effective and to continue in deemed service till the date of his death or superannuation from service whichever is earlier. She submitted that the respondent's husband was compulsorily retired vide letter dated 6.1.2009 w.e.f. 20.5.1999. At that time he had completed only 8 years' service which was less than the required qualifying service of 10 years. His retiral dues have been paid. She submitted that the deceased employee was removed from service w.e.f. 20.5.1999 i.e. before the death of the employee on 23.10.2008. Learned counsel submitted that the charges of unauthorised absence have been proved beyond doubt in the inquiry proceedings and thus the penalty imposed on the deceased employee by the petitioners is according to rules and is justified. She submitted that the impugned order dated 3.4.2012 passed by the Tribunal in O.A. No. 4068 of 2010 be quashed and set aside.
4. Learned counsel Ms. Sunita Chaturvedi for the respondent widow of deceased employee submitted that deceased husband of the respondent was dismissed from service only on the charge of unauthorized absence for eight days after an ex parte enquiry. It is also submitted that husband of the respondent expired on 23.10.2008 before the order dated 6.1.2009. It is very clear that on the date of death, the order of compulsory retirement had not been passed and the order of removal of service had been quashed and set aside on 7.7.2008 by the Tribunal in OA. No. 315/2007. She vehemently argued that in fact no order existed against the employee on the date of his death. Hence he should be deemed to continue in service on the date of his death and would, therefore, be entitled to pension. She further submitted that as per the direction of the Tribunal opportunity of appeal should be made available to the applicant against the order of removal of service passed by the disciplinary authority. However, by the time such orders were passed, the employee had died and this fact was noted by the appellate/revisional authority while passing the order dated 6.1.2009. Thus, the employee during his life time did not get an opportunity to seek legal remedy against the order of the Disciplinary Authority after his death. She finally submitted that the Tribunal has rightly decided the Original Application which does not call for any interference.
5. Having heard the learned counsel for the parties, we have gone through the impugned judgment passed by the Tribunal. Relevant paras 10 to 12 of the judgment of the Tribunal are reproduced hereunder:
“10. The Hon'ble Apex Court in B.C. Chaturvedi v. Union of India and others in 1996 SCC (L &S) 80 has laid down the guidelines for judicial review. Relevant portion of the judgment is reproduced as under:
“Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction,power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The court/Tribunal in its power of judicial review does not act as appellate authority to re-appreciate the evidence and to arrive at its own independent findings on the evidence. The court/tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the court/tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.”
As per this judgment, “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 consider 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 the instant case, a mere absence of 8 days, resulting in punishment of removal from service with immediate effect, appears to be disproportionate and excessive composed to the charge made out in the charge sheet and is unduly harsh. This is also to be seen in the light of the contention of the applicant that the inquiry proceedings had been held without appointing defence assistance to the applicant and that the inquiry proceedings were conducted ex- parte as averred by the applicant in the amended para 4.8 of the OA. The net effect of this punishment also resulted in depriving the deceased employee of family pension by cutting short his service with the respondents and making him ineligible for pensionary benefits. The applicant till the date of his death was not able to avail the remedy of appeal as was made available to him by this Tribunal vide order dated 7.7.2009 in OA/315/2007, wherein the earlier appellate order had been quashed and set aside.
11. Having taken note of the unfortunate circumstances in the whole matter and the penalty imposed on the deceased employee vis-a-vis the charge sheet and in the light of the aforenoted judgment of the Hon'ble Apex Court, we conclude that the penalty awarded by the disciplinary authority was unduly harsh and excessive as well as disproportionate to the charge. The order of the disciplinary authority cannot, therefore, be legally sustained and the same is quashed and set aside.
12. Accordingly the deceased employee would be entitled to deemed reinstatement of service from the date from which the penalty order was effective and to continue in deemed service till the date of his death or superannuation from service, whichever is earlier. He would be further entitled to salary and allowances as admissible to him because the principle of “no work no pay” would not apply in the light of the fact that he did not abstain from duty on his own volition but because he was prevented from attending to his duties by virtue of the impugned order of penalty whereby he was removed from service. His salary and allowances, as admissible would be payable from the date of deemed reinstatement in service from the date of punishment i.e. 05.9.1999 till his death or superannuation from service whichever is earlier. The arrears of pay and allowances and other benefits including pensionary benefits as admissible under the rules shall be regulated by the respondents in the light of the rules and regulations concerning the subject.”
5. It is an undisputed fact that deceased husband of the respondent was dismissed from service only on the charge of unauthorized absence for eight days after an ex parte enquiry. It is also not in dispute that husband of the respondent expired on 23.10.2008 before the order dated 6.1.2009. It is very clear that on the date of death, the order of compulsory retirement had not been passed and the order of removal of service had been quashed and set aside on 7.7.2008 by the Tribunal in OA No. 315/2007. The petitioners have not been able to point out before the Tribunal that the charge sheet imputes repeated unauthorised absence from duty. It is pertinent to note that the Tribunal had observed in the earlier Original Applications that removal from service with immediate effect was a harsh punishment considering the charge. In a case of mere absence of 8 days, resulting in punishment of removal from service with immediate effect, in our considered view, disproportionate and excessive according to the charge made out in the charge sheet. Not only that the inquiry proceedings had been held without appointing defence assistance to the respondent employee and that the inquiry proceedings were conducted ex-parte according to the respondent. The net effect of this punishment also resulted in depriving the deceased employee of family pension. We are in complete agreement with the observations and findings arrived at by the Tribunal and it does not call for any interference by this Court.
6. In the result, this Special Civil Application deserves to be dismissed and it is accordingly dismissed. The petitioners are directed to comply with the directions given by the Tribunal within a period of three months from the date of receipt of copy of this order. Rule is discharged. The ad-interim relief granted earlier stands vacated.
[V.M. SAHAI, J.] [G. B. SHAH, J.] msp