(Per : HONOURABLE MR.JUSTICE A.L.DAVE) Learned Standing Counsel for the petitioners Ms. Reeta Chandarana, upon instructions, states that the petitioners do not press challenge to order passed in Original Application No.602 of 2005. She places on record copy of the instructions received by her from the Railway Authorities by communication dated 23.01.2012, which is taken on record.
2. We have heard learned Standing Counsel Ms. Chandarana for the petitioners and learned advocate Mr. Pathak for the respondent appearing on caveat.
3. Learned advocate Ms. Chandarana has relied upon series of judgments of Apex Court to show that the imposition of punishment is within the domain of the employer and the Court should not normally interfere with such punishment, unless it shocks the conscience of the Court. There cannot be any dispute on the above principles of law.
4. The present petitioners, now, challenge the judgment and order of Central Administrative Tribunal, Ahmedabad rendered in O.A. No.29 of 2008 on 22.06.2011. The challenge to order in O.A. No.602 of 2005, dated 31.08.2006, is now not pressed by the petitioners. However, that order would be of great relevance, so far as the present petition is concerned.
5. The respondent is sought to be punished on account of misconduct of his unauthorised absence from 11.09.2003 to 24.02.2004. It would, therefore, be necessary to examine; whether the respondent really unauthorisedly remained absent from duty during that period ? This question has its answer in the judgment and order passed by the Central Administrative Tribunal in O.A. No.602 of 2005, where it has been observed thus :
"In view of above said orders (of the DRM/ADI) dated 20.02.2004, the Applicant(i.e. present respondent) was to be allowed to work in CTCC Office at Ahmedabad; but, by resorting to several hyper-technical objections, the Engineering Department did not allow the Applicant to resume duty in the Office of the CTCC/ADI and, as a result of the same, the Applicant has virtually been forced out of employment."
6. Similarly, the Central Administrative Tribunal observed in paragraph 11 of its judgment thus :
"Since the Applicant was prevented to join at CTCC/ADI Office, even after the clear order (of the DRM/ADI) dated 29.02.2004, his absence cannot be branded as an un-authorised one."
7. These are the findings of Central Administrative Tribunal in respect of the alleged unauthorised absence of the respondent and the petitioners have chosen not to challenge the said judgment and order and thereby accept the findings of the Central Administrative Tribunal. The Authority could not have concluded that the respondent absented himself from duty unauthorisedly and if the element of unauthorised absence gets eliminated from the proceedings of the petitioners, then they cannot be punished in any manner. That being so, we do not find any error in the findings of the Central Administrative Tribunal recorded in O.A. No.29 of 2008. We do not find any merit in the petition either. Therefore, the present petition must fail and stands dismissed.
[A.L.
Dave, J.] [Mohinder Pal, J.] #MH Dave