IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 13TH MARCH 2008 / 23RD PHALGUNA 1929 WP(C).No. 669 of 2005(S) ------------------------ OA.31/2002 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONERS: ---------------------- 1. UNION OF INDIA, REPRESENTED BY THE GENERAL MANAGER, SOUTHERN RAILWAY, HEADQUARTERS OFFICE, PARK TOWN P.O., CHENNAI-3. 2. DIVISIONAL RAILWAY MANAGER, SOUTHERN RAILWAY, TRIVANDRUM-14. 3. CHIEF ROLLING STOCK ENGINEER, SOUTHERN RAILWAY, HEADQUARTERS OFFICE, PARK TOWN P.O., CHENNAI-3. BY SRI.M.C.CHERIAN, SR.SC.,RAILWAYS RESPONDENTS: ------------------------- 1. G.RAGHAVAN NAIR, S/O.LATE S.GOPALA PILLAI, CARRIAGE & WAGON FITTER/GRADE-II (COMPULSORILY RETIRED), CARRIAGE & WAGON SUPERINTENDENT'S OFFICE, SOUTHERN RAILWAY, QUILON, RESIDING AT SANTHA BHAVANAM, PALLICKAL HOUSE, KOTTARAKKARA, QUILON DISTRICT. 2. REGISTRAR, CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM. BY ADV. SRI.R.PREMCHAND SMT.RENUKA DEVI K. SMT.SINDU B.R. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/03/2008, THE COURT ON 13/03/2008 DELIVERED THE FOLLOWING: Kss WPC.NO.669/2005 S APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF PAGES 4 TO 10 OF THE SERVICE REGISTER OF THE 1ST RESPONDENT. EXT.P1(A): TYPED COPY OF PAGES 4 TO 10 OF THE SERVICE REGISTER OF THE 1ST RESPONDENT. EXT.P2: COPY OF O.A.NO.31/2002 DTD. 7/01/2002. EXT.P3: COPY OF THE REPLY STATEMENT FILED BY THE RAILWAY IN O.A.NO.31/2002 DTD. 9/08/2002. EXT.P4: COPY OF REJOINDER FILED BY THE 1ST RESPONDENT IN O.A.NO.31/2002 DTD. 10/03/2004. EXT.P5: COPY OF THE ORDER IN O.A.NO.31/2002 DTD. 17/09/2004. /TRUE COPY/ P.S.TO JUDGE Kss C.N. Ramachandran Nair & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C).NO.669 of 2005-S - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 13th day of March, 2008. JUDGMENT T.R. Ramachandran Nair, J. The order of the Central Administrative Tribunal in O.A.No.31/2002 is under challenge herein. By the impugned order, the Tribunal held that the imposition of major penalty of compulsory retirement against the first respondent herein is totally disproportionate to the charges. Consequently, the petitioners herein were directed to reinstate the first respondent with liberty to award appropriate minor penalty. It was also held that the first respondent will not be entitled to any back wages. 2. The order is challenged mainly on the ground that the punishment of compulsory retirement was perfectly justified, in that the first respondent had been continuing on unauthorised absence and he had been imposed with minor punishments on five times more or less on similar circumstances. It was also contended that the penalty was imposed as per order dated 18.10.1993 which was accepted at that time by the first respondent. The statutory appeal was filed by him after seven years and in the meanwhile, he had been receiving monthly pension at Rs.375/- and was granted commuted WPC 669/2005 -2- value of pension at Rs.22,350/-. Along with the same, the DCRG amounting to Rs.12,960/- and Rs.4,606/- being the amount due under Group Insurance Scheme were also arranged to be credited to his SB account. In these circumstances, it is contended by the petitioners herein that the direction to reinstate him in service cannot be justified and it is also pointed out that he is having only a short tenure, as he will be attaining superannuation within a couple of years, if he is reinstated. 3. The first respondent herein was working as a Carriage and Wagon Fitter/Grade II. Actually the charge relates to unauthorised absence during different spells between 21.1.1991 and 8.8.1991. The substance of the charge relating to the same is that he was absent on the following occasions: “21.1.1991 9.2.1991 to 19.3.1991 22.3.1991 to 23.3.1991 28.4.1991 15.5.1991 17.6.1991 19.6.1991 26.6.1991 to 8.8.1991” The penalty was imposed also on the ground that he had undergone certain penalties even prior to the disciplinary proceedings taken against him for the unauthroised absence as stated above. 4. In fact, the first respondent had a case that he was injured in an WPC 669/2005 -3- accident on 20.11.1992 and he underwent treatment for various ailments. In the accident he lost three of his fingers and in view of the continued treatment of the applicant and also because of the financial difficulties of the family he could not defend the disciplinary action properly and could not file appeal in the right time. After filing an appeal, he approached the Tribunal on an earlier occasion by filing O.A. No.431/2001. The Tribunal directed the appellate authority to consider and dispose of the appeal both on the question of condonation of delay and on merit. Thereafter, the appellate authority passed an order condoning the delay on 24.8.2001. But the penalty was confirmed as per Ext.A9 order produced before the Tribunal. 5. The Tribunal elaborately considered the matter. It was found by the Tribunal that what is alleged against him in the memo of charges is that he had been unauthorisedly absent on the dates mentioned therein without proper sanction of leave from the competent authority. The Tribunal has clearly found that there was no charge of habitual absentism or of willful dereliction of duty with dishonest motive. The Tribunal was of the view that these absences were not covered by the leave sanctioned actually. It was also noticed that the past conduct of the employee was never included as one of the charges in the memo of charges. Therefore, it was found that WPC 669/2005 -4- the approach is totally perverse and that the charges were wholly inadequate for the purpose. Accordingly, it was held that the authorities have not kept a semblance of balance between the charges framed and the punishment awarded. Thus, it was held that there was no necessity to impose a major penalty. 6. We heard Shri M.C. Cherian, learned Standing Counsel for the Railways and learned counsel for the respondent. After hearing the arguments in detail, we are of the view that the view taken by the Tribunal cannot be said to be so perverse. The allegations taken in toto, will only show that he was absent on certain dates and it was also not continuous but during different spells. Prior to the said period, he had not suffered any major penalty also. It is well settled that the punishment should be commensurate with the charges proved. The past conduct even though was relevant, those were also instances where minor penalties were imposed on more or less same grounds except on three occasions. In fact, he had suffered an accident after the disciplinary proceedings were initiated which resulted in loss of three fingers over the left hand. He had undergone treatment in Railway Hospital, Quilon, Medical College, Trivandrum and at Railway Hospital, Palakkad. The said aspect was relied on by him as an explanation to condone the delay. At any rate, the appellate authority had WPC 669/2005 -5- condoned the delay and the appeal was considered on merits. Therefore, even though Shri Cherian argued that there was long delay in filing the appeal, since the delay was condoned by the appellate authority, it cannot be a circumstance which can be taken note of against the applicant. The Tribunal interfered with the major penalty on the ground that the same is shockingly disproportionate. The said conclusion was arrived at after analysing the charges and the gravity of the same. Therefore, it cannot be said that the Tribunal acted so perversely in the matter. It is also not a case where the Tribunal has entered the findings on a wrong appreciation of the facts and evidence of the case. For all these reasons, we reject the contentions raised by the petitioners. 7. We are also of the view that in view of the fact that the punishment was effected in the year 1993 and as he had been drawing pension from that day onwards, the direction to reinstate him in service requires modification. We also notice that he had been drawing monthly pension and has availed commuted value of pension along with DCRG and other benefits. Therefore, if he is reinstated in service, then he may have to repay the pensionary benefits already received. Of course, the Tribunal has directed not to disburse any amount towards back wages. While admitting the writ petition, this court had granted interim stay initially for one month which WPC 669/2005 -6- was being extended from time to time. Therefore, he remained out of service during the pendency of the writ petition also. Considering the fact that he is already of the age around 58 years as of now, even if he is reinstated, he may not be getting a substantial tenure. Hence, we are inclined to modify the order passed by the Tribunal. We are of the view that to give a quietus to the entire dispute, the following directions will suffice: i) The order of the Tribunal setting aside the punishment of compulsory retirement, is hereby affirmed; ii) The direction to reinstate the first respondent in service is vacated. The further direction to impose minor penalty is also vacated. iii) The first respondent (applicant in the OA) will be granted pension and pensionary benefits considering that he has retired after completing the entire service, i.e. the period from the date of imposition of compulsory retirement (18.10.1993) till the normal date of his retirement will be notionally counted for the purpose of computing the pension and pensionary benefits. Accordingly, the monthly pension and other pensionary benefits will be revised and he will be entitled to draw pension and other benefits at the said revised rate. The same will be calculated by counting the pay and allowances in the post which was held by him on the date of compulsory retirement, i.e.18.10.1993; iv)He will not be entitled to be paid any amount towards salary which would have been drawn by him from the date of compulsory retirement till the date of normal retirement. But for calculating WPC 669/2005 -7- pension and other benefits, the normal increments which would have been available to him will be counted. Thus, the benefits will be recalculated in that manner. v) He will be entitled for the benefit of any orders granting revision of pension which was in force during this period. vi) The petitioners will pass appropriate consequential orders in accordance with the above directions and disburse arrears to the respondent within a period of three months from the date of receipt of a copy of this judgment. The writ petition is disposed of as above. (C.N. Ramachandran Nair, Judge.) (T.R. Ramachandran Nair, Judge.) kav/ WPC 669/2005 -8- C.N. Ramachandran Nair & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - . No. - - - - - - - - - - - - - - - - - - - - - - JUDGMENT 6th February, 2008.