CWP No.12706-CAT of 2006 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CASE NO.: CWP No.12706-CAT of 2006 DATE OF DECISION: March 19, 2009 UNION OF INDIA ...PETITIONER VERSUS ASHOK KUMAR & OTHERS ...RESPONDENTS CORAM: HON'BLE MR. JUSTICE ASHUTOSH MOHUNTA. HON'BLE MS. JUSTICE NIRMALJIT KAUR. PRESENT: MR. PUNEET JINDAL, ADVOCATE FOR THE PETITIONER. MR. ROHIT SETH, ADVOCATE FOR RESPONDENT NO.1. ASHUTOSH MOHUNTA, J. The petitioners are aggrieved by the judgement dated 14.2.2006, passed by the Central Administrative Tribunal, Chandigarh Bench, Chandigarh (for short 'the Tribunal') vide which removal orders dated 20.11.2003, (Annexure A-1) which was further confirmed by the appellant authority vide order dated 2.6.2004, (Annexure A-2) was set aside and the applicant was held entitled to reinstatement from the date of his suspension with all consequential benefits. Briefly, the facts of the case are that Ashok Kumar was appointed as a Bungalow Khalasi w.e.f. 23.6.1997. He was assigned to do domestic work at the residence of Sh. B.M. Aggarwal, Deputy C.M.E.(M), Railway Coach Factory, Kapurthala. On 30.8.2003, he was instructed by his Controlling Officer to get an important file from the Technical Training Centre and return as soon as possible as the file is immediately required. CWP No.12706-CAT of 2006 -2- The distance between the residence of the controlling officer and the administrative office where the file was lying is about 3 kms. on one side. It took respondent No.1 about 2 hours to bring back the file which annoyed his superior officer who issued a charge-sheet upon him for imposition of minor penalty. On 2.9.2003, the Controlling Officer after examining all the material imposed punishment of reduction of pay to minimum of pay for two years without cumulative effect on 20.9.2003. No appeal was filed against the order imposing the aforementioned minor penalty which became final. On 18.9.2003, another charge-sheet was issued to respondent No.1 by the Assistant Works Manager (Trg.) RCF, Kapurthala for a separate misconduct of remaining absent from duty and for not performing his duties on the false pretext of ill health. The allegations against the respondent were that he remained unauthorizedly absent from duty on 5.8.2003 (A.N.), 6.8.2003 (F.N.), 27.8.2003 (F.N.) and 1.9.2003 (Full day). Reply was filed by the respondent wherein it was averred that he has been ailing for some time and in support of his averments he attached medical certificate dated 9.12.2000, alongwith his application. He also prayed that he be given light work in view of his health. An enquiry was conducted against the respondent in which he was found guilty. As a result of the above, he was ordered to be removed from service vide order dated 20.11.2003. The appeal filed by the petitioner was also dismissed by the appellate authority vide order dated 2.6.2004. The aforementioned orders were challenged by the respondent before the Tribunal and his Original Application has been allowed and he has been ordered to be reinstated in service. A perusal of the aforementioned facts shows that the CWP No.12706-CAT of 2006 -3- respondent was ordered to be removed from service on the ground that he has remained absent on 5.8.2003 (A.N.), 6.8.2003 (F.N.), 27.8.2003 (F.N.) and 1.9.2003 (Full day), i.e. a total of 2½ days. The other reason for removal was that he failed to do his duty and did not obey the orders of his seniors. In our considered opinion the order of removal from service for being absent from duty for a period of 2½ days is obviously very harsh. The Tribunal has found that the applicant was examined by the enquiry officer on 27.10.2003, whereas Chamkaur Singh who was the sole witness was examined on 28.10.2003, i.e. one day after the applicant has been examined. This procedure adopted by the enquiry officer is obviously impermissible as it is the prosecution which has to prove the articles of charges first and only thereafter could the delinquent be asked to submit his defence. In the present case, the respondent has been asked to give his defence prior to the prosecution which was wholly illegal. This, the entire enquiry proceedings against the appellant were illegal and clear violation of the principles of natural justice. In view of the above, we find no merit in the writ petition and the same is dismissed. (ASHUTOSH MOHUNTA) JUDGE March 19, 2009 (NIRMALJIT KAUR) Gulati JUDGE