IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 11..01..2008 Coram The Honourable Mr.Justice P.K. MISRA and The Honourable Mr.Justice K.CHANDRU W.P. No. 19679 of 2004 A. Francis ... Petitioner -vs- 1. The Chief Administrative Officer Department of Atomic Energy Indira Gandhi Centre for Atomic Research Kalpakkam Kancheepuram District 2. Director Department of Atomic Energy Indira Gandhi Centre for Atomic Research Kalpakkam Kancheepuram District 3. Union of India Rep. by its Secretary Department of Atomic Energy R&D - I Section, Anushakti Bhavan, CSM Marg Mumbai 4. The Registrar Central Administrative Tribunal Madras Bench, Chennai ..Respondents Petition under Article 226 of the Constitution of India praying to issue a writ of Certiorarified Mandamus calling for the records pertaining to the order of the fourth respondent in O.A. No. 345 of 2002 dated 18.10.2002 and quash the latter portion of the order which disentitles the petitioner from claiming the backwages and consequently, to direct the respondents 1 to 3 to disburse the backwages to the petitioner from the date of removal till the date of reinstatement. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Mr. C.K.M. Appaji For Respondents 1-3 : Mr. T.S. Sivagnanam, ACGSC ORDER (Order of the Court was made by K.CHANDRU, J.) Heard the arguments of Mr. C.K.M. Appaji, learned counsel appearing for the petitioner and Mr. T.S. Sivagnanam, learned Additional Central Government Standing Counsel representing the respondents 1 to 3 and have perused the records. 2. The petitioner filed the Original Application before the Central Administrative Tribunal being O.A. No. 345 of 2002 seeking to set aside the order of the first respondent dated 31.01.1997 imposing a penalty of removal from service, which was confirmed by the order of the second respondent dated 27.6.1997 and the revision was also dismissed by the third respondent vide order dated 04.9.2001. The petitioner was employed as a Tradesman in the Indira Gandhi Centre for Atomic Research [for short, 'IGCAR'] coming under the Department of Atomic Energy and by an order dated 31.01.1997, he was removed from service for unauthorised absence. The petitioner was charge-sheeted by a charge-memo dated 14.02.1996 in which it was stated that he was absent from duty without prior approval from 27.4.1995. Inspite of a registered letter having been sent to him on 28.6.1995, he did not report for duty and he was further informed to report for duty immediately. Thereafter, the petitioner sent a letter requesting grant of leave on medical grounds from 27.4.1995 to 25.8.1995 for 121 days which was not considered. An enquiry was held by the Administrative Officer wherein the petitioner admitted the articles of charge levelled against him. The copy of the enquiry report was furnished to him. But even against that, the petitioner did not send any representation. It was thereafter, the punishment of removal from service was ordered by the authorities on the ground that the unauthorised absence from duty is a serious offence and calls for severe punishment. The petitioner's appeal dated 25.3.1997 was rejected by the appellate authority by his order dated 27.6.1997 and review petition filed by him was also rejected by the Reviewing Authority, viz., the President of India, by order dated 02.9.2001. 3. Before the Tribunal, even though attempts were made to impeach the enquiry, the same was rejected since the petitioner had https://hcservices.ecourts.gov.in/hcservices/ no grievance at any point of time regarding the formal enquiry. There was no clear cut admission on the part of the petitioner and what was admitted was about his absence. To make it unauthorised absence, there should have been material and even if the petitioner had admitted the charge of absence, the disciplinary authority should have conducted the enquiry and should have proved that the absence was unauthorised especially when the petitioner himself was seeking for Medical Leave of some sort with some supporting documents. Therefore, there was an infraction of rules in the matter of conducting the enquiry. But, however, the Tribunal instead of remanding the matter back to the authorities, held that the removal of the petitioner from service was not appropriate and directed the petitioner to be reinstated in service within eight weeks from the date of the order. It was also directed that the period of absence will be adjusted against his leave entitlement and the period of absence till his reinstatement will be counted as service only for pensionary benefits and he will not be entitled for any backwages. 4. We are informed that the petitioner has been reinstated pursuant to the order of the Tribunal. It is only against the denial of backwages, the petitioner has filed the present writ petition. 5. Mr. C.K.M. Appaji, learned counsel appearing for the petitioner relied upon a series of decisions to contend that the Tribunal ought not to have denied backwages and once the order of termination is held to be invalid, then automatically, the employee is entitled for full backwages. 6. We are afraid that such a contention is very vague and cannot be countenanced by this Court. In the present case, the Tribunal after holding that there must have been an enquiry preceding the dismissal, should have left the matter at that point and should have allowed the respondents to conduct a denova enquiry, but, however, in order to cut short a further trial, set aside the punishment and ordered reinstatement. It was only because the respondents have not challenged that portion of the order, the petitioner is now in service. Having taken the advantage of the order of the Tribunal, the petitioner cannot improve the said situation by contending that he is entitled for full wages. In fact, the charge against the petitioner is that he was unauthorisedly absent and he was not granted leave by the authorities. In effect, the petitioner had not worked during the period and, therefore, the claim backwages for the said period can never be countenanced by this Court. In any event, the Tribunal https://hcservices.ecourts.gov.in/hcservices/ did not even recommend to the authorities to even impose any lesser punishment and to that extent, the petitioner was fortunate to get relief from the Tribunal, which, otherwise, would have been interfered by this Court. Even the decisions produced by the petitioner from various High Courts do not indicate that there was any binding precedent to show that in every case, there must be backwages followed by the order of reinstatement. In fact, most of the decisions arose under the Industrial Disputes Act, 1947 where the Labour Court / Industrial Tribunals were entrusted with the power to mould the relief in passing the final award. Neither the Tribunal under Section 19 of the Administrative Tribunals Act, 1995 nor this Court under Article 226 of the Constitution of India has power for granting wages by a rule of thumb. It all depends on the factual situation of each case and we find from the records that even though the Tribunal had exceeded its limit, has granted broad justice to the petitioner by directing his non-employment to be treated as service for the purpose of pension and other terminal benefits, which itself is a big relief to him and we do not think that any case is made out to interfere with that portion of the order passed by the Tribunal. 7. In view of the above, the writ petition is misconceived and devoid of merits. Accordingly, it will stand dismissed. No costs. gri Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. To 1. The Chief Administrative Officer Department of Atomic Energy Indira Gandhi Centre for Atomic Research Kalpakkam Kancheepuram District https://hcservices.ecourts.gov.in/hcservices/ 2. Director Department of Atomic Energy Indira Gandhi Centre for Atomic Research Kalpakkam Kancheepuram District 3. The Secretary Department of Atomic Energy R&D - I Section, Anushakti Bhavan, CSM Marg Mumbai 4. The Registrar Central Administrative Tribunal Madras Bench 1 cc to Mr.T.S.Sivagnanam, Advocate, SR.1603 bk (co) dv/12.3. W.P. No. 19679 of 2004 https://hcservices.ecourts.gov.in/hcservices/