IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE THIRTIETH DAY OF JUNE TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE C.V.RAMULU WRIT PETITION NO : 22496 of 1999 Between: V.Venkata Reddy, S/o Venkateswara Rao, Skilled Artisan-III, (on orders of removal), Carriage Repair Shop, Tirupathi, R/o 11-15-75/13, Railpet,Repalle, Guntur District. ..... PETITIONER AND 1 The Deputy Chief Machanical Engineer, Carriage Repair Shop, South Central Railway, Tirupathi, Chittoor District. 2 The Works Manger, Carriage Repair Shop, South Central Railway, Tirupathi, Chittoor District. 3 The Assistant Works Manger, Carriage Repair Shop, South Central Railway, Tirupathi, Chittoor District. 4 Sri P.V.B.Naryana Rao, Shop Superintendent, Enquiry Office, CBR Shop, Corrossion, South Central Railway, Carriage Repair Shop, Tirupathi, Chittoor District. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue a Writ, or direction more particularly one in the nature of Writ of Certiororai calling for the records in O.A.No.1504/96 dt 5-3-1999 ( on the file of the central Administrative Tribunal, Hyderabad Bench, At Hyderabad) as well as the order passed by the 3rd Respondent in TR.P.227/VV. dt 7-3-96, the order passed by the 2nd Respondent in N.O.TR.P.227/VV dt 24-5-96 and the order passed by the 1st Respondent in TR.P.227/VV. dt 7-8-96, quash the same and direct the respondents to reinstate the petitioner with all consequential benefits and pass Counsel for the Petitioner:MR.P.SRIDHAR REDDY Counsel for the Respondent No.: MR.R.S.MURTHY The Court made the following : THE HON’BLE SRI JUSTICE GHULAM MOHAMMED & THE HON’BLE SRI JUSTICE C.V. RAMULU WRIT PETITION No.22496 OF 1999 ORDER: ( per Hon’ble Sri Justice Ghulam Mohammed ) This Writ Petition has been filed challenging order dated 5-3-1999 passed in O.A.No.1504 of 1996, by the Central Administrative Tribunal, Hyderabad Bench, at Hyderabad. The petitioner herein was appointed as skilled artisan- III under direct recruitment quota on 13-8-1987 and was posted as Welder-III, Carriage Repair Shop, Tirupati, South Central Railway. The petitioner suffered an eye injury on 20- 8-1992, while he was on duty. The petitioner was given treatment in South Central Railway Hospital, Tirupati intermittently upto February 1993. Thereafter, the petitioner was referred to the Chief Medical Officer, Railway Hospital, Lalaguda, Secunderabad from where he was referred to Sarojini Devi Eye Hospital, Hyderabad for medical examination. Though the petitioner was given treatment at Sarojini Devi Eye Hospital, Hyderabad, his ailment could not be cured. After he reporting back to Tirupati some other complications developed and therefore he was again referred to Sarojinidevi Eye Hospital for treatment. It appears, the petitioner was granted leave initially for a period of 85 days. The disciplinary action, however, was initiated against the petitioner for his unauthorized absence in four spells during the period from 6-2-1993 to 23-7-1993 for a period of 145 days. After appointment of the Inquiry Officer, 4th respondent herein, the petitioner nominated a defence helper and the same was acceded to. Thereafter the enquiry postponed, on a couple of occasions. It appears, on 10-8-1995 the petitioner instead of attending the enquiry proceedings, sent a communication to the Inquiry Officer for change of his defence helper. It is represented that the 4th respondent- Inquiry Officer vide his letter dated 8-9-1995 directed the petitioner to proceed with the enquiry along with material. Subsequently, on 27-12-1995, the inquiry officer passed enquiry report ex parte. Challenging the same, the petitioner approached the Tribunal in O.A.No.96 of 1996 and the Tribunal by its order dated 25-1-1996 disposed of the O.A., granting time to the petitioner to submit his explanation to the notice dated 9-1-1996 with an observation that the 3rd respondent-disciplinary authority has to consider the same and pass appropriate orders. The 3rd respondent-disciplinary authority, on consideration of the matter, passed the orders imposing penalty of removal from service with effect from 17-2-1996. Challenging said the order passed by the 3rd respondent- disciplinary authority, an appeal was preferred before the 2nd respondent and the same was also dismissed, against which the petitioner carried matter before the 1st respondent. The 1st respondent by his order dated 7-6-1996 confirmed the orders of removal. Hence, the petitioner approached the Tribunal in O.A.No.1504 of 1996. The Tribunal by its impugned order dismissed the O.A. confirming the orders of punishment of removal from service. However, the Tribunal observed that since the punishment imposed on the petitioner is on the ground of unauthorized absence from duty, he may make an application to the General Manager of the South Central Railway, for consideration of his case sympathetically in which event the same may be considered by passing appropriate orders. Challenging the said order passed by the Tribunal, this writ petition has been filed. Sri P. Sreedhar Reddy, learned counsel for the petitioner contends that while the petitioner was on duty he suffered eye injury, and that the petitioner could not recover from the injury, though he underwent treatment at different places. It is further contended that the enquiry was proceeded without considering his request for change of defence assistant, and that considering the gravity of charges, the order of removal is unsustainable. Sri R. S. Murthy, learned Standing Counsel appearing for the respondents-Railways relying on the decision reported in STATE OF M.P. v. HAZARILAL ( (1) 2008 (1) Supreme Court Cases (L&S) 611), contended that the order under challenge does not require any interference by this Court. In HAZARILAL’s case ( 1 supra ), the respondent therein was a peon appointed in a middle school. He said to have assaulted one Ram Singh on 5-10-1989, and was prosecuted for commission of the said offence and was convicted by a Court of Magistrate under section 323 read with section 34 of IPC and sentenced to undergo one month’s simple imprisonment. On an appeal preferred by him the sentence was reduced to a fine of Rs.500/-. A revision thereafter was filed by the respondent before the High Court. A show cause notice was issued to the respondent therein as to why disciplinary action shall not be taken against him in view of the order of conviction passed against him and thereafter his services were terminated. An appeal was preferred before the appellate authority and the same was dismissed, against which revision petition was preferred before the revisionary authority and that during the pendency of the revision petition, his criminal revision petition filed before the High Court was dismissed. The petitioner therein was not reinstated into service and therefore he approached the Tribunal, which ordered for reinstatement into service. Challenging the order of reinstatement, the appellant-authorities filed writ petition before the High Court and the same was dismissed, and the matter was ultimately carried to the Apex Court. Considering those situations the Apex Court held that power conferred on the disciplinary authority to dispense with enquiry against a government servant and to impose penalty under the relevant Rule “ on the ground of conduct which has led to his conviction on a criminal charge” does not mean that irrespective of the nature of the case, he is involved or the punishment which has been imposed on him, an order of dismissal must be passed, such a conclusion is not warranted. The Apex Court further held as follows: “ 11. Furthermore, the legal parameters of judicial review have undergone a change. Wednesbury principle of unreasonableness has been replaced by the doctrine of proportionality. ( See Indian Airlines Ltd V Prabha D. Kanan ( 2006 (11) SCC 67 ), STATE OF U.P. v. SHEO SHANKE LAL SRIVASTAVA (2006 (3) SCC 276) and M.P. GANGADHARAN v. STATE OF KERALA (2006 (6) SCC 162).” …. It is interesting to note that distinguishing between the traditional grounds of judicial review and the doctrine of proportionality, Lord Carswell in Tweed ( (2007 ) 1 AC 650 ), after referring to previous decisions and authorities observed: “ …. The starting point is that there is an overlap between the traditional grounds of review and the approach of proportionality. Most cases would be decided in the same way whichever approach is adopted. But the intensity of review is somewhat greater under the proportionality approach. Making due allowance for important structural differences between various convention rights, which I do not propose to discuss, a few generalizations are perhaps permissible. I would mention three concrete differences without suggesting that my statement is exhaustive. First, the doctrine of proportionality may require the reviewing court to assess the balance which the decision-maker has struck, not merely whether it is within the range of rational or reasonable decisions. Secondly, the proportionality test may go further than the traditional grounds of review inasmuch as it may require attention to be directed to the relative weight accorded to interests and considerations. Thirdly, even the heightened scrutiny test developed in R.V.Ministry of Defence v. P. Smith ( 1996 QB 517) is not necessarily appropriate to the protection of human rights.” From a perusal of the entire facts noticed above, it is clear that the petitioner sustained eye injury during the course of employment itself, for which the petitioner underwent medical treatment at different places. The ground on which the order of removal was passed, is only pertaining to his un-authorised absence. This aspect of the matter was not at all considered by the Tribunal in its proper perspective, while confirming the order of punishment of removal from service. From the facts available on record, it is seen that though the petitioner made request for change of his defence assistant the same was not acceded to by the authorities. The petitioner was initially made exparte in the inquiry proceedings and later, the disciplinary authority, imposed the punishment of removal from service and the same was confirmed by the appellate as well as revisionary authorities. Considering the gravity of the charge i.e. unauthorized absence for a period of 145 days, which resulted on account of eye injury to the petitioner while he was on employment, we are of the view that punishment of removal from service is too harsh, and disproportionate to that of the misconduct alleged. The penalty imposed on the petitioner is excessive as compared to the conduct for which the petitioner was charged. In the circumstances, the decision relied on by the learned Standing Counsel for the respondents is not applicable to the facts of the present case. For the foregoing discussion, we are inclined to modify the punishment of removal from service to that of reinstatement with continuity of service but without backwages. However, it is clarified that though the petitioner is not entitled for backwages and seniority, the continuity of service shall be considered for pensionary benefits only. With the above directions, the writ petition stands allowed. No costs. ______________________ Ghulam Mohammed, J ______________________ C.V. Ramulu, J Dated: 30th June, 2008 Kk/