Case: Chennai Metropolitan Water Sup.&amp;Sew.&amp;Ors Vs. T.T. Murali Babu

3. Bereft of unnecessary details, theof facts that have been undraped are that the respondent was appointed as a Surveyor in Chennai Metropolitan Water Supply and Sewerage Board (for short,and subsequently promoted as Junior Engineer in 1989. From 28.8.1995 he remained continuously absent from duty without any intimation to the employer and did not respond to the repeated memoranda/reminders requiring him to explain his unauthorized absence from duty and to rejoin duty. On 1.4.1997 he reported to duty with the medical certificate for his absence from duty for the period commencing 28.8.1995 to 31.3.1997. As he had already remained unauthorisedly absent and did not respond to the memos by offering an explanation, a charge-sheet had already been issued on 11.9.1996 under the Chennai Metropolitan Water Supply and Sewerage Board Employees (Discipline and Appeal) Regulations, 1978 (for brevity. The charge memo contained two charges, namely, that the respondent-herein had failed to submit an explanation to the first charge memo dated 11.10.1995 inspite of reminders and second, he deserted his post by remaining unauthorisedly absent from duty from 28.8.1995, and thereby committed misconduct under Regulations 6(1) and 6(2) respectively of the Regulations. Be it noted, though the charge memo was duly acknowledged by the respondent on 19.11.1996, yet he chose not to submit his explanation till 6.1.1997, much after the charge-sheet was issued.4. As the factual matrix would further uncurtain, an enquiry was conducted against the respondent and his explanation in the enquiry was that he could not attend to the duties and could not give explanation to the first charge memo because of ill health. The enquiry officer found charges were proved and, accordingly, submitted the enquiry report which was accepted by the disciplinary authority and after following the due procedure punishment of dismissal was passed on 16.4.1998. In the order of dismissal disciplinary authority observed that belated submission of medical certificate on 1.4.1997 irresistibly led to the conclusion that the respondent employee was unauthorisedly absent from 28.8.1995. A conclusion was also arrived at that the first charge, namely, that he had not responded to the letters and reminders, also stood proved. Being of this view, the disciplinary authority thought it apt to impose the punishment of dismissal from service and he did so.5. On an appeal being preferred by the respondent the Board rejected the appeal dated 30.6.1998. Being dissatisfied by the order of dismissal and the affirmation thereof in appeal, the respondent preferred W.P. No. 15272 of 1998. The learned Single Judge, by order dated 12.3.2003, directed re-consideration of the appeal solely on the ground that the Managing Director who was the disciplinary authority had taken part in the proceedings of the Board which decided the appeal. After the said order came to be passed, the matter was again placed before the Board and the appellate authority, considering the enquiry report, the evidence brought on record and after due discussion, affirmed the order of disciplinary authority and consequently dismissed the appeal on 1.7.2003.6. The grievance of re-affirmation of the order of dismissal was agitated by the respondent in W.P. No. 25673 of 2007 which was preferred on 7.7.2007. The appellant-Board in the counter affidavit, defending the order of dismissal, stated that the only reason given by the employee was that he could not attend the duties as he was availing continuous treatment for tuberculosis and, further, he also met with an accident in September 1995 which was unacceptable. In addition, it was stated in the counter affidavit that bunch of medical certificates was produced by him on 1.4.1997 which mentioned that he was suffering from depressive psychosis and bronchitis and there was no mention about any accident and injury sustained by him in September 1995 and treatment availed by him.7. The learned Single Judge, by the impugned judgment, after narrating the facts, noted the statement of the learned counsel for the respondent that even if the employee had absented from duty, there was no past misconduct of desertion/absence and, therefore, the punishment of dismissal from service for the first time desertion/absenteeism is too harsh and disproportionate and deserved to be interfered with. The learned Single Judge did not advert to any other facet and referred to the decisions in Shri Bhagwan Lal Arya v. Commissioner of Police, Delhi [(2004) 4 SCC 560] , B. C. Chaturvedi v. Union of India [(1995) 6 SCC 749] , V. Ramana v. A.P. SRTC [(2005) 7 SCC 338] , Jagdish Singh v. Punjab Engineering College [(2009) 7 SCC 301] and Division Bench judgment in V. Senthurvelan v. High Court of Judicature at Madras [(2009) 7 MLJ 1231] and opinedApplying the said judgment to the fact of this case and considering the counter filed by the respondents wherein it is not stated as to whether the petitioner has deserted / absented on any previous occasion, this Court is of the view that this writ petition deserves to be allowed.11. This writ petition is allowed with a direction to the respondent to reinstate petitioner with continuity of service but without backwage, within a period of four weeks from the date of receipt of a copy of this order.Grieved by the aforesaid order the CMWSSB preferred Writ Appeal No. 2531 of 2012 and the Division Bench accepted the conclusion of the learned single Judge by stating thus:is not in dispute that the respondent/ writ petitioner was unwell during the said period, though there might have been some discrepancies in the date of the certificate issued, it has not been controverted by the appellant that the respondent/writ petitioner was suffering from depressive psychosis and bronchitis. That apart it has also not been disputed that the respondent/ writ petitioner had not suffered any earlier punishment while in the services of the appellant Board from the date of his appointment. Therefore, in such circumstances, it would be very harsh and unreasonable to impose the punishment of removal from service for the charge of unauthorized absence, as such punishment is awarded for acts of grave nature or as cumulative effect of continued misconduct or for such other reasons, where the charges are very serious and in case where charge of corruption had been proved. Admittedly, there has been no such allegation against the respondent/writ petitioner. Further, the learned single Judge while setting aside the order of dismissal from service, rightly denied back wages to the respondent/writ petitioner as the respondent/writ petitioner failed to discharge duty during the relevant

Reasoning:
10. On a keen scrutiny of the decision rendered by the learned single Judge as well as that of the Division Bench it is clearly demonstrable that there has been no advertence with regard to the issue whether the charges levelled against the respondent had been proved or not. It is manifest that there had been no argument on the said score before the writ court or in intra- court appeal and hence, we are obliged to state that the only aspect which was really proponed before the High Court pertains to the nature of charges and proportionality of punishment. Therefore, we shall confine our analysis with regard to said limited sphere and an added facet which the learned counsel for the appellant has emphatically urged before us, that is, the belated approach by the respondent in invoking the extraordinary jurisdiction of the Highthe case at hand, though there has been fourdelay in approaching the court, yet the writ court chose not to address the same. It is the duty of the court to scrutinize whether such enormous delay is to be ignored without any justification. That apart, in the present case, such belated approach gains more significance as the respondent-employee being absolutely careless to his duty and nurturing a lackadaisical attitude to the responsibility had remained unauthorisedly absent on the pretext of some kind of ill health. We repeat at the cost of repetition that remaining innocuously oblivious to such delay does not foster the cause of justice. On the contrary, it brings in injustice, for it is likely to affect others. Such delay may have impact onripened rights and may unnecessarily drag others into litigation which in acceptable realm of probability, may have been treated to have attained finality. A court is not expected to give indulgence to such indolent persons - who compete withor for that matter ‘Rip VanIn our considered opinion, such delay does not deserve any indulgence and on the said ground alone the writ court should have thrown the petition overboard at the veryare disposed to think that the respondent by remaining unauthorisedly absent for such a long period with inadequate reason had not only shown indiscipline but also made an attempt to get away with it. Such a conduct is not permissible and we are inclined to think that the High Court has erroneously placed reliance on the authorities where this Court had interfered with the punishment. We have no shadow of doubt that the doctrine of proportionality does not get remotely attracted to such a case. The punishment is definitely not shockingly disproportionate.We respectfully reiterate the said feeling and re-state with the hope that employees in any organization should adhere to discipline for not only achieving personal excellence but for collective good of an organization. When we say this, we may not be understood to have stated that the employers should be harsh to impose grave punishment on any misconduct. An amiable atmosphere in an organization develops the work culture and the employer and the employees are expected to remember the same as a precious value for systemic development.33. Judged on the anvil of the aforesaid premises, the irresistible conclusion is that the interference by the High Court with the punishment is totally unwarranted and unsustainable, and further the High Court was wholly unjustified in entertaining the writ petition after a lapse of four years. The result of aforesaid analysis would entail overturning the judgments and orders passed by the learned single Judge and the Division Bench of the High Court and, accordingly, we so do.