LAKSHMANAN, CJ. - (1.) THE Union of India through General Manager, Western Railway is the petitioner in this writ petition. THE writ petition is filed being aggrieved against the order passed by the Central Administrative Tribunal, Jaipur dated 16. 12. 1999 in O. A. No. 475/1994, quashing the order of removal of the non-petitioner Ummed Singh from service dated 3. 9. 93 and the order of the appellate authority dated 9. 11. 1993 and directing the Disciplinary Authority to reconsider the quantum of punishment to be awarded for the alleged misconduct in the light of the observations made in the order.
(2.) WE have heard Shri Manish Bhandari, learned counsel appearing for the petitioners and perused the records and also the order impugned in this writ petition as well as the grounds of the writ petition. The only charge against the respondent was that he was continuously absent from duty from 1. 6. 91 to 8. 12. 92 i. e. nearly about one year and seven months. According to the petitioners, while the respondent discharging the duty, he was sanctioned leave for one day namely for 23. 5. 91. However, the respondent had reported on duty on 9. 12. 92. Looking to the absence of the respondent, the Disciplinary Authority has passed an order of removal on 3. 9. 93 and the same was maintained by the appellate authority by passing the order dated 9. 11. 1993. The respondent preferred a revision petition against the order passed by the appellate authority contending that he was not given opportunity of hearing/defence and that he had been punished on the basis of surmises and conjectures. The respondent has further submitted that the order of the appellate authority is also a non-speaking order and thus, looking to the above facts coupled with the fact that the order of punishment so passed is disproportionate to the gravity of the charge. Reply to the O. A. was submitted by the petitioners herein and respondents therein before the Tribunal. We have perused the reply. In the reply, it has been stated that the respondent had failed to send any intimation and he remained absent till he was finally issued the charge sheet. It has been stated in the reply that the penalty of removal imposed upon the respondent for the charge of absent was rightly imposed and it is not disproportionate as alleged. It is further averred that the rules and procedure of the inquiry has been followed and that the respondent was given reasonable opportunity to defend himself. The Tribunal after noticing the brief facts of the case as stated in the application and in the reply filed by the Union of India and after referring to the various judgments of the Supreme Court came to the conclusion that the order of removal dated 3. 9. 93 and appellate authority's order dated 9. 11. 93 cannot sustain and consequently directed the disciplinary authority to reconsider the quantum of punishment to be awarded to the respondent for the alleged misconduct. The Tribunal felt that the punishment imposed on the respondent is disproportionate to the gravity of the charge. Referring to the judgments reported in Union of India vs. Kulamoni Mohanty & Ors. (1) and Govt. of A. P. vs. B. Ashok Kumar (2), the Tribunal had felt that it had no jurisdiction to interfere on the ground of punishment and therefore, had remitted the matter to the employer. Being aggrieved, the Union of India and two others have preferred the present writ petition. Mr. Bhandari, learned counsel for the petitioners submitted that the direction so given by the Tribunal is wholly illegal and in as much as the matter could have been sent to the disciplinary authority for reconsideration without quashing the order of removal but once the order of removal is quashed that too the order passed in the year 1993, the employee would have to be paid for the intervening period without any work. He would further submit that the finding of the Tribunal is contrary to the material on record. He has further submitted that from a bare perusal of the O. A. , reply filed to it by the petitioners herein and respondents before the Tribunal as to whether the grounds so taken by the Tribunal interfering in the order was justified or not and a bare perusal of the documents on record would reveal that the medical certificate so enclosed along with the O. A. was pertaining to the period subsequent to the order of punishment and thus can hardly be used to say that the absence was relevant on account of ailment which is of the subsequent period as per the documents so submi- tted before the Tribunal. He further urged that the impugned order of the Tribunal is wholly illegal and without jurisdiction in as much as the power to interfere in the quantum of punishment or to suggest any other punishment is not within the domain of the Tribunal and thus, the impugned order of the Tribunal is without jurisdiction. Therefore, the order dated 16. 12. 1999 deserves to be quashed and set aside.
(3.) WE have carefully considered the submissions made by Shri Bhandari. WE are unable to countenance the submissions made by him for the reasons stated infra. The Supreme Court has in many cases held that if the punishment imposed by the disciplinary authority or the appellate authority appears to be disproportionate to the gravity of the charge for the High Court or the Tribunal it would be appropriately Would to resolve by directing the disciplinary authority or appellate authority to reconsider the penalty imposed or to shorten the litigation, it may itself impose appropriate punishment with cogent reasons in support thereof. In the instant case the respondent was appointed as a Khalasi and was promoted on the post of Cellman B. T. M. He was sanctioned leave for one day i. e. 23. 5. 91 but due to mental disease for which the respondent was under treatment of Dr. H. P. Singh, he reported on duty only on 9. 12. 92. It is further seen that he was further sent to Jagjeevan Ram Hospital for examination and remained there indoor patient from 4. 2. 93 to 6. 2. 93. It is not the case of the Union of India that the respondent has suffered any punishment during the entire period of his service. The only charge now levelled against him is for absence from duty from 1. 6. 91 to 8. 12. 92. It is also equally true that absence from duty without due intimation to the authorities cannot be taken so lightly and the respondent should be awarded a proper and sufficient punishment. In our view, punishment of removal from service is on the higher side, excessive and disproportionate to the only charge framed against the respondent. The Tribunal in para 20 of its judgment has observed as follows:- "in the instant case the applicant remained absent because of his mental depression as per the report of the Inquiry Officer. It is also evident that before passing the order of removal from service, the applicant has completed about 19 years of service without any stigma. Therefore, looking to the conditions of the applicant and facts and circumstances of this case particularly in relation to the gravity of the charge proved against the applicant, we feel that ends of justice will meet if the penalty of compulsory retirement is imposed upon the applicant in place of removal from service. " Considering the narration made by the Tribunal in para 20 of its order, we also feel that ends of justice will meet that if the penalty of removal is substituted as of penalty of compulsory retirement. As can be seen from the judgment in the case of B. C. Chaturvedi vs. Union of India (3), the High Court itself in order to shorten the litigation can impose a proper punishment with reasons in support thereof. The reasons mentioned by the Tribunal in para No. 20 of its order are more than sufficient in our opinion to reduce and modify the punishment. In order to shorten the litigation and to avoid any further legal expenses from both sides, we feel it just and proper to reduce the punishment of removal to that of compulsory retirement. ;