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CASE NO.: Appeal (civil)  1770 of 2008

PETITIONER: Chairman & MD V.S.P. & Ors

RESPONDENT: Goparaju Sri Prabhakara Hari Babu

DATE OF JUDGMENT: 05/03/2008

BENCH: S.B. Sinha & V.S. Sirpurkar

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO.     1770         OF 2008 (Arising out of SLP (C) No.19227 of 2005)

S.B. Sinha, J.

1.      Leave granted. 2.      Respondent herein was appointed as a Technician (Mechanical) on  11.10.1989.  He was placed on probation for a period of 12 months.  During  the period of probation, he was found to be absent for a period from  11.6.1990 to 27.6.1990.  He was warned. A lenient view was taken. He was  informed that recurrence of such act would be viewed seriously.  Period of  probation was extended as he was found to be irregular in attendance.   3.      On 9.1.1991, he applied for leave on medical grounds.  He failed to  appear before the Chief Medical Officer of the petitioner despite having  been asked in that behalf and as he failed to do so, his leave was not  sanctioned.  Despite the same, he sought another extension of leave upto  28.2.1991.  He was asked to report immediately before the Chief Medical  Officer.  He was furthermore informed that failure to comply therewith  would result in refusal of leave.  He did not report to the Chief Medical  Officer. 4.      A charge sheet was issued to him for absence without leave for a  period of 53 days, namely 28.12.1990 to 28.2.1991.  His explanation to the  said charge sheet was found to be unsatisfactory.  He was found guilty of  continuous unauthorized absence by the Enquiry Officer in his report dated  18.6.1991.  Respondent was called upon to join his duties as he continued to  remain absent without sanctioned leave from 2.7.1991 to 11.7.1991.  He  again remained absent from 13.8.1991 to 30.8.1991.   A departmental proceeding was again initiated against him and upon  considering the enquiry report submitted in that behalf, yet again a lenient  view was taken and a punishment of reduction of basic pay by one stage in  terms of the Certified Standing Order was imposed by order dated  16.4.1992.  Despite the same, he remained absent for a period of 99 days  from April 1992 to September 1992.  A disciplinary proceeding was initiated  against him.  He admitted the charges and promised to be regular in future.   However, he was found guilty and a punishment of censure was imposed.   5.      Yet again, on his remaining absent for the period of 20 days in April  1995 and from 1.5.1995 till the date of drawing of the charge-sheet, i.e.  30.5.1995, a disciplinary proceeding was initiated against him.  He was  asked to submit his explanation.  The said charge sheet was served upon him  on or about 9.6.1995.   6.      In his show cause which was filed on 19.6.1995, the respondent  stated: "I have gone through the chargesheet dated  13.6.95 and understood the contents.  It is true that  I was absent to duties in the dates mentioned by  you, however, I could not attend to duties during

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the above period due to the ill health of my mother  who was in the village of Mukkillapadu, Nuzivedu  Mandalam, Krishna District.         Sir, absenting from duties for these many  days may be treated as a mistake on my part.  I  assure you through this letter that it will never be  repeated again.  I may be excused for this fault of  mine and I may be given an opportunity."

7.      A disciplinary proceeding was initiated, wherein again, he accepted  his guilt whereupon the enquiry proceeding was closed stating : "When asked whether he accepts or denied (sic)  the charges as contained in the charge sheet  No.WK/TPP/107613/95/2255 dated 5.6.1995, it is  true that he has not attended duties during the  period mentioned in the charge sheet i.e., thirty  days in April 1995 and 30 days from 1.5.1995 to  30.5.1995 for the reasons mentioned in his  explanation dated 19.6.95 submitted in reply to the  above charge sheet.  A photocopy of the above  referred explanation has been produced by the CE  in the enquiry.  The same has been taken on  record.  The CW has stated that due to his  mother’s severe illness at his native place, he could  not attend his duties as his presence was necessary  there to attend his ailing mother.  The CW further  stated that the CE was facing financial problem as  he has not declared his mother as his dependant  due to which he was facing lot of mental strain. The CE has stated that he accepted the charges  voluntarily and without pressure from any side. In view of the voluntary admission of the charges,  the enquiry is closed."

8.      The disciplinary authority, upon consideration of the said enquiry  report, found the respondent guilty of the said charges and an order of  removal from service was passed by it on 9.7.1996, stating : "I find from your personal records, that even after  issue of the above three charge sheets dated  18.3.91, 22.9.92 and 5.6.95 and also after enquiries  were conducted, there is no improvement in your  attendance and I am constrained to observe that  you are absenting from duty unauthorisedly  without prior sanction of leave from duty  unauthorisedly without prior sanction of leave  from June 95 to July 96 as shown below.  This was  even after a commitment made by you that you  will be regular in attending to duties and that an  opportunity should be given to you to improve  upon."

9.      The said order is a detailed one.  It was passed upon taking into  consideration the entire service records, the period of absence of the  respondent, the explanations offered by him, result of the enquiry  proceedings as also the punishments imposed and the assurance and  commitments made by him to improve himself.  It was opined : "This habitual absence from duty is an act of  misconduct as per the Certified Standing Orders of  the Company, which has become a part of your  nature.  As the charges established against you i.e.  "Habitual Absence" from duty and continuous  absence without prior sanction of leave is serious

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in nature and also as there is no improvement on  your part, stringent punishment is warranted.   Therefore, taking all the aspects into consideration,  I am of the considered opinion that the punishment  of "Removal from service of the Company" be  imposed on you for your misconduct and  accordingly.  I, in exercise of the powers delegated  to me, hereby impose on you the punishment of  "Removal from the services of the Company" as  per Clause No.28, 16 of the certified standing  orders of the company with effect from 9.7.96 as a  disciplinary measure. This issues without prejudice to the right of the  Company to recover any amount payable by you or  due from you to the Company.  Finally payment of  amounts due to the Company will be made on  receipt of Demand/No Demand certificates from  the concerned authorities."

10.     He filed a writ petition before the High Court of Andhra Pradesh and  by an order dated 11.3.1997, the said writ petition was directed to be treated  as an appeal.  An opportunity of personal hearing was granted to him by the  appellate authority and by an order dated 10.5.1997, the order of punishment  imposed by the disciplinary authority was affirmed.  He filed a review  application which was also dismissed by order dated 6.8.1997. 11.     He questioned the validity of the said orders by filing a writ  application before the High Court.  A learned Single Judge of the High  Court dismissed the said writ application stating : "During the enquiry it was found that the petitioner  was absent in the years 1990, 1991, 1993, 1995  and 1996.  The very charge itself is that the  petitioner is habitual absentee from duty and his  absence is continuous one without prior sanction,  which is in violation of the standing orders of the  respondents. Though the petitioner has filed an  explanation, however, the same was found to be  not satisfactory.  Even taking into consideration  the reasons shown at this stage, it cannot be said  that the petitioner’s continuous absence can be  justified more so in view of the specific standing  orders and also the obligation cast on him.  Having  regard to the findings as arrived at by the  authorities at all levels about the continuous  absence of the petitioner, it clearly shows that he is  habitual in absence for which there cannot be any  justification.  In view of the same, except seeking  indulgence, noother valid point has been raised by  the petitioner to show any irregularity in the  procedure adopted by the respondents and  ultimately removing him from service.  Thus, it  has to be held that the finding as arrived at the  removal of the petitioner from the services is  perfectly justified."

12.     On an intra court appeal preferred thereagainst, a Division Bench of  the said Court reversed the said judgment and order of the learned Single  Judge, opining : "In the absence of any consideration of the  explanation, which goes to show that the appellant  could not attend the duty because of the ill health  of his mother, the action of the respondents would  amount to violation of principles of natural justice.   Further, it has to be observed that the appellate

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authority also has not considered the factum of  submitting the explanation by the appellant and  conducted an enquiry as if he had not submitted  his explanation and that the action of the  respondents in considering the action taken on the  earlier charge is not acceptable.  In the absence of  any material before this Court that the appellant  was continuously absent from duty from the last  date of the issuance of the charge sheet in the year  1992 till 1995, he cannot be termed as habitual  absentee and in view of the factum of his absence  as was explained by him through his explanation  dated 19.6.1995, which was not taken into  consideration by the disciplinary authority as well  as the appellate authority, it has to be held that the  action of the respondents in terminating the  services of the petitioner is in violation of  principles of natural justice."

13.     Mr. Venugopal, learned counsel appearing on behalf of the appellant,  would submit that the High Court committed a serious error in passing the  impugned judgment insofar as it failed to take into consideration that while  exercising the power of judicial review, its role was limited. 14.     Mr. Rao, learned counsel appearing on behalf of the respondent, on  the other hand, would support the judgment.   15.     Indisputably, respondent was a habitual absentee.  He in his  explanation, in answer to the charge sheet pleaded guilty admitting the  charges.  In terms of Section 58 of the Indian Evidence Act, charges having  been admitted were not required to be proved. It was on that premise that the  enquiry proceeding was closed.  Before the enquiry officer, he did not  submit the explanation that his mother being ill.  He, despite opportunities  granted to report to duty, did not do it.  He failed to explain even his prior  conduct.         In Sangramsinh P. Gaekwad & Ors. v. Shantadevi P. Gaekwad (Dead)  through LRs & Ors. 2005 (11) SCC 314, this Court noticing Section 58 of  the Indian Evidence Act, held : "214. In terms of the aforementioned provision,  things admitted need not be proved. In view of the  admission of Respondent 1 alone, the issue as  regards allotment of 6475 shares should have been  answered in favour of the appellants. The company  petitioner at a much later stage could not be  permitted to take a stand which was contrary to or  inconsistent with the original pleadings nor could  she be permitted to resile from her admissions  contained therein."

       It was observed that judicial admissions can be made the foundation  of the rights of the parties. 16.     A subsequent explanation before another authority, which had not  been pleaded in the departmental proceedings, cannot by itself a ground to  hold that the principles of natural justice had not been complied with in the  disciplinary proceedings.   The jurisdiction of the High Court in this regard is rather limited.  Its  power to interfere with disciplinary matters is circumscribed by well known  factors.  It cannot set aside a well reasoned order only on sympathy or  sentiments.   [See Maruti Udyod Ltd.  v. Ram Lal and Others [(2005) 2 SCC  638]; State of Bihar & Ors. v. Amrendra Kumar Mishra [2006 (9) SCALE  549]; Regional Manager, SBI v. Mahatma Mishra [2006 (11) SCALE 258];  State of Karnataka v. Ameerbi & Ors. [2006 (13) SCALE 319]; State of  M.P. and Ors. v. Sanjay Kumar Pathak and Ors. [2007 (12) SCALE 72] and  Uttar Haryana Bijli Vitran Nigam Ltd. & Ors. v. Surji Devi [CA No.576 of  2008 decided on 22.1.2008]. 17.     Once it is found that all the procedural requirements have been

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complied with, the Courts would not ordinarily interfere with the quantum of  punishment imposed upon a delinquent employee.  The Superior Courts only  in some cases may invoke the doctrine of proportionality.  If the decision of  an employer is found to be within the legal parameters, the jurisdiction  would ordinarily not be invoked when the misconduct stands proved.  {[See  Sangeroid Remedies Ltd. v. Union of India & Ors. [(1999) 1 SCC 259]}.         The High Court in exercise of its jurisdiction under Article 226 of the  Constitution of India also cannot, on the basis of sympathy or sentiment,  overturn a legal order. 21.     For the reasons aforementioned, impugned judgment cannot be  sustained.  It is set aside accordingly.  Appeal is allowed.  In the facts and  circumstances of the case, however, there shall be no order as to costs.