While orally remarking thatmissing from duty is a major misconduct in paramilitary forces or the Army, but may not be so in a civilian employment, the Supreme Court on June 30, 2022 in an extremely laudable, learned, landmark and latest judgment titled Union of India & Anr vs RK Sharma in Civil Appeal No. 4059/2015 criticised the Central Government for imposing the penalty of dismissal from service for unauthorized absence from duty on a Grade-IV employee in the Ministry of Steel.
The Court orally observed bluntly, boldly and brilliantly that:
Missing from duty is a major misconduct in paramilitary forces or the army. Had it been that kind of duty, we would have immediately agreed. But in a civilian employment, in some mines department, that too a class four employee? It is not that he was handling some sensitive kind of assignments where he compromised with his duties. We are agreeable that he had absented from duty, so retire him compulsorily, throw him out, don’t keep him there, but allow his family to survive.
We also ought to note that the Court stated in its order that:
It is also undeniable that no action was taken against the officers who purportedly granted leave to the respondents despite not being competent to sanction the same. The Court minced just no words to orally ask ASG Jayant Sud and senior advocate R Balasubramanian for the appellants stating that:
The big fish are not caught and you are after the blood of the small-level employee…Did you take action against the undersecretary or the section officer who granted the leave in excess of their power?
To start with, this brief, brilliant, bold and balanced judgment authored by a Bench of Apex Court comprising of Justice Surya Kant and Justice JB Pardiwala sets the ball rolling by first and foremost putting forth in para 1 that:
The Union of India through Ministry of Steel and the Director of the said Ministry are aggrieved by the order dated 06.12.2012 passed by the High Court of Delhi whereby the High Court set aside the dismissal order dated 14.07.2000 as well as the order dated 18.02.2002 passed by the Central Administrative Tribunal, (The Tribunal, for short), upholding the said dismissal order passed against the respondent.
Suffice it to say, the Bench then observes in para 2 that:
It is not necessary to give the factual matrix in detail and suffice it is to mention that the respondent was working as a Daftry (appears to be Grade-IV post). After the respondent had served for about seven years or so, he was served with a charge-memo dated 04.12.1998 proposing to hold an inquiry under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (1965 Rules for short).
As things stand, the Bench then mentions in para 3 that:
The charge-memo contained the following articles of charge against the respondent:
Article I: That Shri R.K. Sharma while functioning as Daftry was absent from duty during following periods without prior permission of the competent authority:
From 09.02.1998 to 23.03.1998
From 24.03.1998 to 23.05.1998
Article II: That Shri R.K. Sharma while functioning as Daftry did not receive intentionally the letter No. 11(6)/98-HSM dated 16.04.1998 sent to him by registered post and in this manner he kept the office in dark about his residential address.
Article III: That Shri R.K. Sharma functioning as Daftry/Adhoc LDC was absent continuously from duty without prior sanction and intimation during the period 1993-98.
Article IV: That Shri R.K. Sharma while functioning as adhoc LDC/Daftry was not loyal towards his duties by keeping himself continuously absent from duty without prior sanction of leave.
Simply put, the Bench then points out in para 4 that:
An inquiry was conducted and after concluding that charge Nos. I, III & IV had been proved, the Disciplinary Authority concurred with the Inquiry Report and imposed the punishment of dismissal from service of the respondent vide order dated 14.07.2000.
As it turned out, the Bench then observes in para 5 that:
The respondent assailed the dismissal order before the Tribunal but his Original Application was turned down vide order dated 18.02.2002. Still aggrieved, the respondent approached the High Court. The Division Bench of the High Court vide impugned judgment dated 06.12.2012 allowed the Writ Petition and set aside the orders impugned therebefore. As a consequence thereto, the respondent was directed to be reinstated in service but without any back-wages.
Needless to say, the Bench then states in para 6 that:
The appellants have now laid challenge to the aforesaid order of the High Court through the instant appeal.
Quite rightly, the Bench then seeks to question in para 8 that:
The short question which falls for consideration is whether the punishment of dismissal from service on account of absence from duty for the period mentioned in Article 1 of the Charge-memo, is proportionate, reasonable and in conformity with Articles 14 and 16 of the Constitution of India?
As we see, the Bench then observes in para 9 that:
Learned counsel for the appellants have rightly pointed out that besides the absence period, the respondent had on several occasions remained on Casual Leave/Earned Leave or other sanctioned leave also. It is pointed out that such leave was sanctioned by the officers who were not competent to do so. However, the appellants have not proved that the respondent waswillfully absent from service during those periods. It remains a possibility that respondent merely acted under the faith that the officer in question had the power to approve his requests for leave. It is also undeniable that no action was taken against the officers who purportedly granted leave to the respondent despite not being competent to sanction the same.
As a corollary, the Bench then observes in para 10 that:
In view of the above, we are of the considered opinion that no misconduct can be attributed to the respondent for the periods he availed one or the other sanctioned leave.
Most significantly, the Bench then minces no words to mandate in para 11 that, As regards to the period for which the respondent was absent from duty, we are satisfied that the punishment of dismissal from service is too harsh, disproportionate and not commensurate with the nature of the charge proved against the respondent. We are, therefore, of the view that the ends of justice would have been adequately met by imposing some lesser but major penalty upon the respondent.
Equally significant is what is then envisaged in para 12 wherein it is postulated that:
The misconduct attributed to the respondent is based on the charge-memo dated 04.12.1998 with respect to which he was dismissed from service in the year 2000. We, therefore, do not deem it necessary to remit the case to the disciplinary authority after such a long spell of 22 years. Instead, we are inclined to invoke our power under Article 142 of the Constitution, keeping in mind the doctrine of proportionality and with a view to do complete justice between the parties. This Court has utilized Article 142 on numerous occasions in the past, such as in Hind Construction & Engineering v. Their Workmen AIR 1965 SC 917 and Management of the Federation of Indian Chambers of Commerce v. Their Workmen to ensure that the punishment meted out to a public sector employee for a violation of the applicable service laws/rules is not disproportionate to the infraction that he/she has committed. The doctrine of proportionality is employed to examine whether the penalty that is imposed upon is congruent with the charges brought against the delinquent employee.
It is worth noting that the Bench then directs in para 13 that:
We, thus, allow this appeal in part and dispose of the same in the following terms:
- The order of the High Court dated 06.12.2012 to the extent of setting aside the dismissal dated 14.07.2000 is upheld.
- The respondent is ordered to be reinstated in service but he shall be deemed to have remained in service till he completed minimumqualifying service of 20 years to earn pension and other retiral benefits.
- The respondent shall be deemed to have been `compulsorily retired from service’, with entitlement to pension, gratuity and other retiral benefits on completion of minimum qualifying service.
- No arrears of pay shall be paid to the respondent from the date of dismissal from service i.e. 14.07.2000 till he is deemed to have completed the minimumqualifying service.
- The respondent, however, shall be entitled to arrears of pension and other retiral benefits, without any interest, provided that such arrears are paid within a period of four months from today. In the event of delay, the respondent shall be entitled to interest @ 6% per annum on delayed payment.
- It is made clear that the above stated order shall not constitute a precedent as the same has been passed by invoking power under Article 142 of the Constitution.
Finally, the Bench then concludes by holding in para 14 that:
The Civil Appeal is disposed of in the aforesaid terms.
In sum, we thus see that the Apex Court minces no words to take potshots at the Central Government for imposing a very strict punishment on Class-4 officer in the Ministry of Steel of dismissal from service for unauthorisedly being absent from duty. The Apex Court was very direct in saying to the Central Government that you are after a small level employee and big fish are not being caught. No doubt, what all the Apex Court has stated carries a lot of relevance and Centre must definitely pay heed to what the Apex Court Bench comprising of Justice Surya Kant and Justice JB Pardiwala have ruled in this notable case so elegantly, eloquently and effectively and thus act accordingly! There can be just no denying it!
Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh.
