1. Removal from service following an inquiry under Fundamental Rules for failure to report back from deputation. (Para 3 )
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2018 Supreme(SC) 1741
SUPREME COURT OF INDIA
Kurian Joseph, Deepak Gupta, Hemant Gupta, JJ.
Kukkikatte Krishnamoorty - Appellant
Versus
Union Of India - Respondent
Civil Appeal Nos.11178-11179 of 2018 (Arising from SLP© Nos. 11601-11602 of 2017)
Decided On : 20-11-2018
Important Points
In cases of misconduct and imposition of punishment, the court may consider the absence of a proper domestic enquiry and the employee's request for voluntary retirement.
Subject
Employment Law - Disciplinary Action and Termination
Headnote
Inquiry - Service - Misconduct
Fact of the Case:
The appellant was removed from service for not reporting back to duty/curtailing deputation despite direction from the competent authority.
Finding of the Court:
The court found that the competent authority felt it was not desirable to retain the appellant in service, but noted the absence of a proper domestic enquiry and the appellant's request for voluntary retirement. As a result, the court directed the competent authority to substitute the punishment of removal with compulsory retirement.
Issues: Improper domestic enquiry, voluntary retirement, imposition of extreme punishment
Ratio Decidendi: In the absence of a proper domestic enquiry and considering the appellant's request for voluntary retirement, the court directed the substitution of the punishment of removal with compulsory retirement.
Final Decision: The court directed the competent authority to substitute the punishment of removal with compulsory retirement and pay eligible/consequential benefits within three months.
Legal Category Hierarchy
Advocates Appeared:
Siddharth Bhatnagar, Anshuman Srivastava, Ankit Yadav, T. Mahipal, Advocates., for the Appellants; Ms. V. Mohana, Sr. Adv., Ms. Seema Bengani, Ms. Swati Ghildiyal, Arvind Kumar Sharma, Mukesh Kumar Maroria, Advocates.
Siddharth Bhatnagar, Anshuman Srivastava, Ankit Yadav, T. Mahipal, Advocates., for the Appellants; Ms. V. Mohana, Sr. Adv., Ms. Seema Bengani, Ms. Swati Ghildiyal, Arvind Kumar Sharma, Mukesh Kumar Maroria, Advocates.
Table of Contents
2. Respondent contended that the employee overstayed the period of deputation and defied directions of superiors. (Para 4 )
3. The court distinguished between the finding that an employee is not desirable to retain in service and a formal termination for proved misconduct. (Para 5 , 6 )
4. Extreme punishment of removal from service may be substituted with compulsory retirement if the competent authority's satisfaction is based on a lack of desirability to retain. (Para 6 )
5. Punishment of removal from service substituted with compulsory retirement with direction to pay consequential benefits. (Para 6 , 7 )
6. Does a finding that an employee is not desirable to retain in service automatically justify removal from service for misconduct?
No. The court observed that stating it is not desirable to keep an employee in service is distinct from terminating service on account of proved misconduct. (Para 5 )
7. Under what circumstances may a punishment of removal from service be substituted with compulsory retirement?
Such substitution may occur when the punishment of removal is deemed extreme, particularly where there was no proper domestic enquiry and the competent authority's satisfaction focused on the undesirability of retaining the employee. (Para 6 )
JUDGMENT
Kurian, J. -. Leave granted.
2. The appellant before this Court is aggrieved by the judgment dated 21.07.2016 in Writ Petition (C) No. 1268 of 2016 and the order dated 18.11.2016 passed in Review Petition No. 504 of 2016. In the nature of the order that we propose to pass in this case it may not be necessary to go into the facts of the case in detail
3. Shorn of details, the appellant was removed from service pursuant to inquiry conducted under the Fundamental Rules. The charge established was that he did not report back to duty/curtail his deputation to the International Labor Organization despite the direction issued by the competent authority. Thus, order dated 26.06.2009 was passed removing the appellant from service.
4. Ms. V. Mohana, learned senior counsel appearing for the respondents, submits that the appellant overstayed his period of deputation. Be that as it may, the order removing the appellant from service at paragraph 13 reads as follows: -
"Now, therefore after considering the facts and circumstances of the case, the President has come to the conclusion that all the Articles of Charge framed against the CO stand established and considering the gravity of misconduct of persistent defying of the direction of the superiors it would not be desirable to retain him in service."
5. What is discernible from the satisfaction as reflected in the aforesaid order is that the competent authority felt it not desirable to retain the appellant in service. It is one thing to say that it is not desirable to keep an employee any more in service and yet another thing to say that the service of the employee should be terminated on account of proved misconduct.
6. It is significant to note that there was no proper domestic enquiry. It is also significant to note that the appellant had sought voluntary retirement. Having regard to the background of the case, we are of the view that the alleged overstay and defiance of the direction to report back to duty may not require the imposition of extreme punishment of removal from service, particularly, since the satisfaction of the competent authority is what is indicated above. Accordingly, in the peculiar facts and circumstances of this case, we dispose of these appeals with the direction to the competent authority to substitute the punishment of removal with compulsory retirement w.e.f. 26.06.2009, the date of the order of removal from service.
7. The competent authority shall, therefore, pay eligible/consequential benefit(s) flowing out from such substitution within a period of three months from today. There shall be no claim for any interest for the benefits.
