The principle of proportionality in imposing penalties for employee misconduct and the emphasis on not expecting leniency if the same misconduct is repeated in the future.

ORDER :

CHEEKATI MANAVENDRANATH ROY, J.

Aggrieved by the order, dated 30.12.2011 of the Central Administrative Tribunal, Hyderabad Bench (for short “the Tribunal”), passed in O.A.No.974 of 2009, whereby the punishment of compulsory retirement imposed against the respondent herein was set aside with a direction to the petitioners herein to reinstate him into service and to impose lesser punishment against him, the instant Writ Petition has been filed by the petitioners - Union of India.

2) Heard Sri T.Ashok Srivastava, learned counsel, representing Sri N.Harinath, learned Deputy Solicitor General, appearing for the petitioners; and learned counsel appearing for the respondent.

3) The respondent herein is an employee working as Armament Repair Labourer, Naval Armament Depot, Visakhapatnam. Earlier, as he was in the habit of remaining absent to his duties unauthorisedly, punishment of censure was imposed against him. Despite the said punishment of censure imposed against him, he continued to remain absent to his duties unauthorisedly on various spells. Therefore, disciplinary proceedings are initiated against him and in the said disciplinary proceedings, he was found guilty for being unauthorisedly absent to his duties. Considering his conduct in frequently remaining absent to his duties unauthorisedly, the disciplinary authority has imposed major penalty of compulsory retirement.

4) The respondent has preferred an appeal against the said order and the said appeal was dismissed confirming the order of the disciplinary authority. Revision preferred against the said order of the appellate authority also came to be dismissed. The respondent approached the Tribunal against the said order of the revisional authority. The Tribunal by the impugned order has confirmed the order finding the respondent guilty by the disciplinary authority and the appellate authority and also the revisional authority. However, the Tribunal held in the impugned order that the misconduct of the respondent is not a serious misconduct like misappropriation of funds etc. and while setting aside the punishment imposed against the respondent to retire compulsorily, directed the employer to reinstate him into service and to impose lesser punishment.

5) The Union of India, aggrieved by the said order of the Tribunal in setting aside the punishment while upholding the finding of guilt against the respondent and directing for his reinstatement and to impose lesser punishment, preferred the present Writ Petition, as noticed supra.

6) The facts of the case clearly reveal that the respondent is habituated in remaining unauthorisedly absent to his duties frequently. Earlier when he resorted to the said act of misconduct in remaining unauthorisedly absent to his duty, he was found guilty in the disciplinary proceedings initiated against him and censure was also imposed against him. Yet, there is no change in his conduct and he persisted on the usual conduct of remaining absent to the duties unauthorisedly. Therefore, again the disciplinary proceedings are initiated against him and he was found guilty. The said finding of guilt was confirmed in the appeal and also in the revision at all levels. When the same was questioned before the Tribunal, the Tribunal also confirmed the finding of guilt recorded against the respondent as the Tribunal also found that he is habituated in remaining unauthorisedly absent to duties frequently. However, the Tribunal took a lenient view regarding punishment imposed against him and has set aside the penalty imposed against the respondent for his compulsory retirement and ordered for his reinstatement and directed the petitioners to impose lesser punishment against him.

7) As rightly held by the Tribunal, eventhough the respondent is habituated in remaining unauthorisedly absent to his duties, it is not a serious misconduct. Period of unauthorised absence is also for short spells. So, imposition of penalty of compulsory retirement is not proportionate