Point of Law: Modification of penalty that is imposed by disciplinary authority unless, in an exceptional circumstances, is a realm of the powers of Disciplinary Authority. Therefore matter is to be remitted back to Disciplinary Authority for reconsideration of penalty imposed and for imposition of a lesser penalty which will not amount to cessation of service of petitioner.

ORDER :

1. The petitioner in this writ petition has called in question the order of dismissal dated 30.12.2016, passed by the respondents-Hindustan Aeronautics Limited (hereinafter referred to as ‘HAL’ for short) dismissing the petitioner from service on the allegations of unauthorized absence and the order of the Appellate Authority dated 06.07.2017, affirming the order of dismissal.

2. Brief facts of the case leading to the filing of the writ petition, borne out from the pleadings are as follows:-

The petitioner joined the services of the HAL in Research and Design Division as Engineer, Grade-II and worked at the Division located in Bengaluru for about one year and six months. During his service at Bengaluru, the petitioner developed serious health issues and got affected with chronic bronchitis and asthma. The problem of the petitioner was attributed to the weather of the City of Bengaluru.

3. The petitioner submitted a representation to the respondents-HAL to transfer him to the Detachment Air Force Station at Tambaram, Chennai. The request was acceded to and the petitioner was transferred to Chennai in the month of July, 2008 and worked in the same cadre upto 07.05.2015. During his tenure at Chennai, the petitioner was issued with a charge-sheet dated 15.02.2012, alleging unauthorised absence for 53 days which culminated in imposition of penalty of censure. After which, again on the misconduct of the unauthorized absence, another charge-sheet was issued on 10.03.2015, which culminated in imposition of penalty of stoppage of one increment with cumulative effect. Appeal filed challenging the aforesaid penalties were also rejected.

4. It is after these proceedings, the petitioner was again posted back to Bengaluru. At Bengaluru, the petitioner again remained unauthorisedly absent for about 103 days, which lead to issuance of another charge-sheet dated 30.01.2016, which culminated in imposition of a penalty of dismissal from service in terms of the order of the Disciplinary Authority dated 30.12.2016. The appeal filed by the petitioner against the said order also came to be dismissed. It is these orders that are called in question by the petitioner in the subject writ petition.

5. Heard Sri. Subba Rao, learned senior counsel for Sri. Satheesha N. learned counsel for petitioner and Sri. Syed Kashif Ali, learned counsel for the second respondent.

6. Learned senior counsel appearing for the petitioner would submit that the unauthorized absence of the petitioner was on account of severe bronchitis that was brought about due to weather conditions prevailing in the City of Bengaluru and with regard to certain periods of unauthorized absence from the workplace at Tambaram, Chennai and he has justified the same with adequate medical certificates.

7. He would contend that unauthorised absence that led to imposition of dismissal from service was on account of severe bronchitis again which cannot by any stretch of imagination said to be willful. Unless the misconduct is said to be willful, it cannot result in extreme penalty of dismissal from service. The learned senior counsel would place reliance upon the judgments of the Apex Court in the cases of Coal India Ltd. vs. Mukul Kumar Choudhuri, (2009) 15 SCC 620 and Krushnakant B. Parmar vs. Union of India, (2012) 3 SCC 178.

8. On the other hand, learned counsel for the second respondents would vehemently argue and contend that the petitioner has been in the habit of remaining unauthorisedly absent right from the date of his employment. The assessment of the doctor that the petitioner should seek transfer to some other place other than Bengaluru was of the year 2008 and the same cannot be pressed into service in the year 2015. He would place reliance upon the judgments of the Apex Court in the cases of North-Eastern Karnataka Rt. Corporation vs. Ashappa, (2006) 5 SCC 137, Union of India and Others vs. Bishamber Das Dogra, (2009) 13 SCC 102 and Union of India vs. P. Gunasekaran, (2015) 2 SCC 610 an