Review Application filed under Article 226 of the Constitution of India, r/w. Section 114 of the Civil Procedure Code praying to review the order of this Court dated 16.4.1999 made in W.P No. 8511 of 1991.

ORDER

ELIPE DHARMA RAO, J.

By this application, the petitioner is praying to review the decision of this Court in dismissing the writ petition filed by him, challenging the order of removal passed against him.

2. The petitioner was appointed as night watchman in the Judicial Magistrate's Court, Poonamallee on 1.6.1989, on compassionate grounds on the death of his father in harness. Thereafter, the petitioner unauthorisedly absented himself from duty from 3.11.1989 to 22.11.1989 Even though a memo. was issued to him, he has not given any reply for the same, resulting in his suspension from service by the order dated 8.12.1989 and thereafter, an enquiry was conducted and on 8.1.1990, the petitioner has submitted his explanation, submitting that he could not attend office due to his ill-health. As the explanation submitted by the petitioner was found to be not satisfactory, a charge memo. was issued to the petitioner, along with the questionnaire on 22.1.1990, for which the petitioner has submitted his explanation on 25.1.1990, admitting the delinquency committed on his part and praying for clemency. After conducting enquiry, the Enquiry Officer found the delinquent guilty of the two charges framed against him and based on the finding of the Enquiry Officer, the appointing authority has inflicted the major punishment of removal from service. The appeal preferred by the petitioner to the Registrar of the High Court also met the fate of dismissal, resulting in his approaching this Court by way of W.P No. 8511 of 1991. A Division Bench of this Court, by the order dated 16.4.1999 has dismissed the said writ petition. Praying to review the said order of the Division Bench of this Court, this Review Application has been filed by the petitioner.

3. The prime plea raised on the part of the petitioner is that as the petitioner was not well, he could not attend the office during the relevant period and he has also produced the medical certificate in support of his claim and therefore, the respondents should have considered the same.

4. On the part of the respondents, it has been submitted that in spite of reminders, the petitioner, who was a probationer, did not join the duty and it is a clear case of desertion and dereliction of duty. It is further submitted that the authorities have scrupulously followed all the procedures contemplated under law and after affording all reasonable opportunities for him, the disciplinary authority has inflicted the punishment of removal from service, which will not be a hindrance to his future prospects, and having found no justification in the prayer of the petitioner, even a Division Bench of this Court has rejected the prayer of the petitioner and there are no grounds to review the case of the petitioner.

5. Even before us, clemency of this Court has been sought for and judgments of upper forums of law, including that of Division Bench of this Court and of the Honourable Supreme Court, have been pressed into service to insist on the point that the appellate authority shall consider whether the punishment imposed is adequate, inadequate or severe and pass orders.

6. In UNION OF INDIA v. S.S AHLUWALIA [2007 (6) SUPREME 521, the Honourable Apex Court has held that the Court can interfere with the punishment only if it finds the same to be shockingly disproportionate to the charges found to be proved, in which case the matter is to be remitted to the disciplinary authority for reconsideration of the punishment and in an appropriate case, however, in order to avoid delay the court can itself impose lesser penalty.

7. We need not have to traverse too much in the matter to find as to whether the petitioner is guilty of the charges or not, since, it is the admitted case of the petitioner himself that he admitted his guilt before the enquiry officer, but offered the reason of ill-health for not attending the office. It is also true that on 27.11.1989 itself, the petitioner has attended the office and submitted the leave application along with medical certificate and fitness certificate, but in spite of reminder memos. issued to the delinquent for submitting his explanation on 18.12.1989, 26.12.1989 and 6.1.1990, he did not submit his explanation and belatedly he has submitted his explanation on 9.1.1990, which all weighted much, while the disciplinary authority imposing the major punishment of removal from service.

8. Though the petitioner was unauthorisedly absent from 3.11.1989, he has produced the medical certificate to show that because of his ill-health he could not attend the office. He is a probationer and except the present charge of unauthorized absence that too on production of medical certificate, no other charge has ever been framed or proved against him. However, the slackness on the part of the petitioner in not submitting his explanation till the third reminder, also cannot be ignored. The other aspect to be kept in mind is that the petitioner has himself admitted his guilt, pleading clemency, which has not at all been taken into consideration either by the disciplinary authority or the appellate authority or by the Division Bench of this Court, while confirming the order of removal from service.

9. Therefore, considering the fact that in spite of submission of the petitioner to the enquiry officer admitting the guilt and submitting the medical certificate to prove the fact that he was ill during the period, which forced him to abstain from duty, the same was not at all taken into consideration by the disciplinary authority, resulting in imposing the punishment of removal from service, which was confirmed both by the appellate authority and this Court in the writ petition, we have no hesitation to hold that the above said major punishment of removal from service is shockingly disproportionate to the proved charge. The disciplinary authority or at least the appellate authority should have considered this aspect that the punishment inflicted on the delinquent is shockingly disproportionate to the proved charges and would have imposed a lesser punishment, taking into consideration the fact that the petitioner himself has admitted the guilt, who has no bad antecedents.

10. Thus, we find that the punishment of removal from service imposed on the delinquent by the disciplinary authority and confirmed by the appellate authority and the Division Bench of this Court, is shockingly disproportionate to the proved charge of unauthorized absence from duty by the petitioner and therefore, it requires modification.

11. In the recent judgment, in JAGDISH SINGH v. PUNJAB ENGINEERING COLLEGE [(2009) 7 SCC 301], the Honourable Apex Court, considering the case of a sweeper, who was dismissed from service on account of his absence on four spells totalling to fifteen days in all in two months to sort out his daughter's problem with her-in-laws and considering the fact that it is not a case of habitual absenteeism and the major punishment of dismissal from service is shocking the consciousness of the Court, has observed and held as follows:

“8. The instant case is not a case of habitual absenteeism. The appellant seems to have a good track record from the date he joined service as a sweeper. In his long career of service, he remained absent for fifteen days on four occasions in the months of February and March 2004. This was primarily to sort out the problem of his daughter with her in-laws. The filial bondage and the emotional attachment might have come in his way to apply and obtain leave from the employer. The misconduct that is alleged, in our view, would definitely amount to violation of discipline that is expected of an employee to maintain in the establishment, but may not fit into the category of gross violation of discipline. We hasten to add, if it were to be habitual absenteeism, we would not have ventured to entertain this appeal.

9. In the result, we allow the appeal and set aside the order passed by the disciplinary authority dated 30.9.2004 and affirmed by the High Court vide its order dated 28.8.2007

10. Taking the totality of the facts and circumstances of the case and having due regard to the unblemished record of the appellant, and the reasons of which he remained absent without obtaining permission, the ends of justice would be met, if punishment imposed by the disciplinary authority is modified to that of stoppage of two increments with cumulative effect and further declare that he would not be entitled for any monetary benefits during the period he was out of service and that period would be counted only for the purpose of his service benefits. We direct the disciplinary authority to issue appropriate orders in this regard within one month from the date of production of certified copy of this Court's order by either of the parties.”

12. Following the above judgment of the Honourable Apex Court, since the facts are more or less similar, we have no hesitation to hold that the ends of justice would be met, if punishment imposed by the disciplinary authority is modified to that of stoppage of two increments with cumulative effect and further declare that the petitioner/delinquent would not be entitled for any monetary benefits during the period he was out of service, applying the principle of ‘no work, no pay’ and that period would be counted only for the purpose of his service benefits. The respondents are directed to reinstate the petitioner into service within eight weeks from the date of receipt of a copy of this order and the disciplinary authority is directed to issue appropriate orders regarding the above mentioned punishment on the petitioner/delinquent immediately on his reinstatement.

With such observations and directions, this Review Application is allowed, modifying the order of the Division Bench of this Court, only with regard to confirmation of the penalty imposed on the delinquent officer. No costs.