Ambika Prasad S/O Sher Bahadur Singh Vs. Union of India (Uoi) and ors. - Court Judgment

Excerpt:
service - dismissal - leave sanctioned to petitioner - petitioner overstayed - inquiry initiated for 'unauthorized overstay' -dismissed from job - appeal preferred - dismissed - hence, present petition - held under facts and circumstances petitioner found guilty of 'unauthorized overstay'however he failed to defend himself during inquiry due to improper advise - hence, imposition of extreme penalty was not warranted for - petition allowed - section 10: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre, jj] admission to professional colleges - technical courses - publication of brochure on basis of which candidates seek admission to various institution keeping in mind their merit and preference of colleges held, for ensuring adherence to proper appreciation of an academic course, it is essential that the method of admission is just, fair and transparent. the first step in this direction would be publication of a brochure on the basis of which the applicants are supposed to aspire for admission to various institution keeping in mind their merit and preference of college. brochure, firstly has to be in conformity with law and the statutory scheme notified by the competent authority. it is a complete and composite document as it deals with the scheme for conducting their entrance examinations, declaration of results, general instructions and method of admission, etc. this brochure is binding on the applicants as well as the authorities. this brochure or admission notification issued by the state or other competent authority cannot be altered at a subsequent stage particularly once the process of admission has begun. there is hardly any exception to this accepted rule of law. section 10: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre,jj] admission to professional colleges - technical courses - approval to additional seats or to start new course - cut off dates held, the settled principle of law is that merit of the applicant is the primary criteria which would determine his rank as well as the college where he would be entitled to admission. this rule should not be frustrated as it will tantamount to entirely upsetting the object of admissions based on merit oriented method and would cast cloud on the fairness and transparency of the method of admission. one of the ways in which merit can be defeated is allowing increase in the intake strength or commencement if new colleges beyond cut-off date and admissions beyond the last date specified in the notification/calendar issued by the concerned authorities. this can be illustrated by giving an example. college a which is running a professional course like engineering or mba etc. has an intake capacity of 60 seats which has duly been notified in the information brochure. however, after the cut-off date, approval is granted by the aicte and thereafter, the process is taken up by the state and the intake capacity of the college is increased by 30 more seats. these seats would obviously, not be notified in the information brochure and the candidate who are meritorious and for whom college a; be the college of reference could not get seats or give preference as the seats were limited. none had the proper knowledge about the increase in intake of seats though at a much subsequent stage and may be even after the last date of admission is over either by themselves or under the order of the court even it is put on the internet or given in the newspaper, the candidates of higher rank or meritorious candidates would not be able to avail of that benefit because they have already submitted the testimonial, have paid their fees and the courses have commenced. in that situation, for variety of reasons, they may not be able to take admission in the institution of their higher preference while the candidates of much lower merit will be admitted to that course. besides defeating the merit, it has been commonly noticed that the late admissions made by the colleges directly effect notified candidates who have questioned it more than often as their admission process is not so just, fair and transparent which has given rise to the litigation. it is also a kind of back door entry method. another serious consequence that result from such admissions is shortening of the academic courses in an undesirable manner. it is expected of other candidate selected to a professional course that he or she would complete the course in its entirety and not by missing more than a month or so in joining the said course. this results in lowering the excellence of education as well as harms the academic standard of professional education. admission to professional colleges: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre, jj] technical courses - held, in process of admission to professional colleges relating to technical courses, primarily three institutional bodies are involved. (i) all india technical council for technical education, (ii) state of maharashtra through director of technical education and (iii) university to which such institution is affiliated the role of all these institutions in distinct and different but for a common object. primary of the rule of all india council for technical education (aicte) is now well settled but that certainly does not mean that role of the state government and for that matter the university is without any purpose or of no importance. the council is the authority constituted under the central act with the responsibility of maintaining education standards and judging upon the infra-structure and facilities available for imparting such professional education. its opinion is of utmost importance and shall take precedence over views of the state as well as that of the university. the concerned department of the state and the affiliating university has a role to pay but it is limited in its application. they cannot lay down any guidelines or policies which would be in conflict with the central statute or the students laid down a by the central body. state can frame its policy for admission to such professional courses but such policy again has to be in conformity with the directives issued by the central body. while the state grants its approval and university its affiliation for increased intake of seats or commencement for a new course/college, its directions should not offend and be repugnant to what has been laid down in the condition of approval granted by the central authority or council. what is most important is that all these authorities have to work ad idem as they all have a common object to achieve i.e. of proper imparting of education an ensuring maintenance of proper standards of education, examination and ensuring proper infrastructure for betterment of educational system. only if all these authorities work in a co-ordinated manner and with co-operation they would be able to achieve the very object for which all these entities exist admission to professional courses: [swatanter kumar, c.j.,a.p. deshpande & smt. nishita mhatre, jj] admission schedule - interference by courts held, all the expert bodies viz. aicte as well as directorate of education in consultation with the departments of the state regulating the process of admission and maintenance of standards of education had notified a legal binding document specifying dates and schedule for various matters in relation to admission of students and commencement of courses. there has to be so compelling circumstances and grounds before the court to interfere with the prescribed schedule. it is neither so arbitrary nor so perverse, keeping in view the essential features relating to imparting education to professional courses that it should invite judicial chastisement to the extent of laying down entirely new schedule. merely because there has been some delay on the part of either of these authorities to timely grant of either of these authorities to timely grant or decline approval and permission to commence a course per se would not be sufficient ground for disturbing the notified schedule and timely commencement of courses. - the divisional security commissioner by his order dated 16.07.91 removed the petitioner from service with immediate effect as per the punishment recommended by the enquiry officer. the petitioner was charge-sheeted for 'unauthorised overstay with effect from 13.04.91 till date in continuation of 6 days apl from 7.4.91 to 12.4.91.'we find that though the petitioner has not offered any explanation as to why he failed to defend himself during the enquiry it appears that the petitioner was deprived proper advise in the matter, otherwise there was no reason why the petitioner could not have participated in the departmental enquiry. 7. even the appellate authority concurred with the order as the petitioner failed to turn up and defend himself during the enquiry and therefore, there was no reason to exonerate him of the charge of unauthorised overstay in continuation of 6 days apl taking into consideration that the unauthorised overstay was not substantial so as to invite the maximum penalty of dismissal and particularly in the background when the petitioner for reasons best known to him could not participate in the departmental proceedings, it was not fair and reasonable to impose such harsh punishment. 8. after taking into consideration the fact situation and the well settled principle of service jurisprudence, while imposing punishment, the factors which should be kept in mind by the disciplinary authorities can be summed up as under: it would be counter productive to do so for it would be futile to expect to recruit employees who are so perfect that they would never commit any fault. unless the disciplinary authority reaches the conclusion that having regard to the nature, content and magnitude of the fault committed by the employee concerned it would be absolutely unsafe to retain him in the service, the maximum penalty of dismissal cannot be imposed. it does more harm than good to the employer as also to the society. pandian by their letter dated 20.08.08 that the matter can be worked out and the office of the chief security commissioner has conveyed that they have accepted the suggestion of this court as indicated in his letter under reference but requested that honourable high court may be asked to direct petitioner to undergo his initial training once again, so that he can function effectively. 10. we also feel that due to a gap in service, it will be in the interest of the petitioner to undergo his initial training programme so that he can be useful in the force and that his present age shall be taken into consideration for initial training as the petitioner is not expected to perform like new recruits and the training is a formality for preparing him to discharge his duties properly.1. heard the learned counsel for the parties.2. the petitioner has approached this court after knocking the court of justice at different forums challenging the punishment and dismissal imposed upon him in a disciplinary enquiry conducted by the respondent employer. the petitioner came to be appointed as a constable in the railway protection force (rpf) under badge no. 587 in the central railway and was posted in bombay on 29.09.1984. in april, 1991 while the petitioner was working in the rpf at byculla, he received an intimation from his native place in uttar pradesh that his wife was seriously ill and, therefore, the petitioner applied for leave and got sanction from 07.04.91 to 12.04.91 and went to his native place to attend to his wife.3. it is the case of the petitioner that his wife was seriously ill and required continuous treatment and medication and no one else was there to look after her, his two children being small and widowed mother being old, the petitioner had to overstay beyond his 6 days leave which was informed to the respondents. though the respondents acknowledged receipt of the petitioner's letter dated 15.04.91, the petitioner availed of the leave beyond the sanctioned limit under the impression that his request would be considered as he has sent a medical certificate in support of his application for extension of leave.4. it is the case of the petitioner that on 25.05.91 rather than considering his case for extension of leave, the respondent charge sheeted the petitioner and one k.p.singh was appointed as enquiry officer. the divisional security commissioner by his order dated 16.07.91 removed the petitioner from service with immediate effect as per the punishment recommended by the enquiry officer. the petitioner preferred an appeal against the said order of dismissal on 11.09.91 but he did not get any response. therefore, he moved the allahabad high court by filing a writ petition in the year 1993. on 22.05.93, the allahabad high court disposed of the writ petition with a direction to the respondents to dispose of the appeal of the petitioner within a period of one month. pursuant to the said writ of mandamus issued by the allahabad high court, the respondent no. 5 asst.security commissioner passed an order rejecting the appeal holding that it was time barred. the petitioner was again required to move the allahabad high court by filing writ petition no. 39741 of 1993 but it was turned down by order dated 18.03.05 on the ground of jurisdiction and this is how the petitioner on being advised approached this court by filing this petition.5. the short issue which arise for our consideration after the completion of the pleadings and hearing the learned counsel for the parties in the matter is whether the punishment imposed on the petitioner was shockingly disproportionate.6. in our opinion, the case of the petitioner can be considered to be an exception taking into account the misconduct for which he was charged and the fact that the petitioner did not contest the disciplinary proceedings initiated against him which led to the passing of the impugned order of dismissal. the petitioner was charge-sheeted for 'unauthorised overstay with effect from 13.04.91 till date in continuation of 6 days apl from 7.4.91 to 12.4.91.' we find that though the petitioner has not offered any explanation as to why he failed to defend himself during the enquiry it appears that the petitioner was deprived proper advise in the matter, otherwise there was no reason why the petitioner could not have participated in the departmental enquiry. this resulted in passing of the order dated 16.7.91 by the divisional security commissioner, bombay v.t. who ordered his removal from service with immediate effect.7. even the appellate authority concurred with the order as the petitioner failed to turn up and defend himself during the enquiry and therefore, there was no reason to exonerate him of the charge of unauthorised overstay in continuation of 6 days apl taking into consideration that the unauthorised overstay was not substantial so as to invite the maximum penalty of dismissal and particularly in the background when the petitioner for reasons best known to him could not participate in the departmental proceedings, it was not fair and reasonable to impose such harsh punishment. the respondents have not placed before the court any previous record of the petitioner which could go to show that the petitioner is in the habit of overstaying his leave or has a previous record to his discredit which goes to justify his discontinuation in service.8. after taking into consideration the fact situation and the well settled principle of service jurisprudence, while imposing punishment, the factors which should be kept in mind by the disciplinary authorities can be summed up as under:i. in a disciplinary proceeding for an alleged fault of an employee, punishment is imposed, not in order to seek retribution or to give vent to feeling of wrath.ii. the main purpose of a punishment is to correct the fault of the employee concerned by making him more alert in the future and to hold out a warning to the other employees to be careful in the discharge of their duties so that they do not expose themselves to similar punishment. and the approach to be made is the approach parents make towards an erring or misguided child.iii. it is not expedient in the interest of the administration to visit every employee against whom a fault is established with the penalty of dismissal and to get rid of him. it would be counter productive to do so for it would be futile to expect to recruit employees who are so perfect that they would never commit any fault.iv. when different categories of penalties can be imposed in respect of the alleged fault, one of which is dismissal from service, the disciplinary authority perforce is required to consult itself for selecting the most appropriate penalty from out of the range of penalties available that can be imposed, having regard to the nature, content and gravity of default. unless the disciplinary authority reaches the conclusion that having regard to the nature, content and magnitude of the fault committed by the employee concerned it would be absolutely unsafe to retain him in the service, the maximum penalty of dismissal cannot be imposed.v. it cannot be overlooked that by and large it is because the maximum penalty is imposed and total ruination stares one in the eyes that the employee concerned is obliged to approach the court and avail of the costly and time-consuming machinery to challenge in desperation, the order passed by the disciplinary authority. if a lesser penalty was imposed, he might not have been obliged to take recourse to costly legal proceedings which result in loss of public time and also result in considerable hardship and misery to the employee concerned.vi. every harsh order of removal from service creates bitterness and arouses a feeling of antagonism in the collective mind of the workers and gives rise to a feeling of class conflict. it does more harm than good to the employer as also to the society.9. in the aforesaid circumstances, this court thought it proper that the matter can be sympathetically considered in the case of the petitioner. the learned standing counsel for the union of india mr.t.j.pandian was kind enough to convey the feelings of this court to the authorities and we record our appreciation for the positive approach made by the authority in the matter and they have communicated to mr.pandian by their letter dated 20.08.08 that the matter can be worked out and the office of the chief security commissioner has conveyed that they have accepted the suggestion of this court as indicated in his letter under reference but requested that honourable high court may be asked to direct petitioner to undergo his initial training once again, so that he can function effectively. the copy of the said communication dated 20.08.08 received by mr.t.j.pandian is taken on record and marked 'x' for identification and has been read as part of the record and proceeding of the case.10. we also feel that due to a gap in service, it will be in the interest of the petitioner to undergo his initial training programme so that he can be useful in the force and that his present age shall be taken into consideration for initial training as the petitioner is not expected to perform like new recruits and the training is a formality for preparing him to discharge his duties properly.11. we therefore, accept the statement made by the learned standing counsel of the respondent on instruction of the respondent that the petitioner will be taken back in service in the same level as constable and in such an event, the petitioner will not be given any back wages or any other benefits except that the period from the date of dismissal till reinstatement would be taken into account for the purpose of pensionery benefits only.12. in view of this, we direct the petitioner to report for duty to the sr.divisional security commissioner, rpf cst, mumbai on 01.09.2008.13. petition is disposed of accordingly with no order as to costs.