S.G. Mehare JUDGMENT
S.G. Mehare, J.
1. Heard learned counsel for the petitioner and learned counsel for contesting respondent no.3.
2. The facts in brief were that the petitioner was the Gram Sevak who joined his services on 02.04.1984. Since he was unauthorizedly absent, the charge sheet was served upon him on(2) 10.09.2005. The petitioner admitted his absence and explained that his absence was beyond his control. However, respondent no.3 holding him guilty for his misconduct, imposed the punishment of termination from the services. The petitioner had impugned the order of respondent no.3 before the Divisional Commissioner. The Divisional Commissioner set aside the punishment of termination and withheld two increments without back-wages on 17.12.2007. Against the said order, respondent no.3 preferred review before the Under Secretary, Rural Development and Water Conservation Department, Mantralaya, Mumbai. The Under Secretary reversed the order of the Divisional Commissioner. The petitioner has challenged the order of the Under Secretary.
3. Learned counsel for the petitioner has vehemently argued that the punishment is disproportionate to the faults of the petitioner. The doctrine of proportionality has not been applied. The punishment of termination was arbitrary and against the rule of natural justice. Now, the petitioner has been superannuated. Since the punishment is against the doctrine of proportionality, he prayed to quash and set aside the order of Chief Executive Officer which the Under Secretary has confirmed.
4. Per contra, learned counsel for the respondent no.3 has strongly opposed the arguments of the petitioner. He would submit that by mistake, the nomenclature of the petition before the UnderSecretary was incorrectly mentioned as review, in fact, it was a revision. He would submit that the punishment imposed upon the petitioner was proportionate. His explanation for his absence was correctly not accepted. To maintain the discipline in the office, such punishments are proper. There are no illegalities in the impugned orders. Hence, the petition deserves to be dismissed.
5. A small question that arise for determination is whether the punishment of termination is proportionate to the fault of the petitioner.
6. It is trite that the punishment to the employee at fault should be proportionate for the faults committed by him. In this case, the petitioner has fairly admitted his absence and explained that his absence was beyond his control. The Divisional Commissioner also did not accept his explanation and withheld his two increments without back-wages. The facts of the case of Chairman-Cum-Managing Director, Coal India Limited and Another Vs. Mukul Kumar Choudhuri and Others, MANU/SC/1498/2009 : (2009) 15 SCC 620, which the petitioner relied upon are identical to the facts of the case. In para 19 of the said judgment, the Hon'ble Supreme Court has observed thus :
"19. The doctrine of proportionality is, thus, well recognized concept of judicial review in our jurisprudence. What is otherwise within the discretionary domain and sole power of the decision-maker to quantify punishment once the charge of misconduct(4) stands proved, such discretionary power is exposed to judicial intervention if exercised in a manner which is out of proportion to the fault. Award of punishment which is grossly in access to the allegations cannot claim immunity and remains open for interference under limited scope of judicial review."
7. Para 21 is more relevant which reads thus :
"21. In a case like the present one where the misconduct of the delinquent was unauthorized absence from duty for six months but upon being charged of such misconduct, he fairly admitted his guilt and explained the reasons for his absence by stating that he did not have any intention nor desired to disobey the order of higher authority or violate any of the Company's rules and regulations but the reason was purely personal and beyond his control and, as a matter of fact, he sent his resignation which was not accepted, the order of removal cannot be held to be justified,since in our judgment, no reasonable employer would have imposed extreme punishment of removal in like circumstances. The punishment is not only unduly harsh but grossly in excess to the allegations."
8. Reading the order of the Chief Executive Officer and the Under Secretary, Maharashtra State, it is apparent that the punishment for the faults of the petitioner is disproportionate and the punishment imposed by the Divisional Commissioner appears(5) proportionate. Hence, the petition deserves to be allowed. Therefore, the following order :
ORDER
I) Writ Petition is allowed.
II) The Order of the Under Secretary, Rural Development and Water Conservation Department, Mantralaya, Mumbai dated 22.10.2008 stands quashed and set aside.
III) The order of the Additional Commissioner, Nashik passed in Appeal No.69 of 2006 dated 22.05.2007 is restored.
IV) No order as to costs.
V) Rule is made absolute in above terms.
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