Page 1 Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1941 OF 2014

(Arising out of S.L.P. (C) No. 15530 of 2013)

Chennai Metropolitan Water Supply

and Sewerage Board and others …

Appellants

Versus

T.T. Murali Babu …

Respondent

J U D G M E N T

Dipak Misra, J.

Leave granted.

2.The present appeal, by special leave, is directed

against the judgment and order dated

22.11.2012 passed by the High Court of

Judicature at Madras in Writ Appeal No. 2531 of

2012 whereby the Division Bench has affirmed

Page 2 the judgment and order dated 21.7.2011 in W.P.

No. 25673 of 2007 whereunder the learned

single Judge had allowed the writ petition, and

after setting aside the punishment of dismissal,

directed reinstatement of the respondent with

continuity of service but without back wages.

3.Bereft of unnecessary details, the expose’ of

facts that have been undraped are that the

respondent was appointed as a Surveyor in

Chennai Metropolitan Water Supply and

Sewerage Board (for short, “CMWSSB”) and

subsequently promoted as Junior Engineer in

1989. From 28.8.1995 he remained

continuously absent from duty without any

intimation to the employer and did not respond

to the repeated memoranda/reminders requiring

him to explain his unauthorized absence from

duty and to rejoin duty. On 1.4.1997 he

reported to duty with the medical certificate for

his absence from duty for the period

commencing 28.8.1995 to 31.3.1997. As he had

2

Page 3 already remained unauthorisedly absent and did

not respond to the memos by offering an

explanation, a charge-sheet had already been

issued on 11.9.1996 under the Chennai

Metropolitan Water Supply and Sewerage Board

Employees (Discipline and Appeal) Regulations,

1978 (for brevity “the Regulations”). The

charge memo contained two charges, namely,

that the respondent-herein had failed to submit

an explanation to the first charge memo dated

11.10.1995 inspite of reminders and second, he

deserted his post by remaining unauthorisedly

absent from duty from 28.8.1995, and thereby

committed misconduct under Regulations 6(1)

and 6(2) respectively of the Regulations. Be it

noted, though the charge memo was duly

acknowledged by the respondent on

19.11.1996, yet he chose not to submit his

explanation till 6.1.1997, much after the charge-

sheet was issued.

3

Page 4 4.As the factual matrix would further uncurtain,

an enquiry was conducted against the

respondent and his explanation in the enquiry

was that he could not attend to the duties and

could not give explanation to the first charge

memo because of ill health. The enquiry officer

found charges were proved and, accordingly,

submitted the enquiry report which was

accepted by the disciplinary authority and after

following the due procedure punishment of

dismissal was passed on 16.4.1998. In the

order of dismissal disciplinary authority

observed that belated submission of medical

certificate on 1.4.1997 irresistibly led to the

conclusion that the respondent employee was

unauthorisedly absent from 28.8.1995. A

conclusion was also arrived at that the first

charge, namely, that he had not responded to

the letters and reminders, also stood proved.

Being of this view, the disciplinary authority

4

Page 5 thought it apt to impose the punishment of

dismissal from service and he did so.

5.On an appeal being preferred by the respondent

the Board rejected the appeal dated 30.6.1998.

Being dissatisfied by the order of dismissal and

the affirmation thereof in appeal, the

respondent preferred W.P. No. 15272 of 1998.

The learned Single Judge, by order dated

12.3.2003, directed re-consideration of the

appeal solely on the ground that the Managing

Director who was the disciplinary authority had

taken part in the proceedings of the Board

which decided the appeal. After the said order

came to be passed, the matter was again placed

before the Board and the appellate authority,

considering the enquiry report, the evidence

brought on record and after due discussion,

affirmed the order of disciplinary authority and

consequently dismissed the appeal on 1.7.2003.

6.The grievance of re-affirmation of the order of

dismissal was agitated by the respondent in

5

Page 6 W.P. No. 25673 of 2007 which was preferred on

7.7.2007. The appellant-Board in the counter

affidavit, defending the order of dismissal,

stated that the only reason given by the

employee was that he could not attend the

duties as he was availing continuous treatment

for tuberculosis and, further, he also met with

an accident in September 1995 which was

unacceptable. In addition, it was stated in the

counter affidavit that bunch of medical

certificates was produced by him on 1.4.1997

which mentioned that he was suffering from

depressive psychosis and bronchitis and there

was no mention about any accident and injury

sustained by him in September 1995 and

treatment availed by him.

7.The learned Single Judge, by the impugned

judgment, after narrating the facts, noted the

statement of the learned counsel for the

respondent that even if the employee had

absented from duty, there was no past

6

Page 7 misconduct of desertion/absence and, therefore,

the punishment of dismissal from service for the

first time desertion/absenteeism is too harsh

and disproportionate and deserved to be

interfered with. The learned Single Judge did

not advert to any other facet and referred to the

decisions in Shri Bhagwan Lal Arya v.

Commissioner of Police, Delhi

1

, B. C.

Chaturvedi v. Union of India

2

, V. Ramana v.

A.P. SRTC

3

, Jagdish Singh v. Punjab

Engineering College

4

and Division Bench

judgment in V. Senthurvelan v. High Court

of Judicature at Madras

5

and opined thus:-

“10.Applying the said judgment to the fact

of this case and considering the counter

filed by the respondents wherein it is not

stated as to whether the petitioner has

deserted / absented on any previous

occasion, this Court is of the view that this

writ petition deserves to be allowed.

11.This writ petition is allowed with a

direction to the respondent to reinstate

petitioner with continuity of service but

without backwage, within a period of four

1

(2004) 4 SCC 560

2

(1995) 6 SCC 749

3

(2005) 7 SCC 338

4

(2009) 7 SCC 301

5

(2009) 7 MLJ 1231

7

Page 8 weeks from the date of receipt of a copy of

this order.”

8.Grieved by the aforesaid order the CMWSSB

preferred Writ Appeal No. 2531 of 2012 and the

Division Bench accepted the conclusion of the

learned single Judge by stating thus: -

“It is not in dispute that the respondent/

writ petitioner was unwell during the said

period, though there might have been

some discrepancies in the date of the

certificate issued, it has not been

controverted by the appellant that the

respondent/writ petitioner was suffering

from depressive psychosis and bronchitis.

That apart it has also not been disputed

that the respondent/ writ petitioner had

not suffered any earlier punishment while

in the services of the appellant Board from

the date of his appointment. Therefore, in

such circumstances, it would be very harsh

and unreasonable to impose the

punishment of removal from service for

the charge of unauthorized absence, as

such punishment is awarded for acts of

grave nature or as cumulative effect of

continued misconduct or for such other

reasons, where the charges are very

serious and in case where charge of

corruption had been proved. Admittedly,

there has been no such allegation against

the respondent/writ petitioner. Further,

the learned single Judge while setting

aside the order of dismissal from service,

rightly denied back wages to the

respondent/writ petitioner as the

respondent/writ petitioner failed to

discharge duty during the relevant period.”

8

Page 9 [Underlining is ours]

9.We have heard the learned counsel for the

parties and perused the material brought on

record.

10.On a keen scrutiny of the decision rendered by

the learned single Judge as well as that of the

Division Bench it is clearly demonstrable that

there has been no advertence with regard to the

issue whether the charges levelled against the

respondent had been proved or not. It is

manifest that there had been no argument on

the said score before the writ court or in intra-

court appeal and hence, we are obliged to state

that the only aspect which was really proponed

before the High Court pertains to the nature of

charges and proportionality of punishment.

Therefore, we shall confine our analysis with

regard to said limited sphere and an added

facet which the learned counsel for the

appellant has emphatically urged before us, that

is, the belated approach by the respondent in

9

Page 10 invoking the extraordinary jurisdiction of the

High Court.

11.The charges that were levelled against the

respondent-employee read as follows: -

“CHARGE NO. 1:

That he has failed to offer his

explanation to this office Memo dated

11.10.95 in spite of reminders thereon

dated 20.01.96 and 23.04.96 which clearly

shows his disobedience to the order of

superior and it amounts to misconduct

under Regulation 6(1) of the MMWSS Board

Employees (Discipline and Appeal)

Regulations 1978.

CHARGE NO. 2:

That he has deserted the post from

28.08.95 onwards and remains

unauthorisedly absent from duty which

amounts to misconduct under Regulation

6(2) of the MMWSS Board Employees

(Discipline and Appeal) Regulations 1978.”

12.It is not in dispute that the Inquiry Officer found

that both the charges had been proved. The

disciplinary authority had ascribed reasons and

passed an order of dismissal from service. On a

perusal of the order of dismissal it is vivid that

the medical certificate was belatedly submitted

and he had remained unauthorisedly absent

1

Page 11 from 28.08.1995. The question that arises is

when the charges of unauthorized absence for a

long period had been proven, was it justified on

the part of the High Court to take resort to the

doctrine of proportionality and direct

reinstatement in service. That apart, one

aspect which has not at all been addressed to

by the High Court is that the respondent

invoked the extraordinary jurisdiction of the

High Court after four years.

13.First, we shall deal with the facet of delay. In

Maharashtra State Road Transport

Corporation v. Balwant Regular Motor

Service, Amravati and others

6

the Court

referred to the principle that has been stated by

Sir Barnes Peacock in Lindsay Petroleum Co.

v. Prosper Armstrong Hurd, Abram

Farewall, and John Kemp

7

, which is as

follows: -

6

AIR 1969 SC 329

7

(1874) 5 PC 221

1

Page 12 “Now the doctrine of laches in Courts of

Equity is not an arbitrary or a technical

doctrine. Where it would be practically

unjust to give a remedy, either because

the party has, by his conduct, done that

which might fairly be regarded as

equivalent to a waiver of it, or where by his

conduct and neglect he has, though

perhaps not waiving that remedy, yet put

the other party in a situation in which it

would not be reasonable to place him if the

remedy were afterwards to be asserted in

either of these cases, lapse of time and

delay are most material. But in every

case, if an argument against relief, which

otherwise would be just, is founded upon

mere delay, that delay of course not

amounting to a bar by any statute of

limitations, the validity of that defence

must be tried upon principles substantially

equitable. Two circumstances, always

important in such cases, are, the length of

the delay and the nature of the acts done

during the interval, which might affect

either party and cause a balance of justice

or injustice in taking the one course or the

other, so far as relates to the remedy.”

14.In State of Maharashtra v. Digambar

8

, while

dealing with exercise of power of the High Court

under Article 226 of the Constitution, the Court

observed that power of the High Court to be

exercised under Article 226 of the Constitution,

if is discretionary, its exercise must be judicious

and reasonable, admits of no controversy. It is

8

(1995) 4 SCC 683

1

Page 13 for that reason, a person’s entitlement for relief

from a High Court under Article 226 of the

Constitution, be it against the State or anybody

else, even if is founded on the allegation of

infringement of his legal right, has to

necessarily depend upon unblameworthy

conduct of the person seeking relief, and the

court refuses to grant the discretionary relief to

such person in exercise of such power, when he

approaches it with unclean hands or

blameworthy conduct.

15.In State of M.P. and others etc. etc. v.

Nandlal Jaiswal and others etc. etc.

9

the

Court observed that it is well settled that power

of the High Court to issue an appropriate writ

under Article 226 of the Constitution is

discretionary and the High Court in exercise of

its discretion does not ordinarily assist the tardy

and the indolent or the acquiescent and the

lethargic. It has been further stated therein that

9

AIR 1987 SC 251

1

Page 14 if there is inordinate delay on the part of the

petitioner in filing a petition and such delay is

not satisfactorily explained, the High Court may

decline to intervene and grant relief in the

exercise of its writ jurisdiction. Emphasis was

laid on the principle of delay and laches stating

that resort to the extraordinary remedy under

the writ jurisdiction at a belated stage is likely to

cause confusion and public inconvenience and

bring in injustice.

16.Thus, the doctrine of delay and laches should

not be lightly brushed aside. A writ court is

required to weigh the explanation offered and

the acceptability of the same. The court should

bear in mind that it is exercising an

extraordinary and equitable jurisdiction. As a

constitutional court it has a duty to protect the

rights of the citizens but simultaneously it is to

keep itself alive to the primary principle that

when an aggrieved person, without adequate

reason, approaches the court at his own leisure

1

Page 15 or pleasure, the Court would be under legal

obligation to scrutinize whether the lis at a

belated stage should be entertained or not. Be

it noted, delay comes in the way of equity. In

certain circumstances delay and laches may not

be fatal but in most circumstances inordinate

delay would only invite disaster for the litigant

who knocks at the doors of the Court. Delay

reflects inactivity and inaction on the part of a

litigant – a litigant who has forgotten the basic

norms, namely, “procrastination is the greatest

thief of time” and second, law does not permit

one to sleep and rise like a phoenix. Delay does

bring in hazard and causes injury to the lis. In

the case at hand, though there has been four

years’ delay in approaching the court, yet the

writ court chose not to address the same. It is

the duty of the court to scrutinize whether such

enormous delay is to be ignored without any

justification. That apart, in the present case,

such belated approach gains more significance

1

Page 16 as the respondent-employee being absolutely

careless to his duty and nurturing a

lackadaisical attitude to the responsibility had

remained unauthorisedly absent on the pretext

of some kind of ill health. We repeat at the cost

of repetition that remaining innocuously

oblivious to such delay does not foster the

cause of justice. On the contrary, it brings in

injustice, for it is likely to affect others. Such

delay may have impact on others’ ripened rights

and may unnecessarily drag others into

litigation which in acceptable realm of

probability, may have been treated to have

attained finality. A court is not expected to give

indulgence to such indolent persons - who

compete with ‘Kumbhakarna’ or for that matter

‘Rip Van Winkle’. In our considered opinion,

such delay does not deserve any indulgence

and on the said ground alone the writ court

should have thrown the petition overboard at

the very threshold.

1

Page 17 17.Having dealt with the doctrine of delay and

laches, we shall presently proceed to deal with

the doctrine of proportionality which has been

taken recourse to by the High Court regard

being had to the obtaining factual matrix. We

think it appropriate to refer to some of the

authorities which have been placed reliance

upon by the High Court.

18.In Shri Bhagwan Lal Arya (supra) this Court

opined that the unauthorized absence was not a

grave misconduct inasmuch as the employee

had proceeded on leave under compulsion

because of his grave condition of health. Be it

noted, in the said case, it has also been

observed that no reasonable disciplinary

authority would term absence on medical

grounds with proper medical certificate from

Government doctors as a grave misconduct.

19.In Jagdish Singh (supra) the Court took note of

the fact that the appellant therein was a

sweeper and had remained absent on four spells

1

Page 18 totalling to fifteen days in all in two months. In

that context, the Court observed thus: -

“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.”

20.If both the decisions are appositely understood,

two aspects clearly emerge. In Shri Bhagwan

Lal Arya (supra), the Court took note of the

fact, that is, production of proper medical

certificate from a Government medical doctor

and opined about the nature of misconduct and

in Jagdish Singh (supra) the period of absence,

status of the employee and his track record and

the explanation offered by him. In the case at

1

Page 19 hand, the factual score being different, to which

we shall later on advert, the aforesaid

authorities do not really assist the respondent.

21.Learned counsel for the respondent has

commended us to the decision in Krushnakant

B. Parmar v. Union of India and another

10

to highlight that in the absence of a finding

returned by the Inquiry Officer or determination

by the disciplinary authority that the

unauthorized absence was willful, the charge

could not be treated to have been proved. To

appreciate the said submission we have

carefully perused the said authority. In the said

case, the question arose whether “unauthorized

absence from duty” did tantamount to “failure

of devotion to duty” or “behavior unbecoming of

a Government servant” inasmuch as the

appellant therein was charge-sheeted for failure

to maintain devotion to duty and his behavior

was unbecoming of a Government servant.

10

(2012) 3 SCC 178

1

Page 20 After adverting to the rule position the two-

Judge Bench expressed thus: -

“16.In the case of the appellant referring

to unauthorized absence the disciplinary

authority alleged that he failed to maintain

devotion to duty and his behavior was

unbecoming of a government servant. The

question whether “unauthorized absence

from duty” amounts to failure of devotion

to duty or behavior unbecoming of a

government servant cannot be decided

without deciding the question whether

absence is willful or because of compelling

circumstances.

17.If the absence is the result of

compelling circumstances under which it

was not possible to report or perform duty,

such absence cannot be held to be willful.

Absence from duty without any application

or prior permission may amount to

unauthorized absence, but it does not

always mean willful. There may be

different eventualities due to which an

employee may abstain from duty,

including compelling circumstances

beyond his control like illness, accident,

hospitalization, etc., but in such case the

employee cannot be held guilty of failure

of devotion to duty or behavior

unbecoming of a government servant.

18.In a departmental proceeding, if

allegation of unauthorized absence from

duty is made, the disciplinary authority is

required to prove that the absence is

willful, in the absence of such finding, the

absence will not amount to misconduct.”

2

Page 21 22.We have quoted in extenso as we are disposed

to think that the Court has, while dealing with

the charge of failure of devotion to duty or

behavior unbecoming of a Government servant,

expressed the aforestated view and further the

learned Judges have also opined that there may

be compelling circumstances which are beyond

the control of an employee. That apart, the

facts in the said case were different as the

appellant on certain occasions was prevented to

sign the attendance register and the absence

was intermittent. Quite apart from that, it has

been stated therein that it is obligatory on the

part of the disciplinary authority to come to a

conclusion that the absence is willful. On an

apposite understanding of the judgment we are

of the opinion that the view expressed in the

said case has to be restricted to the facts of the

said case regard being had to the rule position,

the nature of the charge levelled against the

employee and the material that had come on

2

Page 22 record during the enquiry. It cannot be stated

as an absolute proposition in law that whenever

there is a long unauthorized absence, it is

obligatory on the part of the disciplinary

authority to record a finding that the said

absence is willful even if the employee fails to

show the compelling circumstances to remain

absent.

23.In this context, it is seemly to refer to certain

other authorities relating to unauthorized

absence and the view expressed by this Court.

In State of Punjab v. Dr. P.L. Singla

11

the

Court, dealing with unauthorized absence, has

stated thus: -

“Unauthorised absence (or overstaying

leave), is an act of indiscipline. Whenever

there is an unauthorized absence by an

employee, two courses are open to the

employer. The first is to condone the

unauthorized absence by accepting the

explanation and sanctioning leave for the

period of the unauthorized absence in

which event the misconduct stood

condoned. The second is to treat the

unauthorized absence as a misconduct,

11

(2008) 8 SCC 469

2

Page 23 hold an enquiry and impose a punishment

for the misconduct.”

24.Again, while dealing with the concept of

punishment the Court ruled as follows: -

“Where the employee who is

unauthorisedly absent does not report

back to duty and offer any satisfactory

explanation, or where the explanation

offered by the employee is not

satisfactory, the employer will take

recourse to disciplinary action in regard to

the unauthorized absence. Such

disciplinary proceedings may lead to

imposition of punishment ranging from a

major penalty like dismissal or removal

from service to a minor penalty like

withholding of increments without

cumulative effect. The extent of penalty

will depend upon the nature of service, the

position held by the employee, the period

of absence and the cause/explanation for

the absence.”

25.In Tushar D. Bhatt v. State of Gujarat and

another

12

, the appellant therein had remained

unauthorisedly absent for a period of six months

and further had also written threatening letters

and conducted some other acts of misconduct.

Eventually, the employee was visited with order

of dismissal and the High Court had given the

stamp of approval to the same. Commenting on

12

(2009) 11 SCC 678

2

Page 24 the conduct of the appellant the Court stated

that he was not justified in remaining

unauthorisedly absent from official duty for

more than six months because in the interest of

discipline of any institution or organization such

an approach and attitude of the employee

cannot be countenanced.

26.Thus, the unauthorized absence by an

employee, as a misconduct, cannot be put into a

straight-jacket formula for imposition of

punishment. It will depend upon many a factor

as has been laid down in Dr. P.L. Singla

(supra).

27.Presently, we shall proceed to scrutinize

whether the High Court is justified in applying

the doctrine of proportionality. Doctrine of

proportionality in the context of imposition of

punishment in service law gets attracted when

the court on the analysis of material brought on

record comes to the conclusion that the

punishment imposed by the Disciplinary

2

Page 25 Authority or the appellate authority shocks the

conscience of the court. In this regard a

passage from Indian Oil Corporation Ltd.

and another v. Ashok Kumar Arora

13

is

worth reproducing: -

“At the outset, it needs to be mentioned

that the High Court in such cases of

departmental enquiries and the findings

recorded therein does not exercise the

powers of appellate court/authority. The

jurisdiction of the High Court in such cases

is very limited for instance where it is

found that the domestic enquiry is vitiated

because of non-observance of principles of

natural justice, denial of reasonable

opportunity; findings are based on no

evidence, and/or the punishment is totally

disproportionate to the proved misconduct

of an employee.”

28.In Union of India and another v. G.

Ganayutham

14

, the Court analysed the

conception of proportionality in administrative

law in England and India and thereafter

addressed itself with regard to the punishment

in disciplinary matters and opined that unless

the court/tribunal opines in its secondary role

that the administrator was, on the material

13

(1997) 3 SCC 72

14

(1997) 7 SCC 463

2

Page 26 before him, irrational according to Associated

Provincial Picture Houses Ltd. v.

Wednesbury Corpn.

15

and Council of Civil

Service Unions v. Minister for Civil

Service

16

norms, the punishment cannot be

quashed.

29.In Chairman-cum-Managing Director, Coal

India Limited and another v. Mukul Kumar

Choudhuri and others

17

, the Court, after

analyzing the doctrine of proportionality at

length, ruled thus: -

“19.The doctrine of proportionality is,

thus, well-recognised 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 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 excess to

the allegations cannot claim immunity and

remains open for interference under

limited scope of judicial review.

15

(1948) 1 KB 223 : (1947) 2 All ER 680

16

1985 AC 374 : (1984) 3 All ER 935

17

(2009) 15 SCC 620

2

Page 27 20.One of the tests to be applied while

dealing with the question of quantum of

punishment would be: would any

reasonable employer have imposed such

punishment in like circumstances?

Obviously, a reasonable employer is

expected to take into consideration

measure, magnitude and degree of

misconduct and all other relevant

circumstances and exclude irrelevant

matters before imposing punishment.

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 reason for his absence by

stating that he did not have 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.”

30.After so stating the two-Judge Bench proceeded

to say that one of the tests to be applied while

dealing with the question of quantum of

punishment is whether any reasonable

employer would have imposed such punishment

2

Page 28 in like circumstances taking into consideration

the major, magnitude and degree of misconduct

and all other relevant circumstances after

excluding irrelevant matters before imposing

punishment. It is apt to note here that in the

said case the respondent had remained

unauthorisedly absent from duty for six months

and admitted his guilt and explained the

reasons for his absence by stating that he

neither had any intention nor desire to disobey

the order of superior authority or violated any of

the rules or regulations but the reason was

purely personal and beyond his control. Regard

being had to the obtaining factual matrix, the

Court interfered with the punishment on the

ground of proportionality. The facts in the

present case are quite different. As has been

seen from the analysis made by the High Court,

it has given emphasis on past misconduct of

absence and first time desertion and thereafter

proceeded to apply the doctrine of

2

Page 29 proportionality. The aforesaid approach is

obviously incorrect. It is telltale that the

respondent had remained absent for a

considerable length of time. He had exhibited

adamantine attitude in not responding to the

communications from the employer while he

was unauthorisedly absent. As it appears, he

has chosen his way, possibly nurturing the idea

that he can remain absent for any length of

time, apply for grant of leave at any time and

also knock at the doors of the court at his own

will. Learned counsel for the respondent has

endeavoured hard to impress upon us that he

had not been a habitual absentee. We really fail

to fathom the said submission when the

respondent had remained absent for almost one

year and seven months. The plea of absence of

“habitual absenteeism” is absolutely

unacceptable and, under the obtaining

circumstances, does not commend acceptation.

We are disposed to think that the respondent by

2

Page 30 remaining unauthorisedly absent for such a long

period with inadequate reason had not only

shown indiscipline but also made an attempt to

get away with it. Such a conduct is not

permissible and we are inclined to think that the

High Court has erroneously placed reliance on

the authorities where this Court had interfered

with the punishment. We have no shadow of

doubt that the doctrine of proportionality does

not get remotely attracted to such a case. The

punishment is definitely not shockingly

disproportionate.

31.Another aspect needs to be noted. The

respondent was a Junior Engineer. Regard

being had to his official position, it was expected

of him to maintain discipline, act with

responsibility, perform his duty with sincerity

and serve the institution with honesty. This kind

of conduct cannot be countenanced as it creates

a concavity in the work culture and ushers in

indiscipline in an organization. In this context,

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Page 31 we may fruitfully quote a passage from

Government of India and another v.

George Philip

18

: -

“In a case involving overstay of leave and

absence from duty, granting six months’

time to join duty amounts to not only

giving premium to indiscipline but is wholly

subversive of the work culture in the

organization. Article 51-A(j) of the

Constitution lays down that it shall be the

duty of every citizen to strive towards

excellence in all spheres of individual and

collective activity so that the nation

constantly rises to higher levels of

endeavour and achievement. This cannot

be achieved unless the employees

maintain discipline and devotion to duty.

Courts should not pass such orders which

instead of achieving the underlying spirit

and objects of Part IV-A of the Constitution

have the tendency to negate or destroy

the same.”

32.We respectfully reiterate the said feeling and re-

state with the hope that employees in any

organization should adhere to discipline for not

only achieving personal excellence but for

collective good of an organization. When we

say this, we may not be understood to have

stated that the employers should be harsh to

impose grave punishment on any misconduct.

18

(2006) 13 SCC 1

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Page 32 An amiable atmosphere in an organization

develops the work culture and the employer and

the employees are expected to remember the

same as a precious value for systemic

development.

33.Judged on the anvil of the aforesaid premises,

the irresistible conclusion is that the

interference by the High Court with the

punishment is totally unwarranted and

unsustainable, and further the High Court was

wholly unjustified in entertaining the writ

petition after a lapse of four years. The result of

aforesaid analysis would entail overturning the

judgments and orders passed by the learned

single Judge and the Division Bench of the High

Court and, accordingly, we so do.

34.Consequently, the appeal is allowed and the

judgments and orders passed by the High Court

are set aside leaving the parties to bear their

respective costs.

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Page 33 …………… .……..…..J.

[H.L. Gokhale]

…………………… .….J.

[Dipak Misra]

New Delhi;

February 10, 2014.

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