ORDNANCE FACTORY BOARD Vs. N MOUGALAIAH

JUDGEMENT

(1.) THIS writ petition is filed assailing the legality and validity of the order dated 31.01.2001, passed in O.A.No.1667 of 1999 by the Central Administrative Tribunal, Hyderabad Bench, Hyderabad (for short the Tribunal).

(2.) THE brief facts are that the first respondent was appointed in the factory of the petitioners as Peon (Group D post) on 20.08.1983. Since he was habitually irregular in attending to duty, several disciplinary proceedings were initiated against him from time to time which culminated in imposition of punishments of stoppage of increments and finally, he was imposed with the punishment of removal from service vide proceedings dated 13.04.1998. He appealed the said order and the appellate authority confirmed the same. Aggrieved by the same, he filed the above said O.A. During the pendency of O.A., he expired on 29.12.1999 and his Legal Representatives were brought on record. Through the impugned order, the Tribunal allowed the O.A. directing the petitioners to treat the deceased employee as having been reinstated and all the benefits he was entitled to, if he were alive, shall be paid to the Legal Representatives of the deceased employee and in the case of minor children, till they attain majority, all the amounts due to them shall be kept in fixed deposit in a Bank and that the share of the widow may be paid to her. It also directed the petitioners to complete the said exercise within a period of two months from the date of receipt of a copy of the said order. Aggrieved by the same, the petitioners filed the present writ petition.

(3.) ON the other hand, learned counsel for the respondents contended that the Tribunal has not considered the admission of guilt of the deceased employee, but it considered that the charge memo was defective since the period of leave, which was granted, was also taken into consideration as unauthorized absence in the charge memo and that the disciplinary authority has taken note of the past conduct of the deceased while imposing the punishment of removal but the petitioners did not frame any charge to that effect. In support of his contention, he relied upon the judgment of the Supreme Court in STATE OF MYSORE v. K. MANCHE GOWDA AIR 1964 SC 506 wherein it was held as under: It is suggested that the past record of a government servant, if it is intended to be relied upon for imposing a punishment, should be made specific charge in the first stage of the enquiry itself and, if it is not so done, it cannot be relied upon after the enquiry is closed and the report is submitted to the authority entitled to impose the punishment. An enquiry against a government servant is one continuous process, though for convenience it is done in two stages. The report submitted by the Enquiry Officer is only recommendatory in nature and the final authority which scrutinizes it and imposes punishment is the authority empowered to impose the same. Whether a particular person has a reasonable opportunity or not depends, to some extent, upon the nature of the subject matter of the enquiry. But it is not necessary in this case to decide whether such previous record can be made the subject matter of charge at the first stage of the enquiry. But, nothing in law prevents the punishing authority from taking that fact into consideration during the second stage of the enquiry, for essentially it relates more to the domain of punishment rather than to that of guilt. But what is essential is that the government servant shall be given a reasonable opportunity to know that fact and meet the same. He relied upon another decision of the Supreme Court in MOHD. YUNUS KHAN v. STATE OF UTTAR PRADESH (2010) 10 SCC 539 wherein it was held as under: the Courts below and the statutory authorities failed to appreciate that if the disciplinary authority wants to consider the past conduct of the employee in imposing a punishment, the delinquent is entitled to notice thereof and generally the charge-sheet should contain such an article or at least he should be informed of the same at the stage of the show-cause notice, before imposing the punishment. Learned counsel for the respondents also relied upon the decision of the Supreme Court in STATE OF PUNJAB v. DR. P.L.SINGLA (2008) 8 SCC 469 wherein it was held as under: An employee who remains unauthorisedly absent for some period(or who overstays the period of leave), on reporting back to duty, may apply for condonation of the absence by offering an explanation for such unauthorized absence and seek grant of leave for that period. If the employer is satisfied that there was sufficient cause or justification for the unauthorized absence (or the overstay after expiry of leave), the employer may condone the act of indiscipline and sanction leave post facto. If leave is so sanctioned and the unauthorized absence is condoned, it will not be open to the employer to thereafter initiate disciplinary proceedings in regard to the said misconduct unless it had, while sanctioning leave, reserved the right to take disciplinary action in regard to the act of indiscipline.