Holding

The Tribunal could not revisit the established charge and the compulsory retirement was not disproportionate; therefore the Tribunal’s reinstatement order and the High Court’s six‑month direction were set aside.

Summary

George Philip, a Scientific Officer at BARC, was granted a two‑year extraordinary leave for research training on the condition that he would not enroll for a Ph.D. or seek an extension. He violated this undertaking by registering for a Ph.D. and overstayed his leave by more than two years, despite eight notices to report for duty. A departmental enquiry found him guilty of overstay and removal from service was imposed. The Tribunal affirmed the findings but quashed the removal as disproportionate, directing a fresh consideration of punishment. Subsequently, the government ordered compulsory retirement; the Tribunal later reinstated him with full back wages, a decision the High Court modified to reinstatement without back wages if he reported within six months. The Supreme Court held that the Tribunal could not revisit the already‑affirmed findings, that compulsory retirement was not shockingly disproportionate, and that the High Court’s six‑month grace period was improper. Consequently, the Tribunal’s reinstatement order and the High Court’s modification were set aside, and the compulsory retirement was affirmed.

Issues considered

The Tribunal’s jurisdiction to re‑examine the factual findings after affirming them in its first order.
Whether compulsory retirement for overstay of leave and breach of undertaking is disproportionate or illegal.
The scope of judicial review under Article 226 in disciplinary matters – can courts set aside or modify punishment?
Whether granting a six‑month period to report for duty is a proper exercise of judicial discretion.

Legislation cited

Central Civil Services (Conduct) Rules, 1964s. Rule 3, Sub‑rule (1)(iii)

Subjects

disciplinary actionoverstay of leavecompulsory retirementproportionalityjudicial reviewArticle 226service lawtribunal jurisdictionCentral Civil Services Rules

Judgment

A GOVERNMENT OF INDIA AND ANR.
v.
GEORGE PHILIP

NOVEMBER 16, 2006

B [G.P. MA THUR AND DAL VEER BHANDARJ, JJ.]

Service Law:

Dismissal-Absence from duty and overstay of leave-Enquiry' Officer
C found employee guilty ofcharges-Punishment ofdismissal-Tribunal affirmed
the finding of enquiry officer but quashed dismissal on the ground of same
being disproportionate to the charges-Directed competent authority to
consider question of quantum of punishment afresh-Thereafter competent
authority passed order of compulsory retirement-Challenged-Order of
D reinstatement by Tribunal, upheld by High Court-Correctness of-Held: Not
correct-The only issue before Tribunai was quantum ofpunishment-Findings
in enquily having been affirmed by Tribunal at first instai1ce, it was not open
to Tribunal while hearing application challenging order of compuls01y
retirement, to go into question regarding establishment of charge against
employee-On facts, order of compulsory retirement not disproportionate to
E the charge so as to warrant inte1ference-CCS(CCA) Rules, 1965-Rule
3(/)(iii).

Constitution of India, 1950:

Article 51 AOJ-Employee undertook to join after expiry of leave period
F but did not join back-High Court granted six months time to report for
duty-Propriety of-Held, not proper-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-Courts not to pass such orders ~:
which instead of achieving underlying spirit and objects of Part JV-A of
G Constitution has the tendency to negate or destroy the same.

Article 226-Judicial review-Scope of-Discussed.

The respondent was working as scientific officer in Bhaba Atomic
Research Centre (BARC). He was granted scholarship by Ministry of
H 108
GOVT. OF INDIA v. GEORGE PHILIP 109
Education for advance research training in Plasma Physics. He applied for A
leave for 2 years for the said purpose. The department by Order dated 8.2. 1982
sanctioned leave to the respondent. The order clearly stated that the
extraordinary leave was being granted subject to the condition that the
respondent would not register himself for Ph.D. degree and that no extension
of leave beyond 2 years would be granted. The respondent gave an undertaking
to this effect. However, after the expiry of leave period, he did not join the B
duty. His request for extension of leave on the ground that he had enrolled
himself for Ph.D. degree and his work was not complete, was turned down.
The Department sent him 8 notices asking him to report for duty but he did
not comply with the directions. He reported for duty on 10.12.1986 after more
than two years of expiry of leave period. C
In the departmental enquiry the respondent was held guilty of the
charges of absence from duty and overstay of leave and accordingly the
punishment of removal from service was imposed by the competent authority
on 18.12.1990. The Tribunal by its order dated 6.1.1994 affirmed the findings
recorded by the enquiry officer but merely quashed the order of punishment, D
as in its opinion, it was disproportionate to the charge and directed for a fresh
consideration limited to the question of punishment. Thereafter, an order of
compulsory retirement from service was passed against the respondent. This
order was also challenged by the respondent before the Tribunal and the
Tribunal by its order dated 17.9.1994 directed reinstatement with full back E
wages treating the period of removal from service till reinstatement as period
spent on duty for all purposes.

The appellants filed Writ Petition before the High Court, whereby it
was directed that if the respondent reports for duty within a period of six
months, he shall be reinstated in service, but he will not be entitled to any F
back wages.

- In appeal to this Court, appellant contended that the Tribunal having
affirmed the findings recorded by the enquiry officer in its first order dated
6.1.1994, it was not open to the Tribunal to take a contrary view at the second
stage when the order of compulsory retirement was challenged by the G
respondent and it could not have gone into the merits of the case; that having
regard to the facts and circumstances of the case the punishment of
compulsory retirement from service imposed upon the respondent could not
be said to be disproportionate to the gravamen of the charge or suffering from
illegality which may warrant interference either by the Tribunal or by the H
llO SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R.

A High Court in exercise of jurisdiction under Article 226 of the Constitution.
Allowing the appeal, the Court

HELD: 1. The fact that the respondent enrolled himself for a Ph.D.
degree shows that he did not state the correct facts while moving the
B application to the Ministry of Education for award of Commonwealth
Scholarship and while seeking permission to go abroad and applying for leave.
His intention right from the beginning was to somehow get a scholarship in
order to join a University in Canada for award of a Ph.D. degree. There can
be no doubt that he violated the undertaking given by him that he would not
C register for a Ph.D. degree and would not request for extension of leave. In
the enquiry the charges were found to have been proved and this finding was
affirmed by the Tribunal in its first order dated 6.1.1994. It is indeed
surprising that when the respondent challenged the order of compulsory
retirement passed thereafter, the Tribunal went into the question as to whether
the charges are proved or not and after examining the evidence again which
D it was not entitled to do, directed for reinstatement with full back wages and
issued a further direction that the period of his absence shall be counted as
period on duty for all purposes. This is clearly illegal as the order dated
6.1.1994 passed by the Tribunal affirming the findings recorded in the enquiry
had not been challenged by the respondent and the only issue before the
E Tribunal was the quantum of punishment which h.ad been imposed upon the
respondent as a consequence of the direction issued in the first order of the
Tribunal dated 6.1.1994. The High Court has observed that the benefit granted
by the Tribunal cannot be denied to the respondent since it did not find any
illegality in its approach excepting the direction regarding the wholesale back
wages.· With respects, the High Court failed to notice that the findings in
F enquiry having been affirmed by the Tribunal at the first stage, it was not
open to the Tribunal while hearing the 0.A. challenging the award of
punishment of compulsory retirement, to go into the question regarding
establishment of charge against the respondent. Thus, the second order of
the Tribunal dated 17.9.1999 and the order passed by the High Court dated
10.8.2005 in that regard are clearly illegal. 1118-H; 119-A-FJ
G
2. Jt is trite that the Tribunal or the High Court exercising jurisdiction
under Article 226 of the Constitution are not hearing an appeal against the
decision of the disciplinary authority imposing punishment upon the
delinquent employee. The jurisdiction exercised by the Tribunal or the High
Court is a limited one and while exercising the power of judicial review, they
H
GOVT. OF INDIA v. GEORGE PHILIP 111
cannot set aside the punishment altogether or impose some other penalty A
unless they find that there has been a substantial non-compliance of the rules
of procedure or a gross violation of rules of natural justice which has caused
prejudice to the employee and has resulted in miscarriage of justice or the
punishment is shockingly disproportionate to the gravamen of the charge.
(120-A-C) B
B.C. Chaturvedi v. Union of India, (1995) 6 SCC 749; Om Kumar v.
Union of India, (2001 I 2 SCC 386; Damoh Panna Sagar Rural Regional Bank
& Anr. v. Munna Lal Jain, (2005) 10 SCC 84; Mahindra and Mahindra ltd.
v. N.B. Narawade, (2005) 3 SCC 134; Bharat Forge Co. ltd v. Uttam Manohar
Nakate, (2005) 2 SCC 489; Mithilesh Singh v. Union of India & Ors., (2003) C
3 SCC 309; Delhi Transport Corporation v. Sardar Singh, (2004) 7 SCC 574;
Union of India & Ors. v. Ghulam Mohd. Bhat, (2005) 13 SCC 228 and State
of Rajasthan & Anr. v. Mohd. Ayub Naz, (2006( t SCC 589, referred to.
3. The contention of respondent that he was in dilemma as he had not
been able to complete the research work for award of a Ph.D. degree and,
t.herefore, he could riot return to India to join duty and also that if the D
respondent had completed his Ph.D., he would have been more useful and
advantageous to BARC, cannot be accepted. Bhabha Atomic Research Centre
is a premier scientific institution of the country where research is conducted
in the field of atomic energy. The work is basically of experimental nature
for which very expensive equipment has to be acquired. If the employees of E
BARC are allowed to proceed on long leave in order to acquire some higher
degree or expertise which may advance their own career prospects, the
ultimate sufferer would be BARC as the equipment on which they are working
would lie idle for a long period. The fact that while sanctioning leave a specific
undertaking was sought from the respondent that he would not register for a F
Ph.D. degree and that he would not ask for extension of leave, clearly shows
that BARC was guarding against such a contingency as for completing Ph.D.
in the field of atomic energy and related subjects requires considerable amount
of practical work, which cannot normally be completed in two years. At any
rate, the respondent being fully aware of the conditions under which he was
sanctioned leave, it was not open to him to enroll himself for Ph.D. and then G
seek extension of leave on the ground that he had not been able to complete
the research work for award of the degree and should not be compelled to
leave his work midway. (123-C-G)

4. In the facts and circumstances of the case, the punishment of
compulsory retirement imposed upon the respondent cannot be held to be H
112 SUPREME COURT REPORTS (2006] SUPP. 9 S.C.R.

A disproportionate, much less shockingly disproportionate, and there was
absolutely no ground on which the Tribunal or the High Court could interfere
with the order passed by the appellants. (123-H; 124-AJ

5. The approach of High Court was unusual one sided. In the
penultimate paragraph of the judgment, the High Court has observed "that
B the respondent was not personally representing himself in the proceedings
and he had authorized throughout his power of attorney holder, obviously
indicating that he was not available for being considered for employment".
Then in the operative portion of the order six months' time is granted to the
respondent to report for duty. It appears that this long period of time was
C granted to the respondent as he was not present in India and was abroad. In
a case involving overstay ofleave 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 51A(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
D 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 has the tendency
to negate or destroy the same. (124-B-E)

E CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4998 of2006.

From the Judgment and Order dated 10-8-2005 of the High Court of
Kerala at Emakulam in O.P. No.29344/1999 (S).

Vikas Singh, A.S.G., Anita Sahani, D.S. Mabra and Ms. Amrita Narayan
F for the Appellants.

Raju Ramachandran, Venkat Subramaniam T.R. and G. Ramakrishna Prasad
for the Respondent.

The Judgment of the Court was delivered by
G
G. P. MATHUR, J. Leave granted.

2. This appeal, by special leave, has been preferred against the judgment
and order dated l 0.8.2005 of High Court of Kerala, by which the writ petition
filed by the appellants challenging the order dated 17.9.1999 of the Central
H
i: ._.
GOVT. OF INDIA v. GEORGE PHILIP [G.P. MATHUR, J.] 113
Administrative Tribunal, Ernakulam Bench, was disposed of with a direction A
that if Shri George Philip, respondent in the present appeal, reports for duty
within a period of six months, he shall be reinstated in service but will not
be entitled to any back wages and thereby order of the Tribunal which had
awarded full back wages was modified.

3. Before dealing with the issue raised, it is necessary to mention the B
essential facts. The respondent herein, Shri George Philip, was working as
Scientific Officer in Plasma Physics Division, Bhabha Atomic Research Centre,
Trombay, Mumbai (for short 'BARC'). He applied for and was granted
Commonwealth Scholarship by the Ministry of Education for advance research
training in Plasma Physics. He moved an application in the prescribed proforma C
seeking permission of the Central Government for being given leave for two
years for the said purpose. The application form contained several columns
and in the column "duration and purpose of visit" it was mentioned - "about
r two years - for advance research training in Plasma Physics" and again in
the column meant for aims and objects, the same thing was repeated viz.
"advance research training in Plasma Physics". The department of Atomic D
Energy, Government of India, vide order dated 8.2.1982 granted permission to
the respondent to accept the Commonwealth Scholarship for a period of two
years and he was granted extraordinary leave for the said period, subject to
the conditions laid down in the Ministry of Finance O.M. No. I I (I )-E(B)/67
dated June 25, 1970. The order has some bearing and, therefore, it is being E
reproduced below :-
Goxemment of India
Department of Atomic Energy
C.S.M. Marg
Bombay -400 039 F
Sub : Commonwealth Scholarship offered by the Govt. of Canada -
Shri George Philips SO(C), Plasma Physics Section.

Reference is invited to BARC ID Note No.9/20/TSC/80/4922 dated
7.12.1981 on the above subject.
G
• The proposal to permit Shri George Philips, SO(SC), BARC to
accept the Commonwealth Scholarship awarded by the Ministry of
Education for a period of 2 years is approved in the Department. He
--[
will be granted extraordinary leave for the said period subject to the
conditions laid down in the Ministry of Finance O.M. No. I I (I )-E(B)/
67 dated June 25, 1970 as amended from time to time. H
114 SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R.

A Sd/-
(P.B. Desai)
Director

Secretary, TC & TSC, BARC, Bombay 400 085 DAE ID No.36/l/8 l-
B BARC Vol. II dated February 4, 1982.
Government of India
Bhabha Atomic Research Centre
TC& TSC
Ref: 9/20!TSC/80/540 February 8, 1982
c Copy forwarded to :

I. Head, Plasma Physics Section - Leave order granting EOL for
two years may be issued under intimation to this section subject
to the condition that Shri George Philips should not register for
D Ph.D. degree and that no extension of leave beyond two years
will be granted. An undertaking to this effect may please be
obtained from Shri George Philips and forwarded to this section
for record. A service bond for Rs. I 0,000/- in the enclosed form
may also please be obtained in triplicate and forwarded to this
section.
E
2.
3.
4.
F 5. Shri George Philips, SO (SC) Plasma Physics Section.
Sci/- 8.2.82
(G. Sethuraman)
Secretary, TC & TSC"
In accordance with the order issued by the Government of India, the
G respondent gave an undertaking on 9.2.1982, which reads as under :-
"UNDERTAKING

Consequent to the acceptance of the scholarship awarded by the
Ministry ofEducation (Department of Education) for training in Canada
H and the grant of extra ordinary leave for a period of two years, this
undertaking is given that I am not registering for a Ph.D. degree and
GOVT. OF INDIA v. GEORGE PHILIP [G.P. MATHUR, J.] 115
will not request extension beyond the leave granted during the training A
abroad.
Signature Sd/-
Name : George Philip
Designation : SO(SC)
Comp. Code : G602/l I4 B
Dated: 9.2.82

Trombay, Bombay."

Thereafter, the respondent proceeded on leave with effect from 24.8.1982
and the leave was to expire on 23.8. I984. The Bhabha Atomic Research C
Centre of Government of India issued a leave order on 6.9. I 982, which
specifically mentioned that the grant of leave to the respondent is subject to
the conditions laid down in the Ministry of Finance O.M. No. I I (l )-E(B)/67
dated June 25, I 970 as amended from time to time and as approved by
Department of Atomic Energy vide its ID No. 36/1/81-BARC Vol. II dated D
February 4, 1982. The period of leave of two years from 24.8.1982 to 23.8.1984
was to be treated as extraordinary leave. It was further mentioned that but
for proceeding on leave Shri George Philip would have continued to officiate
on the said post and that the period of leave will count for increment. The
respondent, however, did not return to India and did not report for duty after
expiry of leave on 23.8.1984. He applied for extension of leave which was E
refused and he continued to overstay the leave. The department sent him
as many as 8 notices and telegrams wherein it was clearly mentioned that his
request for extension of leave had been refused and he should immediately
report back for duty. After more than two years of expiry of leave, he came
back to India and reported for duty on 10.12.I986. He was placed under F
suspension pending enquiry by the order dated 2.1.1987. An enquiry was
accordingly held under Rule 14 of the Central Civil Services (Classification
and Control of Appeal) Rules, 1965 (for short 'CCS(CCA) Rules') on the
ground that by overstaying the leave w.e.f. 24.8.1984 onwards, the respondent
is acting in a manner unbecoming of a government servant and had thereby
contravened the provisions of Sub-rule (I )(iii) of Rule 3 o( Central Civil G
Services (Conduct) Rules, 1964. Shri George Philip submitted his written
statement of defence wherein it was mentioned that he had enrolled himself
for a Ph.D. degree in the University of Alberta and as he had not been able
to complete his work for award of the degree, he had not returned to India
and had not joined duty. In the departmental enquiry copies of all the H
116 SUPREME COURT REPORTS [2006) SUPP. 9 S.C.R.

A documents were supplied to the respondent and he was afforded opportunity
to cross-examine the witnesses examined on behalf of the department. After
a detailed consideration of the material on record, the enquiry officer gave his
findings on 15.l l.1989 to the effect that the respondent had overstayed the
leave granted to him and the charge was fully established. The Secretary,
B Government of India, exercising powers under Rule 15(4) ofCCS(CCA) Rules,
after taking into consideration the representation made by the respondent and
after consultation with Union Public Service Commission, imposed a penalty
of removal from service with immediate effect upon the respondent by order
dated 18.12.1990.

C 4. The respondent filed 0.A. No.56 of 1992 before Central Administrative
Tribunal, Emakulam Bench (for short 'Tribunal') challenging the punishment
awarded to him. The Tribunal recorded a finding that there can be no doubt
that the respondent did not report for duty as he should have at the end of
the period of leave and that he is guilty of abandoning the post of duty.
However, it was of the opinion that having regard to the facts of the case the
D punishment imposed upon the respondent was harsh. Accordingly, the
Tribunal by its order dated 6.1.1994 held "that the punishment imposed upon
the respondent is quashed while the findings of facts are affirmed" and
further directed that if the respondent moves the competent authority under
Rule 29-A of the CCS(CCA) Rules within one month, the competent authority
E will consider the question of quantum of punishment afresh. The appellants
herein filed a review petition before the Tribunal but the same was dismissed
on 2.8.1994. The Secretary to the Government of India, thereafter, passed a
fresh order on 3.4.1996 after consultation with the Union Pul:>lic Service
Commission imposing the penalty of compulsory retirement from service upon
F the respondent with effect from the date when the original order of punishment
was passed i.e. 18.12.1990. This order was again challenged by the respondent
by filing O.A. No.1127 of 1996 before the Tribunal. The Tribunal by its order
dated 17.9.1999 allowed the O.A., set aside the penalty of compulsory retirement
from service imposed upon the respondent and directed his reinstatement
with full back wages for the period between the date of removal from service
G and reinstatement and treating the said period as duty for all purposes. It
was also observed in the operative part of the order that the appellants may
pass an appropriate order awarding penalty to the respondent commensurate
with the proved misconduct keeping in view the observations made in this
regard. The appellants challenged the aforesaid order of the Tribunal before
H the High Court of Kerala by filing a writ petition which was disposed of by

i . ").
GOVT. OF INDIA v. GEORGE PHILIP [G.P. MATHUR, J.] 117

the impugned order dated 10.8.2005, whereby it was directed that if the A
respondent reports for duty within a period of six months, he shall be reinstated
in service, but he will not be entitled to any back wages. The present appeal
has been filed challenging the order dated 17.9.1999 passed by the Tribunal
and the order dated 10.8.2005 passed by the High Court in the writ petition
filed by the appellants.
B
5. Shri Vikas Singh, learned Additional Solicitor General, has submitted
that while seeking prior permission of the Central Government for availing the
Commonwealth Scholarship awarded by the Ministry of Education, the
respondent had stated in unambiguous terms that he was going to join a
University in Canada for advance research training in Plasma Physics and the C
duration of the said training was about two years. He had never indicated
at any point of time that he wanted to enroll himself for a Ph.D. degree. The
Department of Atomic Energy, Government of India, had by order dated
8.2.1982 sanctioned leave to the respondent for a period of two years. In the
said order it was clearly mentioned that the extraordinary leave was being
granted for a period of two years subject to the condition that the respondent D
should not register himself for Ph.D. degree and that no extension of leave
beyond two years will be granted and an undertaking in that regard may be
obtained. The respondent gave an undertaking on the very next day i.e. on
9.2.1982, wherein he clearly stated that "I am not registering for a Ph.D. degree
and will not request extension beyond the leave granted during the training E
abroad." However, the respondent did not report for duty after his leave
expired on 23.8.1984 and he requested for extension of leave on the ground
that he had enrolled himself for Ph.D. degree and his work was not complete.
The request of the respondent was turned down and the department sent him
8 notices and telegrams asking him to report for duty, but he did not comply
with the directions issued and instead reported for duty on l 0.12.1986, after F
more than two years of expiry of leave. In the departmental enquiry the
respondent was held guilty of the charges and accordingly the punishment
,' of removal from service was imposed by the competent authority on 18.12.1990.
The Tribunal in its judgnent and order dated 6.1.1994 had affinned the findings
recorded by the enquiry officer but had merely quashed the order of G
punishment, as in its opinion, it was disproportionate to the charge and had
directed for a fresh consideration limited to the question of punishment.
Thereafter, an order of compulsory retirement from service was passed against
the respondent. This order was also challenged by the respondent before
the Tribunal and curiously enough this time the Tribunal passed an order of
reinstatement with full back wages treating the period of removal from service H
118 SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R.

A till reinstatement as period spent on duty for all purposes. Learned counsel
has submitted that the Tribunal having affinned the findings recorded by the
enquiry officer in its first order dated 6.1.1994, it was not open to the Tribunal
to take a contrary view at the second stage when the order of compulsory
retirement was challenged by the respondent and it could not have gone into
B the merits of the case. Learned counsel has further submitted that having
regard to the facts and circumstances of the case the punishment of compulsory
retirement from service imposed upon the respondent could not be said to be
disproportionate to the gravamen of the charge and the High Court erred in
setting aside the said order and directing reinstatement of the respondent.

C 6. Shri Raju Ramachandran, learned senior counsel for the respondent,
has submitted that the respondent had joined for a Ph.D. degree in a University
in Canada and as he had not been able to complete the work required for the
said degree, he had no option but to stay there even after expiry of leave.
Learned counsel has submitted that it was a case of helplessness of a
scientist who was keen to do research work and to get a Ph.D. degree and
D if the respondent had obtained the said degree, it woulg. have been of
immense value to Bhabha Atomic Research Centre as well. Learned counsel
has thus submitted that the requirement of discipline will be satisfied by the
order passed by the High Court, whereby the penalty of compulsory retirement
has been set aside and the respondent has been directed to be reinstated but
E without any back wages.
'
7. We have given our anxious consideration to the submissions made
by learned counsel for the parties. It requires to be noticed that while seeking
permission of the Central Government to proceed to Canada, the respondent
had clearly mentioned that the purpose of his visit was "for advance research
F training in Plasma Physics" and the duration of the training was "two years".
ln the order dated 8.2.1982 passed by the Department of Atomic Energy,
Government of India, it was clearly mentioned that the respondent is being
sanctioned extraordinary leave for a period of two years and this was subject
to the condition that he should not register for Ph.D. degree and that no
G extension of leave beyond two years will be granted. The respondent also
gave an undertaking on 9.2.1982 that he would not register himself for a Ph.D.
degree and that he would not request extension of leave during the training
abroad. In fact, the leave order dated 6.9.1982 clearly specified that the period
ofleave was from 24.8.1982 to 23.8.1984 and the said period of leave will count
for increment. The fact that the respondent enrolled himself for a Ph.D.
H degree shows that he did not state the correct facts while moving the
GOVT. OF INDIA v. GEORGE PHILIP [G.P. MATHUR, J:} 119

application to the Ministry of Education for award of Commonwealth A
Scholarship and while seeking permission to go abroad and applying for
leave. His intention right from the beginning was to somehow get a scholarship
in order to join a University in Canada for award of a Ph.D. degree. There
can be no manner of doubt that he violated the undertaking given by him that
he would not register for a Ph.D. degree and would not request for extension B
of leave. Though as many as 8 notices and telegrams were sent to the
respondent refusing his request for extension of leave and asking him to
report for duty, but he chose to overstay the leave by over two years. In
the enquiry the charges were found to have been proved and this finding was
affirmed by the Tribunal in its first order dated 6.1.1994. It is indeed surprising
that when the respondent challenged the order of compulsory retirement C
passed thereafter, the Tribunal went into the question as to whether the
charges are proved or not and after examining the evidence again which it was
not entitled to do, directed for reinstatement with full back wages and issued
a further direction that the period of his absence shall be counted as period
on duty for all purposes. This is clearly illegal as the order dated 6.1.1994
passed by the Tribunal affirming the findings recorded in the enquiry had not D
been challenged by the respondent and the only issue before the Tribunal
was the quantum of punishment which had been imposed upon the respondent
as a consequence of the direction issued in the first order of the Tribunal
dated 6.1.1994. The High Court has observed that the benefit granted by the
Tribunal cannot be denied to the respondent since it did not find any ilJegality E
in its approach excepting the direction regarding the wholesale back wages.
With respects, the High Court failed to notice that the findings in enquiry
having been affirmed by the Tribunal at the first stage, it was not open to
the Tribunal while hearing the O.A. challenging the award of punishment of
compulsory retirement, to go into the question regarding establishment of
charge against the respondent. Thus, the second order of the Tribunal dated F
17.9.1999 and the order passed by the High Court dated 10.8.2005 in that
regard are clearly illegal.

8. Another question which arises for consideration is whether in view
of the findings recorded in the enquiry, which were affirmed by the Tribunal G
in its first order dated 6. l .1994 that the respondent violated the undertaking
given by him by registering himself for a Ph.D. degree and further in not
reporting for duty after expiry ofleave on 23.8.1984 and overstaying his leave
by more than two years, the punishment of compulsory retirement imposed
upon him can be said to be suffering from such illegality which may warrant
interference either by the Tribunal or by the High Court in exercise of H

I
120 SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R.

A jurisdiction under Article 226 of the Constitution.

9. It is trite that the Tribunal or the High Court exercising jurisdiction
under Article 226 of the Constitution are not hearing an appeal against the
decision of the disciplinary authority imposing punishment upon the delinquent
employee. The jurisdiction exercised by the Tribunal or the High Court is a
B limited one and while exercising the power of judicial review, they cannot set
aside the punishment altogether or impose some other penalty unless they
find that there has been a substantial non-compliance of the rules of procedure
or a gross violation of rules of natural justice which has caused prejudice to
the employee and has resulted in miscarriage of justice or the punishment is ~ •
C shockingly disproportionate to the gravamen of the charge. The scope of
judicial review in matters relating to disciplinary action against employees has
been settled by a catena of decisions of this Court and reference to only some
of them will suffice. In B.C. Chaturvedi v. Union of India, [1995] 6 SCC 749,
it was observed as under in para 18 of the reports :-

D "18. A review of the above legal position would establish that the
disciplinary authority, and on appeal the appellate authority, being
fact-finding authorities have exclusive power to consider the evidence
with a view to maintain discipline. They are invested with the discretion
to impose appropriate punishment keeping in view the magnitude or
gravity of the misconduct. The High Court/Tribunal, while exercising
E the power of judicial review, cannot normally substitute its own
conclusion on penalty and impose some other penalty. If the
punishment imposed by the disciplinary authority or the appellate
authority shocks the conscience of the High Court/Tribunal, it would
appropriately mould the relief, either directing the disciplinary/appellate
F authority to reconsider the penalty imposed, or to shorten the litigation,
it may itself, in exceptional and rare cases, impose appropriate
punishment with cogent reasons in support thereof."

In Om Kumar v. Union of India, [2001] 2 SCC 386, after considering
large number of cases, the principle was summarized as under in para 71 of
G the reports:-

"71. Thus, from the above principles and decided cases, it must be
held that where an administrative decision relating to punishment in
disciplinary cases is questioned as "arbitrary" under Article 14, the
court is confined to Wednesbury principles as a secondary reviewing
H authority. The court will not apply proportionality as a primary
GOVT. OF INDIA v. GEORGE PHILIP [G.P. MATHUR, J.] 121
reviewing court because no issue of fundamental freedoms nor of A
discrimination under Article 14 applies in such a context. The court
while reviewing punishment and if it is satisfied that Wednesbury
principles arc violated, it has normally to remit the matter tc the
administrator for a fresh decision as to the quantum of punishment.
Only in rare cases where there has been long delay in the time taken B
by the disciplinary proceedings and in the time taken in the courts,
and in such extreme or rare cases can the court substitute its own
view as to the quantum of punishment."

In Damoh Panna Sagar Rural Regional Bank & Anr. v. Munna Lal
Jain, [2005] l 0 SCC 84, it was observed that the Court should not interfere C
with the administrator's decision unless it was illogical or suffers from procedural
impropriety or was shocking to the conscience of the Court, in the sense that
it was in defiance of logic or moral standards. The Court would not go into
the correctness of the .choice made by the administrator open to him and the
Court should not substitute its decision to that of the administrator. The D
scope of judicial review is limited to the deficiency in decision-making process
and not the decision.

In Mahindra and Mahindra Ltd. v. NB. Narawade, [2005] 3 SCC 134,
the respondent was dismissed from service on the charge of having used
abusive and filthy language against his supervisor. The labour Court on the E
finding that the punishment of dismissal was harsh and improper, directed his
reinstatement with continuity of service and two-third back wages. The writ
petition filed by the employer was dismissed both by the learned Single Judge
and also by the Division Bench of the High Court. In appeal a three Judge
Bench of this Court set aside the judgments of the High Court and also the F
award of the labour Court and upheld the order of the disciplinary authority
dismissing the respondent from service. In Bharat Forge Co. Ltd. v. Uttam
Manohar Nakate, [2005] 2 SCC 489, the respondent workman was found
sleeping at about 11.40 a.m. while he was on duty in the first shift. On some
earlier occasions also he was found guilty of similar misconduct. After domestic
enquiry wherein he was found guilty, he was dismissed from service. The G
labour Court held that the punishment of dismissal was harsh and
disproportionate and no reasonable employer could impose such punishment
for the~ misconduct and accordingly directed reinstatement with fifty
per cent back wages."There was a revision to the Industrial Tribunal and then
a writ petition and finally in letters patent appeal the Division Bench of the H
122 SUPREME COURT REPORTS [2006) SUPP. 9 S.C.R.

A High Court modified the award of the labour Court by directing the employer
to pay a sum of Rs.2,50,000/- to the workman. In appeal this Court, after
referring to large number of earlier decisions, set aside the judgment of the
Division Bench and restored the order passed by the employer.

I 0. There are several decisions of this Court wherein the order of
B disciplinary authority directing removal or dismissal of an employee on the
ground of long absence or overstay of leave has been upheld. In Mithilesh
Singh v. Union of India & Ors., (2003] 3 SCC 309, the appellant who was
constable in Railway Protection Special Force left duty without leave being
granted and returned after 25 days and then sought leave. The order of -... .
C removal from service passed by the authorities was set aside by a learned
Single Judge in a writ petition filed by the employee who directed that some
punishment other than order of removal or dismissal or compulsory retirement
from service may be passed. The Division Bench of, the High Court restored
the order passed by the disciplinary authority and the said judgment was
D affirmed by this Court in appeal on the ground that the scope of interference
with punishment awarded by the disciplinary authority is very limited and
unless the punishment is shockingly disproportionate, the Court cannot interfere
with the same and the employee having failed to show any mitigating
circumstances in his favour, the punishment awarded by the authorities could
not be characterized as disproportionate or shocking. In Delhi Transport
E Corporation V. Sardar Singh, (2004] 7 sec 574, several cases of conductors
involving absence from duty ranging from 45 days to 294 days withou+
sanctioned leave were considered. The order of the Single Judge of the High
Court holding that the employer was justified in passing the order of
termination/removal was affirmed by this Court reversing the order of Division
F Bench of the High Court, wherein the order of the Industrial Tribunal refusing
to accord approval to the punishment had been approved. In Union of India
& Ors. v. Ghulam Mohd. Bhat, (2005] 13 SCC 228, the order of removal from
service passed against the respondent, who was a constable in CRPF on the
ground that he had overstayed his ·leave by 315 days was affirmed by this
G Court reversing the decision of the High Court, by which it was held that the
misconduct alleged called for a minor punishment and not a punishment of
removal from service. In State of Rajasthan & Anr. v. Mohd. Ayub Naz,
[2006] I SCC 589, the respondent who was an employee of cooperative
department remained absent for about 3 years and his .service was terminated
after a departmental enquiry. The learned Single Judge of the High Court
H took the view that the facts and circumstances of the case called for a lesser

l
GOVT. OF INDIA v. GEORGE PHILIP [G.P. MATHUR, J.) 123

punishment and thus directed that the employee shall be deemed to have A
retired after having put in 20 years of service with all retiral benefits, which
order was affirmed in letters patent appeal before the Division Bench. This
Court set aside the order of the High Court with the observation that while
considering the quantum of punishment, the role of administrative authority
is primary and that of Court is secondary, confined to see if discretion
exercised by the disciplinary authority caused extensive infringement of rights B
and held that the punishment of removal was absolutely con-ect.

11. The contention of Shri Raju Ramachandran, learned senior counsel
that respondent was in a dilemma as he had not been able to complete the
research work for award of a Ph.D. degree and, therefore, he could not return C
to India to join duty and also that ifthe respondent had completed his Ph.D.,
he would have been more useful and advantageous to BARC, cannot be
accepted. Bhabha Atomic Research Centre is a premier scientific institution
of the country where research is conducted in the field of atomic energy. The
work is basically of experimental nature for which very expensive equipment
has to be acquired. If the employees ofBARC are allowed to proceed on long D
leave in order to acquire some higher degree or expertise which may advance
their own career prospects, the ultimate sufferer would be BARC as the
equipment on which they are working would lie idle for a long period. The
'
,; nature of work being highly specialized, there would not be many people in
the organisation who may carry on the work in that particular field unlike a E
factory where one workman may be substituted by another to work on a
particular machine. By the time the employee returns for work, the equipment
may become obsolete resulting in wastage of public money. The fact that
while sanctioning leave a specific undertaking was sought from the respondent
that he would not register for a Ph.D. degree and that he would not ask for
extension of leave, clearly shows that BARC V(as guarding against such a F
contingency as for completing Ph.D. in the field of atomic energy and related
subjects requires considerable amount of practical work, which cannot normally
be completed in two years. At any rate, the respondent being fully aware
of the conditions under which he was sanctioned leave, viz., that he was not
to register for Ph.D. degree and was not to make a request for extension of G
leave beyond two years, it was not open to him to enroll himself for Ph.D.
and then seek extension of leave on the ground that he had not been able
to complete the research work for award of the degree and should not be
compelled to leave his work midway.

12. We are, therefore, of the opinion that in the facts and circumstances H
124 SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R.

A of the case, the punishment of compulsory retirement imposed upon the
respondent cannot be held to be disproportionate, much less shockingly
--
disproportionate, and there was absolutely no ground on which the Tribunal
or the High Court could interfere with the order passed by the appellants.

13. Before parting with the case we consider it our duty to refer to a
B rather unusual one-sided approach of the High Court. In the penultimate
paragraph of the judgment, the High Court has observed "that the respondent
was not personally representing himself in the proceedings and he had
authorized throughout his power of attorney holder, obviously indicating that
he was· not available for being considered for employment". Then in the
C operative portion of the order six months' time is granted to the respondent
to report fc:>r duty. It appears that this long period of time was granted to the
respondent as he was not present in India and was abroad. 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 5 lAG) of the
D 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
E underlying spirit and objects of Part IV-A of the Constitution has the tendency
to negate or destroy the same.

14. In the result, the appeal is allowed with costs. The judgment and
order dated 17.9.1999 of the Tribunal and the judgment and order dated
10.8.2005 of the High Court are set aside and the order of compulsory retirement
F passed by the appellants is affirmed.

D.G. Appeal allowed.