CAT's vice-chairman R G Vaidyanatha has observed that ``justice must be tempered with mercy,'' therefore the punishment of removal from service is grossly disproportionate to the driver's misconduct, especially in view of his unchallenged illness and medical certificates. The observation holds significance for all government employees who haven't reported for duty on health grounds.

Arjun Shankar Pawar was absent from workplace for nearly two years from 1987. He produced medical certificates at the time of joining duty. The postal department, however, initiated disciplinary action against him for his unexplained long absence. Pawar claimed he was suffering from mentalneurosis in the intervening period. But the inquiry officer held him guilty of wanton absence. He was removed from service from April 1990. Pawar's plea didn't even succeed before the revisional authority, which is why he, represented by advocate G K Masand, moved CAT.

Pawar claimed the disciplinary authority was biased against him. For instance, the chargesheet was issued in English, a language in which Pawar couldn't express properly. Secondly, the inquiry officer was appointed before Pawar could present his written statement.

The tribunal has held that as per the Post and Telegraph Manual, the chargesheet can be either in English or in Hindi, and it's for the delinquent employee to get it translated in the language of his choice. Pawar was assisted by an English-knowing person anyway. Secondly, the tribunal has ruled that even if the inquiry officer was appointed before receiving Pawar's statement, it doesn't mean the whole inquiry was vitiated.

The tribunal has ruled that the fact that Pawarremained absent for two years is undisputed. Moreover, he didn't send any intimation to office. The authorities also were also right in considering his previous record of habitual absence. Therefore, the tribunal has ruled Pawar was indeed guilty of professional misconduct. But the point of dispute is the quantum of penalty for this misconduct. Does Pawar deserve removal from service for not communicating his illness through his family members or co-drivers? Considering the fact that he was suffering from neurosis, the gravity of his lack of communication is much less, the tribunal has ruled. The tribunal has also observed the inquiry officer hasn't applied his mind to the nature of the illness.

The tribunal was also faced with the issue of whether it can interfere with the quantum of penalty imposed by an earlier authority. The tribunal has observed that such interference is not always warranted, appropriate directions can be given if the punishment has shocked the conscience of the high court/tribunal.Thus, in order to cut short further litigation the tribunal didn't refer the matter back to the postal department and instead directed substitution of removal from service with compulsory retirement. The tribunal observed a person with a history of mental neurosis can't be reinstated as driver, as that wouldn't be in public interest. He cannot even be given a lower post. He should be treated as retired instead of being terminated.