Some Majhi vs Coal India Ltd. and Others

Arijit Banerjee, J. - In this writ application the petitioner prays for quashing of the order of dismissal issued by the Deputy Manager dated 22 October, 2003 and also the order dated 14 March 2014 issued by the Appellate Authority, Perbelia Group, Eastern Coal Fields Ltd. and for being reinstated in service with back wages.

The petitioner''s contention:-

The petitioner was appointed as U.G Loader at Dubeshwari Colliery of Eastern Coalfields Ltd. on 22 March, 1991.

The petitioner fell sick and became bed-ridden with effect from January, 2000 and was treated medically between 6 January, 2000 and 4 November, 2000. As such, he was unable to attend work.

On 1 January, 2003, the petitioner met the attendance clerk and requested him to allow him to join. As advised by the clerk he met the Manager of the Colliery, who asked him to take rest for a few days and that the order of joining would be sent to him in the meantime. In December, 2008, the petitioner received a packet sent by the Colliery Authority through post, containing copy of a charge-sheet, copy of an enquiry report and copy of an order of dismissal from service. It appeared, therefrom, that the charge against the petitioner was being absent from duty without any information or authorised leave from 15 November, 1999 till 2 December 2002.

Copy of the charge-sheet was never served on the petitioner and, consequently, the petitioner had no opportunity to participate in any enquiry proceeding. The enquiry proceeding was held ex parte against the petitioner.

Upon receipt of the order of dismissal, the petitioner repeatedly requested the authority concerned to reinstate him in service, but in vain.

On 24 December, 2010 the petitioner presented a mercy appeal before the Agent, Dubeshwari Colliery for reinstating him in service. In the said representation the petitioner stated that due to serious sickness he remained absent from duty which was beyond his control. He and his family was in great financial distress by reason of his dismissal from service. He further referred to a memorandum of settlement to the effect that where the period of absenteeism was less than five months and age of the person concerned was below 45 years, his case for reinstatement in service could be considered by the Authority. However, the said appeal was not allowed.

The petitioner filed WP no. 723 of 2014 in this court challenging the order of dismissal. The said writ petition was disposed of by an order dated 22 January, 2014 directing the Director (Personnel), Eastern Coalfields Ltd. (respondent no 4 in the said writ petition) to consider the petitioner''s representation annexed to the writ petition, in accordance with law and strictly in terms of the prevailing policy of the respondent company and pass a reasoned order.

In terms of this court''s order, the Director (Personnel) being the Appellate Authority, considered the appeal of the petitioner and passed a reasoned order dated 14 March, 2014 whereby the Appellate Authority rejected the appeal.

The petitioner has challenged the order of dismissal and the order of the Appellate Authority on the following grounds:-

(i) The charge-sheet was never served on the petitioner.

(ii) The charge-sheet does not contain any information as regards the complainant, the names of the witnesses and the documents to be relied upon during enquiry.

(iii) The enquiry was held ex parte without serving any notice on the petitioner.

(iv) No opportunity was given to the petitioner to defend the charge levelled against him.

(v) No copy of the enquiry proceeding was served on him.

(vi) The second show-cause notice before imposing punishment was not sent to him properly or in accordance with law.

(vii) The reinstatement prayed for by the petitioner was in terms of the MOU.

(viii) The dismissal order is bad and vitiated by breach of the principles of natural justice.

(ix) There was sufficient ground for the petitioner for being absent from work and the order of dismissal was not justified.

(x) The dismissal order was not issued by the competent authority.

Ld. Counsel for the petitioner relied on the following decisions:-

(i) Chairman-cum-Managing Director, Coal India Ltd. and Anr v. Mukul Kr. Choudhuri and Ors, (2010) 2 WBLR (SC) 99.

(ii) Ashoke Kumar Nath v. Union of India, 2011 (2) CHN (Cal) 233.

(iii) Madhusudan Chowdhury v. State of West Bengal and Ors, 2006 (1) CLJ (Cal) 386.

(iv) M/s. Dehri Rohtas Light Railway Company Ltd. v. District Board, Bhojpur and Ors, AIR 1993 SC 802.

(v) Government of A.P. and Anr. v. N. Ramanaiah, 2009 (5) Supreme 202.

On the basis of the above submissions the writ petitioner has prayed for setting aside of the termination order dated 22 October, 2003 and the Appellate Authority''s order dated 14 March, 2014.

Contention of the respondents:-

Appearing on behalf of the respondents, Mr. Alok Banerjee, Ld. Counsel submitted that the writ petition should be dismissed on account of delay alone. The dismissal order was passed in October, 2003 and the writ petitioner challenged the same before the court in August, 2014. Such undue and inordinate delay disentitles the petitioner to claim any relief from this court. In this connection, Ld. Counsel relied on a decision of the Hon''ble Supreme Court in the case of Chennai Metropolitan Water Supply and Sewerage Board v. T.T. Murali Babu, (2014) 4 SCC 108.

Ld. Counsel then submitted that the writ petitioner is a workman within the meaning of the Industrial Disputes Act, 1947. For redressal of the grievance which has been made the subject-matter of the writ petition, the petitioner has an alternative remedy under the Industrial Disputes Act, 1947. As such the instant writ petition should not be entertained.

On facts, Ld. Counsel submitted as follows:-

(a) On and from 15 November, 1999, the writ petitioner remained absent from duty without any intimation or authorised leave and did not attend duty till 2 December, 2002. In those circumstances, a charge-sheet was issued on 2 December, 2002.

(b) On 4 December, 2002, the competent authority appointed Mr. K. Prasad as an Enquiry Officer to conduct enquiry proceeding against the petitioner.

(c) On 2 July, 2003 the Enquiry Officer issued notice to the writ petitioner intimating that a hearing had been fixed on 8 July, 2003 at 3.30 p.m.. On 8 July, 2003, neither the petitioner nor anybody on his behalf attended the proceeding nor any information was received regarding the inability of the petitioner to attend.

(d) The next date of hearing was fixed on 19 July, 2003 and the petitioner was informed of the same. However, even on that date no one attended nor there was any intimation from the petitioner.

(e) The next date of enquiry was fixed on 29 August, 2003. Notice of the same was sent to the petitioner by Registered Post to his home address. It was mentioned in the notice that if he did not attend the enquiry on 29 August, 2003, the same would be held ex parte.

(f) On 29 August, 2003 again no one attended the enquiry nor any information was received from the petitioner. Three witnesses were examined by the presenting officer, and the enquiry proceeding was closed.

(g) Thereafter, the enquiry officer submitted his report for putting up the same before the Manager, Dubeswari Colliery for necessary action. On 25 September, 2003, the second show-cause notice was issued to the writ petitioner giving him an opportunity to submit his written explanation. However, no explanation was received from the petitioner.

(h) On 16/20 September, 2003, the Manager, Dubeswari Colliery forward the enquiry report to the Deputy Chief Personnel Manager for necessary action who considered the same and recommended imposition of punishment of dismissal which was approved by the General Manager, Sodepur Area.

(i) Accordingly, the letter of dismissal dated 22 October, 2003 was sent to the petitioner.

(j) After eight long years, the petitioner made a mercy petition dated 9 May, 2011 for consideration of his case. The petitioner then moved this court by filing WP 723 of 2014. The said writ petition was disposed of by an order dated 22 January, 2014 by directing the authority to consider the petitioner''s representation.

(k) In terms of this court''s aforesaid order, the petitioner''s case was considered by the Director (Personnel) and the same was rejected on the grounds mentioned in the reasoned order passed by him.

Ld. Counsel submitted that the facts of the case would show that the petitioner absented himself from duty without any intimation to the Management or without obtaining prior leave for over three years. The petitioner''s contention that he was seriously ill all through-out is not credible and the same is not supported by any evidence. He submitted that there was not a single intimation from the petitioner over the period of more than three years during which he was absent from service. Evidently, the petitioner took his employment very casually. No leniency should be shown to such a person who does not take his employment seriously.

Ld. Counsel submitted that a proper enquiry proceeding was held against the petitioner. The charge-sheet was duly served on the petitioner. He was given three opportunities to appear and participate in the enquiry proceeding but he failed and neglected to do so. Left with no other option, the enquiry officer had to conduct the proceeding ex parte. There has been no breach of the principles of natural justice or fair play.

On the basis of the above, Ld. Counsel submitted that there is no legitimate ground for interfering with the order of dismissal or with the order of the Appellate Authority. He prayed for dismissal of the writ petition.

Court''s view:-

I have carefully considered the submissions made on behalf of both the parties, and have gone through the papers on record.

It is not in dispute that the petitioner absented himself from work for a period of approximately three years. While the petitioner contended that he became sick and bed-ridden with effect from January, 2000 the respondents contended that he stopped attending work with effect from 15 November, 1999. However, this divergence in dates is inconsequential.

The petitioner contends that he went to join work on 1 January, 2003 while the Management contends that he was absent till 2 December, 2002. This difference in dates is also of no consequence in my opinion. The fact remains that the petitioner was absent from work for a very long time i.e. approximately three years. The case of the respondents that the petitioner did not obtain prior leave nor intimated the respondents before absenting himself from service or thereafter is not denied by the petitioner. He, however, seeks to explain his conduct by contending that he was seriously ill and under continuous medical treatment and was, thus, not in a position to inform the respondents about the cause of his absence. The medical documents annexed to the writ petition in support of the petitioner''s case of being indisposed, do not inspire much credence. In any event, it is utterly incredible that over a period of three years it was not possible for the petitioner to send a single intimation to the employer.

Furthermore, admittedly the petitioner went to join work either in November, 2002 or in January, 2003. However, he was not allowed to join work. He approached this court by filing WP No. 723 of 2014, eleven years thereafter. Even if I accept the petitioner''s case that he was served with the order of dismissal and the records of the enquiry proceeding in 2008, there was a delay of six years before the petitioner approached this court. I am narrating this fact only to show the lack of diligence and the indolence on the part of the petitioner.

From the statements made in the affidavit-in-opposition filed on behalf of the respondents, it appears that the enquiry proceeding was held in due compliance with the principles of natural justice. The charge sheet was served on the petitioner. The petitioner was given three opportunities to appear and explain the charges against him. The second show cause notice was also served on him after the Management decided to impose exemplary punishment on him. No affidavit-in-reply has been filed by the petitioner and the averments in the respondent''s affidavit are un-controverted. I have no reason to disbelieve the statements made in the affidavit filed on behalf of the respondents.

The decisions relied upon by Ld. Counsel for the petitioner in my opinion, do not advance the petitioner''s case. In Chairman-cum-Managing Director, Coal India Ltd. and Anr. v. Mukul Kr. Choudhuri and Ors., (supra), the delinquent employee was charged with unauthorised absence from duty for six months. Disciplinary proceeding was held against him. He was found guilty and was dismissed from service. His writ petition was allowed by the High Court directing his reinstatement. The Division Bench dismissed the appeal of the employer and allowed the appeal of the employee by directing payment of back wages. Upon the employer carrying the matter to the Hon''ble Apex Court, it was held that in view of the fact that the employee 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, in fact, he had sent his resignation which was not accepted, the order of removal from service could not be held to be justified as the circumstances of the case did not warrant imposition of such an extreme punishment. The Hon''ble Supreme Court upheld the order of reinstatement but set aside the direction of the Division Bench for payment of back wages.

In Ashoke Kumar Nath v. Union of India (Supra), it was held on facts that the employee was not given an opportunity to cross-examine the complainant. This was held to be a clear departure from the rules of natural justice since an effective opportunity of being heard includes a right to cross-examine a witness or a complainant the moment his version of the statement is disputed by the charged person. Accordingly, the order of termination was set aside.

In Madnusudan Chowdhury v. State of West Bengal and Ors. (supra), the employee was absent from duty for a period of about three months. Departmental proceedings were initiated against him. He pleaded guilty. He was dismissed from service. He approached the West Bengal Administrative Tribunal challenging the order of dismissal but the Tribunal dismissed his application. On appeal, a Division Bench of this court held that the Management were aware that the employee concerned was sick and he gave a proper explanation for his absence from duty. The Hon''ble Division Bench held that the penalty of dismissal in the facts of that case was shockingly disproportionate. Accordingly, the employee was directed to be reinstated with 50% back wages.

In M/s. Dehri Rohtas Light Railway Company Ltd. v. District Board, Bhojpur and Ors. (supra), the Hon''ble Apex Court held that the rule that the court may not inquire into belated and stale claim is not a rule of law but a rule of practise based on sound and proper exercise of discretion. Each case must depend upon its own facts. It will all depend on what the breach of the fundamental right and the remedy claimed are and how the delay arose. The principle on which the relief to the party on the grounds of laches or delay is denied is that the rights which have accrued to others by reasons of the delay in filing the petition should not be allowed to be disturbed unless there is reasonable explanation for the delay.

In Government of A.P. and Anr. v. N. Ramanaiah (supra), The Hon''ble Supreme Court held that Article 311 (1) of the Constitution does not command that the dismissal of an employee must be by the very same authority who made the appointment or by its direct superior. Dismissal can be either by the appointing authority or by any other authority to which the appointing authority is subordinate.

The facts of each of the aforesaid cases are different from the facts of the present case. In my opinion, there was no breach of the principles of natural justice in holding the enquiry proceeding in this case. The petitioner chose not to appear in the enquiry proceeding. The period of absence from duty was almost three years in this case and not six months as in the case of Chairman-cum-Managing Director, Coal India Ltd. and Anr. v. Mukul Kr. Choudhuri and Ors. (supra) or three months as in the case of Madhusudan Chowdhury (supra). The delay on the part of the petitioner in approaching the court is very long and inordinate for which the purported explanation given is not credible or acceptable.

The contention of the petitioner that the order of dismissal was passed by the Agent of Dubeshwari Colliery who was not the appointing authority and as such had no authority to issue the dismissal order, is also without substance. The dismissal order was issued by the Deputy Manager, Perbelia Group. In any event, the order of dismissal has been ratified and upheld by the Director (Personnel), Eastern Coal Fields Ltd. by his order dated 14 March, 2014. It is the petitioner''s own case that the Chairman-cum-Managing Director or the Director (Personnel) was the appointing Authority of all the Colliery Employees (paragraph 10 of the writ petition). As such it cannot be said that the order of dismissal was issued by a person having no authority to do so.

An employee must take his duties seriously. He must perform his functions with honesty and sincerity. He cannot take his employment for granted. He must follow the rules and regulations of the employer company. He must conduct himself in a disciplined manner. He must perform his duty with responsibility. An employee should adhere to discipline not only for personal excellence but also for collective good of the organisation which he serves. In my opinion, an employee/workman who absents himself from duty without obtaining leave for about three years and does not think it necessary to send even one intimation to the employer company during such period of absence, deserves no sympathy. Any kind of indulgence or leniency shown to such an employee would send a wrong signal to the other employees of the organisation which will be detrimental to the interest of all concerned.

It may be noted that in the case of Chennai Metropolitan Water Supply and Sewerage Board and Ors. v. T.T. Murali Babu (supra) the concerned employee was absent from duty for about one year and seven months without having obtained leave. He did not respond to the communications from the employer. The Hon''ble Supreme Court held that no adequate reasons could be shown by the employee for his unauthorised absence and this indicated totally in disciplined attitude on his part and also adamant attitude in not replying to the communications from the employer. It was held that the punishment of dismissal imposed on the employee was not shockingly disproportionate and the doctrine of proportionality does not get even remotely attracted to such a case.

In view of the aforesaid, I am of the view that there is no ground for interfering with the order of dismissal and the order of the Appellate Authority impugned in the present application. The Writ application fails and is accordingly dismissed without, however, any order as to costs.

Urgent certified photocopy of this, if applied for, be given to the parties upon compliance of necessary formalities.