V.K. Agrawal vs Madhya Pradesh Electricity Board and Others

C.K. Prasad, J.

By this writ petition filed under Article 226 of the Constitution of India, Petitioner prays for quashing of the order dated 23.04.1982 issued by the M.P. Electricity Board whereby he has been removed from service. Petitioner further prays for issuance of writ in the nature of mandamus commanding the Respondents to permit him to resume his duties.

According to the Petitioner, he was appointed to the Post of Supervisor in the M.P. Electricity Board and he joined his service as such on 25th of October 1969 at Raipur City Division. At the relevant time, he was posted as Officer-in-Charge of Badagaon Unit of the M.P, Electricity Board, where on 17.06.1969 he applied for one day''s casual leave for 18.06.1979 on the ground that he was feeling unwell. Petitioner further sought for permission to leave the Head-quarter. According to him, when he came to his village, Doctor on examination found that he was suffering from Jaundice, he intimated about his illness to the Assistant Engineer, Tikamgarh and sent application for leave alongwith medical certificate. According to him, his illness continued for inordinate long time and he sent applications for extension of leave on 23.10.1979, 25.03.1980, 08.07.1980, 02.12.1981, 05.07.1982, 31.10.1983, 04.12.1984 and 03.04.1985. It is his stand that on 01.11.1985 after being declared fit by the Doctor for resumption of duty, he appeared before the Divisional Engineer, Tikamgarh on 01.11.1985, but he was not allowed to join his duties and was advised to submit his joining report to the superior authority. According to the Petitioner, as advised, he submitted the fitness certificate alongwith his joining report addressed to the Chairman of the Respondent Board. It is the assertion of the Petitioner that he waited for communication from the Chairman of the Respondent Board, which he did not receive and as a last resort, he approached one Shri Ramratan Chaturvedi a local M.L.A., regarding his grievance in relation to resumption of his duties. According to the Petitioner, by letter dated 30.10.1986 (Annexure P-5) Shri Chaturvedi was informed that the Petitioner voluntarily abstained himself from duty for three years and accordingly it was not possible for the Respondent Board to reinstate him in service.

Return has been filed by the Respondents in which, it has been stated that the Petitioner submitted application on 16.06.1979 for causal leave for 18.06.1979 for attending the marriage on 18.06.1979 and sought permission to leave the Headquarter which was declined. Inspite of that, Petitioner remained absent on 18.06.1979 and left the Headquarter. Respondents have also denied the allegation made by the Petitioner about his sickness and according to them, this false plea has been raised to cover up absence from duty without any permission or sanction. Respondents have further pleaded that as the Petitioner did not send any information about his absence from duty, telegram dated 25.07.1979 was sent advising him to join the duty immediately. However, this did not yield any result and again the Superintending Engineer by Letter dated 3rd of August 1979 directed the Petitioner to resume his duties. In response to the aforesaid letter, Petitioner sent telegram to the Divisional Engineer, Tikamgarh stating therein that as he is sick, he is unable to join the duties and prayed for extension of leave. However, according to the Respondents, the telegram did not specify the time for which the leave was sought to be extended. Petitioner, thereafter sent an application for leave on 16.08.1979 for grant of leave on medical ground enclosing the medical certificate of his sickness, from 18.06.1979 to 21.08.1979, Petitioner did not join even after expiry of the aforesaid period.

According to the Respondents, Petitioner did not join his duties and therefore by letter dated 04.02.1981 addressed to him, he was advised to resume his duty within 3 days from the date of receipt of notice, failing which he was apprised that the matter shall be referred to the higher authority to terminate his service. Petitioner did not join in pursuance of the aforesaid letter also. Thereafter, by letter dated 9.11.1981 Petitioner was informed that he remained absent from duty since 18.06.1979 and on review, it has been found that he is not interested in Board''s service. Petitioner was further given a show cause notice dated 30th of March 1982 stating therein that he absconded from duty since 18.06.1979 and remained absent without permission or sanction from the competent authority. Accordingly, Petitioner was called upon to show cause within 15 days from the date of receipt of the notice as to why his service be not terminated. In the show cause notice, it has been specifically stated that in case, Petitioner fails to submit representation within the stipulated period, it will be presumed that he has no explanation to offer and final order as may be deemd fit shall be passed. Petitioner did not give any reply to the said show cause notice and ultimately by the impugned order dated 23.04.1982, his service has been terminated.

From the pleading of the parties, it is evident that although, Petitioner filed application for grant of leave as also for permission to leave the Head-quarter for 8.06.1979 which was although not granted, still he abstained from duty since then. Petitioner was further informed to resume his duties by several communications referred to above and before terminating his service, a show cause notice dated 30th of March 1982 (Annexure R-11) was issued in which he has been intimated that in case, he does not submit any reply within the stipulated period, it will be presumed that he has no explanation to offer. It is relevant here to state that the Petitioner has stated that the aforesaid show cause notice was not served on him, but the Respondents have stated that the same was sent under registered cover which was refused by the Petitioner. Respondents in support of their assertion have placed on record the noting of the Postal Authorities (Annexure R-12) in which it has been stated that the Petitioner has refused the same. In view of the aforesaid, I have no manner of doubt that before terminating service of Petitioner for his absence, show cause notice was issued to him.

Mr. U. Awasthy appearing on behalf of the Petitioner submits that absence from duty without leave is misconduct and in that view of the matter before terminating his service, Respondents ought to have held regular departemental enquiry. He submits that Rule 14 of the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 provides for procedure for imposing major penalties and the procedure so prescribed has not been followed before passing the order of termination from service,

Mr. Mishra appearing on behalf of the Respondents states that the provisions of M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 (hereinafter referred to as ''the Rules'') apply in case of the Petitioner and he further concedes that imposition of penalty of removal is a major penalty, but his stand is that in the absence of any reply by the Petitioner to the show cause notice given by the Respondents, detailed procedure as prescribed under Rule 14 of the Rules is not required to be followed. Mr. Awasthy, however, submits that notwithstanding the fact that Petitioner has not submitted any written statement of defence, still the disciplinary authority is required to appoint an Enquiry Officer and hold the enquiry. He has drawn my attention to Rule 14(5) (b) of the Rules to substantiate his submission. Rules 14(4) (5) (a) & (b) read as follows -

Procedure for imposing major penalties, -

(1) xxx xxx xxx

(2) xxx xxx xxx

(3) xxx xxx xxx

The disciplinary authority shall deliver or cause to be delivered to the Govt. Servant a copy of the articles of charge, the statement of the imputations of misconduct or misbehaviour and a list of documents and witnesses by which each article of charges is proposed to be sustained and shall require the Government servant to submit, within such time as may be specified, a written statement of his defence and to state whether he desires to be heard in person.

(a) On receipt of the written statement of defence, the disciplinary authority may itself inquire into such of the articles of charge as are not admitted or, if it considers necessary so to do, appoint, under Sub-rule (2), an inquiring authority for the purpose; and where all the articles of charges have been admitted by Govt. servant in his written statement of defence, the disciplinary authority shall record its findings on each charge after taking such evidence as it may think fit and shall act in the manner laid down in Rule 15.

(b) If no written statement of defence is submitted by the Government servant, the disciplinary authority may itself inquire into the articles of charge or may, if it considers it necessary to do so, appoint, under Sub-rule (2), an inquiring authority for the purpose.

(c) xxx xxx xxx

Rule 14(4) of the Rules interalia requires the disciplinary authority to deliver or caused to be delivered to the delinquent employee a copy of articles of charge and require him to submit within such time as may be specified, a written statement of his defence and to state whether he desires to be heard in person. As stated earlier, Petitioner was issued a show cause notice dated 30th of March 1982 in which the detailis of misconduct were given and the Petitioner was asked to submit his representation in his defence, but he did not submit any reply. Rule 14(5) (a) inter alia provides that the disciplinary authority may itself enquire into such of the articles of charge as are not admitted or may appoint an enquiry authority. Here, in the present case, Petitioner has not filed any explanation and has not controverted the charges levelled against him. True, it is that Rule 14(5)(b) confers discretion on the disciplinary authority to enquire into the articles of charge or appoint any other Enquiry Officer if no written statement of defence is submitted, but combined reading of Rule 14(5)(a) and 14(5) (b) makes it clear that in a case when the delinquent employee does not admit the charge, only in that situation enquiry is must. However, in a case when the delinquent employee has not controverted, the articles of charge, it is not necessary that in every such case, a detailed enquiry is must. This will depend upon facts and circumstances of each case.

Here, in the present case, Petitioner remained absent, he was asked to resume his duties several times, but he did not do the same, Further, he was given a show cause notice intimating the misconduct committed by him, but in response thereto also, he did not submit his explanation. In such circumstances, I am of the opinion that the order of termination shall not be invalidated only on ground that a regular departmental enquiry was not held. Appellant was given a reasonable opportunity to show cause which included the opportunity to deny his guilt and establish his innocence, but he did not avail the same. In such a situation, I am of the opinion that the Petitioner is not entitled for the reliefs claimed in the writ petition. The view which I have taken finds support from a judgment of Supreme Court in case or Burn and Co., Calcutta Vs. Their Employees, , in which it has been held as follows -

The ground of discharge is the continued absence of the employee, and his inability to do work, and it is difficult to see what purpose would be served by a formal charge being delivered to him and what conceivable answer he could give thereto. The order of the Appellate Tribunal is manifestly erroneous and must be set aside.

Only submission made by Shri Awasthy on behalf of the Petitioner having no substance I do not find any merit in the writ petition and it is dismissed accordingly. In the facts and circumstances of the case, there shall be no order as to cost.