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2001 DIGILAW 86 (CAL)

Asoke Chakraborty v. Union of India

2001-02-19

Amitava Lala

body2001
JUDGMENT Amitava Lala, J. Under this writ petition, the petitioner basically challenged the order of dismissal from the service. The contention of the writ petitioner is that the order of dismissal was passed without referring the copy of the enquiry report and issuing second show cause asking the reply as to why the order of punishment by way of dismissal should not be passed. So far this point is concerned, law is now well settled in view of the well celebrated judgment reported in AIR 1994 SC 1074 (Managing Director, ECIL, Hyderabad vs. B. Karunakar) . Supreme Court was pleased to observe as follows: "Since it is the right of the employee to have the report to defend himself effectively, and he would not know in advance whether the report is in his favour or against him, it will not be proper to construe his failure to ask for the report; as the waiver of his right. Whether, therefore, the employee asks for the report or not, the report has to be furnished to him". 2. Therefore, only on this background the order of dismissal as imposed upon the petitioner even after having alternative remedy of industrial dispute is to be set aside under the extraordinary jurisdiction of the writ court. On such score a principle laid down by the Supreme Court in a case reported in AIR 1999 SC 22 (Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai & Ors.) that the jurisdiction of the High Court in entertaining the writ petition under Article 226 of the Constitution in spite of the alternative statutory remedies, is not affected, specially in a case where the authority against whom the writ is filed is shown to have had no jurisdiction or had purported to usurp jurisdiction without any legal foundation. 3. The next point as agitated by the petitioner is disproportionate punishment that was given as against the petitioner in respect of absentism by way of dismissal. To that extent, he has relied upon various judgment but I find that the judgment as reported in AIR 1965 SC 917 (M/s. Hind Construction and Engineering Co. Ltd. vs. Their Workmen} has been followed till date. There, the Supreme Court held that when there was an absentism on the part of the petitioner, the best course would have been to warn and fine in the manner of process of leave without pay etc... Ltd. vs. Their Workmen} has been followed till date. There, the Supreme Court held that when there was an absentism on the part of the petitioner, the best course would have been to warn and fine in the manner of process of leave without pay etc... It is impossible to think that an employer would have been imposed under such circumstances, the extreme punishment of dismissal. Such judgment was also considered on numerous occasions even till this date. 4. In other judgment reported in AIR 1997 SC 3387 (Union of India & Anr. vs. Ganayutham) in its paras 29 and 30 it has been held that any fundamental freedom is affected when there is a question of 'proportionality'. If the punishment is disproportionately affected a person then the law court should interfere with the same in an appropriate manner after coming to an appropriate conclusion in this respect. So far AIR 1998 SC 948 (Colour Chem Limited vs. A.L. Alaspurkar) is concerned; the writ court interfered even in a question of the matter to be adjudicated by the appropriate industrial court when it has found that the unfair labour practice is apparent from the face of it. If one is victimised by way of an unfair labour practice the same cannot be overthrown in the garb of the technicality of having alternative remedy because it has gone down to the extent of constitutional safeguards. 5. Mr. Asish Sannyal, learned Counsel, appearing on behalf of the petitioner has categorically explained the position of law taking into account the present position in this respect. He has cited AIR 2000 SC 1151 (U.P. State Road Transport Corporation vs. Mahesh Kumar Mishra) in its paras 6 to 12 to establish before this court that the High Court can exercise its discretion under Article 226 of the Constitution to interfere with the quantum of punishment inflicted by the disciplinary authority provided it is disproportionate. Although the factual position is not similar but I find all the principles on which this court is given emphasis have been followed for the purpose of drawing an interference. If I take into account all the judgments serially, I shall have no other alternative but to construe that ., imposition of an order of dismissal ignoring a proportionate measure and also ignoring the present principles of second show cause cannot be sustainable at all. 6. If I take into account all the judgments serially, I shall have no other alternative but to construe that ., imposition of an order of dismissal ignoring a proportionate measure and also ignoring the present principles of second show cause cannot be sustainable at all. 6. Nobody is present on behalf of the respondent. However, from the affidavit-in-opposition of the respondent, I find that they have taken two fold points: 1) Delay in making this writ petition 2) Writ jurisdiction cannot be invoked since the respondent is a company and the petitioner is working as a workman under such company. So far the second point is concerned I do not see any embargo in view of the discussion as above. This court has passed this order keeping in the mind that the weapon of the writ, in such circumstances, will have to be applicable sparingly. This is such a situation where such tool of judiciary has to be applied. Therefore, it is rightly done. This is the answer of the query to the respondent in respect, of the second point. 7. So far the delay is concerned I do not find much of relevance of the matter in this respect because the writ jurisdiction cannot be proceeded on the basis of the Limitation Act. Therefore, a rational measure has to be given in ascertaining the actual delay whether it is laches, inaction or negligence on the part of the petitioner or he became victim of the circumstances in any manner to move with the matter at the earliest. The petitioner faced a review order on 9th May, 1991 when the writ jurisdiction was invoked before this court in early part of 1992. According to me, this is not the matter of such delay which can be thrown out in limine. But since the respondent is absent in the court, it is a bounden duty upon a Judge to consider the issue by sitting in the arm chair of the respondent. I find that the so called absentism was cuased due to serious personal family problem of the petitioner. This is matrimonial one whereunder petitioner's wife" his son who is aged about ten years and mother were somehow victim of the circumstances. Therefore, element of victimisation is present. I find that the so called absentism was cuased due to serious personal family problem of the petitioner. This is matrimonial one whereunder petitioner's wife" his son who is aged about ten years and mother were somehow victim of the circumstances. Therefore, element of victimisation is present. Therefore, a delayed canvasment on such subject is not very much required for the purpose of coming to conclusion when the court has already convinced as regards point of fair play and principle of natural justice. It is to be remembered nullity and natural justice are two parts of one wall. When one is governed by abuse of process of law other is governed by the ends of justice. Since in this case fair play and natural justice got room cause of delay can not supersede the same. In spite of the same when several judgments are cited by the learned Counsel for the petitioner in this respect of delay, the same are referred hereunder. Firstly, a Full Bench, judgment of Andhra Pradesh High Court in the case of Secretary and Correspondent, Badruka College of Commerce and Arts (Day), Hyderabad vs. State of Andhra Pradesh & Ors. reported in AIR 1997 A.P. 179 , was cited to show that the real test to determine delay is that the petitioner should come to the court before a parallel right is created and that the lapse of time is not attributable to any laches or negligence of the petitioner. Where the circumstances justify the conduct exists, the illegality which is manifest cannot be sustained on the sole ground of laches. He has also relied upon the judgment of AIR 1989 Bombay 156 (The Industrial Development & Investment Co. Pvt. Ltd. & Anr. vs. State of Maharashtra & Ors.) whereunder a Division Bench of the court in its para 5 held that the court in deciding the question whether the writ petition was a state one may not proceed on the basis of the imputed knowledge but ought to consider whether the petitioner was aware of the true facts and secondly whether there had been any lack of diligence on their part. The Court may also legitimately take into consideration whether by reason of lapse of time any equity had arisen in favour either of the respondents or third parties which ought not to be disturbed. The Court may also legitimately take into consideration whether by reason of lapse of time any equity had arisen in favour either of the respondents or third parties which ought not to be disturbed. It is of three grounds as aforesaid excepting the question of diligence, no other points are applicable. Therefore, the ratio of the judgment is applicable hereunder for the purpose of considering that the question of delay should be ignored. In the judgment reported in AIR 1997 Delhi 189 (Rajender Kumar Sharma & Anr. vs. The Registrar, Co-operative Societies & Ors.) a similar question arose before a Single Bench of this court where even the alternative remedy was available and the delay was there. 8. Therefore, taking into totality of the facts and circumstances of the matter, I am of the view that the petitioner is entitled to get relief in accordance with law. Therefore, the writ petition is allowed. The order of dismissal is set aside. The authority is directed to reconsider the issue in the light of the judgment and order passed hereunder upon giving the copy of the enquiry report and considering the reply to the second show-cause the guideline of the judgment reported in AIR 1997 SC 3387 (supra) within a period of two months from the date of communication of this order. If in the midst of the reconsideration, the authority concerned finds that the petitioner will be allowed to join in the duty with no punishment or lesser punishment the authority concerned is entitled to pass such order irrespective of passing any reasoned order in connection thereto. 9. Since the original affidavit-in-opposition is not available in the record, a copy of the affidavit-in-opposition affirmed by one Sri Rameshwar Nath Khanna on behalf of respondent Nos. 2 to 8 dated 8th August, 1992 as served upon the petitioner be treated as the original affidavit-in-opposition and be kept in the record. 10. Thus, the writ petition stands disposed of. There will be no order as to costs. 11. Let an urgent xeroxed certified copy of this judgment if applied for, be even to the learned Advocates for the parties within two weeks from the date of putting the requisites. Writ petition stands disposed of.