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2002 DIGILAW 545 (PAT)

Awadhesh Kumar v. State of Bihar

2002-04-25

AFTAB ALAM

body2002
ORDER This writ petitioner has been filed challenging the punishment of dismissal from service awarded to the petitioner in a disciplinary action, who is an employee of the Bihar State Electricity Board ('the Board', hereinafter). The order of punishment was passed by the Joint Secretary under his memo no.1, dated 2.1.1999. The petitioner preferred an appeal against this order but when no order was passed on his appeal for some time, he filed this writ petition in this court on 8.1.2000. Later on, an order was passed on his appeal on 19.5.2000 by the Member, Finance of the Board. By this order, the punishment awarded to the petitioner was affirmed and his appeal was rejected. The petitioner then filed I.A No. 4020 of 2000 bringing on record, as Annexure 9, the appellate order and seeking the permission of the court to challenge that order. Permission is hereby granted to the petitioner to challenge the order passed in his departmental appeal. 2. The matter relates to the petitioner's absence from work from January 29 to March 8, 1992 and in order to appreciate the petitioner's challenge to the orders of his dismissal from service and to put the case in its proper perspective, it would be necessary to lake note of some events in the past. 3. The petitioner worked as an unskilled Khalasi at the Barauni Thermal Power Station. On 28.1.1992 after finishing his duty in the second shift at about 9.30 P.M. he made an application for five days casual leave on the ground that his mother was seriously ill. He gave the leave application to a co-worker for being handed over to the concerned authority. It is not in dispute that his application for leave duty reached the competent authority. He thereafter sent applications by registered post for extension of his leave on the ground of his own illness fill be came to resume his duties on 9.3.1992 when he was informed that his service was terminated in terms of clause 24 of the Certified Standing Orders (framed under the Industrial Employment (standing Orders) Act, 1946) which provides for automatic cessation of employment. 4. At this stage, it may be noted that the petitioner, along with others, was named as accused in a criminal case being Barauni P.S. Case No. 38 of 1992. 4. At this stage, it may be noted that the petitioner, along with others, was named as accused in a criminal case being Barauni P.S. Case No. 38 of 1992. Instituted under sections 302 and 209/34 of the Penal Code in connection with the killing of the son of a security guard at the Thermal Power Station. The petitioner's application for leave coincided with the institution of the case and, therefore, there was reasonable grounds for the suspicion that leave was asked for with a view to evading arrest in the criminal case. It is also undeniable that no leave was expressly sanctioned to the petitioner and in fact the competent authority had not passed nay order on any of his applications for leave. 5. The petitioner raised an industrial dispute against the termination of his service in terms of clause 24 of the Standing Orders and by notification, dated 24.2.1993 the appropriate Government referred the dispute for adjudication to the labour court, Begusarai where it was registered as Reference Case No.4 of 1993. The term of the reference was as follows: "Whether the termination of service of Shri Awadhesh Kumar, unskilled Khalasi, Barauni Thermal Power Station is proper? If not, whether he should Le re slated on work or/and should be given compensation?" 6. The labour court in its award, dated 5.1.1996 found and held that the petitioner's removal from service under clause 24 of the Standing Orders was illegal and against the principles of natural justice and directed him to treated as continuing in service and entitled to all the back wages. 7. It is significant to note that one of the issues before the labour court was whether or not the petitioner's absence from work from 29.1.1992 to 8.3.1992 was unauthorised? On this issue, the labour court found and held that the petitioner will be deemed to be on sanctioned leave during this period. The relevant findings are to be found in paras 27 and 28 of the award wherein it is concluded as follows: "Therefore it will be presumed that the application of Awadhesh Kumar Ext. 3/d in which he prayed for leave from 29.1.1992 to 2.2.1992 was allowed by the appropriate authority." 8. The relevant findings are to be found in paras 27 and 28 of the award wherein it is concluded as follows: "Therefore it will be presumed that the application of Awadhesh Kumar Ext. 3/d in which he prayed for leave from 29.1.1992 to 2.2.1992 was allowed by the appropriate authority." 8. The labour court further held that though clause 24 did not expressly provide for the application of the principles of natural justice, the obligation for the observance of those principles were implicit in the provision 'and even for 'automatic cessation of employment' the concerned workman was required to be given an opportunity to show cause. As no show cause was given to the petitioner before terminating his service, the action of the management was held to be illegal and unsustainable on that score alone. It was on the aforesaid two findings that the labour court gave its award of reinstatement with back wages in favour of the petitioner. It may also be noted here that though holding the action of the management in terminating the service of the petitioner under clause 24 of the Standing Orders as bad the labour court left it open to the Board to proceed against the petitioner afresh, in accordance with law. In para 34 of the Award, it was stated as follows: "It was true that workman Awadhesh Kumar is an accused in Barauni P.S. Case No. 38/92 u/s 302, 209/34 I.P.C. and if the management fells that workman Awadhesh Kumar filed false petition for casual leave due to fear of police then under that circumstances, he should take action 'under the appropriate clause of certified standing orders for the termination of the service of workman Awadhesh Kumar. He should not terminate the service of workman Awadhesh Kumar under clause 24 of the Certified Standing Orders on the ground of unauthorised leave." (emphasis added) 9. The Board did not challenge the award of the labour court and the award thus became final and binding on the parties. 10. He should not terminate the service of workman Awadhesh Kumar under clause 24 of the Certified Standing Orders on the ground of unauthorised leave." (emphasis added) 9. The Board did not challenge the award of the labour court and the award thus became final and binding on the parties. 10. It may be observed in passing that one might have some reservations about the labour court's finding that it must be deemed that leave was duly sanctioned to the petitioner by the competent authority and the finding of the labour court may be assailed on the ground that it was based on an incorrect reading and interpretation of the provisions of the Standing Orders relating to the grant of leave. But that aspect of the matter is no longer an issue. As noted just now the award has become final and binding on the parties and hence, the finding that the leave for the period in question must be deemed to have been duty sanctioned to the petitioner by the competent authority is no longer open to question. 11. It was in these circumstances and on the basis of the liberty given by the labour court that the Board decided to proceed against the petitioner in a disciplinary action. But in doing so, the disciplinary authority apparently committed a basic and fundamental mistake. A charge sheet was given to the petitioner on 1.2.1997 which, loosely translated into English, reads as follows: "Shri Awdhesh Kumar, unskilled Khalasi, Barauni Thermal Power Station, Barauni is an accused in Barauni P.S. Case No. 38 of 1992 but he concealed this information from the Board and without any prior permission he wilfully absented from work from 29.1.1992. His aforesaid actions amounted to gross misconduct in terms of sub-clauses (c) and (e) of clause 29B of the Standing Orders Act." 12. Thus, two charges were made against the petitioner; (i) tha he withheld information. From the Board regarding his being an accused in Barauni P.S. Case No. 38 of 1992 and (ii) that he wilfully absented himself from work from 29.1.1992. 13. In the light of the earlier events it can be plainly seen that at least one of the two charges was inherently unsustainable and was bound to fail. From the Board regarding his being an accused in Barauni P.S. Case No. 38 of 1992 and (ii) that he wilfully absented himself from work from 29.1.1992. 13. In the light of the earlier events it can be plainly seen that at least one of the two charges was inherently unsustainable and was bound to fail. Instead of accusing the petitioner of wilfully absenting himself from duty unauthorisedly, perhaps a more appropriate charge against him would have been that his applications for leave were made on false pretext and gave incorrect reasons for the leave. Such a charge would not have been contrary to the finding of the labour court but in accord with the observations of the labour court by which it had left it open for the Board to proceed against the petitioner for filing "false petition for casual leave due to fear of police." 14. Be that as it may, a departmental enquiry was held into the charges and the enquiry officer gave his report in which the petitioner was practically exonearted of both the charges. As regards the charge of unauthorised absence from work, the enquiry officer followed the same reasoning as the labour court in the earlier award and after discussing the evidences and the relevant provisions of the Standing Orders made the following observations in para 17 of the enquiry: "As such it is presumed that authority concerned have granted leave extension as per Clause 23 (h) of the Certified Standing Orders of the Board." 15. He concluded the enquiry report with the following observations: "That in the light of oral and documentary evidences produced before the undersigned, the absence of Shri Awadhesh Kumar from 29.1.1992 may be considered authorised as per provision of clause 23 (h) of the Certified Standing Orders of the Board. "That concealing the fact from the department about involvement of Sri Awadhesh Kumar in Barauni P.S. Case No. 38/92 appears to be out of ignorance and not deliberate." 16. The disciplinary authority did not accept the report submitted by the enquiry officer but he hardly gave any reasons, much less any cogent reasons, for disagreeing with the report of the enquiry officer. The disciplinary authority did not accept the report submitted by the enquiry officer but he hardly gave any reasons, much less any cogent reasons, for disagreeing with the report of the enquiry officer. In the order, dated 23.6.98 passed by the disciplinary authority all that he said is that the conclusion of the enquiry officer was not based on materials, that Shri Awadhesh Kumar (the petitioner) claimed to have submitted an application on 28.1.1992 for casual leave for five days from 29.1.1992 but in that application no grounds were stated for taking the leave; and that from the rules and the materials it was fully established that Shri Kumar remained absent from 29.1.1992 to 8.3.1992 unauthorisedly. The other charge of withholding the information about his implication in the criminal case was also found to be correct. A copy of this order was given to the petitioner along with the second show cause notice. The petitioner gave his reply whereupon the order of punishment was passed which was later affirmed by the appellate authority. 17. Long arguments were advanced by counsel appearing for the parties on the merits of the report submitted by the enquiry officer and regarding the sufficiency of the reasons given by the disciplinary authority for not agreeing with the enquiry report. 18. Mr. R.K. Dutta, Addl. Standing Counsel for the Board look me to the various portions of the enquiry report and submitted that apart from containing contradictory observations and findings, the report was clearly based on a completely incorrect understanding of the relevant provision of the Standing Orders, relating to grant of leave. 19. Academically speaking, one may agree with the submissions of Mr. Dutta that the enquiry report is not based on very sound reasoning and also that it does not properly interpret the relevant provisions of the Standing Orders but that is not the relevant issue. What is relevant is how the disciplinary authority (and not the counsel appearing in court) read and understood the enquiry report and what reasons did the disciplinary authority assign for disagreeing with the conclusions of the report. The reasons assigned by the disciplinary authority for his disagreement with the conclusions of the enquiry report are to be found in the order passed by him and those reasons cannot be supplanted or even supplemented or expanded by the reasons given by Mr. The reasons assigned by the disciplinary authority for his disagreement with the conclusions of the enquiry report are to be found in the order passed by him and those reasons cannot be supplanted or even supplemented or expanded by the reasons given by Mr. Dutta in course of his submissions in court. 20. Mr. A.C. Sinha, learned counsel appearing in support of the writ petition submitted that the order passed by the disciplinary authority was bad on two counts First, he did not assign any reason for his disagreement with the conclusions of the enquiry officer and secondly that he recorded his disagreement without giving the petitioner an opportunity to show cause. In support of his submissions, Mr. Sinha relied upon a decision of the Supreme Court in Punjab National Bank and others Vs. Kunj Bihari Mishra, AIR 1998 SC 2713 . He also relied upon a bench decision of this court in Bihar State Electricity Board vs. Braj Kishore Singh and others, 2001 (2) PLJR 522 and another decision by a learned single Judge of this court Arun Kumar Mishra VS. State of Bihar, 2002 (1) PLJR 180 . 21. Mr. Dutta, on the other hand, submitted that the reasons given by the disciplinary authority were sufficient to express his disagreement with the conclusions of the enquiry report and the matter cannot form the subject of a judicial scrutiny. In support of his submissions, he relied upon a decision of Judicature at Bombay Vs. Shashi Kant S. Patil and Another (200) 1 S.C.C. 416 (paras 19, 20 and 24). 22. To may mind the issue of the disciplinary authority disagreeing with the enquiry report losses much of its relevance in view of the very basic lacuna in the charges. After giving his reasons for disagreement with the enquiry report (of whatever worth those reasons may be), the disciplinary authority came to hold that the petitioner had remained absent from work from 29.1.1992 to 8.3.1992. wilfully and unauthorisedly, and that the petitioner had withheld the information regarding his implication in the criminal case. 23. Now the question is what will ensue from these two findings of the authority. His first finding that the petitioner had remained absent during the period in question unauthorisedly and wilfully is directly-contrary to the findings of the labour court on that issue. 23. Now the question is what will ensue from these two findings of the authority. His first finding that the petitioner had remained absent during the period in question unauthorisedly and wilfully is directly-contrary to the findings of the labour court on that issue. The finding of the disciplinary authority must yield to the finding recorded by the labour court on the same issue between the same parties. In fact, after the award had become final, it was no longer open to the disciplinary authority to proceed in a disciplinary action against the petitioner on that charge and the charge in question was wholly misconceived and was bound to fail from the beginning. 24. Coming now to the other finding that the petitioner withheld the information regarding his implication in the criminal case, I am unable to see how that would constitute a misconduct within the meaning of clause 29B of the Certified Standing Orders. 25. I have carefully gone through the different sub-clauses of clause 29B enumerating misconduct and I am unable to find any sub-clause in which the action of the workmen in withholding information from the employer regarding hid implication n a criminal case may be construed as a misconduct liable for punishment. Sub-clause (p) of course enumerates conviction by any court or any offence of moral turpitude as a misconduct but a mere implication in a criminal case is not the same as conviction by a court. 26. Mr. Dutta tried to bring the petitioner's case within the ambit of sub-clause (c) which reads as follows: "(c) Theft, fraud or dishonesty in connection with the Board's property or business." 27. Mr. Dutta submitted that it was fraud and dishonesty on the part of the petitioner to withhold the information regarding his implication in the criminal case. 28. I am unable to read sub-clause (c) in such stretched terms. The Supreme Court has laid down that the definition of mis-conduct in Certified Standing orders being quasi criminal in nature warrants a strict construction. What Mr. Dutta suggests in not only a very broad and liberal construction but a construction unreasonably stretch. No provision of the Standing Orders was brought to my notice which would make it obligatory on the part of the employee to inform the Board regarding his implication in a criminal case. What Mr. Dutta suggests in not only a very broad and liberal construction but a construction unreasonably stretch. No provision of the Standing Orders was brought to my notice which would make it obligatory on the part of the employee to inform the Board regarding his implication in a criminal case. In the absence of any such obligation it is difficult to see how the failure to inform the Board would mount to a misconduct making the employee liable to a disciplinary action. Therefore, I come back to what was observed earlier in this judgment that the charges as framed against the petitioner suffered from a basic and fundamental lacuna and were bound to fail. 29. For these reasons, I am unable to sustain the orders of punishment passed against the petitioner. Consequently, the orders, dated 2.1.1994 by the disciplinary authority and, dated 19.5.2000 passed by the appellate authority are set aside. The petitioner is directed to be taken back in service. 30. In the facts and circumstances of the case, the petitioner will not be entitled to any back wages and he will get his wages from the date of his rejoining his service. The past period will, however, be taken into account for his seniority and retiral dues. The petitioner must be allowed to resume his duties within one month-from the date of receipt/production of a copy of this order in the office of the General Manager-cum-Chief Engineer, Barauni Thermal Power Station. 31. In the result, writ petition is allowed subject to the aforesaid observations and directions but with no order as to costs.