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2008 DIGILAW 541 (GAU)

Runu Das v. Oriental Insurance Co. Ltd.

2008-07-29

H.N.SARMA, J.CHELAMESWAR

body2008
JUDGMENT J. Chelameswar, J. 1. This is an appeal against the judgment in W.P. (C) No. 2827 of 2003 dated 5.1.2007 by the unsuccessful petitioner. 2. The appellant was working as an Assistant-cum-clerk in the office of the 5th respondent. A disciplinary proceeding was initiated against the appellant on 20.12.1999 on the charge of unauthorized absence and an enquiry was conducted. By its report dated 20.3.2001 the enquiry officer found the appellant guilty of the charges of unauthorized absence. The disciplinary authority by its proceedings dated 21.6.2001 accepting the conclusion reached by the enquiry officer imposed a major penalty of removal of the appellant from service. 3. Aggrieved by the said decision the appellant filed an appeal before the appellate authority without any success. Therefore, the appellant approached this Court by way of the writ petition referred to above. 4. Mr. K.N. Choudhury, learned senior counsel for the appellant argued that both the enquiry and the consequential decision by the disciplinary authority are vitiated because of non-application of mind to the relevant facts. The relevant portion of the charge is extracted: by the judgment under appeal which reads as follows: You have remain unauthorisedly absence without prior permission or sanction of leave or intimation thereof for the following days:- (i) In 1993 16 days (ii) In 1997 76 days (iii) In 1998 161 days (iv) In 1999 189 days (Till August, 1999) Details is described in the attached sheet. The learned Counsel further argued that a copy of the enquiry report was not furnished to the appellant/writ petitioner before imposing the punishment of removal of the appellant and lastly the learned Counsel submitted that while the enquiry was conducted on a charge that the appellant was absent for various period, commencing from the year 1993 upto July, 1999 the final order of dismissal takes into account the absence of the petitioner beyond the period indicated in the charge and, therefore, the entire proceedings were illegal and arbitrary. 5. It appears from the record (Annexure-A4 dated 19.11.1999) signed by the senior Divisional Manager of the 1st respondent insurance company addressed to the Regional Office of the said company at Guwahati that for some portion of the period covered by the charge the petitioner was in fact sanctioned leave and for some period the sanction was pending consideration by the date of the charge-sheet dated 20.12.1999. The relevant portion of Annexure-A4 reads as follows: We would like to further inform you that the employee's attendances in the current year has not improved. The No. unauthorized absence of the up to July, 99 in the current year as per BO Statement enclosed is 158-1/2 days. The total No. of days on account of unauthorized absence in the service period works (illegible) 411-1/2 days as detailed below:- Year Number of days 1993 16 days, sanctioned vide Ro letter dated 7.10.1993 1997 76 days, sanctioned vide Ro letter dated 25.2.1999 1998 161 days, sanctioned awaited 1999 (Up to July 1999) 158½ days 6. It is obvious from the above that the entire disciplinary proceeding is vitiated for non application of mind coupled with the fact that the appellant was not furnished with a copy of the enquiry officer's report. We are of the opinion that the conclusion of the learned Judge by the judgment under appeal that no prejudice is caused to the appellant by virtue of the non-supply of the enquiry officer's report is not justified. 7. We, therefore, set aside the judgment under appeal and allow the writ petition by quashing the order or dismissal of the appellant dated June 21, 2001 with liberty to the respondent company to institute a fresh enquiry into the conduct of the appellant for being unauthorisedly absent for long spell of time. Goes without saying, such an enquiry should be conducted at least this time strictly in accordance with law. 8. Coming to the question of back wages of the appellant between the date of her removal from service till the date of this order we are of the opinion that as admittedly the appellant was unauthorisedly absent for a considerable period of time, though not as indicated in the charge-sheet, and also the fact that the appellant did not actually render service for the above mentioned period, the appellant is entitled only for half of the back wages. 9. We are distressed to see that while the appellant was indisciplined by absenting herself unauthorisedly the respondents are equally indisciplined in not properly conducting the disciplinary proceeding giving scope for the appellant to successfully litigate her rights all through leading to loss to a State controlled organization which in the real term means loss to the exchequer. 9. We are distressed to see that while the appellant was indisciplined by absenting herself unauthorisedly the respondents are equally indisciplined in not properly conducting the disciplinary proceeding giving scope for the appellant to successfully litigate her rights all through leading to loss to a State controlled organization which in the real term means loss to the exchequer. We, therefore direct that the amount that is to be paid to the appellant as directed by this order is to be recovered by the 1st respondent company from the officers who are responsible for framing the defective charges and the officers who are responsible for the final decision of removal of the appellant from service on such defective materials. The appeal is disposed of accordingly.