Research › Search › Judgment

Calcutta High Court · body

2009 DIGILAW 835 (CAL)

Satya Narayan Shaw v. Coal India Ltd.

2009-11-25

Aniruddha Bose

body2009
JUDGMENT 1. THE petitioner before me was an employee of Eastern Coalfields Ltd., who worked as an underground loader. He was dismissed from his service on the ground of unauthorised absentism. 2. CLAUSE 26.29 of the Certified Standing Order of Eastern Coalfields Ltd. CECL) treats absence from duty beyond ten days without leave as misconduct, which can result in dismissal from service of an employee. CLAUSE 26 lays down the list of irregularities which would constitute misconduct, and includes, as per CLAUSE 26.29 "Absence from duty beyond 10 days without sanctioned leave or sufficient cause or overstaying beyond sanctioned leave without valid reasons." Admittedly, the writ petitioner had absented from duty for a period of about 24 days between 22nd August and 17th September, 2002. It is also the admitted position that he did not take prior leave. He also did not intimate the reason for his absence during the period he remained absent prior to 12th September, 2002, on which date he appears to have submitted a medical certificate issued by one Dr. H. N. Singh, a private medical practitioner. On the day of joining itself, the petitioner was issued a chargesheet asking him to explain in writing within three days as to why disciplinary action should not be taken against him. This chargesheet has been annexed at page 42 of the writ petition as "Annexure-P2". The writ petitioner replied to the chargesheet on the very next date, i.e. on 18th September, 2002. His reply was short. He indicated in his reply that he could not attend his duty since 22nd August, 2002 due to "acute fever" and he attended doctor of Kajoragram village. On the same date, i.e. 18th September, 2002, by a communication, a copy of which has been made Annexure-"P-4", to the writ petition, the petitioner was informed that an enquiry had been fixed on 20th September, 2002 at 11 a.m. in connection with the chargesheet and he was requested to appear in the enquiry. 3. THE petitioner participated in the enquiry and was examined by an Enquiry Officer. His reply to the questions put by the Enquiry Officer for not applying for leave and also for non-disclosure of information being sick, and for not reporting at the colliery dispensary was that he could not do so. 3. THE petitioner participated in the enquiry and was examined by an Enquiry Officer. His reply to the questions put by the Enquiry Officer for not applying for leave and also for non-disclosure of information being sick, and for not reporting at the colliery dispensary was that he could not do so. He was given opportunity of producing his own witness and also for cross- examining the management representative, but he declined on both counts. THE Enquiry Officer found him guilty of "unauthorised absentism". Thereafter, the General Manager of the colliery where he was employed passed an order of dismissal accepting the finding of the Enquiry Officer. This order of dismissal has been challenged in this writ petition on two grounds. 4. FIRST, it is submitted that the manner in which the enquiry was conducted was fraught with irregularities. As regards the imposition of punishment, it is submitted that the punishment imposed was disproportionate vis-a-vis the offence alleged. The irregularities alleged in holding of the enquiry are these: (a) Enquiry was decided to be held before considering the petitioner's reply to the chargesheet and, thus, there was absence of proper application of mind before the enquiry was directed to be held. (b) No second show cause notice was issued giving him an opportunity to defend himself against the punishment sought to be imposed, after the disciplinary authority accepted the finding of the Enquiry Officer and proposed to impose punishment against him. As regards disproportionate nature of the punishment imposed, the main submission of the petitioner is that for mere absence of about 24 days, the punishment of dismissal is harsh. 5. ON behalf of Eastern Coalfields Ltd. it has been submitted that there has been no irregularity in the conduct of the enquiry. It has further been submitted that the petitioner was a habitual absentee for which the work of colliery had been suffering, and in the facts of the given case, the punishment imposed was proper. 6. A case was sought to be made out on behalf of the respondents that the petitioner ought to have reported to the colliery dispensary or a Government doctor, but the petitioner did not attend any of the stipulated medical practitioners but directly went to a private practitioner. Further he did not submit any bill for medical treatment. On this point, Clause 12.4 and 12.5 of the Certified Standing Order, were relied on. Further he did not submit any bill for medical treatment. On this point, Clause 12.4 and 12.5 of the Certified Standing Order, were relied on. These two Clauses provide: 12.4 "Sick Leave: Sick leave shall be granted to a workman to the extent of 15 days on full pay in a calender year with the benefit of accumulation upto to 60 days as per NCWA." 12.5 "Applications for leave or extension of leave on medical grounds shall be 'supported by a certificate from a Medical Officer of the Company or where there is no such officer, a Govt. Medical Officer or failing him, from a registered medical practitioner, stating the period for which leave is recommended. On receipt of such application, the sanctioning authority shall immediately inform the workmen in writing whether the leave or extension of leave has been granted and if so, for what period. An employee who has been sanctioned leave or an extension of leave on medical ground for a period exceeding fourteen days at a time shall not be allowed to resume duty unless he produces a certificate of fitness." 7. I have considered the rival submissions. On the aspect of legality of the procedure adopted for conducting enquiry, I find that the Enquiry Officer was appointed under a memorandum dated 20th September, 2002, a copy of which has been made in Annexure "P-6" to the writ petition. But he had issued the notice of enquiry on 18th September, itself. There also does not appear to be a proper application of mind on the question as to whether enquiry shall be directed or not after considering the reply of the petitioner. On this issue, I do not find any material from which it can be inferred that the authority considered the reply of the petitioner, however, cryptic such reply may be, before directing enquiry. The explanation for appointment of Enquiry Officer subsequent to his assumption of charge of Enquiry Officer is that the agent of the colliery was a busy person and the letter was typed on the date the Enquiry Officer issued the notice of enquiry, but was issued on a later date. Such irregularities, in isolation, could have been treated as deviation of minor nature, not having vitiating impact on the enquiry process itself. Such irregularities, in isolation, could have been treated as deviation of minor nature, not having vitiating impact on the enquiry process itself. But such serial irregularities in my opinion lead to the inference that the employer, in this case Eastern Coalfields Ltd., through its officers proceeded in the matter with a closed mind and prejudged the issue of subjecting the petitioner to the disciplinary proceeding. The decision to initiate disciplinary proceeding was taken in a hasty manner, for which there is no satisfactory explanation. 8. SUCH irregularities in the process of conducting of the enquiry, in my opinion, vitiates the proceedings itself. On behalf of the respondents, it was also argued that the petitioner being a habitual absentee, such a harsh step against him was necessary. But I do not find such charge reflected either in the chargesheet, or report of the Enquiry Officer or even in the order of the dismissal. While testing an order of dismissal, the Court cannot go beyond the records of the proceeding which culminated in passing of the order of dismissal and the employer cannot be permitted to fill in lacuna in the enquiry proceeding or improve upon the order of dismissal by taking additional grounds in affidavit in a proceeding where such order is challenged. From the materials produced before me, I am satisfied that the reason by which the order of dismissal is, sought to be justified at this stage, i.e. the petitioner was a habitual absentee was not weighed by the disciplinary authority while imposing punishment. 9. IT is true that the petitioner breached the provision of the certified standing order by not approaching the doctor attached to the Eastern Coalfields Ltd. or a Government appointed medical practitioner. But again from the order of dismissal or the report of the Enquiry Officer, there is no reflection of this reason except a statement in the finding of the Enquiry Officer that the petitioner never reported at Porascole Colliery for his treatment. The mere fact that a workman had approached a gynaecologist for his treatment of fever cannot by itself constitute any irrational behaviour on his part. A gynaecologist is also a medical practitioner and it can be safely presumed that he can also treat fever. IT is not the case of the respondents that the medical practitioner whom the petitioner consulted was not a registered medical practitioner. A gynaecologist is also a medical practitioner and it can be safely presumed that he can also treat fever. IT is not the case of the respondents that the medical practitioner whom the petitioner consulted was not a registered medical practitioner. I am of the view that since illness of the petitioner has not been really controverted, nor a contrary finding arrived at in course of the enquiry proceedings, the mere fact that he went to a private medical practitioner cannot be the ground for meting out the ultimate punishment in service jurisprudence, which is dismissal from service. The very clause which makes absence from duty beyond 10 days an act of misconduct stipulates that such absence ought to be without valid reason. This aspect was never addressed to by the disciplinary authority or the Enquiry Officer. There is no finding in the report of the Enquiry Officer that his absence was without valid reason. Neither there is in any observation on the part of the disciplinary authority on this count. 10. IN these circumstances, I quash the proceeding and the order of dismissal and direct the respondents to reinstate the petitioner in his service forthwith. However, since the petitioner has not served the company for eight years, I do not direct payment of backwages for the entire period. IN my opinion, consolidated payment of rupees one lac would be sufficient to mitigate the petitioner's suffering but he shall receive all the notional benefits and the entire period shall be deemed to be continued service for the purpose of computing gratuity and other retiral benefits of the petitioner. The writ petition is allowed in the above terms. 11. URGENT photostat certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.