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2013 DIGILAW 769 (GUJ)

D. K. Vankar v. Chairman

2013-12-23

RAVI R.TRIPATHI

body2013
Judgment Ravi R. Tripathi, J.—The petitioner who is dissatisfied by the order or removal by the LIC is before this Court praying that:— “16. (a) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction and be pleased to quash and set aside the order passed by the respondents dismissing the petitioner from his services and further be pleased to direct the respondents, their agents and servants to reinstate the petitioner on his original post of Development Officer.” 2. Learned Advocate Mr. Majmudar for the petitioner vehemently argued the matter and strenuously contended before this Court that the petitioner was served with charge sheet dated 24.08.2004 on 27.04.2004, to which the petitioner filed a reply dated 04.09.2004 and thereafter inquiry was conducted wherein the case of the LIC was that the petitioner did not participate except remaining present on one single occasion. The case of the LIC is that Inquiry Officer’s report was sent to the petitioner, but then the same returned with endorsement ‘change of address’. The LIC then served the petitioner with show cause notice dated 30.04.2005, to which the petitioner think it fit not to file any reply and then the petitioner was served with order dated 04.07.2005 of removal from services. The petitioner filed appeal against the order of removal, which came to be dismissed by the Zonal Manager, i.e. the Appellate Authority by order dated 19.10.2005. The petitioner being aggrieved by dismissal of appeal filed Mercy Petition before the Chairman, LIC by memorandum dated 13.01.2006, which too came to be dismissed by the Chairman, LIC by order dated 26.06.2006. 3. The charge against the petitioner is that he remained unauthorisadly absent and the details of this charge are found in the charge sheet which is produced at Annexure-A to this petition. Para-2 of the charge sheet reads as under:— “2. THAT, you remained absent from duty unauthorisedly for 124 days for the period from 05.02.2004 to 01.03.2004 as per details given below:— 1. 05.02.2003 to 10.02.2003 6 days 2. 26.02.2003 to 28.02.2003 3 days 3. 01.03.2003 to 25.04.2003 56 days 4. 18.08.2003 to 19.08.2003 2 days 5. 05.11.2003 to 08.11.2003 4 days 6. 17.11.2003 1 day 7. 24.11.2003 1 day 8. 29.11.2003 1 day 9. 03.12.2003 to 17.12.2003 15 days 10. 20.12.2003 to 31.12.2003 12 days 11. 05.02.2003 to 10.02.2003 6 days 2. 26.02.2003 to 28.02.2003 3 days 3. 01.03.2003 to 25.04.2003 56 days 4. 18.08.2003 to 19.08.2003 2 days 5. 05.11.2003 to 08.11.2003 4 days 6. 17.11.2003 1 day 7. 24.11.2003 1 day 8. 29.11.2003 1 day 9. 03.12.2003 to 17.12.2003 15 days 10. 20.12.2003 to 31.12.2003 12 days 11. 05.02.2004 to 06.02.2004 2 days 12. 09.02.2004 to 16.02.2004 16 days 13. 23.02.2004 to 24.02.2004 2 days 14. 28.02.2004 to 29.02.2004 2 days 15. 01.03.2004 1 day TOTAL: 15 OCCASIONS 124 days” 4. Learned Advocates for the parties did submit that there is a typographical error in mentioning of the date. The date which is mentioned to be 05.02.2004 is to be read as 05.02.2003 and so far as Item No. 12 is concerned, there it is mentioned “09.02.2004 to 16.02.2004 16 days”. There also, there is an error and it is required to be read accordingly. 5. Learned Advocate for the petitioner submitted that the petitioner filed a reply to the show cause notice which is at Annexure-B, Page No. 16. Learned Advocate for the petitioner invited attention of the Court to the said reply in detail. It is necessary to note that what is mentioned in this reply is that, “I have five daughters, eldest one is 25 years, who is yet to be married; I have aged parents aged 70 and 68 years and due to old age sufferings of the parents, who are also remaining mentally ill, the petitioner comes under tension and therefore, he also fell ill as he was suffering from jaundice and therefore, he has become totally weak”. 5.1 What follows is important. The petitioner, with a hope that any story he may put forward is bound to be accepted by the persons before whom it is put, replied that, “On 20.08.2004, he had written a postcard and the Post Office is about 2 miles away from his village and there he had posted that letter, but for some reason or the other, that letter did not reach to the Branch Office of the petitioner”. As if this is not enough, the petitioner makes another story and says that, “He had sent a letter with his brother, but then on account of that letter being sent by the petitioner, his brother was immediately transferred to Baroda and therefore, that letter could also not reach to the Branch Office of the petitioner”. 6. This Court is at loss as to how come carrying of a letter from the petitioner by his brother to the Branch Office could be the reason for transferring his brother to Baroda. Assuming for the sake of argument that his brother was transferred, then also why did that letter not reach to the Branch Office of the petitioner. Unless that letter was tendered to the Branch Office of the petitioner, how could the Branch Office know of petitioner’s letter being carried by his brother and therefore, he should be transferred. From these facts, it is clear that the petitioner is not having any explanation for his remaining absent from 05.02.2003 to 01.03.2004, totalling to 124 days and even in second spell of 03.03.2004 to 28.05.2004. 6.1 This Court is of the opinion that discipline is something which is a must for the success of any organization and therefore, if the LIC has insisted for its personnel to be disciplined, there is nothing wrong in that. One can understand if there were acceptable and convincing reasons for being absent, LIC could have been restrained from taking a strict view in the matter and could have been asked for taking a lenient view in the matter, but in the present case, when there is no explanation whatsoever for remaining unauthorisedly absent on the part of the petitioner, the same cannot be viewed lightly and therefore, this Court is of the opinion that LIC was justified in imposing punishment imposed in this matter. 7. Learned Advocate for the petitioner very emphatically argued that this is a case wherein the Inquiry Officer’s report was not served to the delinquent petitioner herein. Learned Advocate for the petitioner invited attention of the Court to the rejoinder, wherein a contention is taken that if LIC could serve removal order at his village address why could it not serve Inquiry Officer’s report at the village address. 8. Learned Advocate Mr. Learned Advocate for the petitioner invited attention of the Court to the rejoinder, wherein a contention is taken that if LIC could serve removal order at his village address why could it not serve Inquiry Officer’s report at the village address. 8. Learned Advocate Mr. A.K. Clerk appearing for the LIC invited attention of the Court to the show cause notice, which is produced at Annexure-C, wherein it is specifically mentioned that, ‘the enquiry report was sent to CSE (Charge Sheeted Employee) by Godhra B.O. at his residential address and the same was returned undelivered on 04.04.05 with the remark “address changed”’. 9. At this juncture, the Court inquired from the learned Advocate for the petitioner whether the petitioner took trouble to inform about his change of address, which according to the petitioner was required to be undertaken because he was not finding comfortable with his present liabilities to stay in the city of Godhra and therefore, he had shifted to a village. Learned Advocate for the petitioner submitted that later on, LIC only served further communications at his village address, meaning thereby this Court should held that though the petitioner did not inform the LIC about his new address, the LIC was under an obligation to find out his new address and serve him there. 10. The submission is totally devoid of any merits and therefore, it is rejected. Unless it is the case of the petitioner that he had informed about his new address to LIC and even then the LIC did not serve the Inquiry Officer’s report then LIC is definitely guilty of non-supply of Inquiry Officer’s report, but in the present facts and circumstances, LIC cannot be held guilty of having not supplied the Inquiry Officer’s report. 11. Learned Advocate for LIC invited attention of the Court to communication dated 17.09.2005, which is produced at Annexure-H, wherein it is specifically mentioned that, “in response to the letter of delinquent dated 05.09.2005, LIC had supplied to him copies of three documents dated 09.04.2005, 11.05.2005 and 29.05.2005, mentioned in Annexure-A to the Charge sheet dated 24.08.2004”. Besides that, Inquiry Officer’s report was also supplied to the delinquent. If that is so, what prevented the petitioner from replying to the show cause notice, what prevented the delinquent for asking Inquiry Officer’s report, when he was served with the show cause notice dated 30.04.2005. 12. Besides that, Inquiry Officer’s report was also supplied to the delinquent. If that is so, what prevented the petitioner from replying to the show cause notice, what prevented the delinquent for asking Inquiry Officer’s report, when he was served with the show cause notice dated 30.04.2005. 12. Learned Advocate for the LIC relied upon a decision of the Hon’ble the Apex Court in the matter of L&T Komatsu Ltd. vs. N. Udaykumar, reported in (2008) 1 SCC 224 , wherein the Hon’ble the Apex Court was pleased to held as under:— “Labour Law – Misconduct – Absenteeism – Nature of, and appropriate punishment therefor – Habitual absenteeism, held, amounts to gross violation of discipline – Where the workman, who had been in the past found guilty of unauthorised absenteeism several times (15 times in this case), as in a properly conducted departmental enquiry once again found guilty of unauthorised absence for a long period (105 days in this case), held, his consequential dismissal from service ought not to have been treated to be harsh and interfered with by Labour Court/High Court – Case law on scope of exercise of power under Section 11-A, Industrial Disputes Act, 1947, discussed – Industrial Disputes Act, 1947 – Section 11 and Section 10(4-A) (as in force in Karnataka).” 13. In the present case, the petitioner seems to be in habit of unauthorised absenteeism. His first spell of absenteeism is of 124 days, spread over from 05.02.2003 to 01.03.2004, his second spell of absenteeism is from 13.03.2004 to 28.05.2004 and last but not the least, aututhorised absenteeism is for 238 days even after issuance of charge sheet. 14. Learned Advocate for the petitioner vehemently submitted that the order or removal stands vitiated on account of taking into consideration the period of absenteeism of 238 days even after issuance of charge sheet. 15. This Court is conscious of the fact that mentioning of 238 days after issuance of charge sheet is only mentioned as a factor to justify imposition of penalty of removal. It is not the basis on which removal order is passed. It is a factor which is set out in the appellate order so as to show the conduct of the petitioner. Even remotely it cannot be said that it is the basis for passing the order of removal. It is not the basis on which removal order is passed. It is a factor which is set out in the appellate order so as to show the conduct of the petitioner. Even remotely it cannot be said that it is the basis for passing the order of removal. This is clear from the language used in this regard observing to the effect that, “I also observe that even after issuance of charge sheet, Mr. Vankar remained absent unauthorisedly for 238 days .....”. 16. In view of the aforesaid facts, this Court finds no substance in this petition. The same is dismissed. Rule is discharged. Interim relief, if any, stands vacated. No order as to costs.