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2015 DIGILAW 1037 (GAU)

Pradip Phukan v. United India Insurance Co. Ltd.

2015-08-14

HRISHIKESH ROY

body2015
1. Heard Mr. J. Roy, the learned counsel appearing for the petitioner. The respondent United India Insurance Company and their officers are represented by the learned senior counsel Mr. S.S. Sharma. 2. While serving as the Development Officer in the Tezpur office of the Insurance Company, the petitioner remained absent for 237 days from 16.9.2004 to 15.1.2006 and accordingly disciplinary proceeding was drawn up against him on 5.1.2006, through the Charge Memo dated 5.1.2006 (Annexure VI), where it was alleged that the petitioner has committed misconduct under rule 4(5), (7), (8), (17) and (20) of the General Insurance (Conduct, Discipline and Appeal) Rules, 1975 ('the Discipline Rules'). 3. A Statement of Imputation of Misconduct was enclosed to the Charge Memo and the same being relevant is extracted hereinbelow for ready reference : "Annexure II STATEMENT OF IMPUTATION OF MISCONDUCT IN SUPPORT OF ARTICLE CHARGE Shri Pradip Kumar Phukan, Emp. No. 23704, DO Tezpur, has been working as development Officer (Administration), in Divisional Office, Tezpur ever since his conversion from Development Officer to Development Officer (Administration) with effect from 26.8.2003. Shri Pradip Phukan has always been in the habit of remaining unauthorisedly absent despite the fact that there had been no leave to his leave account. The attendance records reveal that the employee remained unauthorisedly absent for 237 days, during the period 16.9.2004 to 5.1.2006. The period, during which the employee remained unauthorisedly absent on various occasions, are furnished in Annexure IIA. As per rule 18 of the General Insurance (Conduct, Discipline and Appeal) Rules, 1975 as amended, no employee can remain absent from duty without obtaining the permission of the Competent Authority not shall be absent himself in case of sickness or accident without submitting a Medical Certificate satisfactory to the Competent Authority. But, it is seen from the relevant Attendance Registers and Leave Records that the employee had neither obtained the prior permission of the Competent Authority nor sent any intimation on these occasions. Even after reporting for duty, he failed to submit leave applications for these periods. Such intermittent absence of the employee also caused inconvenience and dislocation to the smooth functioning of the concerned Department in the Office where he has been attached to work. It is, therefore, alleged that the commission/omission of the above acts Shri Pradip Kumar Phukan, Development Officer (Administration), Evp. Such intermittent absence of the employee also caused inconvenience and dislocation to the smooth functioning of the concerned Department in the Office where he has been attached to work. It is, therefore, alleged that the commission/omission of the above acts Shri Pradip Kumar Phukan, Development Officer (Administration), Evp. NO.23704, DO Tezpur, has committed misconduct within the meaning of rules 4(5), (7), (8), (17) and (20) of the General Insurance (Conduct, Discipline and Appeal) Rules, 1975 as amended." 4. In his response dated 23.1.2006 (Annexure VII), the delinquent questioned the counting of Saturday/Sunday to inflate the figure of absentee days. He further stated that his absence was under unavoidable circumstances and, therefore, prayer for exoneration was made by him. 5. But finding the explanation to be unsatisfactory, an Enquiry Officer was appointed by the management. The delinquent participated in the proceeding and he was provided opportunity to produce leave sanctioning order(s) if available, for the period of unauthorized absence. After the charges were explained by the Inquiry Officer, the delinquent stated that he and his mother were unwell for which he couldn't attend office and he produced some medical certificates. The document produced by the delinquent were taken into account and one Doctor's certificate certifying the illness of the delinquent for 61 days from 1.8.2005 to 30.9.2005 was found to be relevant to explain the absence for 61 days but no leave was sanctioned for that period. From the Management's side, the Divisional Manager, Mr. Pulak Kr. Kakoty appeared as a witness and he produced the Attendance Register, Leave Record Book to prove the unauthorized absence. After due application, it was found that the delinquent was absent for 227 days and not 237 as mentioned in the Charge Memo. For the absence period, the delinquent never applied for any leave nor any leave was sanctioned by the competent authority. The pattern of habitual unauthorized absence without credit in the leave account, was also noticed by the Enquiry Officer. After due evaluation of the evidence, the charge was held to have been established in the report given by the Enquiry Officer on 21.11.2006 (Annexure VIII). 6. The disciplinary authority considered the inquiry report and scrutinized the manner in which the enquiry was conducted. The response of the delinquent to the effect that absence was circumstantial was also taken into account. 6. The disciplinary authority considered the inquiry report and scrutinized the manner in which the enquiry was conducted. The response of the delinquent to the effect that absence was circumstantial was also taken into account. After due application of mind to all the relevant circumstances, the penalty of removal from service was ordered against the delinquent on 2.4.2007 (Annexure X) by the disciplinary authority. The resultant appeal was dismissed by the Appellate Authority on 16.10.2007 (Annexure XI). 7. Representing the delinquent Mr. J. Roy, the learned counsel submits that absence of the petitioner was not wilful and it was on account of various family problems and, therefore, the same should have been condoned by the employer. 8.1 On the other hand, Mr. S.S. Sharma, the learned senior counsel submits that the delinquent was a habitual absentee and no leave credit was due to him. Moreover, he was absent for about 227 days without any intimation or leave application to his employer. 8.2 The respondents contend that when an employee is an incorrigible absentee and the charge is proved on the basis of the Attendance Register and Leave Record Book in a proceeding consistent with the principle of natural justice, there should be no interference with the decision taken in the disciplinary proceeding. 9. When a disciplinary proceeding is drawn up against an employee, the standard of proof is preponderance of probabilities and some relevant material to justify the conclusion reached by the Enquiry Officer and the writ court is not expected to act as an appellate authority to judge the merit of the conclusion reached by the Enquiry Officer. Interference would be justified only when there is procedural error leading to manifest injustice. But in the present case, as earlier noted, the delinquent was afforded a fair opportunity to defend the charges and the conclusion of the Enquiry Officer is based on oral and documentary evidence. 10. From the inquiry report, it can be seen that the petitioner was afforded a fair opportunity to defend the charges but instead of defence evidence, he spoke about his family circumstances to explain the unauthorized absence. The Enquiry Officer based his conclusion on the documentary and oral evidence as produced by the management and no perversity is seen in the conclusion reached against the delinquent. 11. The Enquiry Officer based his conclusion on the documentary and oral evidence as produced by the management and no perversity is seen in the conclusion reached against the delinquent. 11. Moreover, when the delinquent is found to be a habitual absente and the charge of unauthorized absence of 227 days is proved, the loss of confidence of the employer is natural and, therefore, the decision taken by the disciplinary authority to remove the delinquent from service, can't be said to be an unreasonable or harsh decision. 12. In the above circumstances, the instant case is found devoid of merit and accordingly the same is dismissed. No cost.