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2015 DIGILAW 1388 (GAU)

Sekhar Rudra v. Union of India

2015-11-05

HRISHIKESH ROY

body2015
JUDGMENT : Heard Mr. A. Dasgupta, the learned Senior Counsel appearing for the petitioner. The management of the Oil India Limited (respondent No.3) is represented by the learned senior Advocate Mr. S.N. Sarma. 2. The petitioner was a Grade-VIII Assistant in the Pipeline Division of the Oil India Ltd. and the present matter relates to the disciplinary proceeding in pursuant to which, the delinquent was dismissed from service through the order dated 21.7.2003 (Annexure-3). The resultant reference under Section 10 of the Industrial Disputes Act, 1947 (hereinafter referred to as ‘the ID Act’) was answered against the delinquent through the award dated 18.3.2008 (Annexure-7) rendered by the Central Government Industrial Tribunal and all these decisions are challenged by the aggrieved employee. 3. Earlier the Grade-VIII Assistant was promoted to the Grade-IX and was transferred but in order to continue at Guwahati the petitioner had foregone his promotion. That is how he continued to serve at Guwahati without being moved to any of the other transferable Pipeline Division of the Oil India Ltd. But eventually the petitioner was transferred on 17.7.1998 to Dumer in Bihar and the said order was opposed by the delinquent on the ground that a settlement of 7.8.1990 (Exhibit-B) was in operation, for retention of those employees, who had foregone their promotions. But the management terminated the settlement on 16.5.1998 (Exhibit-D) through due notice, under Sub-Section (2) of Section 19 of the ID Act and that is how the management took the stand that the petitioner is not protected from transfer, under the terminated settlement of 7.8.1990 (Exhibit-B). Thus the delinquent was released from Guwahati on 23.7.1998. 4. The aggrieved employee then raised Industrial Dispute but when the conciliation attempt failed, he expected reference of the dispute to the Industrial Forum but the same was not allowed by the Government. At that stage, the employee filed the Civil Rule No.4406/98 to challenge the transfer order dated 17.7.1998. However this Court noted that the settlement of 7.8.1990 (Exhibit-B) was legally terminated by the management by issuing due notice under Section 19(2) of the ID Act and accordingly the Court declined to interfere with the transfer order. Thus the Writ Petition was dismissed on 11.9.1998 but with observation for consideration of the representation of the petitioner for a nearer place of posting. 5. Thus the Writ Petition was dismissed on 11.9.1998 but with observation for consideration of the representation of the petitioner for a nearer place of posting. 5. But since no vacancy at nearby stations was available, the petitioner’s representation for preferred posting was not considered and thus the delinquent was expected to comply with the transfer order dated 17.7.1998. However the employee failed to move to Dumer and thus a charge sheet was issued against him on 11.5.1999 with two allegations, (i) he did not comply with the transfer order and (ii) he unauthorisedly remained absent from duty. 6. The charge memo was then challenged by the delinquent through a 2nd Writ Petition i.e. W.P.(C) No.2819/99 but this Court did not stay the transfer order but stayed the disciplinary proceeding. Eventually on 18.7.2002, the case of the delinquent came to be dismissed on merit. After dismissal of the Writ Petition, the departmental proceeding was then revived. 7. In the enquiry proceeding, the petitioner was assisted by a co-employee but neither side adduced any witness and the charges were proved on the basis of the documentary evidence. The Inquiry Officer, inter alia, took note of the transfer order, the release order and also the judgments rendered by the High Court and observed that transfer of the petitioner to the Pipeline Division at Dumer is not a case of victimization. The defiance of the delinquent to comply with the transfer order and his absence from duty for long 4 years was found to be an act of gross indiscipline and accordingly the charges were held to have been established through the enquiry report given on 21.4.2003 (Annexure-1). 8. The delinquent gave a representation against the finding of the Inquiry Officer but after due consideration, the disciplinary authority accepted the enquiry report and decided to dismiss the delinquent from service, by consider the gravity of misconduct, through the impugned order dated 21.7.2003 (Annexure-3). 9. When the delinquent raised an industrial dispute against the dismissal order, the Central Government referred the matter for adjudication under Section 10 of the ID Act on the following issue:- “Whether the action of the management of Oil India Ltd., Pipeline H.Q., Guwahati in dismissing the service of Sekhar Rudra w.e.f. 22/7/2003 is justified? If not, what relief Sri Rudra is entitled to and from whom?” 10. If not, what relief Sri Rudra is entitled to and from whom?” 10. The Industrial Tribunal noted that the delinquent was in a transferrable job but he defied the transfer order for about 4 years and also remained absent from duty and therefore he committed a major misconduct as per the Standing Order of the Company. The Presiding Officer noted that the delinquent was afforded full opportunity during the domestic inquiry and that findings were given on the basis of evidence on record. The proportionality of the punishment was also considered by the learned Tribunal and after due consideration it was held that the delinquent was rightly dismissed from service. Thus the reference was answered against the workman through the impugned award dated 18.3.2008 (Annexure-7). 11. The primary foundation for the petitioner’s challenge to the impugned award is based on the settlement agreement dated 7.8.1990 (Exhibit-B), which envisaged retention of the employees at Guwahati, who had foregone promotion at the relevant time. Mr. A. Dasgupta, the learned counsel for the petitioner submits that the management should have considered the clerical staff’s representation for preferred posting, even if the agreed settlement was terminated under Section 19(2) of the ID Act. 12. However on the other hand, Mr. S.N. Sarma, the learned senior counsel submits that the Exhibit-B settlement of 7.8.1990 was not binding because the settlement was terminated through due process on 16.5.1998 (Exhibit-D) and the counsel therefore projects that when the transfer was ordered on 17.7.1998, the petitioner was disentitled to claim protection from transfer. Since this Court refused to interfere with the transfer order in both Writ Proceedings, Mr. Sarma argues that there can be no justification now for another view to be taken against the transfer order. 13. The finding against the petitioner was based on documentary evidence and they clearly show that the delinquent did not comply with the transfer order for long four years and had agreed to move to the transferred station, only after dismissal of his 2nd Writ Petition on 18.7.2002 by this Court. The report furnished by the Inquiry Officer is perused by this Court and I find there-from that the delinquent was afforded a fair opportunity including the assistance of a friend, to defend the charges. Therefore no infirmity is noticed with the finding given by the Inquiry Officer against the delinquent. 14. The report furnished by the Inquiry Officer is perused by this Court and I find there-from that the delinquent was afforded a fair opportunity including the assistance of a friend, to defend the charges. Therefore no infirmity is noticed with the finding given by the Inquiry Officer against the delinquent. 14. Since the plea of disproportionate punishment is also raised by the petitioner, this aspect is also examined. But it is seen that the petitioner steadfastly refused to proceed to the transferred station by defying the transfer order for about 4 years. As the transfer order was not stayed by any Court, the employee was duty bound to comply with the transfer order but until the dismissal of the W.P. (C) No.2819/99 on 18.7.2002, the delinquent displayed a belligerent attitude towards the transfer order dated 17.7.1998. Thus it is a clear case of defiance of legitimate order by a transferable employee and considering all aspects of the matter, I feel that the nature of the misconduct of remaining absent from duty and defiance of legitimate transfer order, would not warrant any lesser punishment for such delinquent. 15. In view of above, the Writ Petition is found devoid of merit and the same is dismissed accordingly by leaving the parties to bear their respective cost.