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2016 DIGILAW 970 (JHR)

Pandawa Devi v. Central Coalfields Ltd.

2016-06-24

PRAMATH PATNAIK

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JUDGMENT : Pramath Patnaik, J. 1. In the accompanied writ application, the petitioner calls in question the legality and propriety of the impugned order dated 18/19.10.2004 (Annexure-10) passed by the respondent no.3 in departmental proceeding CGM (R)/Pers-92/98/2727 dated 9/12.01.1998 pertaining to infliction of punishment of termination from the service of Central Coalfields Limited with immediate effect and for quashing of the order dated 05.05.2005 passed by the appellate authority vide Annexure-14 to the writ application. 2. The facts, as disclosed in the writ application, in a nutshell is that, the petitioner was initially appointed as a General Mazdoor, Category-I in the CCL, Rajrappa Area in the year 1991. After joining the said post, she continued to discharge her duties to the utmost satisfaction of the superior authorities. On 12.08.1997 to the utter misfortune, when the she was badly burnt while cooking at home, she sustained grievous burn injury in her both thigh and legs and was admitted to S.J. Hospital, Rajrappa for her treatment. Thereafter, the petitioner was proceeded departmentally vide Annexure-3 to the writ application and the petitioner was asked to submit reply to the said charges. Thereafter, the petitioner submitted reply to the said charge vide Annexure-4 to the writ application. The matter was enquired into and the inquiry officer submitted inquiry report. The petitioner filed application for supply of the inquiry report, but despite application, no inquiry report was supplied to the petitioner. On 14.08.2004 second show cause notice was issued to the petitioner and in pursuance to the said second show cause notice, petitioner submitted reply to the second show cause. Thereafter, the impugned order of termination from service dated 19.10.2004 has been passed by the General Manager, CCL., Rajrappa Area (respondent no.3) vide Annexure-10 to the writ application. Being aggrieved by the order of termination, the petitioner filed appeal before the appellate authority which stood affirmed by the appellate authority vide order dated 05.05.2005. 3. Heard Mr. C.S. Pandey, learned counsel for the petitioner and Ms. Pooja Kumari, learned counsel appearing for the respondents. 4. Mr. C.S. Pandey, learned counsel appearing for the petitioner during course of argument vehemently submitted that there has been serious infirmity in the entire proceeding i.e. from the date of issuance of charge till its culmination. The copy of the inquiry report to the alleged charges has not been supplied to the petitioner, thereby vitiating the entire proceeding. 4. Mr. C.S. Pandey, learned counsel appearing for the petitioner during course of argument vehemently submitted that there has been serious infirmity in the entire proceeding i.e. from the date of issuance of charge till its culmination. The copy of the inquiry report to the alleged charges has not been supplied to the petitioner, thereby vitiating the entire proceeding. Learned counsel for the petitioner further submits that the alleged absence from 17.09.1997 to 09.01.1998 cannot be construed to be wilful absence, which is quite evident from the inquiry report. The inquiry officer has given a clear cut finding in para 6 that due to heavy burn injury, she was unable to stand and move. In para-7 of the inquiry report, it has been further stated that she was absenting from her duty because she was unable to stand and move. Learned counsel for the petitioner has brought my attention to para 8 of the inquiry report wherein, it has been submitted that Smt. Pandwa Devi may be sent to the Area Medical Officer, Rajrappa Area for assessing her physical damage caused by burn and her suitability towards working ability. In spite of such finding given by the inquiry officer, the petitioner had not been sent to the concerned Area Medical Officer, Rajrappa Area, which aggravated her ailment. 5. Learned counsel for the petitioner further submitted that in the instant case, General Manager is the disciplinary authority and the appeal memo has also been disposed of by G.M. (P & IR) and since, the disciplinary authority and the appellate authority are the same then the petitioner has lost the right of appeal and her available right has been taken away, which is one of infirmities in the impugned orders. Learned counsel for the petitioner further submits that considering the contentions of the petitioner, the General Manager has recommended for punishment of stoppage of two increments but the disciplinary authority has brushed aside the said recommendation and inflicted major punishment, which is grossly disproportionate to the alleged charges. Therefore, on that score the impugned order of punishment of termination as well as the order of the appellate authority cannot be held to be legally sustainable. 6. Ms. Pooja Kumari, learned counsel for the respondents-CCL has reiterated the submissions made in the counter affidavit. Therefore, on that score the impugned order of punishment of termination as well as the order of the appellate authority cannot be held to be legally sustainable. 6. Ms. Pooja Kumari, learned counsel for the respondents-CCL has reiterated the submissions made in the counter affidavit. During course of argument, she has strenuously urged before this Court that the alleged absence of the petitioner amounts to misconduct, for which just punishment has been inflicted on the petitioner and this Court under Article 226 of the Constitution of India cannot reappraise the evidence. During course of inquiry, scope of 226 is very limited to the extent that the Hon’ble High Court under Article 226 cannot re-appreciate the finding recorded during inquiry. The entire proceeding is based on evidence and there is procedural irregularity and, hence this Court cannot interfere in the order of punishment. 7. Learned counsel for the respondents has also urged that the petitioner did not take proper steps to get treatment in the private hospital, so the blame cannot be apportioned on the part of the respondents, so it was due to her willful negligence, the ailment got aggravated and, therefore, the absence was quite wilful. In order to buttress her submission, learned counsel for the respondents has referred to the decisions of the Hon’ble Apex Court reported in: (i) (2005) 5 SCC 65 (ii) AIR 1970 (1) 108 (para 3, 4 and 6) (iii) AIR 1996 (1) 1319 (para-9) 8. After hearing learned counsels for the respective parties at length and on perusal of the records, I am of the considered view that the impugned order of punishment passed vide Annexure-10 dated 19.10.2004 and the order of the appellate authority vide Annexure-14 dated 05.05.2005 are not legally sustainable due to the following facts and reasons: (I) That in the instant case, on perusal of the inquiry report, it is quite evident that due to burn injury the petitioner was not physically fit to resume her duties, so by no stretch of imagination, the absence of the petitioner from 17.09.1997 to 09.01.1998 could be construed to be willful. In this respect, The Hon’ble Apex Court in the case of Krushnakant B. Parmar vs. Union of India and another reported in (2012) 3 SCC 178 in paragraph 17 and 18 has been pleased to hold: “17. In this respect, The Hon’ble Apex Court in the case of Krushnakant B. Parmar vs. Union of India and another reported in (2012) 3 SCC 178 in paragraph 17 and 18 has been pleased to hold: “17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to be wilful. Absence from duty without any application or prior permission may amount to unauthorized absence, but it does not always mean wilful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalization, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behavior unbecoming of a government servant. 18. In a departmental proceeding, if allegation of unauthorized absence from duty is made, the disciplinary authority is required to prove that the absence is wilful, in the absence of such finding, the absence will not amount to misconduct.” (II) Admittedly, in the instant case, the copy of the inquiry report has not been supplied to the petitioner. The non-supply of the inquiry report has caused serious prejudice to the petitioner to show reason of absence, therefore, there has been violation of principles of natural justice. The supply of the copy of the inquiry report with the second show cause cannot cure the defect at the initial stage. Although, the term prejudice has not been pleaded in the writ application but certainly it is one of the infirmity, which has vitiated the proceeding. (III) As is evident from Anneuxre-14, the order of appellate authority, it is quite apparent that the inquiry officer after conduction of the inquiry recommended for punishment of stoppage of two increments but no reasons has been assigned by the disciplinary authority on the quantum of punishment i.e. the impugned order of termination. Considering the gravity of charges and the finding of the inquiry officer, punishment inflicted upon the petitioner, appears to be shockingly disproportionate and not commensurate with the alleged charges. Moreover, reason for unauthorized absence is due to the burn injuries and it is not willful absence. (IV) It appears that the impugned order of punishment was passed in the year 2004 and the order of the appellate authority has been passed in the year 2005. Moreover, reason for unauthorized absence is due to the burn injuries and it is not willful absence. (IV) It appears that the impugned order of punishment was passed in the year 2004 and the order of the appellate authority has been passed in the year 2005. In the meantime, 11 years have been elapsed. No willful purpose will be served to direct the respondents to reinstate the petitioner in service. But, looking to the infirmities in the disciplinary proceeding, the impugned order of punishment vide Annexures-10 and 14 dated 19.10.2004 and 05.05.2005 respectively are quashed and the matter is remitted to the respondent nos.2 and 3 to pass appropriate order on the point of quantum of punishment, looking to the alleged charges and the inquiry report, strictly in accordance with law, as expeditiously as possible, preferably within a period of 16 weeks from the date of receipt/communication of the copy of the order. 9. With the aforesaid observations and directions, this writ petition stands disposed of.