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2017 DIGILAW 1966 (JHR)

Ram Nandan Nonia v. Central Coalfields Ltd.

2017-11-16

SHREE CHANDRASHEKHAR

body2017
JUDGMENT Shree Chandrashekhar, J. – Order of termination from service of the petitioner passed on 07.03.2003 by the Project Officer, Tapin Project is under challenge. 2. The petitioner-Ram Nandan Nonia was employed as Piece Rated Workman at Tapin North Project under the respondent-CCL. On an allegation that he had killed his wife, First Information Report was lodged on 23.09.1999 and he was taken into custody. On the ground of unauthorized absence from duty a charge-memo dated 09.10.1999 was issued by the employer. In an ex-parte enquiry, the inquiring officer submitted a report on 26.06.2001. A notice was issued to the petitioner on 14.09.2001 directing him to submit his reply within 7 days. Another notice was issued by the employer on 27.11.2002, reply to which from the petitioner was received in the employer''s office on 31.01.2003. The disciplinary authority finally passed the order of termination from service on 07.03.2003. In the meantime, vide judgment of conviction dated 18.04.2001 and and order of sentence dated 19.04.2001 the petitioner was convicted in Sessions Trial No. 274 of 2000. However, the petitioner has been acquitted of the criminal charges vide judgment dated 02.03.2009 passed in Criminal Appeal (DB) No. 193 of 2001. In his show-cause reply dated 23.01.2003 which was received in the employer''s office, the petitioner has disclosed that he was convicted in Sessions Trial No. 274 of 2000 for the offence punishable under section 302 I.P.C. 3. Challenging legality of the impugned order of termination dated 07.03.2003, Sri M.K. Laik, the learned Senior counsel for the petitioner submits that the order of termination from service on the basis of the enquiry report dated 26.06.2001 is illegal. Contention raised on behalf of the petitioner is that in a departmental proceeding an order of termination cannot be founded only on the charge-memo and a cryptic enquiry report. 4. Vehemently opposing the aforesaid contentions, Mr. Amit Kumar Das, the learned counsel for the respondent-CCL submits that by now it is well-settled that an employee can be terminated from service on the ground of unauthorized absence by simply issuing a show-cause notice. Another submission raised on behalf of the respondents is that long absence from duty must be construed as deemed loss of lien over the post. The learned counsel has referred to decision in Syndicate Bank v. General Secretary, Syndicate Bank Staff Association and another reported in AIR 2000 SC 2198 . 5. Another submission raised on behalf of the respondents is that long absence from duty must be construed as deemed loss of lien over the post. The learned counsel has referred to decision in Syndicate Bank v. General Secretary, Syndicate Bank Staff Association and another reported in AIR 2000 SC 2198 . 5. Whether an employee can be terminated from service by simply issuing a show-cause notice or not, is not an issue involved in this writ petition. Once a departmental enquiry was initiated against the petitioner by issuing a charge-memo dated 09.10.1999, the employer is under a duty to follow the procedure prescribed under the extant rules. In the domestic enquiry, the inquiring officer held proceeding on 12.06.2000, 03.07.2000 and 26.06.2001. On these dates the petitioner was in judicial custody is a matter of record. From his show-cause reply dated 23.01.2003 it appears that he had no knowledge of the pending departmental enquiry and the charge framed against him vide charge-memo dated 09.10.1999. In the facts which have been disclosed in the present proceeding, it appears that before the inquiring officer neither any document was produced nor a witness was examined by the department in the departmental proceeding. In the enquiry report dated 26.06.2001 after reciting the charge framed against the petitioner and the dates on which departmental proceeding took place, the inquiring officer has suddenly come to a conclusion that the charge framed against the petitioner has been found proved. The inquiring officer has held as under: " vkjksfir Jfed Jh jke uUnu uksfu;k fdlh Hkh M+sV ij mifLFkr ugha gks ldk ugh viuh xokgh izLrqr dj ldkA ;g ml M+sV ls gh vuqifLFkr gSA blij yxk;k x;k vkjksi lkfcr gksrk gSA " "The charged employee Sri Ram Nandan Nonia did not appear on any date nor adduced any evidence. He is absent from the beginning. The charges levelled against him is proved." 6. Apparently, the enquiry report is cryptic. The reason found by the inquiring officer, for holding the charge framed against the petitioner proved, is perverse. On failure of the delinquent to appear in the departmental proceeding, charge framed against him cannot be held proved on the ground of his absence in the departmental proceeding. Charge against the petitioner is of absence from duty since 23.09.1999. The reason found by the inquiring officer, for holding the charge framed against the petitioner proved, is perverse. On failure of the delinquent to appear in the departmental proceeding, charge framed against him cannot be held proved on the ground of his absence in the departmental proceeding. Charge against the petitioner is of absence from duty since 23.09.1999. This charge must be proved by the department by leading cogent evidence, even if the delinquent has failed to appear in the departmental proceeding. In "Narinder Mohan Arya v. United India Insurance Co. Ltd. & Ors.", reported in (2006) 4 SCC 713 , the Hon''ble Supreme Court has observed that the evidence adduced on behalf of the management must have nexus with the charges. The enquiry officer cannot base his findings on mere hypothesis. Mere ipse dixit on his part cannot be a substitute of evidence. In "M.V. Bijlani v. Union of India", reported in (2006) 5 SCC 88 the Hon''ble Supreme Court has held, 25. "... Although the charges in a departmental proceeding are not required to be proved like a criminal trial i.e. beyond all reasonable doubt, we cannot lose sight of the fact that the enquiry officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with." 7. Another infirmity in the enquiry report dated 26.06.2001 is that the charge-memo dated 09.10.1999 records an additional charge against the petitioner, that he has committed such mistakes previously, however, previous misconduct, if any, by the petitioner was not brought on record. In the counter-affidavit also, the respondents have failed to disclose previous misconduct by the petitioner. 8. In the above facts, the impugned order dated 07.03.2003 is found suffering from serious infirmities in law. The procedure adopted by the disciplinary authority, for arriving at a conclusion that the charge framed against the petitioner stands proved, is apparently erroneous which renders the decision making process faulty. 9. 8. In the above facts, the impugned order dated 07.03.2003 is found suffering from serious infirmities in law. The procedure adopted by the disciplinary authority, for arriving at a conclusion that the charge framed against the petitioner stands proved, is apparently erroneous which renders the decision making process faulty. 9. In the result, impugned order dated 07.03.2003 is quashed. The matter is remitted back to the department for initiating a fresh departmental enquiry against the petitioner, however, he is not entitled for reinstatement at this stage, and this should not be treated as a handicap for the department for proceeding against the petitioner. The petitioner is directed to co-operate in the departmental enquiry which must be concluded within three months of submission of reply of the petitioner to the charge-memo dated 09.10.1999. 10. The writ petition stands allowed, in the above terms.