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2018 DIGILAW 257 (CAL)

Goutam Kumar Das v. State of W. B.

2018-02-14

RAJASEKHAR MANTHA

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JUDGMENT : Rajasekhar Mantha, J. 1. Affidavit in opposition and reply filed today are kept on record. The petitioner is aggrieved by an award of the Industrial Tribunal passed on 28th November, 2008 upholding the order of dismissal from service. 2. The facts of the case are inter alia that for being in unauthorized absence in the year 1997 for about 170 days, a chargesheet dated 18th June, 1997 was issued (first chargesheet) to the writ petitioner. After due enquiry, a punishment of four days, suspension without pay was imposed upon him on 23rd June, 1997. 3. The writ petitioner once again absented himself for 83 days in the year 1998. Another chargesheet dated 3rd September, 1998 came to be issued to him. (second chargesheet). However, in the said second chargesheet dated 3rd September, 1998, the earlier unauthorized absence in the year 1997 was also mentioned. 4. After due enquiry, the writ petitioner was awarded a punishment of dismissal from service on 14th December, 1999. 5. An industrial dispute questioning the order of dismissal dated 14/12/99 was referred for adjudication to the second Industrial Tribunal West Bengal, which resulted in the award dated 28th November, 2008 passed in case No.VIII-78 of 2002. The writ petitioner before me assails the said award of the Tribunal inter alia on the following grounds. 6. Firstly that there has been double jeopardy in conduct of the enquiry under the second chargesheet dated 3rd September, 1998 by reason of mention of the unauthorized absence of 170 days in the year 1997. According to the petitioner, the first chargesheet was already issued, enquiry held and punishment was imposed for the said period of 170 days of unauthorized absence in the year 1997. The said 170 days of unauthorized absence in 1997 could not once again be subject matter of enquiry in the second chargesheet. 7. Secondly, that the unauthorized absence in question was not for 10 consecutive days in terms of standing order in question and; 8. Thirdly, that the punishment of dismissal from service is highly disproportionate to the charges proved against him. 9. Per contra, the learned counsel appearing on behalf of the Management/Employer contended that since the year 1992, the writ petitioner has not worked for more than 50% of the scheduled working days in a year. Thirdly, that the punishment of dismissal from service is highly disproportionate to the charges proved against him. 9. Per contra, the learned counsel appearing on behalf of the Management/Employer contended that since the year 1992, the writ petitioner has not worked for more than 50% of the scheduled working days in a year. He submits that the standing order in question deals with unauthorized absence in two separate categories i.e. 10 days of continuous absence and or a habitual absenteeism. The said two categories, according to the employer, are separate and distinct misconducts. He further contends that given the conduct of the writ petitioner in repeated unauthorized absence for a long period, the business of the employer has suffered and hence, the continuation of the writ petitioner in the service of the employer was no longer desirable. 10. On the question of double jeopardy, I find that the writ petitioner's contention may not be well founded. The reason for this is that a mention of a past misconduct, in a chargesheet would not by itself mean that the same is proposed to be enquired afresh by the employer. On the contrary, in terms of dicta by the Hon'ble Supreme Court in the case of UOI v. Bishambar Das Dogra, AIR 2010 SC 3769 : (2009) 13 SCC 102 : LNIND 2009 SC 1347, it has been held to be desirable that the past conduct is mentioned in the pending chargesheet and that the same would be taken into consideration for the purpose of a proposed penalty. Paragraphs 28, 29, 30 and 31 are set out hereinbelow :- "28. In Govt. of A.P. v. Mohd. Taker Ali this Court rejected the contention that unless the past conduct is a part of charge-sheet, it cannot be taken into consideration while imposing the punishment observing that : (SCC p. 658, para 5) "5. ... there can be no hard-and-fast rule that merely because the earlier misconduct has not been mentioned in the charge-sheet it cannot be taken into consideration by the punishing authority. Consideration of the earlier misconduct is often [necessary] only to reinforce the opinion of the said authority." In fact in Taher Ali case the argument had been advanced that if the disciplinary authority wanted to consider the past service record of the employee, it should be a part of the charge-sheet. Consideration of the earlier misconduct is often [necessary] only to reinforce the opinion of the said authority." In fact in Taher Ali case the argument had been advanced that if the disciplinary authority wanted to consider the past service record of the employee, it should be a part of the charge-sheet. Though in K. Manche Gowda this Court said that it should be so indicated in the second show-cause notice only for the purpose of imposing punishment. Thus it is not necessary that it should be a part of the charge-sheet. 29. In Colour-Chem Ltd. v. A.L. Alaspurkar this Court considered the statutory rules which itself provided as what can be taken into consideration while imposing the punishment and it also referred to the consideration of the past record of the employee. 30. In view of the above, it is evident that it is desirable that the delinquent employee may be informed by the disciplinary authority that his past conduct would be taken into consideration while imposing the punishment. But in case of misconduct of grave nature or indiscipline, even in the absence of statutory rules, the authority may taken into consideration the indisputable past conduct/service record of the employee for adding the weight to the decision of imposing the punishment if the facts of the case so require. 31. It is settled legal proposition that habitual absenteeism means gross violation of discipline [vide Burn and Co. Ltd. v. Workmen (AIR p. 530, para 5) and L and T Komatsu Ltd. v. N. Udayakumar (SCC p. 226, para 6).]" 11. It is also evident from the records of the enquiry as also the documents produced that no further enquiry was conducted in respect of unauthorized absence in the year 1997. 12. In those circumstances, applying the aforesaid dicta of the Hon'ble Supreme Court, I find that the Management complied with the principles of natural justice in putting workmen concerned under notice in advance of the materials proposed to be considered for the imposition of penalty in respect of enquiry proposed under the second Charge Sheet. There has therefore been no double jeopardy in the facts of the case. 13. In respect of the 2nd argument I find that the standing order in question specifies both, absence for 10 consecutive days as well as habitual absenteeism as separate misconducts. The writ petitioner has been charged with habitual absenteeism. There has therefore been no double jeopardy in the facts of the case. 13. In respect of the 2nd argument I find that the standing order in question specifies both, absence for 10 consecutive days as well as habitual absenteeism as separate misconducts. The writ petitioner has been charged with habitual absenteeism. Hence the second argument of the writ petitioner must also fail. 14. The last of the writ petitioner is that the penalty of dismissal is grossly disproportionate to a chargesheet of unauthorized absence, particularly, in the light of the fact that sufficient leave was available to his credit. 15. I find the last argument of the petitioner, unacceptable. Mere availability of leave will not ipso facto entitle an employee to remain absent from duties, as availing of leave is subject to sanction by the Management. Leave cannot be available at the whim and fancy of a workman that will compromise and hamper the actual working of the employer. Hence, this argument of the writ petitioner is also liable to be rejected. 16. In respect of the argument that the penalty of dismissal from service is extreme and disproportionate, I find as follows. 17. The Hon'ble Supreme Court in the case of North Eastern Karnataka R.T. Corporation v. Ashappa and Another AIR 2006 SC 2164 : (2006) 5 SCC 137 : LNIND 2006 SC 409 : 2006-II-LLJ-865 wherein the Supreme Court at paragraph 11 has laid down as follows : "11. Remaining absent for a long time, in our opinion, cannot be said to be a minor misconduct. The Appellant runs a fleet of buses. It is a statutory organization. It has to provide public utility services. For running the buses, the service of the conductor is imperative. No employer running a fleet of buses can allow an employee to remain absent for a long time. The Respondent had been given opportunities to resume his duties. Despite such notices, he remained absent. He was found not only to have remained absent for a period of more than three years, his leave records were seen and it was found that he remained unauthorisedly absent on several occasions. In this view of the matter, it cannot be said that the misconduct committed by the Respondent herein has to be treated lightly." 18. Unauthorized absence, therefore, has the effect of seriously hampering the functioning of the Management. 19. In this view of the matter, it cannot be said that the misconduct committed by the Respondent herein has to be treated lightly." 18. Unauthorized absence, therefore, has the effect of seriously hampering the functioning of the Management. 19. In the case of Om Prakash v. State of Punjab and Others (2011) 14 SCC 682 : LNIND 2011 SC 886, the Supreme Court has held in paragraphs 11 and 14 as follows : "11. A similar issue came to be raised in this Court several times. In the case of State of M.P. v. Harihar Gopal, 1969 SLR 274 (SC), this Court noticed that the delinquent officer in failing to report for duty and remaining absent without obtaining leave had acted in a manner irresponsibly and unjustifiedly; that, on the finding of the enquiry officer, the charge was proved that he remained absent without obtaining leave in advance; that the order granting leave was made after the order terminating the employment and it was made only for the purpose of maintaining a correct record of the duration of service and adjustment of leave due to the delinquent officer and for regularizing his absence from duty. This Court in the said decision held that it could not be accepted that the authority after terminating the employment of the delinquent officer intended to pass an order invalidating that earlier order by sanctioning leave so that he was to be deemed not to have remained absent from duty without leave duly granted." "14. Therefore, it is established that the appellant was a habitual absentee without leave and, therefore, he does not deserve any sympathy from this Court. In terms of the aforesaid order, we hold that there is no merit in this appeal which is dismissed but leaving the parties to bear their own costs." 20. In Davalsab Husain Mulla v. North West Karnataka Road Transport Corporation (2013) 10 SCC 185 : LNIND 2013 SC 907 : 2013-IV-LLJ-446 the Supreme Court in paragraphs 9 and 10 observed that :- "9. In Davalsab Husain Mulla v. North West Karnataka Road Transport Corporation (2013) 10 SCC 185 : LNIND 2013 SC 907 : 2013-IV-LLJ-446 the Supreme Court in paragraphs 9 and 10 observed that :- "9. In this context, it will be appropriate for the Labour Court to assess the gravity and magnitude of the misconduct found proved against the employee concerned, the past conduct of the employee, the repercussion it will have in the event of interference with the order of discharge or dismissal in the day to day functioning of the establishment which will have far reaching effects on the other workmen and so on and so forth. It should always be remembered that any misplaced sympathy would cause more harm to the establishment which provides source of livelihood for many number of employees than any good for the employee concerned. It will be worthwhile to refer to the repercussions that would result in the event of any misplaced sympathy shown to an employee who indulges in certain acts of misconduct which has been lucidly explained in a decision of the Madras High Court reported as Royal Printing Works v. Industrial Tribunal and another - 1959 (2) LLJ 619-wherein Hon. BALAKRISHNA AYYAR, J. (as he then was) stated the position as under : "There are certain passages in the order of the tribunal which as I understand them suggest that carelessness on the part of an employee in relation to his work would not justify serious punishment. With this view I definitely disagree. Carelessness can often be productive of more harm than deliberate wickedness or malevolence. I shall not refer to the classic example of the sentry who sleeps at his post and allows the enemy to slip through. There are more familiar instances. A compositor who carelessly places a plus sign instead of a minus sign in a question paper may cause numerous examinees to fail. A compounder in a Hospital or chemists' shop who makes up the mixtures or other medicines carelessly may cause quite a few deaths. The man at an airport who does not carefully filter the petrol poured into a plane may cause it to crash. The railway employee who does not set the point carefully may cause a head-on collision. Misplaced sympathy can be of great evil. Carelessness and indifference to duty are not the high roads to individual or national prosperity." "10. The man at an airport who does not carefully filter the petrol poured into a plane may cause it to crash. The railway employee who does not set the point carefully may cause a head-on collision. Misplaced sympathy can be of great evil. Carelessness and indifference to duty are not the high roads to individual or national prosperity." "10. We feel it appropriate to add one more instance such as the present one where an employee by violating the rules of the Corporation traveled without a valid ticket had the audacity to question the authority of the checking squad and posed a serious threat of taking away the life of the concerned Checking Inspector. Not stopping with that he went to the office of the higher official and created a ruckus in the office by throwing a challenge that he would indulge in a Satyagraha apart from abusing the concerned Checking Inspector in the presence of all other employees once again threatening to take away his life by burning him. Such an extreme misbehavior towards the higher officials and fellow employees cannot be dealt with lightly and any sympathy shown to a person of such mindset while working in an establishment will definitely cause more harm than good for the establishment and all others working therein. Therefore, in the case on hand, the conduct of the employee towards the establishment as well as its fellow employees and higher authorities was highly condemnable and, therefore, there was absolutely no scope for exercising the discretionary power vested in the Labour Court under Section 11A of the Act. The Labour Court, therefore, rightly declined to exercise the said jurisdiction vested in it in his favour. Unfortunately, the learned Judge by merely stating that the Labour Court had only considered the interest of the Corporation and not the interest of the employee set aside the said award which was correctly rectified by the Division Bench. The Division Bench was, therefore, well in order in having set aside the order of the learned Single Judge and restoring the order of dismissal passed against the appellant. We too, therefore, do not find any scope to interfere with the order impugned in this appeal." 21. The Division Bench was, therefore, well in order in having set aside the order of the learned Single Judge and restoring the order of dismissal passed against the appellant. We too, therefore, do not find any scope to interfere with the order impugned in this appeal." 21. From the above discussions, it is clearly evident that unauthorized absence and habitual absenteeism on the part of an employee can have serious and grave consequences on the actual running and business output of an employer. Such effect on the business output may harm the overall performance of the company in general and, jeopardize the very employment of other employees in particular. One employee cannot also be allowed to live off at the expense of the regular working and rule abiding employees. 22. In those circumstances, I find no reason to interfere with the award dated 28th November, 2008 passed by the Second Industrial Tribunal, W.B. in case No. VIII-78/2002 in connection with CO. No. 620/1(1)-IR dated 12.04.2002 [Hindustan Lever Ltd. v. Goutam Das] and the same is upheld. 23. Hence, W.P. 5167(W) of 2009 is hereby dismissed. 24. There shall be no order as to costs. Urgent photostat certified copy of this order, if applied for, shall be given to the parties as expeditiously as possible on compliance of all necessary formalities.