Ram Sewak Tiwari Vs. M.P.Road Transport Corporation,habibganj,bhopal - Court Judgment

1 HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR.

Writ Petition No.1294/2009 Ram Sewak Tiwari.

-Versus- M.P.Road Transport Corporation & otheRs.PRESENT : Hon’ble Shri Justice K.K.Trivedi.

Shri P.R.Bhave, learned Senior counsel assisted by Shri Bhanu Prasad Yadav, learned counsel for the petitioner.

Shri Uttam Maheshwari, learned counsel for respondents No.1 & 2.

Shri Lalit Joglekar, learned Panel Lawyer for the respondent No.3.

ORDER

(21.9.2012) 1: This petition was filed by the petitioner seeking to challenge the inaction on the part of the respondents of not permitting him to withdraw his payer for voluntary retirement from service and not allowing him to join back the services.

It is contended that the petitioner was in the employment of respondents No.1 and 2.

He was removed from the services 2 and was required to file a writ petition before this Court being W.P.No.4222/1997.

The said matter came up for consideration before a Lok Adalat of the High Court and as per the settlement dated 30.10.2004, it was agreed by the respondent M.P.State Road Transport Corporation (hereinafter referred to as the Corporation for brevity) to given an offer of fresh offer of appointment to the petitioner and in such circumstances, the petitioner foregone his claim of back wages.

Consequently, fresh offer of appointment was given to the petitioner on 8.6.2005, pursuance to which he started working after the order of appointment was issued in his respect on 22.6.2005.

However, since the respondent Corporation was not in good financial condition, a Scheme of voluntary retirement was floated on 1.7.2005.

Pursuance to the said Scheme, the petitioner submitted an application for his voluntary retirement on 17.1.2009.

However, it was realised by the petitioner that in fact voluntary retirement was not to be opted by him and he immediately moved an application on 20.1.2009 for withdrawal of his earlier application for voluntary retirement.

Nothing was done by the respondents and, therefore, he was required to approach this Court by way of filing this writ petition.

2: Upon service of the notice of the writ petition on the respondents, the Corporation has filed a return categorically stating that in fact, the petitioner was not voluntary retired not his prayer was accepted.

On the other hand, since the petitioner was deliberately absent from duty for more than a period of ten days, in terms of the Standard Standing Order, a departmental enquiry was initiated against him and a charge sheet was given to him after giving him notices.

It is contended that the notice was sent on the address of the petitioner, but despite the knowledge the petitioner has not taken part in the departmental enquiry and, ultimately, when a 3 report after conclusion of the enquiry was submitted, the order of dismissal from service was issued against the petitioner on 21.1.2009.

The petitioner was aware of the fact that the reports were received against him in the departmental enquiry when he visited the office, the order of dismissal was served on him, but he did not accept the same, therefore, a Panchnama was prepared and the order of dismissal was affixed on the notice board of the Corporation office.

In view of this, it is contended that the relief claimed by the petitioner in the writ petition cannot be granted.

It is contended that there are disputed facts which cannot be decided without recording the evidence and, as such, a writ petition under Article 226 of the Constitution of India would not be maintainable.

The remedy of Industrial Dispute was available to the petitioner, but the same was not resorted to and, as such, the writ petition is liable to be dismissed.

3: After filing of the return and placing on record, the order of termination, amendment in the writ petition was made by the petitioner and the order dated 21.1.2009 was called in question.

It is contended by the petitioner that he was never served with the charge sheet issued not any enquiry was conducted in his presence.

In fact, no opportunity of hearing was extended to the petitioner by the respondents in the said departmental enquiry and, as such, the order impugned cannot be said to be issued in lawful manner in terms of the Standard Standing Order.

Such a major penalty of dismissal from service could not have been imposed without following the procedure law laid down under the Rules.

At the same time, by filing a rejoinder, the petitioner has pointed out that information with respect to the working of the petitioner was sought under Right to Information Act and as is clear from the document, the petitioner was allowed his joining even after 17.1.2009.

Till that time, the report was not drawn in the so- 4 called enquiry and if any proceedings were to be done, this was to be intimated to the petitioner so that he could have putforth his defence in appropriate manner.

4: The respondents have filed an additional return to meet out the allegations made in the amendment as also in the rejoinder, but nothing material has been placed by them on record.

It is contended that as the Standard Standing Order is squarely applicable, once the proceedings are concluded and a report is drawn in terms of the Standard Standing Order, no opportunity of hearing is required to be granted and the order of penalty can be issued.

It is contended that in view of the Full Bench decision of this Court in the case of M.P.State Road Transport Corporation versus Heealal Ochhelal and others [1980 MPLJ 8 ., the Standard Standing Order have overriding effect on the Regulations made by the respondent Corporation and if at all there was any violation of the Regulations in conducting the enquiry since the enquiry was conducted strictly in terms of the Standard Standing Order, it cannot be said to be a faulty one.

It is contended that the order impugned is not to be quashed not any relief is to be granted to the petitioner.

5: Heard learned counsel for the parties at length and perused the record.

6: Undisputedly, the fiRs.attempt made by the petitioner was to justify his action of withdrawing the voluntary retirement application submitted by him.

In the petition, the only prayer made was permitting him to join the duty after directing the respondents to permit the petitioner to withdraw the notice of voluntary retirement and all other consequential benefits of such joining be paid to him.

When the return was filed, the petitioner for the fiRs.time challenged the order 5 dated 21.1.2009 Annx.P/10 by amending the writ petition.

Though not categorically but in some way the petitioner has contended that he was not given any show cause notice not any such notice sent through registered post was served on him.

Such a specific contention is raised by adding paragaph 5.7 in the writ petition.

Though additional return has been filed, but it is reiterated by the respondents saying that the registered notices were sent to the petitioner to join back the duty.

It was also said that under the Standard Standing Order, the charge sheet was sent by registered notice dated 17.12.2008.

However, nothing has been placed on record to indicate that such a registered document was actually sent by registered post to the petitioner by the respondents.

Even with the reply to the amendment application, such facts have not been clearly mentioned not any documents have been placed on record, therefore, it cannot be said that the petitioner was in fact actually served with the notice of departmental enquiry.

If a particular statement is made in a writ petition, it is necessary on the part of the respondents to rebut the same by not only making an oral submission, but the documentary evidence in proof of the same should also be produced.

If the enquiry was conducted by the employer the respondents No.1 and 2, the entire enquiry record must be in their possession and why it has not been shown to the Court or why relevant document has not been produced before the Court with the return when specifically alleged by the petitioner, is not clear.

In view of this, it cannot be said that the enquiry conducted against the petitioner was in terms of Standard Standing Order.

7: Undisputedly, as is clear from the law laid down by the Full Bench of this Court, the M.P.Industrial Employment (Standing Order) Rules, 1963 (hereinafter referred to as Rules of 1963 for brevity) are applicable in the present case and the 6 Standard Standing Order for all the undertaking in the State as are prescribed in Part-II as annexure to the aforesaid Rules are applicable to the petitioner and respondents.

Standard Standing Order 12 prescribes the disciplinary action for misconduct.

Sub-clause (1) of the Standard Standing Order deals with the major punishment and Sub-clause (2) deals with the minot punishment.

Sub-clause (4) of the Standard Standing Order 12, prescribes the procedure for imposing a punishment.

For the purposes of examining whether the enquiry was conducted in rightful manner or not, it would be necessary to look into the provisions of Sub-clauses (a).(b).(c).(d).(e) and (f) of the Standard Standing Order 12(4).which reads thus :- “12(4).No punishment shall be imposed on an employee unless proved guilty of misconduct in an enquiry conducted in the following manner :- (a) The manage or other officer authorised by him in this behalf shall give to the employee a charge sheet clearly setting forth the mis-conduct charged and the circumstances appearing against him and requiring his explanation; (b) The employee shall be given for submitting his explanation a period of least 25 years if he is charged with a minot misconduct and at least 72 hours if he is charged with major misconduct; (c) An employee shall be allowed to defend by himself or the representative of employees, if he so desires; (d) Except in cases where he admits the charge levelled against him the employee shall be permitted to produce witness in his defence and cross-examine any witness on whose evidence the charge rests; 7 (e) The substance of the evidence shall be recorded and read over; (f) An order of punishment shall be in writing and shall be issued over the signature of the manager or other officer authorised under standing order (1)(a).A copy of the order passed awarding the punishment shall be given to the employee.”

A bare perusal of these provisions would indicate that there is no procedure for ex-parte enquiry prescribed in the Standard Standing Order.

All attempts were required to be made to serve the employee and calling him for taking part in the departmental enquiry.

Except sending certain charge sheet and the show cause notice to the petitioner, nothing has been placed on record by the respondent Corporation to show that the enquiry was conducted in lawful manner.

If it was the case of the respondents that the petitioner was not voluntary retired after accepting his notice of voluntary retirement, but was dismissed from service after conducting a departmental enquiry in terms of the Standard Standing Order, it was necessary on the part of the respondents to place on record all such documents to prove that the enquiry was lawfully conducted.

In such circumstances, the objection of the respondents that there are disputed fact which need to be decided by recording evidence is also not to be accepted.

This is being held by this Court because even when certain documents obtained by the petitioner under Right to Information Act were produced before this Court with the rejoinder, proper explanation of the same was not given by the respondents.

Thus, it cannot be said that the petitioner was available so as to be informed about the pending departmental enquiry and the notices sent to him were not accepted or were refused by him and, therefore, the ex parte enquiry was conducted against him in rightful manner.

In view of this, the order impugned cannot be sustained.

8. Consequently, this writ petition is allowed.

The order dated 21.1.2009 Annx.P/10 is hereby quashed.

The petitioner be reinstated in service and be granted 50% of the back wages for the period of absence.

The respondent Corporation would be at liberty to initiate the appropriate departmental enquiry strictly in accordance to the provisions of Standard Standing Order if a case is made out, for the alleged misconduct of the petitioner afresh and after conducting the enquiry would be free to pass appropriate ordeRs.9: The writ petition is allowed to the extent indicated hereinabove.

There shall be no order as to costs.

(K.K.Trivedi) Judge 21/09/2012 9 HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR Writ Petition No.1294/2009 Ram Sewak Tiwari.

-Versus- M.P.Road Transport Corporation & otheRs.ORDER

Post it for /9/2012 (K.

K.Trivedi) Judge /09/2012