Santosh Kumar Das Vs. Bharat Coking Coal Limited and ors. - Court Judgment

Excerpt:
service - unauthorised absence from duty - dismissal - enquiry officer merely recorded statements of witnesses adduced by management and petitioner - abruptly arrived at finding that charge levelled against petitioner established - no discussion about plea taken by petitioner regarding medical evidence/certificate filed in support of his defence - workman was not represented by competent person - management was allowed to adduced evidence regarding absence of workman for long periods during three previous years although it did not constitute substance of charge on which enquiry was conducted against petitioner - no charge against petitioner that he was habitual absentee - cause shown by petitioner for his absence ignored and not considered - even otherwise punishment of dismissal from service grossly disproportionate to alleged misconduct - mitigating circumstance like petitioner being only earning member ought to have been considered - punishment of removal from service highly excessive and disproportionate - dismissal order set aside - matter remitted back for considering afresh the petitioner' case - petition disposed of - constitution of india. articles 12 & 226: [m. karpaga vinayagam, c.j., narendra nath tiwari & d.p.singh, jj] writ petition - maintainability - whether state co-operative milk producers federation ltd., is a state within meaning of article 12 ? - held, from perusal of relevant rules of byelaws, it is clear that state government has no role to play either in policy decision for raising funds for federation or its expenditure and thus have no financial control. further there is nothing to indicate that government has any functional and administrative control over federation. state government has no role to play in matter of appointment of any of officials of federation including managing director. federation is totally independent in all respects and in no way subservient to state government in conduct of its business. federation in no way can be termed as agency of state government and does not come within meaning of article 12 of constitution. writ petitions against federation is not maintainable. d.g.r. patnaik, j.1. the petitioner prays for issuance of a writ of certiorari for quashing the order dated 14/20th october, 2005 issued by the project officer, akwm colliery, keshalpur colliery, katrasgarh, (respondent no. 3) whereby the petitioner was informed of his dismissal from service with immediate effect.2. the petitioner was a worker in the colliery under the project officer of the colliery (respondent no. 3). the petitioner had absented from duty from 8.7.2005. on the ground of unauthorized absence from duty, a departmental proceeding was initiated after a show cause notice was issued to him by the employer along with charge sheet. in reply to the show cause and proposed charge sheet, the petitioner had replied that he had fallen ill and was under treatment at the hospital. he also produced a medical certificate of the attending doctor. at the enquiry, the plea taken by him was that on account of illness he could not apply for leave in advance, though he had conveyed his illness through a co-worker and on the basis of such information, the management did not strike off his name from the roll of the company.3. the enquiry officer had, however, found the charges against the petitioner proved and forwarded his enquiry report to the disciplinary authority for appropriate action. the disciplinary authority on the basis of the findings in the enquiry report, issued a second show cause notice to the petitioner calling upon him to explain as to why punishment be not awarded to him. the petitioner submitted his reply to the second show cause notice reiterating his stand that he had not wilfully absented from duty. rather, he was prevented from attending his duty on the ground of personal illness and that he was under medical treatment from 5.7.2005 to 6.8.2005. however, the explanation offered by the petitioner to the show cause notice was not accepted and the disciplinary authority by its impugned order imposed punishment dismissing the petitioner from service.4. the petitioner has assailed the impugned order of dismissal on the ground that the order was passed without considering the fact that the petitioner was suffering from illness including mental sickness for which he had to undergo treatment at the rinpas, ranchi where the petitioner remained under treatment from 10.7.2005 to 9.6.2006. it is further submitted that even otherwise, the punishment of dismissal from service is too harsh and disproportionate to the alleged misconduct. learned counsel for the petitioner refers in this context to the judgment of the supreme court in the case of bhagwan lal arya v. commissioner of police, delhi : air2004sc2131 .5. counter affidavit has been filed on behalf of the respondents denying and disputing the claim of the petitioner and the grounds advanced on his behalf. it is contended by the respondents that the petitioner was given opportunity to defend himself and the principles of natural justice was adequately adhered to. in course of enquiry, the petitioner did not disclose or state that he was suffering from mental illness and was under treatment at the rinpas, ranchi. on the contrary, the petitioner had produced a certificate from dr. m.p. saha of katras stating that the petitioner was suffering from jaundice.6. from the counter affidavit, it appears as admitted by the respondents, that the petitioner had pleaded before the enquiry officer that he was suffering from illness and was undergoing treatment and he had also produced a medical certificate in support of his claim.7. from the enquiry report, a copy of which has been annexed to the counter affidavit as annexure 2/a, it appears that the enquiry officer had recorded his finding in the following terms:findings.- on the basis of the statement adduced by the management representative and the delinquent worker and the document produced, the charge levelled is established.8. it is manifest from the above that the enquiry officer has merely recorded the statements of witnesses adduced by the management and by the petitioner and has abruptly arrived at the finding that the charge levelled against the worker is established. there is no discussion about the plea taken by the petitioner regarding the medical evidence/certificate filed in support of his defence. it also appears from the enquiry report that the workman was not represented by a competent person. furthermore, evidence has been allowed to be adduced on behalf of the management that the workman was found absent for long periods during the previous three years, although the absence for previous year did not constitute the substance of charge on which the enquiry was conducted against the petitioner.9. the charge against the petitioner was for his absence only for the specified period for less than one month. thereafter, he was served with notice and a domestic enquiry was conducted against him on 2.8.2005. it cannot be said that the charge against the petitioner was that he was a habitual absentee.10. from the facts of the case, as it appears, the period of absence was less than one month. the petitioner had cause for his absence, but the cause shown by him was not considered. rather it was ignored without assigning reasons. even if it is found that the petitioner absented himself unauthorizedly without prior intimation or sanction of leave and even if it is taken that the disciplinary action initiated against the petitioner was in accordance with rules and regulations and not vitiated by mala fides, the punishment of dismissal from service is grossly disproportionate to the alleged misconduct.11. from the representation filed by the petitioner subsequent to his dismissal praying for reinstatement, it appears that the petitioner had pleaded that he had no other source of earnings and the members of his family who are dependent upon his earnings, would be forced to starve. these are certainly mitigating circumstances which the respondents ought to have considered.12. no doubt, the disciplinary authority and appellate authority being fact finding bodies have the exclusive authority to consider the evidence and with a view to maintain discipline and they have the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. it is also true that the high court/tribunal while exercising power of judicial review cannot normally substitute its own conclusion on the penalty and impose some other penalty. but if the punishment imposed by the disciplinary authority or appellate authority shocks conscience of the high court/tribunal, it would be appropriate to mould relief directing the disciplinary authority to re-consider the penalty imposed.13. in the present case, i am of the opinion, that punishment of removal from service imposed on the petitioner is highly excessive and disproportionate to the alleged misconduct.14. under the circumstances, the impugned order of the respondent no. 3 whereby the petitioner was dismissed from service is set aside. the matter is remitted back to the disciplinary authority for considering afresh the petitioner's case and to pass an appropriate order considering the evidence adduced by the petitioner that he was prevented from attending duty during the period mentioned in the charge sheet on account of his illness. this exercise must be completed by the respondents within a period of three months from the date of receipt of a copy of this order.15. with the above observation, this application is disposed of.