Sri Haren Bauri Vs. Coal India Ltd. and ors. - Court Judgment

Excerpt:
the court :-this writ application is filed by the petitioner assailing the charge-sheet dated december 13, 2006, the enquiry proceeding as also the order of dismissal dated june 9/10, 2008 passed against the petitioner in connection with his service as general mazdoor under the respondent no.2. the petitioner was served with a charge-sheet dated july 26, 2005. the charge leveled against him in the above charge-sheet was absence of the petitioner from duty without notice or authorized leave from february 15, 2005. according to the petitioner he submitted a reply to the above charge sheet but no step was taken against the petitioner on the basis of the above charge-sheet. subsequently another charge sheet dated august 9, 2005 was issued against the petitioner. charges leveled against him was absence from duty without notice or authorized leave from february 15, 2005. the petitioner submitted his reply to the same. an enquiry was conducted in the matter on december 26, 2006. a second show cause notice dated march 10, 2008 was forwarded to the petitioner. the impugned order of punishment dated august 9, 2008 was served upon him dismissing him from the above service. the petitioner filed an appeal for reinstatement in service dated december 5, 2008 to the respondent no.4. the same is still pending. it is submitted on behalf of the petitioner that second charge-sheet on the self same cause of action cannot be sustained in law. it is also submitted by him that the second charge-sheet dated december 13, 2006 was never served upon him. it is also submitted by him that no enquiry was conducted in the matter giving reasonable opportunity to the petitioner. according to the petitioner the impugned order of dismissal cannot be sustained in law in view of non-supply of the enquiry report to him before arriving at a decision for proposed punishment by the disciplinary authority. it is also submitted on behalf of the petitioner that the order of dismissal was not passed by his appointing authority. according to the petitioner the disciplinary authority failed and/or neglected to take into consideration the certificate issued by the medical authority with regard to his leave during the period in question. on the other hand it is submitted by the learned counsel for the respondents that no reply was submitted by the petitioner to the first charge-sheet and consequent thereupon another charge-sheet was issued against the petitioner. the fact of continuous absence of the petitioner till the date of issuing the second charge-sheet dated december 13, 2006. according to the respondents enquiry was conducted in the matter on december 26, 2006 giving the petitioner reasonable opportunity. the petitioner prayed for mercy in course of the above enquiry proceeding. the enquiry officer submitted his report in the matter and the same was supplied to the petitioner together with second show caused notice dated march 10, 2008. according to the respondents, a review application is pending before the higher authority in accordance with the provisions of clause 30.1 of the certified standing order. therefore, unless the above review of the application is disposed, no order can be passed in this writ application. it is also submitted on behalf of the respondents that the honble tribunal act, 1947 prescribes a complete remedy to aggrieved workman in accordance with the provisions of section 2(k) read with section 2a of the industrial disputes act, 1947. according to the respondents the writ application is not the appropriate forum in view of the facts and circumstances of this case. the learned counsel for the respondents relies upon the decision of webel video devices ltd. v. prasanta kumar das & ors. reported in 2007 (3) chn 8 in support of the above submissions. i have heard the learned counsels appearing for the respective parties as also i have considered the facts and circumstances of this case on the basis of the materials on record. it is not in dispute that the impugned order of punishment was passed on the basis of a charge-sheet issued against the petitioner on december 13, 2006. undisputedly 5 another charge-sheet dated july 26, 2005 was issued against the petitioner. i find substance in the submissions made on behalf of the respondents that continuous absence without any notice or authorized leave till the date of issuing charge sheet dated december 13, 2006 entitles the employer to issue the above charge-sheet apart from another charge-sheet dated july 26, 2005. it is necessary to point out here that though the charge-sheet dated july 26, 2005 was issued on an earlier occasion, no step was taken against the petitioner on the basis of that charge-sheet. i do not find any substance on the submissions made on behalf of the petitioner that the charge-sheet dated december 13, 2006 was not served upon him. it is evident from the appeal of the petitioner dated december 5, 2008 preferred before the respondent no.4 that the petitioner himself admitted that he had received the charge-sheet in question. before dealing with the submissions made on behalf of the petitioner in respect of enquiry proceeding and impugned order dismissal, i find that the petitioner preferred an appeal dated december 5, 2008 before the respondent no.4. in fact that is a review application filed by the petitioner in accordance with the provisions of clause 31.1 of the certified standing order and the above clause is quoted below:- 31.1 review of cases of punishment an authority higher than the appellate authority may review the case after imposition of punishment at any time either on his own motion or on the application of the workman concerned. therefore, in view of the fact of pending the review application of the petitioner i am not inclined to deal with the submissions made on behalf of the petitioner with regard to validity of the enquiry proceedings or the dismissal order. that apart submissions have been made before this court with regard to non-consideration of the documents produced by the petitioner before the respondent authority in support of his medical leave. it is not open for a court sitting in writ jurisdiction to re-appreciate any evidence in connection with a disciplinary proceeding. rather industrial disputes act provides for a complete remedy to an aggrieved workman to ventilate his grievance before the industrial tribunal. in an appropriate case industrial tribunal can give opportunity to an aggrieved workman and his employer to adduce further evidence before it. reference may be made to the decision of webel video devices ltd. (supra). in view of the above discussions and observations, i direct the respondent no.4 to dispose of the review application of the petitioner after giving him an opportunity of hearing in accordance with law within six weeks and communicate his decision to him within a week thereof. this writ application is thus disposed of. there will, however, no order as to costs. urgent photostat xerox certified copy of this order, if applied for, be supplied to the parties upon compliance of all requisite formalities.

Judgment:
The Court :-This writ application is filed by the petitioner assailing the charge-sheet dated December 13, 2006, the enquiry proceeding as also the order of dismissal dated June 9/10, 2008 passed against the petitioner in connection with his service as General Mazdoor under the respondent No.2.

The petitioner was served with a charge-sheet dated July 26, 2005. The charge leveled against him in the above charge-sheet was absence of the petitioner from duty without notice or authorized leave from February 15, 2005.

According to the petitioner he submitted a reply to the above charge sheet but no step was taken against the petitioner on the basis of the above charge-sheet. Subsequently another charge sheet dated August 9, 2005 was issued against the petitioner. Charges leveled against him was absence from duty without notice or authorized leave from February 15, 2005. The petitioner submitted his reply to the same.

An enquiry was conducted in the matter on December 26, 2006. A second show cause notice dated March 10, 2008 was forwarded to the petitioner. The impugned order of punishment dated August 9, 2008 was served upon him dismissing him from the above service.

The petitioner filed an appeal for reinstatement in service dated December 5, 2008 to the respondent No.4. The same is still pending. It is submitted on behalf of the petitioner that second charge-sheet on the self same cause of action cannot be sustained in law. It is also submitted by him that the second charge-sheet dated December 13, 2006 was never served upon him. It is also submitted by him that no enquiry was conducted in the matter giving reasonable opportunity to the petitioner.

According to the petitioner the impugned order of dismissal cannot be sustained in law in view of non-supply of the enquiry report to him before arriving at a decision for proposed punishment by the disciplinary authority. It is also submitted on behalf of the petitioner that the order of dismissal was not passed by his appointing authority. According to the petitioner the disciplinary authority failed and/or neglected to take into consideration the certificate issued by the medical authority with regard to his leave during the period in question.

On the other hand it is submitted by the learned counsel for the respondents that no reply was submitted by the petitioner to the first charge-sheet and consequent thereupon another charge-sheet was issued against the petitioner. The fact of continuous absence of the petitioner till the date of issuing the second charge-sheet dated December 13, 2006. According to the respondents enquiry was conducted in the matter on December 26, 2006 giving the petitioner reasonable opportunity. The petitioner prayed for mercy in course of the above enquiry proceeding.

The Enquiry Officer submitted his report in the matter and the same was supplied to the petitioner together with second show caused notice dated March 10, 2008. According to the respondents, a review application is pending before the higher authority in accordance with the provisions of clause 30.1 of the certified standing order.

Therefore, unless the above review of the application is disposed, no order can be passed in this writ application. It is also submitted on behalf of the respondents that the Honble Tribunal Act, 1947 prescribes a complete remedy to aggrieved workman in accordance with the provisions of section 2(k) read with section 2A of the Industrial Disputes Act, 1947. According to the respondents the writ application is not the appropriate forum in view of the facts and circumstances of this case.

The learned counsel for the respondents relies upon the decision of Webel Video Devices Ltd. v. Prasanta Kumar Das & Ors. reported in 2007 (3) CHN 8 in support of the above submissions. I have heard the learned counsels appearing for the respective parties as also I have considered the facts and circumstances of this case on the basis of the materials on record.

It is not in dispute that the impugned order of punishment was passed on the basis of a charge-sheet issued against the petitioner on December 13, 2006. Undisputedly 5 Another charge-sheet dated July 26, 2005 was issued against the petitioner. I find substance in the submissions made on behalf of the respondents that continuous absence without any notice or authorized leave till the date of issuing charge sheet dated December 13, 2006 entitles the employer to issue the above charge-sheet apart from another charge-sheet dated July 26, 2005.

It is necessary to point out here that though the charge-sheet dated July 26, 2005 was issued on an earlier occasion, no step was taken against the petitioner on the basis of that charge-sheet. I do not find any substance on the submissions made on behalf of the petitioner that the charge-sheet dated December 13, 2006 was not served upon him.

It is evident from the appeal of the petitioner dated December 5, 2008 preferred before the respondent No.4 that the petitioner himself admitted that he had received the charge-sheet in question. Before dealing with the submissions made on behalf of the petitioner in respect of enquiry proceeding and impugned order dismissal, I find that the petitioner preferred an appeal dated December 5, 2008 before the respondent No.4. In fact that is a review application filed by the petitioner in accordance with the provisions of clause 31.1 of the Certified Standing Order and the above clause is quoted below:-

31.1 REVIEW OF CASES OF PUNISHMENT An authority higher than the appellate authority may review the case after imposition of punishment at any time either on his own motion or on the application of the workman concerned. Therefore, in view of the fact of pending the review application of the petitioner I am not inclined to deal with the submissions made on behalf of the petitioner with regard to validity of the enquiry proceedings or the dismissal order.

That apart submissions have been made before this Court with regard to non-consideration of the documents produced by the petitioner before the respondent authority in support of his medical leave. It is not open for a Court sitting in writ jurisdiction to re-appreciate any evidence in connection with a disciplinary proceeding. Rather Industrial Disputes Act provides for a complete remedy to an aggrieved workman to ventilate his grievance before the Industrial Tribunal. In an appropriate case Industrial Tribunal can give opportunity to an aggrieved workman and his employer to adduce further evidence before it. Reference may be made to the decision of Webel Video Devices Ltd. (supra).

In view of the above discussions and observations, I direct the respondent No.4 to dispose of the review application of the petitioner after giving him an opportunity of hearing in accordance with law within six weeks and communicate his decision to him within a week thereof. This writ application is thus disposed of. There will, however, no order as to costs. Urgent Photostat Xerox certified copy of this order, if applied for, be supplied to the parties upon compliance of all requisite formalities.