HIGH COURT OF CHATTISGARH BILASPUR
WRIT PETITION NO 2978 OF 1994
Brijlal
...Petitioners
Versus
Steel Authority of India Ltd & Others
...Respondents
! Shri Amrito Das counsel for the petitioner
^ Shri Shailendra Shukla counsel for the respondent No1
CORAM: Honble Shri Satish K Agnihotri J
Dated: 09/02/2010
: Judgement
J U D G M E N T
Delivered on this 09th day of February 2010
Writ Petition under Article 226/227 of the Constitution of India
1. By this petition, the petitioner seeks to challenge
the legality and validity of the order dated 29-1-1994
(Annexure – P/3) passed by the Industrial Court, Raipur,
in appeal Nos.152/MPIR/93 (Steel Authority of India Ltd.
v. Brijlal) & 32/MPIR/94 (Brijlal v. Manaing Director,
Bhilai Steel Plant) whereby the appeal preferred by the
respondent No.1 was allowed, setting aside the order dated
9-11-1993 (sic) 29-4-1993, passed by the Labour Court,
Durg, in case No.8/MPIR/86 (Brijlal v. Manaing Director,
Bhilai Steel Plant) and consequently dismissed the appeal
of the petitioner. The petitioner also seeks for issuance
of a direction to the respondent No.1 for his
reinstatement with full back wages from the date of his
termination i.e. 19-10-1985 till his retirement.
2. The facts, in nutshell, for adjudication of the case,
are that initially the petitioner entered into service on
22-7-1963. According to the petitioner, on 19-10-1985 the
petitioner fell ill, thus, by communication, he intimated
his employer about his illness. The Doctor advised him to
take bed rest up to 29-10-1985. On 30-10-1985 when the
petitioner went to resume his duty it was informed to him
that he was terminated from service by order dated 19-10-
1985 (Annexure – P/1).
3. Being aggrieved by the termination order dated 19-10-
1985 the petitioner preferred a case before the Labour
Court, Durg. In the said case the respondent No.1 filed
its written statement, stating that the petitioner was a
regular absentee and remained absent from the service for
127 days during the period from October, 1983 to May, 1984
and again absented from the service for 196 days during
the period from July, 1984 to April, 1985. The Labour
Court by order dated 29-4-1993 partly allowed the case of
the petitioner and directed the respondent No.1 to
reinstate the petitioner in service without back wages.
4. Thereagainst, the respondent No.1 as well as the
petitioner filed separate appeals before the Industrial
Court. The respondent No. 1 filed appeal against the order
of reinstatement and the petitioner filed appeal against
the denial of grant of back-wages, respectively. The
Industrial Court by order dated 29-1-1994 set aside the
order passed by the Labour Court and allowed the appeal of
the respondent No.1/employer and consequently, dismissed
the appeal of the petitioner/employee. Thus, this petition
for reinstatement and back wages from the date of his
termination till his actual date of retirement.
5. Shri Amrito Das, learned counsel appearing for the
petitioner, would submit that during the complete service
period, there was not a single occasion where the
petitioner was found involved in dereliction of duties,
except for the last year of service where he was unduly
constrained to remain absent on account of his ill health.
According to the respondent No.1 the petitioner was served
with a charge sheet on 14-5-1985. The petitioner
submitted his reply and conditionally admitted the guilt
setting out the reasons for the same. Shri Das would next
contend that admittedly, the petitioner remained
unauthorizedly absent, however, the petitioner has
submitted explanation before the enquiry officer which was
not considered. The petitioner was not holding any
responsible or vital position nor had he been absent
uninformed and on account of absence of the petitioner,
the respondent No. 1/employer has not suffered serious
prejudice and as such, the order of removal from service
is disproportionate and deserves to be set aside. Shri
Das would further submit that the impugned order of
termination was passed without affording proper
opportunity of hearing to the petitioner and without
following due process of law.
6. On the other hand, Shri Shailendra Shukla, learned
counsel appearing for the respondent No.1 would submit
that the petitioner was a habitual absentee and he
remained on leave unauthorizedly for a long period. The
petitioner has been terminated from the service after
following due process of law. Thus, the punishment of
removal from service is just and proper.
7. I have heard learned counsel appearing for the
parties, perused the pleadings and the documents appended
thereto.
8. Indisputably, the petitioner remained absent for 127
days from October, 1983 to May, 1984, which resulted into
imposition of minor penalty of reducing his basic pay by
one stage from Rs. 787/- to 769/-. Thereafter, he
remained unauthorizedly absent from July, 1984 to April,
1985 for 196 days. A show-cause-notice was issued to him
and during departmental enquiry, the petitioner admitted
his guilt, thus, it was held that the petitioner remained
unauthorisedly absent without reasonable explanation which
resulted into removal from service.
9. The Labour Court allowed the application of the
petitioner by order dated 29.04.1993 on the ground that
the explanation submitted by the petitioner was not
considered by the enquiry officer, without disclosing the
fact asto what was the explanation and whether the
explanation was reasonable and proper. The explanation, if
any, offered by the petitioner, was for the period from
19.10.1985 to 29.10.1985 only. In appeal preferred by the
petitioner against denial of back-wages, being Appeal No.
32/MPIR/94 and the appeal preferred by the respondent No.
1 being Appeal No. 152/MPIR/93 against the order of
reinstatement, respectively, the Industrial Court after
having considered the aspect of clear admission by the
delinquent employee i.e. the petitioner, set aside the
order of reinstatement passed by the Labour Court and
allowed the appeal filed by the respondent No. 1/employer
on 29.01.1994. The parties have not produced any document
with regard to explanation offered by the petitioner in
the departmental enquiry. There is no dispute that the
departmental enquiry has found the petitioner absent
unauthorisedly for a long period.
10. The petitioner was Feeder Attendant. It is informed
at the bar that Feeder Attendant is a very important post
for production of the goods. The unauthorized absence of
the petitioner has caused prejudice to the production.
11. In Chairman cum Managing Director, V.S.P. & Others v.
Goparaju Sri Prabhakara Hari Babu1, relied on by the
petitioner, the Supreme Court observed as under:
“16. Indisputably, the respondent
was a habitual absentee. He in his
explanation, in answer to the charge-
sheet pleaded guilty admitting the
charges. In terms of Section 58 of
the Evidence Act, charges having been
admitted were not required to be
proved. It was on that premise that
the enquiry proceeding was closed.
Before the enquiry officer, he did
not submit the explanation of his
mother being ill. He, despite
opportunities granted to report to
duty, did not do it. He failed to
explain even his prior conduct.
21. Once it is found that all the
procedural requirements have been
complied with, the courts would not
ordinarily interfere with the quantum
of punishment imposed upon a
delinquent employee. The superior
courts only in some cases may invoke
the doctrine of proportionality. If
the decision of an employer is found
to be within the legal parameters,
the jurisdiction would ordinarily not
be invoked when the misconduct stands
proved. (See Sangfroid Remedies Ltd.
v. Union of India.)”
12. Further, in Mithilesh Singh v. Union of India &
Others2, relied on by the petitioner, the Supreme Court
held that remaining absent without proper intimation to
the authorities may lead to order of removal from service.
13. Reliance of the petitioner on General Manager,
Appellate Authority Bank of India & another v. Mohd.
Nizamuddin3 , in support of his contention that the
petitioner was not holding any responsible post, therefore
his absence has not caused any serious prejudice is not
relevant to the case on hand, as admittedly, the
petitioner was a Feeder Attendant in Production Unit. If
the Feeder Attendant remains absent, it may lead to loss
of production. Thus, the petitioner was holding a
responsible post. Accordingly, the punishment of removal
from was not disproportionate.
14. Further, reliance of the petitioner on State of
Rajasthan & another v. Mohd. Ayub Naz4, where the question
under consideration before the Supreme Court was that if a
government servant willfully remains absent for a period
of about three years, whether has a right to receive
monetary/retiral benefits, the Supreme Court held that
such a person has no right to receive monetary/retiral
benefits.
15. In State of Madhya Pradesh & Others v. Hazarilal5,
relied on by the petitioner, the Supreme Court observed as
under:
“7. By reason of the said provision,
thus, “the disciplinary authority has
been empowered to consider the
circumstances of the case where any
penalty is imposed on a government
servant on the ground of conduct
which has led to his conviction on a
criminal charge”, but the same would
not mean that irrespective of the
nature of the case in which he was
involved or the punishment which has
been imposed upon him, an order of
dismissal must be passed. Such a
construction, in our opinion, is not
warranted.”
16. Having regard to the facts situation of the case and
in view of the various pronouncements as aforestated, it
cannot be held that the willful absence of the petitioner
has not caused any damage or loss to the respondent No. 1.
The absence of 196 days from 1984 to 1985 was not the
first instance as even earlier also, the petitoner
remained absent for a period of 127 days from October,
1983 to May, 1984. Thus, the petitioner was a habitual
absentee. Some information to the employer does not grant
sanction to an employee to remain absent unauthorisedly,
without proper sanction of the employer. The Courts below
have not examined the fact of willful absence but on the
basis of documents and the facts produced before this
Court as well as before the Courts below, I have no
hesitation in holding that the petitioner remained
willfully unauthorisedly absent from service.
17. Thus, for the reasons stated hereinabove, the writ
petition fails and is accordingly dismissed.
18. There shall be no order asto costs.
J U D G E