JUDGMENT
J.P. Mishra, J.
1. The petitioner has challenged the order of his disciplinary authority passed under Annexure-4 wherein he has been removed from the service.
2. The factual aspect is that the petitioner was appointed by the opp. parties as Accounts Assistant in April, 1983 and, subsequently, was promoted to the post of Senior Accountant in 1989. During the course of his service, he faced proceeding and two charges were framed vide Annexure-1 on 27.9.1991. It was alleged by the authority that he has started a business in the name of his relation Mr. S. C. Mohapatra in the name and style of M/s. Insat Voice ‘N’ Vision and Sonali Electronics amounting to serious misconduct under Rule 20(b)(i) of the Standing Orders of Konark Television Ltd./Rule 16(1) of Conduct, Discipline and Appeal Rules of the Company. It was further alleged that intoto Rs. 1,15,259.17 P. was outstanding against said Mohapatra causing loss to the company-Konark Television Ltd. Therefore, according to the company, the petitioner’s act was considered to be major-Misdemeanour under Rule 20(b)(iii).The petitioner submitted explanation under Annexure-2 denying the allegations. He also averred that he was not supplied with documents relating to Insat Voice and Vision and Sonali Electronics. The Enquiring Officer fixed the DP to 22.7.1992 and the same was adjourned to 12.8.1992 due to the illness of the petitioner. The enquiry was again shifted to 2.9.1992. On the same date, the petitioner remained present in the office, but neither he was intimated the subsequent date nor he was called for the enquiry. According to him, the enquiry was conducted ex-parte on 21.9.1992 and he was communicated with the removal order (Annexure-4) dated 13.1.1993. The petitioner preferred appeal under Annexure-5 mentioning the same ground along with other grounds, but the appeal is not taken up till today. So, the petitioner’s grievance is that the order under Annexure-4 should be quashed and he should be reinstated in service for violation of the principles of natural justice. The opp. parties filed counter to the Writ Application with the averments that the petitioner was supplied with all the documents and copy of the enquiry report. It is mentioned in the counter that all the documents were supplied to the petitioner. It is also pleaded that the enquiry report was sent to the petitioner before communication of Annexure-4. According to them, the appeal filed by the petitioner could not be taken up because of receipt of the notice from this Court.
3. In the present Writ Application, it is specifically pleaded by the opp. parties that the subsequent date, i.e., 21.1.1992 was “told to the petitioner” and also displayed in the notice board, but intentionally to avoid the enquiry he took leave. They further stated in the counter that the enquiry report vide office Order No. 8600 dated 14.11.1992 was sent to the petitioner (Annexure-B) but it was returned with the endorsement that the addressee was regularly absent. So, the order of removal was passed rightly against the petitioner according to the opp. parties.
4. Learned Counsel for the petitioner has contended taking us to the Standing Order of Konark Television Ltd. that neither the charges are coming within Major Misdemeanour nor the petitioner is guilty of any of the charges. It is next contended that the order was passed ex-parte and no opportunity whatsoever was given to the petitioner by serving copy of the enquiry report which they are bound to furnish before passing the order of removal under Rule 21 (1 )(v) of the Standing Order under the heading “Procedure for dealing with cases of misconduct”.
5. The Learned Counsel for the opp. parties has supported the counter stating that all copies of required documents were given to the petitioner before the removal order was passed and prays to dismiss the Writ Application.
6. In a Writ Application, we are not supposed to consider the merit of the charges against the petitioner. We are called upon to examine the sole question as to whether principle of natural justice has been violated. To the above question, our answer is ‘yes’ for the following reasons.
7. It is the claim of the petitioner that he was present before the Enquiring Officer by filing a Hazra under Annexure-3 on 2.9.1992 at 3 P.M. but he was not called nor he was intimated the date of subsequent posting of the disciplinary proceeding. According to the petitioner, he was told on the said dated 2.9.1992 that because of the pre-occupation of the Enquiring Officer he was to be intimated next date, but the same was not complied with, it is only in his absence the Epquking Officer proceeded on 21.9.1992 and the order of removal emerged, i.e., Annexure-4.
8. It is submitted by the Learned Counsel for the opp. parties that he was given all opportunities. In that case, the opp. parties could have shown the signature on the record itself, i.e., inquiry proceeding record on the date when the witnesses for prosecuting authorities were examined. But, the same has not been done in the present case. It is quite natural on the part of a subordinate officer like the petitioner to force his authority to conduct the enquiry on that very date or to ask him for the subsequent date instantly. The opp. parties have mentioned in their counter that the subsequent posting of the date was displayed on the notice board, but no averment has been made nor any submission has been advanced by the Learned Counsel for the opp. parties that the subsequent date was intimated to the petitioner. The opp. parties have stated in the counter that the petitioner took leave only to avoid the proceeding. In that case, it was the duty of the opp. parties to intimate the date of posting by registered post with acknowledgment due. The provision of Rule 21(1)(c) of the Standing Order provides as follows :
“If the charge-sheet is not received by the concerned employee, the undertaking may send the charge-sheet by registered post with A/D to the employee at his local address for explanation and informing him simultaneously the date, time and place of enquiry and pass a copy of charge-sheet and notice of date, time and place on the Notice Board at his place or work and also in addition where the workman is placed under suspension similar Notice should be sent to his permanent address by Registered Post with A/D and such posting shall be conclusive evidence of service and if he refuse or fails to present in time, the enquiry shall be conducted ex parte and punishment deemed appropriate may be imposed.”
9. The above provision requires that the charge-sheeted person must be served with the notice by registered post with AD even while under suspension. In the present case, the opp. parties have taken a stand that the petitioner went on leave. Therefore, they are bound to serve a notice mentioning the subsequent date of hearing.
10. The plea for non-supply of documents to the petitioner on the pretext of non-availability is also a ground, which the petitioner has mentioned in his explanation under Annexure-2. In addition to the above, it is admitted by the opp, parties in Paragraph 13 of their counter that the copy of the enquiry report was sent to the petitioner under Annexure-B, but returned without being served with the endorsement that the addressee is regularly absent, whereafter, Annexure-4 was passed vide office Order No. 8600 dated 14.11.1992 without giving him opportunity of being heard in person as per Rule 21 (1 )(v) which is as follows :
“If the charge-sheeted workman so desire, before final orders are passed, he shall be given an opportunity of being personally heard by the appointing authority on a representation made in this regard.”
11. We may mention the provision of Rule 21 (1 )(vii) which is as under:
“In the enquiry the workman shall be given adequate opportunity of adducing all relevant evidence on which he relies, of cross-examining the witness of the undertaking and of explaining all materials against him on which reliance is proposed to be placed in support of the charges against him.”
In view of the specific provision of law, the opp.-party employer has to satisfy the Court that it had followed the rule before inflicting the punishment, which, in our considered opinion, has not been followed in the present case. Therefore, our considered opinion is that the principle of natural justice Audi alteram partem has been violated in the present case and the Annexure-4 is liable to be quashed which we hereby do. The opp. parties may proceed with the disciplinary proceeding afresh after supplying the required documents and giving adequate opportunity to the petitioner to place his case. The petitioner shall therefore be deemed to be under suspension till conclusion of the disciplinary proceeding and shall be entitled to the suspension/subsistence allowance as admissible and that shall be paid within a period of two months. The opp. parties are further directed to conclude the enquiry within three months from today.
Accordingly, the Writ Application is allowed to the extent indicated.
P.K. Mohanty, J.
I agree