Madhya Pradesh High Court
Devi Prasad Tekam vs General Manager Judgement Given By: ... on 4 September, 2013
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HIGH COURT OF MADHYA PRADESH : JABALPUR
WRIT PETITION No.17798/2006
Devi Prasad Tekam
Vs.
General Manager & another
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Present : Hon'ble Shri Justice K.K. Trivedi
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Shri A.S. Jha, learned senior Counsel assisted by Shri B.M.
Prasad, learned Counsel for the petitioner.
Smt. Shobha Menon, learned senior Counsel assisted by Shri
Rahul Choubey, learned Counsel for the respondents.
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O R D E R
(04/09/2013) This petition under Article 226 of the Constitution of India is directed against the order by which the Disciplinary Authority has terminated the services of the petitioner and against the subsequent order by which his appeal has been dismissed by the Departmental Appellate Authority. The petitioner, who was engaged on compassionate basis, as a Messenger in the service of the respondent M.P. State Forest Development Corporation Limited (herein after referred to as 'Corporation' for short), was issued certain show cause notices informing him about his absence from duty and lastly when proper response was not submitted by him, a notice was sent to him indicating that in case appropriate explanation is not submitted, the services of the petitioner would be dispensed with. It is contended by the petitioner that though on certain occasion he was issued the show cause but without conducting any enquiry whatsoever, holding that the petitioner has committed misconduct like remaining absent from duty unauthorizedly and by giving false medical certificates, the order impugned 2 was passed. Since no enquiry whatsoever was conducted, the petitioner could not take up his defence. He could not explain the fact relating to registration of criminal case against him by the Police and his prosecution in the Court of law. All these grounds the petitioner has raised in his appeal preferred before the Appellate Authority but since the Appellate Authority has also not considered all these grounds and has mechanically passed the order rejecting the appeal of the petitioner, this writ petition is required to be filed.
2. In response to the allegations made in the writ petition, by filing a return it is contended by the respondents that petitioner was engaged in the services of the Corporation with effect from 02.08.2001 but it appears that he was not very much interested in service. Till the date of termination, i.e. 22.12.2003, the petitioner has absented himself from duty regularly. From the month of October, 2001 onwards almost every month the petitioner has remained absent from duty without any proper application. The petitioner was called upon to improve his working and to follow the law and the rules. The show cause notices were issued to him communicating him that in case sufficient cause is not shown for unauthorized absence from duty, the penalty of withholding of one increment of pay will be issued. No response to these show cause was given by the petitioner. On one occasion the petitioner did appear, submitted certain medical certificates regarding his illness. However, as it was found that in the medical certificates the designation of the post of the petitioner was shown to be L.D.C., the same were found to be incorrect and forged one. It is alleged that in fact petitioner was involved in a criminal case as was gathered from the Police department that the petitioner was involved in a case under Sections 365, 366 and 376 of the Indian Penal Code. Since no response was submitted by the 3 petitioner to the show cause, ultimately it was found that the petitioner was not interested in serving in the Corporation and, therefore, his services were rightly terminated. These facts were rightly taken into consideration by the Appellate Authority and appeal of the petitioner has also rightly been dismissed. It is vehemently contended that the person who has remained absent from duty without any justified reason, who has submitted false medical certificates of illness and who has not declared anything about his involvement in the criminal case, was not to be permitted to remain in the employment and, therefore, rightly the services of the petitioner were terminated and his appeal was dismissed. Since these facts were also considered by the Appellate Authority and appeal was dismissed, no scope is left to exercise power of judicial review in the matter of punishment imposed on the petitioner, in the given circumstances. It is, thus, claimed that the writ petition is liable to be dismissed.
3. Heard learned senior Counsel for the parties at length and perused the record.
4. It is not in dispute that a regular departmental enquiry was not conducted against the petitioner before issuing the order of termination. It is also not in dispute that the petitioner was absent from duty on certain occasions and for which separate show cause notices were issued to him. It is also to be seen from the record that the respondents have issued a notice to the petitioner after getting an information from the Police department that the petitioner was involved in a criminal case. However, the fact remains that even when the compassionate appointment was made, the petitioner was to be treated as an employee appointed on regular basis in the services of the Corporation and before imposition of a major penalty of termination or dismissal from service, it was necessary to conduct an 4 enquiry. The settled law is that without holding a departmental enquiry in such a matter, it is not open to the employer to terminate the services of the employee, otherwise, it would amount to violating the provisions of Article 311 of the Constitution of India. Now in the backdrop of this, entire facts are to be considered.
5. From the pleadings of the parties, it is clear that there were irregularities committed by the petitioner in the matter of performance of his duties. From the document placed on record as Annexure R-1, the respondents have pointed out as to what were the days of absence of petitioner. Since it is not in dispute that the order of appointment was issued in respect of the petitioner on 02.08.2001, at least for the period of about two months, no irregularity was found in respect of discharge of duties by the petitioner. He started remaining absent from the month of October, 2001 on certain dates. The notices said to be issued to the petitioner for such absence are placed on record as Annexure R-2/1. The first notice was said to be issued to the petitioner on 24.06.2003 for the absence with effect from 07.11.2002 to 17.11.2002. The other show cause notices said to be issued to the petitioner were sent on 09.07.2003 and 16.07.2003. These notices were duly received by the petitioner as the same were acknowledged by him. However, subsequent notices sent to him on 09.10.2003, 17.10.2003 and 09.12.2003 contains no acknowledgment that such notices were ever served on the petitioner. There is specific contention of the petitioner that he was not given the show cause notices and from this allegation if the notices are examined, it appears that few notices were not served on the petitioner as no proof of the same is placed on record by the respondents. Merely saying that a notice was issued, is not enough in view of the fact that if a disciplinary action is required to be taken, there must be proof of service of the notice.
56. Now the fact remains that up to 12.12.2003 no report was lodged against the petitioner in the Police. After registering a case, investigation was done and the petitioner was arrested only on 19.12.2003. This fact was informed to the authorities of the respondent Corporation on 19.12.2003 itself. How could a notice for an action against the petitioner on account of registering of a criminal case could be issued prior to the said date. It was necessary for the respondents to inform the petitioner about such a fact by issuing a show cause and to inform him that if sufficient cause is not shown, because of registration of such a case, services of the petitioner would be terminated. Except the show cause notice dated 09.12.2003, no show cause notice is placed on record by the respondents and there is no proof of service of such a notice on the petitioner. The medical certificates said to be produced by the petitioner about his illness are placed on record by the respondents as Annexure R-5. The medical certificate is not in handwriting of petitioner, where the post of the petitioner was shown to be L.D.C. and only because of this the respondents have reached to the conclusion that such was a forged document. The said certificates were issued by a Medical Officer of Government Dispensary at Lalbarra and the genuineness of such document was required to be examined by recording the evidence.
7. In view of the aforesaid, it is to be seen whether a penalty of termination could have been imposed against the petitioner or could it be said that because of long and continuous absence, the petitioner was liable to be terminated. It is not in dispute that the regulations have been made by the Corporation governing the services of the employees of the Corporation. It is also not in dispute that the absence from duty without any leave is a misconduct. Penalties are prescribed for the aforesaid misconduct in the 6 Regulations. However, if a major penalty is to be imposed then a departmental enquiry is a must and without conducting a departmental enquiry, the order of termination cannot be issued.
8. Learned Senior Counsel appearing for the respondents has heavily placed her reliance in the case of Mithilesh Singh vs. Union of India and others, (2003) 3 SCC 309, and has contended that if such is the conduct of the petitioner, it will not be required by this Court to exercise the power of judicial review and to interfere in the order of penalty. It is contended that in view of the fact that long and continuous absence from the duty was treated to be serious misconduct for which if a penalty is imposed, no interference was warranted, as was held by the Apex Court. With due respect the facts in the present case and in the case of Mithilesh Singh (supra) are totally different. The gravity of misconduct and the quantum of punishment imposed was examined by the Apex Court in the case of Mithilesh Singh (supra) in view of the fact that said person was appointed in the Railway Protection Force, which is a disciplined armed force and for the same separate set of Rules were made. It was specifically provided under the Rules made for the R.P.F. Employees that absence from duty will attract a punishment of termination/dismissal from service. It is not the case in hand. Firstly the petitioner was not appointed in a disciplined force. Secondly for the misconduct committed by him by remaining absent from duty, the respondents themselves have proposed punishment of withholding of increment of pay. There is no proof of the fact that when the proposed punishment from termination of service was reflected in the show cause, whether such a show case was served on the petitioner or not. Thirdly it has to be seen that for imposition of penalty in Corporation services, at least for the major penalty a departmental enquiry is a must as it is categorically 7 provided that major penalty would be imposed only after conducting the enquiry as prescribed in the Regulations. There was no initiation of enquiry by the respondents before imposing the penalty of termination against the petitioner. On the other hand, in the facts and circumstances of the present case if an employee is required to be punished with a major punishment, the settled law is that the enquiry must be conducted. Even in the case of contract appointments where the termination was based on a misconduct, this Court has held that without conducting an enquiry, the punishment of termination or dismissal from service cannot be imposed. This view has been expressed by this Court in the case of Rahul Tripathi Vs. Rajeev Gandhi Shiksha Mission, 2001 (3) MPLJ 616.
9. Now the equity demands to examine whether the petitioner is to be granted full relief as claimed in the writ petition or not. It is not in dispute that the petitioner was prosecuted for the offences said to be committed for abducting a girl. However, in the full dressed sessions trial after examining the evidence, it was found by the Trial Judge that the petitioner has not committed any offence under Section 365, 366, 376 I.P.C. and has acquitted him by the judgment of acquittal dated 27th February, 2004. However, in all fairness the petitioner should have explained the facts relating to his absence from duty. Therefore, the petitioner would not be entitled to the full relief claimed in the writ petition.
10. In view of the aforesaid, this writ petition is allowed in part. The order dated 22.12.2003 (Annexure P-1) and the order of Appellate Authority passed on 02.05.2005 are hereby quashed. The petitioner be reinstated in service. The period of absence be regularized by granting him leave without pay. The period with effect from the date of termination onward be treated as spent on duty for all purposes except the payment 8 of salary. The petitioner would not be entitled to payment of any back wages or the salary for the period of absence. Let this order be complied with within a period of two months from the date of receipt of copy of this order.
11. The writ petition is allowed to the extent indicated herein above. There shall be no order as to costs.
(K.K. Trivedi) Judge Skc