Gauhati High Court
Runu Das vs Oriental Insurance Co. And Ors. on 5 January, 2007
Equivalent citations: (2007)2GLR635, 2008(1)GLT966
Author: T.Nk. Singh
Bench: T.Nk. Singh
JUDGMENT T.NK. Singh, J.
1. Heard Ms. P. Chakraborty, learned Counsel for the petitioner as well as Mr. Section Dutta, learned Counsel for the respondents.
2. Shortly put, the facts of the petitioner's case are that the petitioner was appointed as Assistant-cum-Clerk on 5.1.1993 in the Oriental Insurance Company Ltd. After joining the Company she got married and subsequently delivered her first child during 1997. It is stated that she was on maternity leave since 20.3.1997 to 17.6.1997 and after that period also she had to avail other leave due to other post delivery problems which were informed to the authorities from time to time.
3. It is alleged that on 12.8.1999 the petitioner was suddenly served with a letter with details of unauthorized leave and directed to join duty immediately by the respondent No. 2, the Regional Manager. The unauthorized leave of the petitioner as calculated by the respondents are 237 days during the year 1997 and 1998 vide letter dated 12.8.1999.
4. The petitioner on receipt of the said letter dated 12.8.1999 informed the respondent No. 2, the Regional Manager to verify the statement of unauthorized leave furnished to her under his letter dated 12.8.1999 and also the petitioner stated that the numbers of unauthorized leave of the petitioner purported by the respondent No. 2 are not correct. Again on 19.11.1999 the Divisional Officer under his letter dated 19.11.1999 addressed to the Regional Office had sought the advice of the Regional Office in order to initiate departmental proceedings for unauthorized leave for a number of days against the petitioner. The statement of unauthorized absence accompanied with the said letter of the Divisional Officer dated 19.11.1999 revealed that alleged unauthorized leave of 16 days was sanctioned vide Regional Office letter dated 7.10.1998 and 76 days leave for the year 1997 was sanctioned vide Regional Office order dated 25.2.1999, the leave of 161 days for the year 1998 sanction awaited and till July, 1999 the unauthorized leave had calculated to be 158 and half days. It is also stated that during 1999 she had conceived for the second time and she had duly informed the respondents about her ailments supported by doctors advice. On 11.12.1999 she gave birth to a girl child. It is also stated that the petitioner had applied for leave from time to time. On 20.12.1999 the petitioner was served with a charge sheet for initiating disciplinary action against her for remaining unauthorizedly absence without prior permission or sanction of leave. The relevant portion of the charge sheet dated 20.12.1999 (Annexure 5 of the writ petition) are quoted herein below:
Mrs. Runu Das Asstt. (c) P.O. Maligaon Dear Sir,
1. You have been working at the material time as an Asstt(c) in the B.O. Maligaon of Company's office at B.O. Maligaon and are governed by the General Insurance (Conduct, Discipline and Appeal) Rules, 1975.
2. You are reported to be highly irregular in attendance and in disciplined in remaining absent (frequently) without obtaining either any prior permission for absence or sanction of leave or even authorization to remain absent. It has therefore been decided to initiate disciplinary action against you and accordingly you are hereby served with these articles of charges as mentioned in this charge sheet and charged as under:
3. You have remain unauthorisedly absence without prior permission or sanction of leave or intimation thereof for the following days.
(i) In 1993 - 16 days
(ii) In 1997 76 days
(iii) In 1998 161 days
(iv) In 1999 189 days (Till August 1999) Details is described in the attached sheet.
5. Thereafter the disciplinary proceeding was initiated against the petitioner for the said charge. In course of the said disciplinary proceeding, the petitioner appeared before the authorities and presented the relevant documents pertaining to her pregnancy and delivery of a female child during 1999 as well as the advice of the doctor. It is also stated that the petitioner had submitted before the authorities that the days of her absence as calculated by them are not correct and also that even the days of her presence were marked as absence wrongly. The Enquiry Officer, after holding the disciplinary proceeding against the petitioner for the said charge by giving opportunity to the writ petitioner to cross examine the prosecution witnesses who were examined in her presence and also to put up her case, had submitted enquiry report to the disciplinary authorities. The disciplinary authorities after taking into consideration of the enquiry report and also the case of the petitioner had issued the order dated 21.6.2001 for removing the petitioner from service with immediate effect which shall not be a disqualification for future employment, The said order dated 21.6.2001 reads as follows:
OFFICE ORDER Date : 21.6.2001.
Whereas Major Penalty proceedings in terms of Rule 25 of General Insurance CDA Rules, 1975 were initiated against Smti Runu DAs, Asstt (C) B.O. Maligaon vide charge sheet dated 20.12.1999 on the following Articles of charge:
Smti Runu Das is reported to be highly irregular in attendance and indisciplined in remaining absent (Frequently) without obtaining either any prior permission for absence or sanction of leave or even unauthorisation to remain absent. She has remained unauthorisedly absence without prior permission or sanction of leave or intimation thereof for the following days.
In 1993 16 days In 1997 76 days In 1.1.1998 to 8.4.2000 570 days.
Smti Runu Das by the above miscsonduct, has been failed to abide by the rule No. 3(1)(i)(ii)(iii)(iv) under General Insurance (CDA) Rules, 1975.
Smti Runu Das by the above misconduct falls under the Rules 4(7)(17)(20) and Rule 18 of the aforesaid GI (CDA) Rules, 1975, in this respect her unauthorized absence have not only dislocated the work but also affected the discipline.
And whereas a Departmental Inquiry was held in the matter and the charges leveled against Smt. Runu Das stands proved.
And whereas the undersigned being the Dy. Manager and Disciplinary Authority in the matter having gone through the charge sheet, reply to the charge sheet, Inquiry findings and other connected records of the case observe that Smti Runu Das could not satisfactorily explain the reason as to why she remained unauthorized by absence for such huge No. of days.
The conduct of Smti Runu Das is as such blameworthy and her commissions prejudicial to the interest of the Corporation/Subsidiaries. The misconduct on the part of Smt Runu Das warrants imposition of penalty and the following penalty is hereby imposed.
Removal from service with immediate effect which shall not be a disqualification for future employment.
Smt. Runu Das be informed accordingly in the matter.
Deputy Manager and Disciplinary Authority
6. Against the said removal order dated 21.6.2001 the - petitioner preferred appeal dated 31.7.2001 before the appellate authority, the Regional Manager, Oriental Insurance Company Ltd., Guwahati. The appellate authority after due consideration of the appeal filed by the petitioner had informed the petitioner under his letter dated 8.10.2001 that the appellate authorities are unable to consider the said appeal of the petitioner in her favour.
7. Being aggrieved by the said order, the petitioner filed the present writ petition asking for a writ of certiorari quashing the impugned charge sheet dated 20.12.1999, the impugned removal order dated 21.6.2001 and impugned order dated 8.10.2001 rejecting the appeal of the petitioner.
8. The respondent Nos. 1 to 5 filed the affidavit-in-opposition stating that the statement of the petitioner that "she was on leave since 20.3.1997 to 17.6.1997 and after that period also she had to avail other leave" is absolutely incorrect. The respondents further stated that the statement of the petitioner that "she filed application from time to time after availing the sanctioned leave" are incorrect. It is also the further case of the respondents that the unauthorized absences cannot be continued as maternity leave and also that she did not even give any intimation to the respondent company about the date of birth of the second child and also that there is no material on records to reveal that the petitioner did apply for leave and as such the averments of the petitioner that she applied for leave is absolutely baseless and devoid of any substance. It is also stated that disciplinary proceeding against the petitioner for the said charge for unauthorised absence was held after giving the opportunity to the petitioner to participate in the disciplinary proceeding as well as by giving all the opportunity to cross examine the prosecution witnesses and also to put up her case by producing witnesses and the documents in support of her case.
9. It is also further case of the respondents in their affidavit-in-opposition that the finding in the enquiry report that the charge against the petitioner had been proved are based on the evidence, i.e., statement of the prosecution witnesses and the documentary evidence.
10. This Court for the effective decision of the present case had directed the counsel for the respondents to make the file containing the disciplinary enquiry and other related documents against the petitioner available before this Court and accordingly the learned Counsel for the respondents produced the file before this Court for perusal.
11. In the writ petition the petitioner could not clearly make out a case for causing prejudices to her in defending her case because of the failure to furnish a copy of the enquiry report to her. The petitioner in her memo of appeal dated 31.7.2001 filed against the impugned dismissal order dated 21.6.2001 before the appellate authority mentioned nothing about causing of prejudice to her in defending her case because of the failure to furnish a copy of the enquiry report to her.
12. For the ends of justice, this Court passed an order dated 20.7.2006 in the present writ petition for furnishing a copy of the enquiry report of the enquiry officer to the petitioner and also that on receipt of the said report of the enquiry officer, the petitioner would file affidavit indicating prejudice, if any, as may have been caused to her. Accordingly, a copy of the enquiry report of the enquiry officer was furnished to the petitioner and on receipt of the copy of the enquiry report, the petitioner had filed the affidavit dated 9.8.2006, wherein she did not mention any prejudice caused to her on the failure to furnish copy of the enquiry report to her.
13. The service of the petitioner as Assistant-cum-Clerk in the Oriental Insurance Company is governed by the Rules, "General Insurance (Conduct, Discipline and Appeal) Rules, 1975. Sub-rule (4) of Rule No. 3 of the said Rules, 1975 provides that absence without leave or overstaying the sanctioned leave for more than four consecutives days without sufficient grounds or proper or satisfactory explanation and also absence from the employees' appointed place of work without permission or sufficient cause are misconduct". Rule 18 of the said Rule, 1975 specifically mentioned that employee are not to be absent from duty without permission or be late in attendance.
14. This Court also carefully perused the said enquiry file produced by the learned Counsel for the respondents as well as the writ petition and its annexures, additional affidavit in opposition of the petitioner dated 9.8.2006 as well as affidavit in opposition of the respondent Nos. 1 to 5.
15. Admittedly, the copy of the enquiry report of the enquiry officer for the said charge of unauthorized absence against the petitioner was not furnished to her. But the question in the present writ petition is that on the failure of furnishing the enquiry report to the petitioner whether or not any prejudice had been caused to the petitioner in defending her case.
16. As discussed above, neither in the writ petition nor in the additional affidavit filed by the petitioner dated 9.8.06 material/statement for causing prejudice to the petitioner in defending her case because of non furnishing of the enquiry report in the facts and circumstances of the case of the petitioner are mentioned. Therefore, this Court is of the considered view that no prejudice had been caused to the petitioner in defending her case on the failure to furnish a copy of the enquiry report to her. The Apex court in U.P. State Spinning Co. Ltd. v. R.S. Pandey and Anr. 2006 SCC (L&S) 78 after taking into consideration of the ratio laid down by the Apex Court in Managing Director/ECIL v. B. Karunakar held that Court/tribunal should not mechanically set aside the order of punishment on the ground that enquiry report was not furnished, in as much as, the court/tribunal has to see that furnishing of the report would have made a difference to the result in the case and also non furnishing of the enquiry report will cause any prejudice to the employee in defending his/her case. Para 31 of Page 758 in Managing Director, ECIL v. B. Karunakar (supra) reads as follows:
Para 31. Hence, in all cases where the enquiry officer's report is not furnished to the delinquent employee in the disciplinary proceedings, the courts and Tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the Court/Tribunal and give the employee an opportunity to show how his or her case was prejudiced because of the non supply of the report. If after hearing the parties, the Court/Tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment given, the Court/Tribunal should not interfere with the order of punishment. The Court/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The court should avoid resorting to short cuts. Since it is the Courts/Tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal appellate or revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the Court/Tribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment. Where after following the above procedure, the Court/Tribunal sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority/management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report. The question whether the employee would be entitled to the back wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered, should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. If the employee succeeds in the fresh inquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of the benefits, he will be entitled. The reinstatement made as a result of the setting aside of the enquiry for failure to furnish the report, should be treated as a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and no more, where such fresh inquiry is held. That will also be the correct position of law.
17. The learned Counsel appearing for the petitioner submitted that the charge mentioned in the charge sheet dated 20.12.1999 was for a period from the year 1993 up to July 1999. But the impugned dismissal order dated 21.6.2001 was issued basing on the unauthorized absence for the period from 1.1.1998 to 8.4.2000 and as such there is a vagness in the charge, in as much as, the impugned termination order was issued taking into consideration of the period from August, 1999 to April 2000 for which there was no charge.
18. This Court (Division Bench) had considered such type of vagness in the charge in Saroj Bhattacharyya v. Union of India and Ors. (2003) 3 GLR 77 and held that if the departmental proceeding is proceeded after knowing the charge of unauthorized absence, there cannot be question of vagness of charge only because of the slight deviation of the period during which the delinquent had been charged for his/her unauthorized absence. The case of the petitioner in Saroj Bhattacharyya v. Union of India (supra) is spell out in Para No. 3 and the finding of the court is at Para No. 5 of the GLR which are quoted herein below:
Para No. 3. Mr. A.K. Bhattacharyya, learned senior counsel arguing the case of the appellant, has advanced two primary grounds in support of the challenge made in the present appeal. Learned Counsel has argued that the charges against the appellant is for unauthorized absence from duty from 23.1.1992 till the date of charge memo, i.e., 13/14.7.1992. As from 10.3.1992 onwards the appellant was admittedly in police custody, and the said fact having been taken due note of by the appellate authority while remanding the case for de novo enquiry, in the course of such de novo enquiry, the charge against the appellant ought to have been re-framed and the same not having been done, the enquiry as a whole stands vitiated.
It is next argued by the learned Counsel appearing on behalf of the appellant that under Rule 153.8 of the Railway Protection Force Rules, 1987, the delinquent employee has a right to take the assistance of any member of the force to defend himself in the enquiry. It is argued that the said right of the appellant has been breached in the present case as he was not made aware of the same either by the disciplinary authority or by the enquiry officer. Learned Counsel has argued that there is a mandatory duty cast on the disciplinary authority/enquiry officer to apprise the delinquent employee of such right and any breach of the same would vitiate the conduct of the enquiry. Reliance in this regard has been placed on two decisions of the Apex Court in the cases of C.L. Subramaniam v. Collector of Customs, Cochin and Bhagat Ram v. State of Himachal Pradesh . Reliance has also been placed on Judgment of Division Bench of this Court reported in (1989) 1 GLR 233 Amlulya Chandra Das v. Assam Administrative Tribunal and Ors.
Lastly, it has been argued by the learned Counsel for the appellant that the materials on record amply demonstrate that the unauthorized absence of the appellant from duty, even if the same is held to be proved, would be for the period from 23.1.1992 to 10.3.1992 and that the appellant was advised to proceed to Calcutta for better treatment of his illness and the appellant had a right to obtain treatment of a doctor of his choice. On the aforesaid basis, it is argued that even assuming the charge to be proved, unauthorized absence for the period in question, in the light of the reasons furnished by the delinquent employee, ex facie demonstrates that the punishment of removal from service to be shockingly disproportionate thereby calling for necessary intervention of this court.
Para 5. Insofar as the first argument advanced on behalf of the appellant is concerned, as the charged leveled against the appellant is of unauthorized absence from duty with effect from 23.12.1992 and it is the appellant's own case that he was detained on police custody with effect from 10.3.1992, it is our considered view that the appellant ought to have furnished his explanation for his alleged unauthorized absence from 23.1.1992 upto the date of his arrest, i.e., 10.3.1992 and thereafter ought to have pleaded his detention in police custody as the reason for his absence for the period subsequent to 10.3.1992. Admittedly, the same was not done by the appellant. In the facts of the present case, it is out considered view that the charges leveled against the appellant are sufficiently clear and unambiguous leaving no room for doubt in what has been alleged against the appellant. Merely because for a part of the period of the alleged unauthorized absence, the appellant was detained in police custody, cannot, in our considered view, after the validity of the charge sheet, nor can the requirement of submitting a fresh charge sheet be read in the facts of the present case. The first argument as advanced by the learned Counsel for the appellant therefore has to fail.
Under Rule 153.8 of the Railway Protection Force Rules, 1987, the charged member of the Force has the liberty to take the assistance of any other member of the force to enable him to defend himself properly in the enquiry held. The argument advanced on behalf of the appellant is that even if the delinquent/charged employee does not put in a request for such assistance, it is the mandatory duty of the enquiry officer to inform the charged employee of his "right" and any breach thereof would vitiate the enquiry. The decision of the Apex court in the case of CL Subramaniam v. The Collector of Customs, Cochin (supra), reliance on which has been placed, is not an authority for the proposition advanced on behalf of the appellant The aforesaid decisions turns on its own facts and in the said case, the Apex court held that when a trained prosecutor was appointed as a presenting officer, the request for appointment of a legal practitioner made by the charge officer should have been acceded to. The second aspect of the case was with regard to the conduct of the enquiry officer in no intimating in time the person named by the charged officer to assist him in the enquiry, so as to enable the said person to appear in the enquiry. As in the facts of that case the person named by the charged officer was intimated at a very late stage and consequently he could not assist the charged officer, the Apex court held that reasonable opportunity was denied to the charged officer. We fail to see how the aforesaid case assists the appellant in support of the proposition put forward.
19. Learned Counsel appearing for the respondents strenuously submitted that judicial review of the High Court in a writ proceeding against the proceeding and finding of the departmental enquiry is very limited and circumscribed. In support of his contention, learned Counsel for the respondents referred to the decisions of the Apex court. (1). State Bank of Patiala and Ors. v. S.R. Sharma . (2). Lalit Popli v. Canara Bank and Ors. . (3). Ram Saran v. IG of Police. CRPF and Ors. .
20. The Apex Court in State Bank of Patiala and Ors. v. S.K. Sharma (supra) held that justice means justice between both the parties. The interest of justice equally demand that the guilty should be punished and that technicalities and irregularities which do not occasion failure of justice are not allowed to defeat the ends of justice, principles of natural justice are but the means to achieve the ends of justice.
21. The Apex Court in Lalit Popli v. Canara Bank and Ors. (supra) held that the High Court in exercise of its writ jurisdiction under Article 226 in a writ proceeding against the finding of the departmental inquiry does not act as an appellate authority. Paras 16, 17 and 22 in Lalit Popli v. Canara Bank and Ors. (supra) reads as follows:
Para 16. It is fairly well settled that the approach and objective in criminal proceedings and the disciplinary proceedings the preliminary question is whether the employee is guilty of such conduct as would merit action against him, whereas in criminal proceedings the question is whether the offences registered against him are established and if established what sentence should be imposed upon him. The standard of proof, the mode of enquiry and the rules governing the enquiry and trial are conceptually different. See State of Rajasthan v. B.K. Meena. In case of disciplinary enquiry the technical rules of evidence have no application. The doctrine of "proof beyond doubt" has no application. Preponderance of probabilities and some material on record are necessary to arrive at the conclusion whether or not the delinquent has committed misconduct.
Para 17. While exercising jurisdiction under Article 226 of the Constitution the High Court does not act as an appellate authority. Its jurisdiction is circumscribed by limits of judicial review to correct errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice. Judicial review is not akin to adjudication of the case on merits as an appellate authority.
Para 22. Considering the limited scope of judicial review, the Division Bench was right in upholding the order of dismissal by setting aside the learned Single Judge order by which interference was made with it. We find no reason to differ from the conclusions of the Division Bench. The appeal is without merit and is dismissed accordingly.
22. From the ratio laid down in Lalit Popli v. Canara Back and Ors. (supra), it is clear that the standard of proof, and the mode of enquiry and the rules governing the departmental enquiry and criminal proceedings are conceptually different. Preponderance of probabilities and some material on record are necessary to arrive at the conclusion whether or not the delinquent has committed misconduct in the disciplinary enquiry and also that while exercising the jurisdiction under Article 226 of the Constitution the Court does not act as an appellate authority. The Apex court in Ram Saren v. IG of Police CRPF and Ors. (supra) held that the scope of judicial review is limited to the deficiency in the decision making process and not the decision. The court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the court, in the sense that it was in defiance of logic or moral standards. The court would not go into the correctness of the choice made by the administrator open to him and the court should not substitute its decision to that of the administrator.
23. Keeping in view of the above factual background and ratio laid down by the Apex Court, and the materials available on record, this Court is of the considered view that this Court cannot come to the conclusion that the report of the enquiry officer is based on no materials and also that the proceedings of the departmental enquiry against the petitioner suffer from procedural impropriety.
24. For the reasons discussed above, this writ petition is devoid of merit and accordingly it is dismissed.