Punjab-Haryana High Court
Anil Kumar Son Of Shri Sandip Lal Mehan vs State Of Punjab on 20 March, 2012
Author: K. Kannan
Bench: K. Kannan
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Writ Petition No.16738 of 1991 (O&M)
Date of decision:20.03.2012
Anil Kumar son of Shri Sandip Lal Mehan, resident of Karyam
Road, Dana Mandi, Nawanshahr, District Jalandhar.
...Petitioner
versus
State of Punjab, through Registrar, Cooperative Societies, Sector 17,
Chandigarh, and others.
....Respondents
CORAM: HON'BLE MR. JUSTICE K. KANNAN
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Present: Mr. Pawan Kumar, Senior Advocate, with Mr.
Anshuman Mandhar, Advocate, for the petitioner.
None for respondents 1 and 2.
Mr. Rahul Sharma, Advocate, for respondents 3 and 4.
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1. Whether reporters of local papers may be allowed to see the
judgment ? No.
2. To be referred to the reporters or not ? No.
3. Whether the judgment should be reported in the digest ? No.
----
K.Kannan, J. (Oral)
1. The writ petition challenges the order of dismissal of the petitioner issued by the Managing Director of the Doaba Cooperative Sugar Mills Limited. The Managing Director has also been impleaded as a party in name since a malafide exercise of power is attributed to him. The charge that had been issued to the petitioner that concluded in a finding against him and culminated in Civil Writ Petition No.16738 of 1991 (O&M) -2- the order of termination was his absence from duty from 06.06.1985 to 26.06.1990. The translated copy of the charge-sheet is as follows:-
"Absence from duties from 6-6-85 to 26-6-90 from the place of his work and non-performance of any work."
2. The contention of the petitioner is that the very basis of charge was untenable and against the records. The petitioner's case is that he had been employed as a Turner with the respondent-Sugar Mill and he had been terminated from service on 19.06.1970. This order of termination was challenged before the Labour Court that went upto the Hon'ble Supreme Court which directed his reinstatement by its order dated 08.05.1985. It is a matter of record that the petitioner claimed that he was not permitted to rejoin despite the order of the Court and, therefore, he had filed a contempt petition against the respondents before the Hon'ble Supreme Court. The petitioner was actually reported as reinstated on 09.09.1986 by the respondents, whereupon the contempt petition was disposed off as having become unnecessary.
3. The petitioner had filed a contempt petition again before the Hon'ble Supreme Court in Contempt Petition No.21746 of 1987 complaining that he had not been paid his salary dues and that was also disposed off by the Hon'ble Supreme Court on 06.01.1988 when all his dues were reported as paid. The petitioner filed another writ petition in CWP No.12720 of 1990 when he complained that Civil Writ Petition No.16738 of 1991 (O&M) -3- even the subsistence allowance had not been paid and that was again paid to the petitioner by the intervention of Court. It would, therefore, be seen that from the day when the Hon'ble Supreme Court passed an order directing reinstatement on 08.05.1985 till 23.03.1990, they were proceedings before the Court where the petitioner was still complaining disobedience of the orders of the Hon'ble Supreme Court and the unjustness of the conduct of the respondents in not paying even the subsistence allowance and the entitlements that had been assured to him by the order of the Hon'ble Supreme Court.
4. It is in the teeth of all these proceedings that the petitioner had come to be served with the charge-sheet complaining of his absence from duty from 06.06.1985 to 26.06.1990. It is not comprehensible as to how the petitioner could have remained absent from service without the Management joining issues before the Hon'ble Supreme Court itself that he had been deliberately absenting himself from service but still making a claim for disobedience of the orders of the Hon'ble Supreme Court. Ex facie, the contention that the petitioner was absent from duty from 06.06.1985 to 26.06.1990 could not have been true. It was just as well possible that there was a lack of finesse in drafting of charge and the Management was complaining that the petitioner was not properly working during the said period. The averment as regards the complaint of the petitioner of not doing the work properly would have to be therefore seen Civil Writ Petition No.16738 of 1991 (O&M) -4- from what memorandum of the "imputation of charges" themselves contained when the Managing Director had issued a charge-sheet. The "imputation of charges" that accompanied "the charge-sheet"
would make reference about all the proceedings that had been initiated by the petitioner before the Hon'ble Supreme Court and the High Court and the narration of facts commencing from 30.07.1985 to 26.09.1989 does not make any reference about the petitioner not attending to his duty properly. On the other hand, it is stated that the Mill complied with the orders of the Supreme Court on the various dates subsequent to its judgment, but the petitioner had been issued with an order on 18.12.1989 by the respondent when he did not perform his duty at the place of his work and that he had slipped away after marking his presence in the time office of the Mill. It would be seen therefore that at least upto 18.12.1989, the respondent has no case to state that the petitioner was not coming to the Mill and that he was not working. The complaint refers only to the period subsequent to 18.12.1989 when they were purported to have issued an order on 23.03.1990 that he was not doing his work properly. On the other hand, it is stated in the imputation of charges that he was absent from duty from 06.06.1985 to 26.06.1990 and he had slipped like on earlier occasions after marking himself present. From a full reading of this document, I can only see two instances where the respondent has complained that on 18.12.1989, he did not perform his duty and left the place of work and on 23.03.1990, he Civil Writ Petition No.16738 of 1991 (O&M) -5- had been served with a notice that he did not do work properly. The incident of 26.06.1990 itself is only about the fact that he did not report for duty. With these facts, it is impossible to reconcile what the charge-sheet was, namely, that the petitioner had been absent from duty from 06.06.1985 to 26.06.1990. The non-performance of any work if it must be understood as a statement that the petitioner was actually showing up in his place of work and did not do any work, it cannot be a matter of strained inference from the reading of articles of imputation of charges and thereafter how the defence is brought up through the written statement. It must be clear in the charge-sheet itself, for, an employee is expected to bring his defence to what he is charged with and not to what the employer believed that he had in mind. I will not, therefore, see even the framing of charge was clear or whether the petitioner could have known what he was being charged with.
5. To the contention of the petitioner that he had not been permitted to attend the enquiry and literally prevented from entering, it is sought to be supported through letter issued on 13.07.1990 through registered post that he was not being allowed to attend the enquiry and that he was being prevented from entering the Mill. There are several communications which the petitioner relies on to say that several of the letters which he had issued to the Enquiry Officer expressing his difficulty in attending the enquiry and filing the refused envelopes. The respondents would contend that they Civil Writ Petition No.16738 of 1991 (O&M) -6- were not refused in the manner alleged by the petitioner, but they had all been fabricated by the petitioner to manufacture evidence. The respondents would have similar allegations against the petitioner that the petitioner knew about the date of hearing on every date and he deliberately absented himself. Of one incident was a time when the Enquiry Officer was not taking up his case on 22.08.1990 and a copy of the letter has also been filed in Court that purported to contain the signature of the petitioner in acknowledgment of the fact of service of the letter. Except this letter showing that the petitioner was present at the place and had affixed his signatures, other documents relied on by the respondents are denied by the petitioner. The petitioner's denial that he was not permitted to come and the defendants' contention that the petitioner had at all times known about the enquiry itself and that there had been no obstruction to his participation in the enquiry were disputed questions of fact and, therefore, cannot be a subject of an adjudication in a writ petition.
6. The respondents have a much more fundamental objection that the proceedings by means of a writ petition itself would not be competent, since the respondent-Sugar Mill is not an instrumentality of State and as held by the Hon'ble Supreme Court and of this Court, a writ petition cannot be filed. The learned counsel would rely on the judgment of this Court in Prem Singh and others Versus State of Punjab and others in CWP No.10806 Civil Writ Petition No.16738 of 1991 (O&M) -7- of 2006, decided on 20.07.2006 that a challenge to an action by another Cooperative Mill (Tarn Taran Cooperative Sugar Mills Limited) was found to be not competent when the Division Bench relied on a decision of the Hon'ble Supreme Court in S.S. Rana Versus Registrar, Cooperative Societies and another- JT 2006(5) SC 186 and Gayatri De Versus Mousumi Cooperative Housing Society Limited and others-JT 2004(5) SC 554 that a Cooperative Mill was not a 'State' within the meaning of Article 12 of the Constitution of India to be amenable for a writ jurisdiction. The learned counsel for the respondents would contend that it was not merely a case where an alternative remedy was available but the writ petition had been entertained and kept pending for more than two decades. In this case, according to the learned counsel appearing on behalf of the respondents, it is a complete lack of inherent jurisdiction of the Court to deal with the case.
7. In response to this objection relating to the maintainability of the writ petition itself, the learned counsel for the petitioner would rely on a judgment of this Court in B.S. Baidwan and others Versus Punjab State Federation of Cooperative Sugar Mills Limited and others-in CWP No.16035 of 2010, decided on 06.04.2011 that a Sugar Federation brought about through the State initiative was an instrumentality of State and a writ petition could be maintained. It will be difficult to uphold as a proposition of law that a Sugar Mill is an instrumentality of State which could be amenable Civil Writ Petition No.16738 of 1991 (O&M) -8- for jurisdiction. A Cooperative Society and a federation of cooperative policies constituted at State initiative are distinct. In the former, if no action of a public authority is under challenge, a writ petition cannot be maintained. In the latter, a writ petition is maintainable. The jurisdiction exercised under Article 226 is invariably against a State or its instrumentality in the constitutional scheme of things. The limitation to the exercise of power under Article 226 is in some way a self-imposed restriction and ought not to be seen as inviolable. There have been instances where Courts have intervened to exercise the jurisdiction in cases of extreme hardship or denial of fundamental rights or where the action of a private individual is so patently capricious that intervention becomes imperative. I would rest this case only as an extraordinary situation emerging from the given set of facts that an employee, who had been directed to be reinstated in service by the orders of the Hon'ble Supreme Court, was sought to be fended off by a Management and was picking up several tissues of falsehood to keep him at bay. I find even the language used in the Enquiry Officer's report as plainly in contempt of Court. The Enquiry Officer, who is supposed to take an objective assessment of the fact from the given evidence, cannot allow his prejudices to come over him by referring to the petitioner's attempt to vindicate his stand before the Hon'ble Supreme Court as a despicable act of an employee "accustomed to litigation and keep the Management engaged in various litigations" (sic). The article of Civil Writ Petition No.16738 of 1991 (O&M) -9- charge itself is an admission of several litigations as resultant to the employer's act of defiance fought tenaciously by as an employee vindicating his stand to secure back the employment that he had lost. If all the litigations had come to naught and the Court had found that the petitioner was indulging in frivolous litigations, then it should have been possible to characterize the petitioner's conduct as unbecoming and that he was indulging in keeping the Management in various litigations. On the other hand, all those litigations must be seen as attempts of an employee to secure his employment in the first place, later his claims for wages that had been denied to him in spite of the order and still later a claim for subsistence which was denied to him during the enquiry and again, later a contempt action for securing what the Hon'ble Supreme Court itself allowed for would show that it was the respondent-Management that was wholly at fault and it was the Management that was engaging an emasculated worker in a slew of litigation. If the writ petition had been filed only now, I would have directed the petitioner to raise a dispute under the Industrial Disputes Act or directed him for a resort to remedy that may be available under the bye-laws of the Cooperative Society. Unfortunately, the writ petition has stood admitted 2 decades back. A resort to the other alternative remedies would have been appropriate if several issues of disputed questions were to be adjudicated. Here, I find that the charge-sheet was patently false; it was a motivated action by the Management to Civil Writ Petition No.16738 of 1991 (O&M) - 10 -
scuttle the decision of the Hon'ble Supreme Court and a crass attempt to breach its own undertaking given in the contempt petitions. I find the enquiry to be an eyewash and the charge to be frivolous.
8. Even if it were to be contended that the petitioner remained absent and did not participate in the enquiry, then the proof of charge must be with reference to an event that could be established on the evidence given. I have already shown that the charge that the petitioner had been absent from duty 06.06.1985 to 26.06.1990 was itself patently wrong. I have also extracted the portions of the imputation of charges that there was never a complaint that the the petitioner had stayed away from working before 18.12.1989. The basis of the charge itself is defective and I will not make an issue of the fact that the petitioner had remained ex parte in the proceedings. Much could be stated on either side,- that the petitioner was not permitted to join in the enquiry in the manner that he was complaining of; that the petitioner had deliberately remained absent in spite of the notices and in spite of the knowledge that he had to be present. Either way, it was not going to improve the situation of the fundamental defect in the charge of his alleged absence from duty. This can be seen only in the context of how the petitioner had come by favourable order of reinstatement after 1 ½ decades of litigation and in spite of the order, it was not till he resorted to contempt action that he could get back his duty in Civil Writ Petition No.16738 of 1991 (O&M) - 11 -
September 1986. We have to contend with only for a short period from September 1989 to June 1990 and if there were ever to be a doubt of who was at fault. I would rather see this to be, in the circumstances in which the case has been foisted against the petitioner, that it was a respondents' fault.
9. The malafides of the charge is writ large on its face and it comes close on heels to the favourable orders that the workman had obtained from the Hon'ble Supreme Court and followed it up with a contempt petition against the Management. If the action of the respondents is malafide, as I have found and motivated to wreak vengeance against him for the action that he had taken through Court process, the Court shall be duty bound to bring succor to the worker that he deserves under the circumstances.
10. The impugned order is quashed and the writ petition is allowed with cost assessed at Rs.5,000/- against the respondents. The petitioner shall be entitled to all the benefits as if he were in duty and if he has attained the age of superannuation, he would be paid the terminal benefits admissible to his employment within 8 weeks with interest at 6% per annum from the respective dates when the amount fell due.
(K.KANNAN) JUDGE 20.03.2012 sanjeev