Jharkhand High Court
Ajay Kumar Jha vs Life Insurance Co.Ltd. & Ors. on 15 April, 2010
Equivalent citations: 2010 (4) AIR JHAR R 68, (2010) 3 JCR 2 (JHA)
Author: Amareshwar Sahay
Bench: Amareshwar Sahay
WRIT PETITION (SERVICE) NO. 3501 OF 2006
An application under Article 226 of the Constitution of India.
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Ajay Kumar Jha ..... ..... ...... Petitioner
Versus
1. Life Insurance Corporation of India
2. Chairman, Life Insurance Corporation of India, Mumbai
3. Zonal Manager, Life Insurance Corporation of India, Kolkata
4. Senior Divisional Manager, Life Insurance Corporation of India, Hazariabgh
5. Manager (Personnel & Industrial Relations)
Life Insurance Corporation of India, Hazaribagh.
..... ..... ..... Respondents
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For the Petitioner : Mr. A.K. Sahani, Advocate
For the Respondents : Mr. Sachin Kumar, Advocate
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PRESENT : HON'BLE MR. JUSTICE AMARESHWAR SAHAY
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By Court:- Heard Mr. A.K. Sahani, learned counsel for the petitioner and Mr.
Sachin Kumar, learned counsel appearing on behalf of the respondents.
2. In view of the nature of the order which is going to be passed herein, it is not necessary to state the facts in details.
3. Suffice is to notice the relevant facts which are as follows:-
The petitioner was posted as Higher Grade Assistant in Jharia Branch No. 3 of Life Insurance Corporation of India in February 1998. He was transferred to Dhanbad Branch No.1 in December 2002. He made an application for grant of leave from 27.3.2003 to 15.5.2003 which was sanctioned. It appears that he was facing trial for the offences under Sections 302, 210, 328, 120B, 498A and 34 of the Indian Penal Code in connection with Sessions Case No. 941 of 1996 and the judgment in the said case was to be pronounced on 28.3.2003. As noticed above, the petitioner was granted leave from 27.3.2003 and on 28.3.2003, he appeared before the trial court in connection with the aforesaid Sessions Case, but he was convicted under Sections 302/34/120B/201/328/498A of the Indian Penal Code and sentenced to serve rigorous imprisonment for life and he was taken into custody and remanded to jail. The petitioner preferred appeal being Criminal Appeal No. 148 of 2003 before the Patna High Court. The said appeal was admitted for hearing and the petitioner was directed to be released on bail on 12.8.2005 during pendency of the appeal, which is still pending before the Patna High Court.
4. It is in between the period i.e. 16.5.2003 and 21.8.2005, he could not join the service even after expiry of the period of his leave since he was in fact released on bail from jail on 19.8.2005. He gave his joining on 22.8.2005 vide Annexure-4 disclosing the reasons for his absence and also stating that why he did not disclose the fact earlier regarding his involvement in the criminal case. The joining of the petitioner was not accepted and ultimately he was served with a letter dated 16.9.2005 issued by the respondent no. 5 enclosing a copy of the punishment order dated 27.4.2004 imposing penalty of removal from his service in terms of Regulation no. 39(i) (f) of the Staff Regulation 1960.
5. The petitioner submits that without serving any charge sheet and without holding any departmental enquiry or without issuing any second show cause notice, he has been dismissed from service in violation of Regulation 39 of the Staff Regulation, 1960.
6. Against the said order of punishment as contained in Annexure-7 dated 16.9.2005, the petitioner preferred a departmental appeal by submitting a detail memo of appeal as contained in Annexure-8 to the writ petition. The said appeal filed by the petitioner was dismissed by the appellate authority vide order dated 12.5.2006 as contained in Annexure-9 which is brought on record by way of amendment.
7. The grievance of the petitioner is that the appellate authority without appreciating and considering the points raised by the petitioner in his memo of appeal dismissed the appeal by a cryptic order. It is submitted that on perusal of the appellate order, it would appear that the appellate authority has in fact not at all applied his mind and has dismissed the appeal mechanically.
8. The argument advanced by the petitioner has vehemently been controverted by the learned counsel for the respondents-Corporation and he has submitted that the appellate authority has fully considered the case and on consideration of the records has dismissed the appeal by a reasoned order.
9. The Regulation 46 of the Staff Regulation, 1960 envisages about consideration of appeal, which reads as under:-
"Consideration of Appeals:-
46. (1) In the case of an appeal against an order of suspension, the appellate authority shall consider whether in the light of the provisions of Regulation 36 and having regard to the circumstances of the case the order of suspension is justified or not and conform or revoke the order accordingly.
(2) In the case of an appeal against an order imposing any of the penalties specified in Regulation 39, the appellate authority shall consider-
(a) whether the procedure prescribed in these Regulations has been complied with and if not, whether such non-compliance has resulted in failure of justice;
(b) whether the findings are justified; and
(c) whether the penalty imposed is excessive,
adequate or inadequate, and pass orders.-
(i) setting aside, reducing, confirming or
enhancing the penalty; or
(ii) remitting the case to the authority which
imposed the penalty or to any other authority
with such direction as it may deem fit in the
circumstances of the case.
Provided that -
(I) the appellate authority shall not impose
any enhanced penalty which neither such
authority nor the authority which made the order appealed against is competent in the case to impose;
(ii) no order imposing an enhanced penalty shall be passed unless the appellate is given an opportunity of making any representation which he may wish to make against such enhanced penalty; and
(iii) if the enhanced penalty which the appellate authority proposes to impose is one of the penalties in clauses (b) to (g) of Regulation 39, and an inquiry under the said Regulation has not already been held in the case, the appellate authority shall itself hold such inquiry or direct that such inquiry be held and thereafter on consideration of the proceedings of such inquiry and after giving the appellant an opportunity of making any representation which he may wish to make against such penalty,pass such orders as it may deem fit.
(3) All appeals should be disposed of as expeditiously as possible and in any event not later than 6 months from the date of receipt of the appeal by the appellate authority".
10. Keeping in mind the aforesaid Regulation 46, I have scrutinized the appellate order as contained in Annexure-9 as to whether Regulation 46 has been complied with or not? The appellate authority has held that the petitioner did not inform the office about his remand since 28.3.2003 and he did not reply to the letters issued and sent to him by the office at his address on 28.7.2003, 12.8.2003 and by registered post on 29.9.2009 for his absence. It was further held that the contention of the petitioner that disciplinary proceeding was initiated without issuing any show cause notice to defend himself on the charge of abandonment of post against him stood fully proved was not tenable and on that basis, he was dismissed from service.
11. On consideration of the above findings, I am of the view that the same is not conformity with the requirements of Regulation 46 of the Staff Regulation 1960 already quoted herein above since it did not fulfill the requirement of Regulation 46. From the impugned appellate order, I further find that though the petitioner raised several points in his memo of appeal as contained in Annexure-8, but those points have not been considered/discussed by the appellate authority, therefore, I am constrained to hold that the appellate authority in fact dismissed the appeal without application of his own mind.
12. For the reasons stated above, I am of the view that the appeal is required to be reconsidered by the appellate authority afresh on its own merit. Accordingly, this writ petition is allowed. The order dated 12.5.2006 passed by the appellate authority as contained in Anneuxre-9 is hereby set aside and the matter is remitted back to him to consider the appeal of the petitioner afresh on its own merit in the light of the observations and directions made herein above considering the points raised by the petitioner in his memo of appeal as well as complying the requirements of Regulation 46 of the Staff Regulation, 1960 of the Life Insurance Corporation of India.
Thus the writ petition stands allowed to the extent indicated above.
(Amareshwar Sahay, J.) Jharkhand High Court, Ranchi Dated the 15th of April 2010 N.A.F.R./ R.Kr.