Madhuben Rajeshbhai Patel vs Life Insurance Corporation Of India on 3 April, 2018

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Gujarat High Court

Madhuben Rajeshbhai Patel vs Life Insurance Corporation Of India on 3 April, 2018

Bench: K.M.Thaker

        C/SCA/12964/2015                                          ORDER




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            SPECIAL CIVIL APPLICATION NO. 12964 of 2015

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                    MADHUBEN RAJESHBHAI PATEL
                              Versus
               LIFE INSURANCE CORPORATION OF INDIA
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Appearance:
MR VM DHOTRE(1089) for the PETITIONER(s) No. 1
MR. MAYUR V DHOTARE(7019) for the PETITIONER(s) No. 1
MR KV GADHIA(319) for the RESPONDENT(s) No. 1
MR YOGI K GADHIA(5913) for the RESPONDENT(s) No. 1
NOTICE SERVED BY DS(5) for the RESPONDENT(s) No. 2,3
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 CORAM: HONOURABLE MR.JUSTICE K.M.THAKER

                              Date : 03/04/2018

                               ORAL ORDER

1. Heard Mr.Dhotre, learned advocate for the petitioner and Mr.Gadhia, learned advocate for respondents.

2. In present petition, the petitioner has prayed, inter alia, that:

"7A. To Issue a Writ of Certiorari or any other appropriate writ, order or direction in the nature of Certiorari quashing and setting aside the impugned Order dated 25.07.2015 at AnnexureI to this petition and further be pleased to declare that the grant of ExtraOrdinary Leave by the competent authority vide its email letter dated 21.03.2015 for the two spells one for the period commencing from 23.07.2014 to 29.10.2014 for 99 days and another for the period commencing from 30.10.2014 to 20.01.2015 for 83 days holds good for all the purposes."

1 C/SCA/12964/2015 ORDER

3. So as to justify the relief prayed for in the petition, the petitioner has averred and alleged that:

"3.1 The petitioner states that the petitioner is a woman employee and hails from Schedule Caste Community. The petitioner joined the services as Assistant in Divisional office (Personnel Department), LIC of India, Gandhinagar on 01.04.1997 and that presently the petitioner is working as Higher Grade Assistant (HGA for short) at Mansa Branch Office of LIC of India. As far as the service record of the petitioner is concerned, the same is dotless and blemishless.

3.2 The petitioner states that the petitioner addressed two Complaints both dated 26.10.2013 one to resp.no.3 and the other to resp. no.2 concerning the misdemeanour and unwarranted behavior of one Shri D. K. Ashapuri, S R No. 451442, PG1 towards the petitioner including the commission of financial irregularities by him. Copies of both Complaints dated 26.10.2013 addressed to resp.no.2 and 3 are attached and annexed as ANNEXURE"A"Colly to this petition. The petitioner states that instead of taking action on letter dated 15.04.2014 concerning the complaint dated 26.10.2013 filed later in point of time by Shri D. K. Ashapuri against the petitioner stating inter alia that it has been decided to close the matter by warning the petitioner. The matter does not rest here but the resp.no.3 by passing an Order dated 31.05.2014 effected the reallocation of the departments. In substance it is the assertion of the petitioner that this is the first step taken by the resp.no.3 as a measure of punishment to the petitioner for raising her voice against the harassment perpetrated by Shri D. K. Ashapuri. Since nothing could be done concerning two complaints dated 26.10.2013, the petitioner made further two complaints dated 02.06.2014 and 03.06.2014 to the resp.no.2 requesting it to look into the complaints and do the needful. Further belatedly by a letter dated 10.07.2014 of resp.no.3 the explanation was sought for from the petitioner for not accepting the Order dated 31.05.2014. This is replied by the petitioner by a letter dated 19.07.2014 stating that the decision for re allocation is nothing but a step taken to harass the petitioner. After tendering the explanation by letter dated 19.07.2014, a warning letter dated 21.07.2014 has been issued to the petitioner by the resp.no.3 stating inter alia that the explanation tendered by the petitioner is not satisfactory and that she should join the duties in Ps/sss Department, failing which disciplinary action would be initiated.

3.3 The petitioner states that having got perturbed with the continuous harassment and issuance of warning letters as aforesaid and the disturbing atmosphere at the 2 C/SCA/12964/2015 ORDER workplace, the petitioner sought for leave by letter dated 24.07.2014. Instead of acceding to the request of the petitioner for leave, the resp.no.3 shoot up a letter dated 28.07.2014 asking the petitioner to make clear the exact duration of leave, type of leave required and the reason for the same within two days from the receipt of its letter, failing which the entire period of absence from 24.07.2014 till the petitioner resumes her duties would be treated as unauthorized absence and the disciplinary action would also be initiated against the petitioner. Copies of letters dated 24.07.2014 and 28.07.2014 is attached and annexed as ANNEXURE"B" Colly to this petition. The petitioner states that a lot of inter se correspondence took place between the petitioner and the respondent authorities on the aspect of absence and grant of leave The petitioner states that by writing various letters dated 24.07.2014 01.08.2014 27.08.2014 03.09.2014 14.10.2014 01.11.2014 10.11.2014 01.12.2014 06.12.2014, 13.12.2014, 17.12.2014 and 31.12.2014 the petitioner spelt out the reasons and details for leave. A copy of letter dated 31.12.2014 is attached and annexed as ANNEXURE"C" to this petition.

3.4 The petitioner states that the petitioner resumed her duties on 21.01.2015 by an Application dated 21.01.2015 and by a letter dated of the same date the resp.no.3 allowed the petitioner to resume her duties. Copies of joining letter and letter permitting the petitioner to resume her duties both dated 21.01.2015 is attached and annexed as ANNEXURE "D" Colly to this petition. When the petitioner was discharging her duties, by an email letter dated 21.03.2015 of the competent authority the petitioner has been informed that the petitioner's request for Extraordinary Leave for two spells commencing from 23.07.2014 to 29.10.2014 for 99 days and 30.10.2014 to 20.01.2015 for 83 days has been scrutinized and sanctioned by the competent authority. A copy of email letter dated 21.03.2015 is attached and annexed as ANNEXURE"E" to this petition.

3.5 The petitioner submits that despite the sanction of EOL as aforesaid by the competent authority for the absence period as stated above, a ChargeSheet dated 07.04.2015 has been issued to the petitioner for not attending the office from 23.07.2014 to 20.01.2015. A copy of chargesheet dated 07.04.2015 is attached and annexed as ANNEXURE"F" to this petition. The said chargesheet has been replied to by the petitioner by reply dated 18.04.2015 denying the charges. A copy of reply to chargesheet dated 18.04.2015 is attached and annexed as ANNEXURE"G" to this petition. After the denial of the charges in question, a departmental enquiry to enquire into the charges has been ordered by appointing inquiry officer one Shri T. K. Parmar and Shri K. S. Joshi as presenting officer vide order dated 21.04.2015. The petitioner submits that some sessions of departmental proceedings could take place and it is while conducting third session of enquiry proceedings on o7.07.2015, the petitioner gave a letter dated 06.07.2015 at the time of commencement of enquiry along with 3 C/SCA/12964/2015 ORDER enclosures received by email dated 21.03.2015 which are related to sanction of EOL for two spells in question. A copy of letter dated 06.07.2015 is attached and annexed as ANNEXURE"H" to this petition."

4. From the relief prayed for by the petitioner and above mentioned factual averments and allegations, it comes out that the petitioner is aggrieved by the decision rejecting / cancelling extraordinary leave for 99 days (from 23.7.2014 to 29.10.2014) and for 83 days (from 30.10.2014 to 20.1.2015), which the petitioner had claimed.

4.1 The petition and the allegations raised by the petitioner are opposed and denied by the respondents.

4.2 Reply affidavit is filed, wherein the respondents have mentioned relevant factual backdrop in light of which the petitioner's demand / application for 'extraordinary leave' came to be denied / cancelled. The respondents have averred and stated that:

"4. At the outset I submit that the petitioner herein has suppressed the material facts and not approached this Hon'ble Court with clean hands therefore the petition deserves to be dismissed on this ground alone. The petitioner has in essence challenged the communication 4 C/SCA/12964/2015 ORDER dtd. 25.07.2015 whereby the answering respondent has clarified the fact that her continuous absence from 23.07.2014 to 20.01.2015 would be considered as unauthorised absence as already conveyed to her by earlier letters dtd. 30.10.2014, 17.01.2015 and 21.01.2015. I say and submit that the petitioner has deliberately not produced the letters dtd. 30.10.2014 and 17.01.2015 and entire correspondence and misled the Hon Court by suppressing the material facts. Moreover petitioner is well aware of the fact that the said period i treated as unauthorised absence and yet the present petition is filed with malafide intentions. Therefore the petition is required to be dismissed on this ground alone.

5. I say and submit that the averments made at para No. 3.2 of the petition as such have no to the controversy of the present case. However in bearing order to bring the entire facts on surface I submit that the petitioner has mentioned about a complaint filed by her against her colleague Shri D.K. Ashapuri on 26 I say and submit that on the same day Mr. Ashapuri had also filed a complaint against the petitioner the copy of which is annexed herewith and marked as AnnexureRI. As per the said complaint the petitioner ran behind Mr. Ashapuri by raising a chappal in her hand and the same was proved to be true by the investigating authority on the basis of statement of the witnesses i e. Branch employees. The matter had also been referred to the Sexual Harrassment Committee which also in turn closed the complaint of the petitioner. The respondent had also looked into the allegation regarding financial irregularities alleged to have been committed by Mr. Ashapuri but the same was also found to be baseless. On the contrary the petitioner herein is in habit of misbehaving with the staff as well as higher officials and has also done various conducts of insubordination. In one such incident, total 11 Higher Grade Assistants including the petitioner were transferred vide order dtd. 31.05.2014 and the same was accepted by all the employees except for the petitioner herein. The same is clear from the annexureC (page 22,23) produced by herself in the present petition. The petitioner did not report at the transfer department and on the contrary raised various allegations. The office order dtd 31/05/2014 and other relevant correspondence are attached hereto and markes as Annexure R2 (colly.). he petitioner order to pressurize the higher ups made four baseless in complaints and conducting enquiry on all the said complaints, it was after proved The behavior and attitude of the that the same were baseless. petitioner can also be proved by a joint representation dtd. 15.07.2014 given y all the employees of Mansa Branch where the petitioner serving. The copy of the said letter d 15.07.2014 is attached hereto and marked as Annexure R3.

6. I say and submit that the present respondent is a Public Secter Undertaking say and it has its own rules and regulations including that for leaves. There is a proper procedure, permission and sanction to be followed 5 C/SCA/12964/2015 ORDER before proceeding on leave by any regular employee and the petitioner is well aware of the same. Despite the same the petitioner vide letter dtd. 24.07.2014 (Ann B) proceeded on leave without following the due procedure. The petitioner has neither mentioned the period of leave, type of leave nor taken any sanction for the same. Therefore the Mansa Branch of the present respondent wrote a letter dtd. 28.07.2014 (Page19) interalia mentioning that the petitioner has to provide the said details failing which the entire period of absence shall be treated as unauthorised absence. The petitioner had mentioned that she was under mental harassment and stress and therefore medical papers were called for the treatment taken for the same by the petitioner. However the petitioner vide her reply dtd. 03.09.2014 stated that she has not consulted any doctor. The said facts clearly prove that the petitioner under false pretext was remaining unauthorisedly absent. Therefore the Branch Manager vide letter dtd. 04.09.2014 again asked the petitioner to join the duties otherwise the entire period would be taken as authorised absence and that necessary disciplinary action would be initiated. Yet the petitioner neither provided any details regarding her leave nor resumed her duties. Similar facts were again reiterated by the present respondent in a letter to the petitioner dtd. 01.11.2014. vide letter dtd her 2014 it has been categorically informed to the petitioner that her absence from 23.07.2014 to 29.10.2014 is treated as unauthorized absence by the competent authority. Yet the petitioner did not join the duties up to 20.01.2015. The said facts are clear from AnnexureC (page2426). Again vide letter dtd. 17.1.2015 the competent authority has decided to treat absence of petitioner from 30.10.2014 till she resumes her duty as unauthorized absence. The petitioner then finally resumed her duties on 21.01.2015 (page34). In the letter permitting the petitioner to resume her duties also it is categorically mentioned that the petitioner was on unauthorised absence from 23.07.2014 to 20.01.2015. The said letter is received by the petitioner and annexed to the petition at page 35. The copy of the letters dtd. 01.11.2014, 17.01.2015 and 21.01.2015 are annexed hereto and marked as AnnexureR4 (colly). Thus it is crystal clear that the period of absence of the petitioner from 23.07.2014 to 20.01.2015 was treated as unauthorised absence and was communicated time and again to the petitioner. Therefore the present petition is required to be dismissed.

7. I say and submit that the petitioner has again submitted for special leave from 23.07.14 to 20.01.2015 vide letter dtd; 27/01/2015 against which a letter dtd. 2015 was sent interalia mentioning that her leave for the period was treated as unauthorised absence (Page40). The copy of the letters is attached hereto and marked as Annexure R5 (colly.). Thus not only is the petitioner aware from the very beginning that her leave was nothing but an unauthorised absence but also she sent a letter requesting to consider the same as special leave was also turned down. The fact that which petitioner was on unauthorized absence is also established from the leave 6 C/SCA/12964/2015 ORDER register of the petitioner. The copy of the relevant extract of the leave register is hereto and marked as AnnexureR6. Accordingly for various charges a charge sheet was issued on 07.04.2015 (AnnexureF) nst which the petitioner filed a reply on 18.04.15 (AnnexureG). The again enquiry proceedings were then initiated.

8. I say and submit that as stated hereinabove there are specific rules and ions for the staff members including that for leaves. As per the said regulations an employee cannot absent from duties without having obtained the permission of competent authority and in case of sickness or accident, he/she cannot be on leave without submitting a medical certificate satisfactory to the competent authority. The rules further provide that leave cannot be claimed as a matter of right and leave asked for should not be availed unless it is specifically sanctioned. The opponent reserves right to produce the relevant regulations at the time of hearing. Admittedly the petitioner has violated the binding regulations and therefore has committed gross misconducts.

9. I say and submit that there is a leave module and the leave of employees can be sanctioned only when the employee herself applies for leave through the leave module. Admittedly the petitioner has not applied through leave module. As the regulations once the higher office i.e. Divisional office per had decided that the absence of petitioner was to be treated as unauthorised absence, the subordinate office ie Mansa Branch office cannot modity or take any decision against the decision taken by the higher office. However inadvertently Branch office tried to make necessary entry in the leave module and the unauthorised absence, the concerned as there is no option to put unauthorised absence, the concerned officer through mistake selected EOL ie. Extra ordinary Leave. It is stated officer here that the petitioner never applied for the same and therefore she cannot something which she never demanded. Due to the said mistake, an claim automated email was sent to the petitioner herein on 21.03.2015 i.e AnnexureE. As stated hereinabove the petitioner has not applied online on eave module and yet due to a mistake, the said emails were generated. The same is also clear from the plain reading of the said mails. As soon as the respondent came to know about the said inadvertent mistake, a clarification letter dtd. 25.07.2015 was issued interalia cancelling the email dtd 21.03.2015. The said letter also mentioned about earlier letters dt 30.10.2014, 17.01.2015 and 21.01.2015 whereby categorically she was informed that her period of absence was treated as unauthorised absence. Thus on this ground alone the petition is required to be dismissed.

10. I say and submit that as stated hereinabove, the petitioner was well aware from the beginning that her period of absence was treated as unauthorised absence as it was communicated to her in series of correspondence. The said letters also stated that disciplinary action would be initiated against the petitioner for such unauthorised absence. Accordingly the charge sheet was 7 C/SCA/12964/2015 ORDER issued to the petitioner on 07.04.2015 and the same is replied to by the petitioner on 18.04.2015. The said reply does not state a single word petitioner regarding dtd. 21.03.2015. The simple reason being the petitioner was email aware that the said period of 182 days of absence was treated as unauthorised absence. hearings were held in the enquiry. Subsequenlty two wherein also has not taken the said plea. The same only lead to prove the fact that the petitioner was from the very beginning quite aware of the facts regarding unauthorised absence. Moreover, on 28/05/2015 during the inquiry proceedings, the petitioner herelf in her representation has categorically stated that the said period is treated as unauthorised absence. She has further requested again in the said letter that her absence from 23/07/2014 to 20/01/2015 may be treated as special leave. This abundantly proves that the said period was treated as unauthorised absence. The copy of the said representation d 28/05/2015 of the petitioner is annexed hereto and marked as Annexure R7. Thus he petitioner had never applied for EOL and had in May 2015 requested to consider the same as Special leave. /An inadvertent mistake on part of an official cannot in any term cancel the orders passed by higher authority against the rules of a PSU. Thus the petition is required to be dismissed on this ground alone.

11. In light of the aforesaid premises the petitioners are not entitled to claim any relief as prayed for and the petition is required to be dismissed.

12. Respondent reserves the right to file fuller and further reply in case of necessity at later stage."

5. On conjoint reading of the allegations by the petitioner and from the details mentioned by the respondents and so also from the document (chargesheet) at AnnexureF, page 39 and so also from the documents annexed to the reply affidavit, it emerges clearly that for more than one reasons, the petition does not deserve to be entertained.

8 C/SCA/12964/2015 ORDER

5.1 In this context, it is appropriate to mention that -

(a) the petition involves several disputed questions of facts which cannot be examined in writ proceedings under Article 226 of the Constitution of India;

(b) the petitioner can avail alternative remedy;

(c) in any case extraordinary leave is not a matter of right for any employee and for such purpose a writ petition under extraordinary and prerogative writ jurisdiction does not deserve to be entertained;

(d) more so when the petitioner can avail alternative civil remedy and/or remedy before the learned Labour Court;

(e) to accept or to refuse / reject application - request for leave, more particularly extraordinary leave, is purely 9 C/SCA/12964/2015 ORDER and solely prerogative of the employer;

(f) the Court would not enter into sufficiency of the reasons for granting or refusing request for extraordinary leave;

(g) employer would be the best judge to determine administrative requirement / exigencies and only employer can assess the circumstances in light of which the decision with regard to the request for leave, more particularly extraordinary leave can be taken.

5.2 Ordinarily, extraordinary leave are for special and extraordinary circumstances and are not available as matter of right but such leave would be granted at the employer's discretion and the Court cannot substitute Court's view instead of employer's discretion. If the petitioner wants to claim that the employer's decision is unjust or irrational and that her claim for extraordinary leave was for just and compelling 10 C/SCA/12964/2015 ORDER reasons, then both parties shall have to establish rival reasons and disputed issues of facts, by leading evidence and such issues cannot be determined in writ proceedings.

5.3 This Court would not exercise prerogative and extraordinary writ jurisdiction in case where disputed issues are involved and/or for which alternative remedy is available.

6. In present case, the respondents have, vide affidavit, brought out several facts and circumstances which demonstrate that the respondent authority, after taking into account the facts and circumstances, considered it appropriate to refuse / cancel extraordinary leave.

7. The decision to grant or to refuse demand for extraordinary leave is an administrative function of the concerned / competent authority and this Court, in exercise of extraordinary and prerogative writ jurisdiction, would not 11 C/SCA/12964/2015 ORDER interfere with such administrative decision of the competent authority.

8. In light of the facts and circumstances which are brought out by the respondents through the reply affidavit, more particularly the aspects which are mentioned above, this Court is not inclined to entertain present petition and to interfere with the administrative decision, more particularly in view of the fact that alternative and ordinary civil remedy is available to the petitioner and alternative remedy under provisions of the Industrial Disputes Act, 1947 is also available.

9. In this view of the matter it is clarified that if the petitioner avails alternative remedy so as to prosecute her grievance and claim, then present order will not stand in way of the petitioner and the learned Court where the petitioner approaches for adjudication of her dispute and claim, will consider and decide the petitioner's claim on merits and in light of the 12 C/SCA/12964/2015 ORDER evidence available on record.

10. With the said clarification, the petition is disposed of. Since the petition is not entertained for above mentioned reasons, there is no justification to continue interim relief which results into restraining the respondents from proceedings further in departmental proceeding.

However, it is clarified that the petitioner may, in accordance with rules, seek adjournment before the competent authority on the ground that she wants to prosecute her dispute before appropriate forum.

With the aforesaid clarifications and observations, the petition is disposed.

(K.M.THAKER, J) Bharat 13

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