Rajendrakumar Ranjit Singh ... vs Western Coalfield Ltd.
2002 Latest Caselaw 742 Bom

JUDGMENT

R.G. Deshpande, J.

1. Petitioner has approached this Court through this petition challenging the order, dated May 25, 1993, whereby the respondent-management informed the petitioner that in pursuance of Clause 12.4(iv) of Chap.XII of Common Coal Cadre, the petitioner has deemed to have left the services of the company on his own accord with effect from the date he was due to return to work. The clear meaning of his letter is that according to the respondent-management the petitioner has abandoned the services and since then he was no more in the service of the respondent-management.

2. The relevant facts in nut shell and that too just for the decision of the present petition are as under:

The petitioner was appointed as a Junior Engineer with the respondent No. 1 Western Coalfields Ltd., Nagpur (hereinafter referred to as the company for the sake of brevity as the Western Coalfields Ltd., is already registered under the Companies Act). By passage of time, the petitioner was promoted to the post of Executive Engineer and from Nagpur he was transferred to Pench Valley area of the respondent- company. Petitioner did not join at Pench Valley area and according to him it was because of certain unforeseen circumstances. According to him he availed leave by making necessary applications. No doubt it has come on the record that initially petitioner avoided to join at Pench Valley area and also tried to exhaust some legal remedies. Having been totally unsuccessful in those attempts, ultimately he joined on June 19, 1992. After having joined at Pench Valley area, petitioner again availed leave, that was earned leave. He proceeded on leave from June 21, 1992 to July 15, 1992, he again went on leave from July 26, 1992 till August 17, 1992. He again appeared to have joined the duties and proceeded on leave from August 22, 1992 to August 28, 1992. It appears that he immediately thereafter got extended the leave from August 28, 1992 to September 14, 1992 and again after joining, proceeded on leave from September 18, 1992 to September 28, 1992. It is clear from the record that after having availed of the abovesaid leave, no doubt for a considerably long time, surprisingly he again sought for extension of leave by his letter dated September 30, 1992. However, this was refused by the respondent-company and he was specifically informed that no further leave would be granted to him and that he should join duties immediately. However, petitioner failed to join the duties and just went on sending his leave applications one after another. AH these leave applications were rejected by the respondent-company. However, petitioner did not take any cognizance of such rejection and even did not join in pursuance of the direction given by the respondent-company to the petitioner to join his duties immediately. It is also clear from the record that the respondent-company by its letter, dated December 23, 1992, brought it to the notice of the petitioner that the conduct of the petitioner was definitely offending and further he was informed about the provisions of Para. 12.4(iv) of Chap.XII of the Common Coal Cadre as well as Rule 5.7 Chap. II of the Conduct, Discipline and Appeal Rules, 1978. Appropriate it is at this stage to mention that the provisions of the Common Coal Cadre and Conduct, Discipline and Appeal Rules, 1978, framed by the company are applicable in the present case and there is no dispute about the same, though the validity of Clause 12.4(iv) of Chap. XII of the Common Coal Cadre is challenged by the petitioner in this petition.

3. In spite of having been informed to comply with the directions given by the respondent-company to join the services, since the petitioner did not report on duty and also again pushed in the applications on medical grounds for leave, the respondent-company was ultimately compelled to issue a letter, dated May 25 1993, informing the petitioner that since he failed to report on duty within 8 days of the receipt of the office letter No. WCL/ PER/EE/578 dated March 11, 1993 which was the letter given by the respondent- company to the petitioner to join, the petitioner could be said to have made himself liable for action under Para 12.4(iv) of Chap. XII of the Common Coal Cadre. In pursuance of that Clause, the company declared by this letter that petitioner lost his lien on his appointment and deemed to have left the services of the company of his own with effect from the date he was due to return to work. He was also informed that thereafter he would not be allowed to resume duty. He was also made aware of his rights that in accordance with the provisions of the Common Coal Cadre, he had a right to make a representation in that matter to the management explaining the reasons of his absence and the management reserved its right to accept or not to accept the explanation if given by him. It is this letter which injured the petitioner and prompted him to approach this Court for the necessary reliefs. Petitioner has sought for quashing of this letter and also for declaration that Clause 12.4(iv) of Chap.XII of the Common Coal Cadre be declared as unconstitutional.

4. Sri Pillai, the learned advocate appearing on behalf of the petitioner vehemently contended that no opportunity was given to the petitioner whatsoever to explain his case and this impugned letter, dated May 25, 1993, is virtually an order of termination of the services of the petitioner without affording him any chance of being heard and without conducting any inquiry into the matter, Sri Pillai contended that even otherwise the petitioner had submitted his explanation by his reply, dated June 14, 1993. However, the respondent-company in most arbitrary-manner rejected the same observing it to be not convincing. Sri Pillai further contended that only the Chairman of the Coal India Ltd., who was appointing authority in respect of the petitioner, would have been competent to pass the order of bringing an end to the services of the petitioner. Since the present order is passed by the Sri Ashok Mehta, General Manager (Personnel), which could be said to be an order issued by an incompetent person and, therefore, the order could not be given effect to. According to him, the General Manager could not be said to be the competent authority as regards the petitioner was concerned, Sri Pillai further contended that even otherwise when an action in the nature of punitive nature was taken against the petitioner, the principle of natural justice demands that an opportunity of being heard should have been offered to the petitioner before taking any such action against the petitioner. However, in the present case the petitioner could be said to have been condemned and heard and arbitrarily the order is passed.

5. As against this argument of Sri Pillai, Sri Mehadia, the learned counsel appearing on behalf of the respondent-company virtually has put before this Court the complete horoscope of the petitioner depicting therein the conduct of the petitioner all through. Sri Mehadia pointed out that the moment the petitioner was transferred to Pench Valley area, he was reluctant to go there and to create a hurdle therein, he had approached the law Courts and attempted to obtain necessary restraint orders therein. However, having not been successful therein, he ultimately joined and thereafter immediately opted to go on leave constantly. According to Sri Mehadia this conduct of the petitioner definitely reflected that the petitioner has decided not to work at Pench Valley area.

6. Sri Mehadia further contended that the respondent-company by its letter, dated March 11, 1993, had informed the petitioner that he absented himself from duties since September 29, 1992 unauthorisedly. He was further informed by this letter that it was brought to the notice of the petitioner that it was advisable on his part to appear before the Company Medical Board on two occasions since he had proceeded on leave on medical grounds. However, the petitioner did not comply with the same. Sri Mehadia therefore, pointed out that petitioner was specifically informed by this letter, dated March 11, 1993, that this conduct of the petitioner definitely amounted to disobedience of lawful orders. In spite of this, according to Sri Mehadia, the petitioner was given a chance to rectify the mistakes and to join within 8 days of receipt of that letter by the petitioner. He was also specifically threatened by this letter that if he failed to join in pursuance of that letter within 8 days of receipt thereof, the provisions. of Clause 12.4(iv) of Chap. XII of Common Coal Cadre will be immediately made operative in his case and it would be deemed that the petitioner left the services of the company on his own accord and he would naturally also lose his lien on the post. In spite of having so much opportunity, the petitioner did not make most of the opportunities and did not comply with the letter. Sri Mehadia, therefore, contended that the management was left with no other option than to issue mis letter, dated May 25, 1993.

7. In spite of this being a specific stand of the management that the petitioner abandoned the services or left the services of his own and he had lost his lien over the post, surprisingly while replying the petitioner's letter, dated June 14, 1993, the respondent- company by its reply, dated July 10/13, 1993, informed the petitioner that since the petitioner has raised a point of departmental enquiry in the matter, the company was ready to afford him an opportunity of such an enquiry by holding necessary enquiry in the matter where the petitioner would be given a chance to substantiate his claim for being absent for valid reasons. By the very said letter the management also informed the petitioner that the petitioner should join his duties at Pench Valley Area within 7 days of the receipt of that letter. This clearly means that petitioner was no doubt directed to join the duties within 7 days of the receipt of that letter and the management was ready to conduct the departmental enquiry as was asked for by the petitioner. The decision of the present petition would much depend on the interpretation of this document and the subsequent correspondence that has been made by the respondent-company with the petitioner. Needless it is to mention that the petitioner did not comply with this letter and did not join the duties in pursuance thereof within the stipulated period. On the other hand, the petitioner wrote to the management vide his letter, dated July 19, 1993, which no doubt appeared to be in total adamant tone whereby the petitioner virtually wanted to dictate the management by asking the management first to withdraw the letter, dated May 25, 1993, and treat the petitioner to have joined the duties on May 25, 1993 and thereafter the things would be settled. By this letter surprisingly the petitioner wrote that whether the management could proceed against the petitioner in a departmental enquiry on the basis of the allegations of absence from duty, was also a question which according to him was doubtful. No doubt, such a conduct on the part of the employee is highly deplorable. However, we are not at this stage divulging on this point as we have to decide as to whether the petitioner was entitled for the necessary opportunity which he sought for, which could have been afforded to him only through departmental enquiry. Fact remains that letter, dated July 10/13, 1993 was not complied with by the petitioner.

8. It was really surprising that the management, i.e., the General Manager of the respondent-company again by its letter dated August 4/5, 1993 by way of reply to the letter of the petitioner, i.e., letter dated July 19, 1993, again wrote to the petitioner advising him to report for duty to the General Manager, Pench Valley Area, immediately with a justifiable reason for his absence. It is necessary to note at this stage that this justifiable reason which is sought for has to be presumed for that period of leave of the petitioner for which the petitioner could be said to be penalized by the letter, dated May 25, 1993. This justifiable reason was no doubt asked for the period which was given to the petitioner in pursuance of the letter, dated July 10/13, 1993. The abovesaid letter of the company was again replied by the petitioner by his letter, dated August 10, 1993, and again the same conduct and attitude of the petitioner not befitting to the officer of the rank of the petitioner, is apparent from this letter. However, we do not want to get ourselves misdirected only because of the rough language used therein. However, again the petitioner did not join in pursuance of the letter dated August 4/5, 1993.

9. On August 20, 1993 what prompted the management to unnecessarily reply to the correspondence of the petitioner is best known to the management itself. However, the management unnecessarily engaged in writing letters and also wrote this letter again directing the petitioner and readvising him to report for duty to the General Manager, Pench Valley Area, immediately and surprisingly the management also advised the petitioner that as regards other issues which were raised by the petitioner in his letter, the same could be settled mutually within the rules after the petitioner joins his duty at Pench Valley Area. Not only this, the General Manager of the respondent company by this letter also directed the General Manager, Pench Valley Area, to allow the petitioner to join if he goes for joining. The management further appeared to be so unnecessarily submissive in writing this letter when the management writes if the petitioner had any grievance, he was at liberty to call on the office of the General Manager (P.), Nagpur, on any working day and discuss the issue with the said officer. We fail to understand, after having issued the letter, dated May 25, 1993, what was the necessity and occasion for the respondent-company to be so submissive and polite in constantly inviting the petitioner to join the duties. It appears that the petitioner had made an attempt to contact the concerned Officer. However, the officer was not available as is clear from the letter of the petitioner, dated August 31, 1993.

10. After having gone through all these correspondences and after having heard Sri Pillai, the learned advocate for the petitioner, we put a question to Sri Pillai advocate as to whether did he really apply for the extension of leave from to time and as to whether there was any justifiable reason for the petitioner to proceed on leave as there is no document whatsoever in that respect, he had simply made a vague statement in that respect on the record. Sri Pillai during the course of his argument submitted he would produce all those documents whereby he had sought for leave and which were correctly considered by the respondent-company. Since the matter is part heard and it is of the year 1994, we thought it not fit to grant permission to Sri Pillai to produce all those documents on the record at this stage, as we are not going to perform the job of enquiry officer.

11. Sri Mehadia, the learned advocate argued that in any case the equity in the present matter does not demand any type of relief to the petitioner particularly when the conduct of the petitioner was highly objectionable and not befitting the employee. We are, however, not to decide the matter on the basis of the conduct of the party concerned and we have to decide the same strictly in pursuance of the four corners of law irrespective of the conduct and the nature of the petitioner.

12. Sri Mehadia further pointed out that from the record it is clear that the petitioner after having left the services of the respondent-company joined as an Advocate in the District Bar Association from November 14, 1993. According to Sri Mehadia, therefore, during the pendency of this litigation and even when the correspondence was going on between the management and the petitioner, the petitioner got himself enrolled as a bar member and this fact he concealed from the management as well as from Bar Council of Maharashtra. So far as the management is concerned, we may accept the statement of Sri Mehadia that he kept the management in dark. However, if at all the petitioner has kept the Bar Council of Maharashtra also in dark, in this respect it is a matter between the petitioner and the Bar Council and this Court would not unnecessarily deal with that point here in this petition. However, it is clear that this statement made by Sri Mehadia that he has suppressed all these facts in the petition, no doubt appeared to be correct from the record.

13. As pointed out earlier, in the present petition everything hinges on the letter/order, dated May 25, 1993, the interpretation thereof and the subsequent correspondence made by the respondent-management with the petitioner in pursuance thereof. If the management had treated that the petitioner had left the services or abandoned the services in pursuance of Clause 12.4(iv) of Chap. XII of Common Coal Cadre, then in our view it was just unnecessary for the respondent company to get tempted on the basis of the reply of the petitioner to write its letter, dated July 10/13, 1993, whereby the management decided to hold an enquiry so as to afford an opportunity to the petitioner to substantiate his claim for being absent from' duty for valid reasons. Not only this, but the management also gave him 7 days time to join. Had the petitioner joined the duties in pursuance of this letter, dated July 10/13, 1993, that would have virtually meant that the management could be said to have withdrawn its order/letter, dated May 25, 1993. Petitioner did not join in pursuance of this letter within 7 days. Surprisingly management again wrote a letter, dated August 4/5, 1993, to the petitioner whereby he was again advised to report for duty with justifiable reasons for his absence. It is pertinent to note that neither the letter, dated July 10/13, 1993 nor this letter, dated August 4/5, 1993 informs the petitioner that if he failed to join in pursuance of those letters, it would be presumed that the petitioner left or abandoned the services and the letter, dated May 25, 1993, would be treated to be operative. Petitioner no doubt did not comply with this letter, dated August 4/5, 1993, also and kept the respondent-company engaged in correspondence thereby prompting the respondent-company again to write its letter, dated August 20, 1993. By this letter again the management not only invited the petitioner to join the duties immediately but also assured him that the other issues would be settled mutually. Though the petitioner has not complied with this letter also, however, the fact remains that the intention of the management was clear when the management wrote its letter, dated July 10/13, 1993, suggesting to hold an enquiry in the matter.

14. After having chiselled all these documents on the record, we without slightest vacillation of mind, and even according to the management this was a case wherein the departmental enquiry was definitely needed particularly the management by its earlier letter dated March 11, 1993, had informed the petitioner that his conduct of remaining absent amounted to disobedience of lawful orders. The correspondence between the petitioner and the respondent clearly indicates that it was not a simple matter only of abandonment of service but the petitioner's services were to be brought to an end on the basis of certain allegations against him as regards disobedience and also unauthorised leave. That could be the reason as to what prompted the management also to suggest about the departmental enquiry by its letter, dated July 10/13, 1993. In view of the subsequent letters i. e. letters, dated July 10/13, 1993, August 4/5, 1993 and August 20/25, 1993, which are at Annexures VI, VIII and X respectively clearly indicated that the management was also of the view that letter dated May 25, 1993, was not given effect to, else, there was no necessity for the management to issue these letters. Had the petitioner joined in pursuance of any of these letters, it is clear that the management was not treating the joining of the petitioner in pursuance of these letters as if the fresh appointment which was being given to the petitioner.

15. It is also clear from the correspondence that in none of these letters it was suggested by the management that if the petitioner failed to comply with those letters as regards joining within the stipulated period, then the management would treat that the petitioner was not interested in the job and the letter, dated May 25. 1993, would be given effect to. We have no slightest doubt in our mind that the respondent at this stage cannot say that in pursuance of the letter, dated May 25, 1993, the petitioner could be said to have abandoned his job or services and he had lost his lien over the post on which he was appointed.

16. Therefore, we have no other alternative but to quash the letter, dated May 25, 1993 and we have to declare that the petitioner cannot be said to be out of service from that day, i.e., May 25, 1993, or any day prior to that. However, we do not wish that the petitioner should be given a complete loose rope in such matters wherein the conduct of the petitioner definitely deserved some type of restrictions on him. Since no departmental enquiry is held and since the management of its own expressed that necessary departmental enquiry would be held in the matter, we direct that the management shall hold the departmental enquiry in the matter, giving full opportunity to the petitioner to defend himself by adducing oral as well as documentary evidence on the record if he so desires. However, till then the petitioner shall be deemed to be in service. The petitioner agrees that he will not claim a single pie towards back-wages or any other wages till the enquiry is completed and everything will depend on the result of the departmental enquiry. After the departmental enquiry is held and the competent authority obtains the report of the enquiry officer, the competent authority is at liberty to take appropriate decision in pursuance of that report and decide the matter as regards the leave period, in what manner the leave should be treated i.e. leave with pay or leave without pay and other matters are left to the discretion of the management. We also expect that the management shall conduct the departmental enquiry at the earliest possible.

17. With these directions, the rule is made absolute in the aforesaid terms. However, in the circumstances of the case, there would be no orders as to costs.