Bombay High Court
Abha Chawla Mohanty vs The Oriental Insurance Co. Ltd on 15 November, 2011
Bench: A.M. Khanwilkar, Mridula Bhatkar
1 98010
vgm
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 980 OF 2010
Abha Chawla Mohanty, ]
Indian Inhabitant, aged 49 years, ]
Residing at C/o. 1504, Rushabh Towers, ]
JB Road, Sewri, ]
Mumbai 400 015 ] ...Petitioner
Versus
1. The Oriental Insurance Co. Ltd., ]
having its registered office at New Delhi, ]
A 25/27 Asafali Road, New Delhi 110 002 ]
And
Divisional Office No. 6 at Ballard Estate ]
And
Regional Office at 7, J. Tata Road, Churchgate, ]
Mumbai ]
2. Dilip Dhar ]
The General Manager (Personnel), ]
the Oriental Insurance ]
Co. Ltd., having its registered office ]
at Oriental House, ]
PO Box No. 7037, 25/27 Asafali Road, ]
New Delhi 110 002 ]
3. M Ramadoss ]
the Chairman, the Oriental Insurance Co. Ltd., ]
having its registered office at Oriental House, ]
PO Box No. 7037, ]
A-25/27 Asafali Road, New Delhi 110 002 ]
::: Downloaded on - 09/06/2013 17:55:24 :::
2 98010
4. PK Jha ]
the General Manager (Estate & Establishment) ]
& Central Public Information Officer, ]
Oriental Insurance Co. Ltd., ]
A-25/27 Asafali Road, ]
New Delhi 110 002 ]
having its Regional Office at ]
Mumbai Regional Office No. 1 ]
having HO at A-25/27 Asafali Road, ]
New Delhi ]
And
Oriental House 7 J Tata Road, Churchgate, ]
Mumbai ]
5. Govind Rajan
The Estate Officer Regional Office I,
]
]
Oriental Insurance Co. Ltd., 7 J Tata Road, ]
Churchgate, Mumbai ] ...Respondents
The Petitioner, in person
Mr. A.G. Kothari for Respondent No. 1
CORAM: A.M. KHANWILKAR AND
MRS. MRIDULA BHATKAR, JJ.
DATE: NOVEMBER 15, 2011
JUDGMENT: (PER A.M. KHANWILKAR, J.)
This Writ Petition under Article 226 of the Constitution of
India takes exception to the Charge-sheet dated 8th March, 2004 and
3 98010
Addendum to Charge-sheet dated 8th November, 2004, as well as the Order
of Penalty dated 18th May, 2006 passed by the Competent Authority and the
Order dated 28th June, 2007 passed by the Appellate Authority.
In substance, the challenge is to the action taken against the petitioner on
the basis of the opinion recorded in the departmental proceedings initiated
against the petitioner, which culminated in her removal from service. As a
consequential relief, the petitioner prays for issuance of writ against the
respondents, directing them to reinstate her with full back-wages and
continuity of service with all incidental benefits with effect from 18th May,
2006. In addition, the petitioner is praying for damages and compensation
for personal loss caused to her due to unlawful dispossession of the
petitioner and her family members from the official service quarters.
2. Briefly stated, the petitioner was appointed in the Divisional
Office No. 4 of Oriental Insurance Co. Ltd. (hereinafter referred to as "the
Company") in the month of October, 1985, upon being selected in the All
India Examination for the Post of Assistant Administrative Officer. The
petitioner was assigned to the Technical Department. When the
departmental action against the petitioner was initiated pursuant to Articles
of Charge framed against her dated 8th March, 2004, she was working as
4 98010
Assistant Manager and was posted at M.C.D.O. VI. The Articles of Charge
dated 8th March, 2004 read thus:-
"ARTICLES OF CHARGES FRAMED AGAINST
MRS. ABHA C. MOHANTY, ASST. MANAGER, MCDO 6
Mrs. Abha C. Mohanty, Asst. Manger while posted at M.C.D.O. 6,
has committed the following acts of misconduct during the years
2002, 2003 and 2004.
Mrs. Abha C. Mohanty is highly irregular in her attendance,
remaining absent for several days although no admissible leave
was due to her, during the years 2002 to 2004 and she has not
submitted leave applications for the same in spite of several
letters issued to her. She had also not submitted Medical
Certificate for her Maternity Leave. On many days, she used to
attend office only for a few hours / minutes and also to come to
office late and leave office early at any time of her choice without
taking permission.
In the past also, a Disciplinary Action was initiated against her for
not submitting leave applications and not refunding excess
Travelling Advance drawn by her vide Chargesheet dated
05.07.2000. But Competent Authority had taken a lenient view of
the matter.
Mrs. Abha C. Mohanty, thus committed the misconduct of wilful
unauthorised absence for a very long period during the year 2002,
2003 and 2004, disobeyed the lawful and reasonable order of her
superiors, has not maintained devotion to duty, exhibited conduct
which is unbecoming of public servant, indulged in wilful
insubordination and disobedience, remained absent without leave
and without submitting leave applications and Medical
Certificates for Maternity Leave, without sufficient grounds and
satisfactory explanation committed an act which is subversive of
discipline or of good behaviour, all in contravention of Rules 3
(ii) (iii) (iv), 4(7), (8) (17) and (20) read with Rule 18 of the
General Insurance Conduct Discipline and Appeal Rules, 1975.
PLACE: MUBAI Sd/-
(B.C. SHAH)
DATE: 08.03.2004 ASST. GENERAL MANAGER
&
DISCIPLINARY AUTHORITY "
5 98010
3. The said Articles of Charge were accompanied by Statement of
Imputation of Misconduct / Misbehaviour in support thereof. The same
reads thus:-
"STATEMENT OF IMPUTATION OF MISCONDUCT IN
SUPPORT OF ARTICLES OF CHARGE AGAINST
MRS. ABHA C. MOHANTY, ASSISTANT MANAGER,
MCDO 6
--------------------------------------------------------------------------------
Mrs. Abha C. Mohanty, Asst. Manager while posted at M.C.D.O.
6, has committed the following acts of misconduct during the
years 2002, 2003 and 2004.
During the years 2002 to 2004 she has remained absent for several
days although no admissible leave was due to her and she has not
submitted leave applications for the same inspite of several letters
issued to her. On many days, she used to attend office only for a
few hours / minutes and also to come to office late and leave office
early at any time of her choice without taking permission.
From January 2003 to March, 2003 she has remained
unauthorisedly absent from office. From 2nd March, 2003, she
applied for Maternity Leave and remained absent till 15th October,
2003 without submitting any Medical Certificate. She again
remained absent from 17.10.2003 till date without any sanction
and / or intimation. Inspite of several letters addressed to her she
has neither improved her attendance nor submitted leave
applications.
In the past also, a Disciplinary Action was initiated against her for
not submitting leave applications and not refunding excess
Travelling Advance drawn by her vide Chargesheet dated
05.07.2000. But Competent Authority had taken a lenient view of
the matter and she was cautioned to be careful in future in
adhering to the rules and regulations of the Company vide Order
dated 17.01.2001.
In this connection, reference is made to the following Rules of the
General Insurance (CDA) Rules 1975.
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Rule 3: General
(1) Every employee shall at all times:
(ii) maintain devotion to duty and;
(iii) do nothing which is unbecoming of a public servant;
(iv) conform to and abide by these Rules and shall observe,
comply with and obey all orders and directions which may, from
time to time, be given to him, in the course of his official duties by
any persons under whose jurisdiction, superintendence or control
he may, for the time being, be placed.
Rule 4: Misconduct
Without prejudice to the term "Misconduct" the following acts of
omission and or commission shall be treated as misconduct:
(7) Absence without leave or overstaying the sanctioned leave for
more than four consecutive days without sufficient grounds or
proper or satisfactory explanation.
(8) Habitual late or irregular attendance.
(17) Absence from the employee's appointed place of work
without permission or sufficient cause.
(20) Commission of any act subversive of discipline or of good
behaviour.
Rule 18: Employee not to be absent from duty without permission
or be late in attendance.
(1) An employee shall not absent himself from his duties without
having obtained the permission of the Competent Authority nor
shall he absent himself in case of sickness or accident without
submitting a medical certificate satisfactory to the Competent
Authority. Provided that in case of an emergency an employee
may be allowed to avail one day's casual leave without prior
sanction subject to the condition that the Competent Authority is
promptly advised of the circumstances in which prior sanction
could not be obtained.
(2) An employee who absents himself from duty without leave or
overstays his leave shall not be entitled to draw any pay or
allowances during such absence or overstayal and shall be further
7 98010
liable to such disciplinary measures as the Competent Authority
may deem necessary. Provided however, that the Competent
Authority may treat such period of absence or overstayal if not
followed by termination of service, as period spent on Casual
Leave, Earned Leave, Sick Leave or Leave on Loss of Pay, but the
employee shall not be entitled as of right to such treatment.
Provided further that the Competent Authority may treat such
absence or overstayal as period spent on leave on loss of pay,
irrespective of whether the employee has any other leave to his
credit or not.
Mrs. A.C. Mohanty, thus committed the misconduct of wilful
unauthorised absence for a very long period during the years 2002,
2003 and 2004, disobeyed the lawful and reasonable order of her
superiors, has not maintained devotion to duty, exhibited conduct
which is unbecoming of a public servant, indulged in wilful
insubordination and disobedience, remained absent without leave
and without submitting leave applications and Medical Certificate
for Maternity Leave, without sufficient grounds and satisfactory
explanation, committed an act which is subversive of discipline or
of good behaviour, as per / in contravention of Rule 3 (ii)(iii)(iv),
4(7) (8) (17) (20) read with Rule 18 of the General Insurance
(CDA) Rules, 1975.
PLACE: MUBAI Sd/-
(B.C. SHAH)
DATE: 08.03.2004 ASST. GENERAL MANAGER
&
DISCIPLINARY AUTHORITY
ANNEXURE III
MRS.ABHA C. MOHANTY, ASST. MANAGER, MCDO 6
LIST OF DOCUMENTS
1. Attendance Register
2. File containing various letters written to her.
8 98010
ANNEXURE-IV
LIST OF WITNESSES:
1. Ms. P. Narayanan, Asst. Admn. Officer, MCDO 6
2. Ms. D. Sandhya, Asst. Admn. Officer, MCDO 6
PLACE: MUBAI Sd/-
(B.C. SHAH)
DATE: 08.03.2004 ASST. GENERAL MANAGER
&
DISCIPLINARY AUTHORITY"
4.
Later on, the petitioner was served with a letter purportedly to be
Addendum to charge-sheet dated 8th March, 2004. The same reads thus:
"EXHIBIT 'M'
THE ORIENTAL COMPANY LIMITED
(Subsidiary of General Insurance Corporation of India)
Mumbai Regional Office No.2, Oriental House, 7th Floor,
7, Jamshedji Tata Road, Mumbai 00 020,
Tel.No.2852660/2661/2663/2664 Gram : OFGINSWEST
Fax: 2852595, 2840001
Date : 8th November, 2004.
PERSONNEL DEPT
Regd.A.D.
By U.C.P.
Courier Service
Mrs.A.C.Mohanty
304, Adarsh Apartment
B.D.Ambedkar Marg,
Near Bombay Dying -Spring
Mill Compound, Naigaon,
Dadar (E), Mumbai 400 014.
9 98010
Madam,
RE :Addendum to Charge-Sheet dated 8th March, 2004 issued by
Disciplinary Authority, A.G.M. MRO II under rule 25 of General
Insurance CDA Rules.
--------------------------------------------------------------------------------
We refer to the Charge Sheet dated 8th March, 2004 issued
to you by Disciplinary Authority of MRO II for initiating
Departmental Enquiry against you under rule 25 of General
Insurance CDA Rules, 1975.
We have received your Interim Reply dated 29th March,
2004 to the above referred Charge Sheet. Your Final Reply is still
awaited. In case you want to send your Final Reply, if any, the
same should be sent to us immediately.
Please refer to Annexure III of the above referred Charge
Sheet enclosing therewith a file containing various letters
addressed to you. In some of the letters addressed to you, specific
time span against some dates has been mentioned during which
time you were present in the Office. This means that for rest of the
time on that particular date, you were absent from the Office. For
all such dates against which specific time span has been mentioned
in various letters. You were absent for the full day, and
accordingly, you are supposed to submit Leave Application for the
full day, which please note.
Further, you have not attended Office continuously since
April, 2004, nor have intimated to the Office the reasons for your
absence. Please note absence from Office without prior permission
is teated as `Un-authorized absence' under CDA rules.
We enclose herewith copy of letter dated 1st September,
2004 addressed to you by your MCDO 6 Mumbai.
As a matter of natural justice, we again give you an
opportunity to submit your Final Reply within 15 days from the
date of receipt of this letter, before further action is initiated in this
matter.
Thanking you,
Yours faithfully,
ASST.GENERAL MANAGER
AND
DISCIPLINARY AUTHORITY"
10 98010
5. The petitioner filed her reply and contested the charges framed
against her. According to the petitioner, the charges were trumped up at the
behest of her superiors, who were not on good terms with her. The
petitioner denied the charges, and claimed that the same were founded on
tampered registers / official documents. The petitioner asserted that the
Articles of Charge were vague. The petitioner demanded certain
documents, which, according to her, were relevant documents, and only
upon receipt thereof, she would be in a position to file a meaningful reply to
counter the charges framed against her. Besides filing written reply, the
petitioner initially participated in the enquiry proceedings conducted by the
Enquiry Officer appointed for that purpose. The petitioner made application
before the Enquiry Officer to allow her to be represented by N.R Mohanty
(her husband) as her defence assistant. However, that request was not
acceded to and she was left with no other choice but to defend the
departmental proceedings on her own. She participated in the enquiry
proceedings until 20th September, 2005, but walked out of those
proceedings on the ground that the enquiry was not being conducted in a
fair manner. The Enquiry Officer, however, proceeded with the enquiry
11 98010
ex parte against the petitioner. The Management produced documentary as
well as oral evidence in support of the charges framed against the petitioner.
6. The Enquiry Officer, on analysing the said evidence produced
by the Management, found that the charges as framed against the petitioner
are established. The Enquiry Officer, in his report dated 20th January, 2006,
in the first place, adverted to the Management's case and the charges
framed against the petitioner.
ig He then referred to the documentary
evidence produced by the Management, which were in the form of letters
issued to the petitioner and the surprise inspection reports given by a team
of senior officials of M.R.O. - I and II. The Enquiry Officer also noted that
the Management examined witness Ms. P. Narayan, Assistant
Administrator, MCDO-IV to substantiate the charges framed against the
petitioner. The Enquiry Officer noted that the charge framed against the
petitioner was in respect of violation of Rules 3, 4 and 18 of the General
Insurance CDA Rules, 1975.
7. The Enquiry Officer then referred to the defence case as noted
in the interim and final replies filed by the petitioner and various written
communications, wherein the petitioner denied all the charges levelled
12 98010
against her. The Enquiry Officer then referred to the request of the
petitioner to provide her defence assistance, N.R Mohanty (husband of the
petitioner). He observed that, at the relevant time, the said N.R Mohanty
had become ex-employee and was not in service of respondent No. 1-
Company. For that reason, as per the rules, he was ineligible to espouse the
cause of the petitioner. For, the rules provide that only an employee who is
working in the Company within the region can act as the defence assistant.
The Enquiry Officer then referred to the request of the petitioner to furnish
Internal Audit Reports and Vigilance Check Reports for MCDO-VI for
years 2000 to 2004, leave positions as per Self Appraisal Report, part of
Confidential Report for years 1999/2000 to 2003/2004, leave record in the
prescribed format for years 1999 to 2004, Attendance Registers for the
period from 2000 to 8th March, 2004 and copies / clarification of A.A.
Hallary. The Enquiry Officer has also noted that the petitioner has tried to
defend herself mainly on the ground that the proposed departmental enquiry
was initiated against her at the behest of R.C. Shah, who was Manager and
superior of the petitioner at the relevant time, as the petitioner had
repudiated the docket of his sister, Lata Shah. The Enquiry Officer has
noted that the petitioner was provided with the leave records for years 2002
to 2005 and photo-copy of the relevant extract of Daily Attendance
13 98010
Registers for years 2002 to 2004 as maintained in the D.O. The petitioner
was also provided a set of 39 letters, which formed part of Annexure 3 of
the charge-sheet. He noted that the said communications, in particular,
letter dated 22nd August, 2005, confirmed the stand of the Department that
the petitioner had received the communications. The Enquiry Officer noted
that other documents demanded by the petitioner were irrelevant and
unwarranted qua the charges framed against the petitioner.
8.
After having analysed the material on record, the Inquiry
Officer proceeded to record his findings and conclusion. For considering
the grounds of challenge raised in this petition, we deem it appropriate to
reproduce the same hereunder:
"Findings:Whenever the CSO absented from the office, she has
not supported or given any proof that she informed the office
either orally/writing and availed of the leave, i.e. She was absent
without any authorization. This continued over a period of 3 years.
There were 3 different DO I/Cs and all of them were biased
against her is unbelievable. More so, the daily attendance which
was not a secret one and all the staff and officers have access to
the same. There is no record of any representation/protest from
CSO on wrong making of absent/late in the register. The case is
supported by the fact that the prosecution witness and as per the
practice prevailing in the DO if any one is marked late/absent or
any innocent mistake in the leave record, is pointed
out/represented is incorrect the same is immediately examined and
if found correct is rectified. There is not even a single written
representation/protest to that effect by the CSO. Thus, this proves
14 98010
that Incharges were not biased against CSO. It can be safely
concluded that charge of unauthorized absence from the office is
established i.e. CSO never obtained prior approval for her absence
from the office. This is further supported by the facts that there are
three surprise inspector reports of independent team consisting
officials of both RO's dated 25.11.2002, 27.11.2001 and
10.12.2002.
There is enough correspondence on record which proves that she
was communicated her absence and was asked to submit the leave
applications which she has failed to do that proves that the CSO
disobeyed the written orders/instructions of the office. In light of
the above, the charge that CSO has committed the act of
misconduct - absented from the office, habitual later
coming/irregular in attendance, absence from the employee
appointed place of work without permission. Thus she has
willfully unauthorizedly absented herself for a very long period
during the period of 3 years i.e. 2002, 2003 & 2004. and has
exhibited the conduct of disobedience and remained absent
without submitting leave applications and has not even given any
satisfactory explanation for such acts of commission by the CSO.
Conclusion: - Thus in light of the foregoing, the undersigned
concludes that charges leveled against the CSO are proved."
9. On the basis of the findings recorded by the Enquiry Officer,
the matter was examined by the General Manager and Competent
Authority. The Competent Authority agreed with the opinion recorded by
the Enquiry Officer. The Competent Authority noted that the charges
proved against the petitioner were grave in nature. Accordingly, the
Competent Authority, vide order dated May 18, 2006, not only upheld the
opinion of the Enquiry Officer but proceeded to impose penalty on the
petitioner of removal from the services of the Company, which shall not be
disqualification for future employment. We deem it appropriate to
15 98010
reproduce the order of the Competent Authority dated May 18, 2006. The
same reads thus:-
"Deptt.: Personnel ORDER May 18, 2006
Ref.No.: HO/Pers/CDA/932
WHEREAS Major Penalty Proceedings in terms of Rule 25 of GI
[CDA] Rules, 1975 were initiated against Ms Abha C Mohanty,
Dy. Manger, vide Charge Sheet dated 08.03.2004 for, while posted
at MDO 6, having committed the following acts of misconduct
during the years 2002, 2003 & 2004:
"Ms Mohanty is highly irregular in her attendance, remaining
absent for several days although no admissible leave was due to
her, during the years 2002 to 2004 and she has not submitted leave
applications for the same in spite of several letters issued to her.
She had also not submitted Medical Certificate for her Maternity
Leave. On many days, she used to attend office only for a few
hours / minutes and also to come to office late and leave office
early at any time of her choice without taking permission.
In the past also, a disciplinary action was initiated against her for
not submitting leave applications and not refunding excess
Travelling Advance drawn by her vide Chargesheet dated
05.07.2000. But Competent Authority had taken a lenient view of
the matter".
AND WHEREAS Departmental Enquiry was held, Ms. Mohanty
left the Enquiry Proceedings on 20.09.2005 and did not participate
in the proceedings. Shri N K Saluja, Enquiry Officer has given his
findings vide Enquiry Report dated 20.01.2006 that the charges
against Ms. Mohanty stands proved. As per procedure a copy of
Enquiry Report was sent to Ms. Mohanty on 25.01.2006 for her
representation, if any, against the findings of the Enquiry Officer.
AND WHEREAS in her reply dated 20.02.2006 Ms. Mohanty has
pleaded that the Enquiry Report was corrected by Ms Kala [a
prosecution witness], the office has not provided her Internal Audit
report, Vigilance Check report of DO 6 for the last five years,
leave position appearing in Self Appraisal Form of CR for the last
five years and leave record for the past five years, the Charge
Sheet was served on her without Annexure III, as per marking in
16 98010
Attendance Register she has been asked to submit leave
applications for holidays also, the attendance were manipulated
under tenure of Shri Bharat Shah, Shri Naresh Kumar & Shri
Halari and the Enquiry Officer has rejected her request to act Shri
N R Moyanty [her husband] as her defence Assistant.
AND WHEREAS the undersigned being the General Manager and
Competent Authority after having gone through the Charge Sheet
and other connected records / documents of the case observes that
Enquiry Report was not corrected by Ms Kala [prosecution
witness] but she has corrected the typing errors in the Minutes of
the enquiry proceedings which was duly signed by Enquiry Officer
& Presenting Officer. Internal Audit report and Vigilance Check
Report has no relevance with her charges, therefore, it was not
provided to her. Self Appraisal Form are part and parcel of
Confidence Report, which is a privileged document of the
company. She was given leave record and attendance sheets for
the period covered under the Charge Sheet. Ms Mohanty was
made available the documents forming part of Annexure III of the
Charge Sheet, when she denied the receipt of the same. She
remained on leave /unauthorized absence on preceding and
succeeding days to holidays, therefore, as per Rules she has been
asked to submit leave applications for such holidays also. It is
incorrect to state that attendance were manipulated under the
tenure of Shri Bharat Shah, Shri Naresh Kumar and Shri Halari.
All Officers have access to the daily attendance sheet, it is not a
secret document and she has never pointed out or raised objection
that her attendance were marked wrongly. The Enquiry Officer
has rightly decided that as per company rules an employee who is
working within the region can act as Defence Assistant and
disallowed Shri N R Mohanty, Ex-employee to act as her Defence
Assistant. Ms Abha Mohanty during the year 2002, 2003 & 2004
(31.03.2004) remained on LOP / uauthorised absence for 495½
days which constitutes serious misconduct on her part. The
undersigned observes that she was given ample opportunity during
course of enquiry to defend her case but she has left the
proceedings and did not participate. The undersigned further
observes that the charges proved against her are grave in nature
and as such the conduct of Ms A C Mohanty is blameworthy.
AND THEREFORE, the following penalty is hereby imposed on
Ms. Abha Mohanty
"Removal from the services of the company which shall not be
disqualification for future employment".
17 98010
Shri (sic) Abha Mohanty be informed accordingly.
Sd/-
[DILIP DHAR]
GENERLA MANAGER
AND
COMPETENT AUTHORITY"
10. Against the said decision of the Competent Authority, the
petitioner preferred appeal, which was disposed of by respondent No. 3
vide order dated 28th June, 2007. The Appellate Authority concurred with
the findings of the Enquiry Officer, as also those of the Competent
Authority. The Appellate Authority, accordingly, confirmed the penalty
imposed by the Competent Authority without any modification thereof.
The said order reads thus:-
"Deptt.: Personnel ORDER June 18, 2007
Ref.No.: HO/Pers/CDA/932 A
WHEREAS Major Penalty Proceedings in terms of Rule 25 of GI
[CDA] Rules, 1975 were initiated against Ms Abha C Mohanty,
Dy. Manger, vide Charge Sheet dated 08.03.2004 for, while posted
at MDO 6, having committed the following acts of misconduct
during the years 2002, 2003 & 2004:
"Ms Mohanty is highly irregular in her attendance, remaining
absent for several days although no admissible leave was due to
her, during the years 2002 to 2004 and she has not submitted leave
applications for the same in spite of several letters issued to her.
She had also not submitted Medical Certificate for her Maternity
Leave. On many days, she used to attend office only for a few
hours / minutes and also to come to office late and leave office
early at any time of her choice without taking permission.
In the past also, a disciplinary action was initiated against her for
18 98010
not submitting leave applications and not refunding excess
Travelling Advance drawn by her vide Chargesheet dated
05.07.2000. But Competent Authority had taken a lenient view of
the matter".
AND WHEREAS Departmental Enquiry was held, Ms. Mohanty
left the Enquiry Proceedings on 20.09.2005 and did not participate
in the proceedings. Shri N K Saluja, Enquiry Officer has given his
findings vide Enquiry Report dated 20.01.2006 that the charges
against Ms. Mohanty stands proved. Accordingly the General
Manager being the Disciplinary Authority imposed the following
penalty vide order dated 18.05.2006 as:
"Removal from the services of the company which shall not be
disqualification for future employment".
AND WHEREAS Ms. Mohanty has filed an appeal against the
order of the Disciplinary Authority. She pleads that she was never
provided the tabulation of absence of 472 days from 2004-04 nor
the Enquiry Officer put the said dates of absence to scrutiny during
the proceedings, that if the charges of absence are as grave why
Enquiry Officer did not provide the Audit Report and Vigilance
Check Report, that annual leave record from the year 1999 till date
has not been provided to her, that order of "termination" was
communicated to her without asking for as Show Cause, that the
company had been remitting salary and paid Wages Arrears for the
said period.
AND WHEREAS the undersigned being the Chairman-cum-
Managing Director and Appellate Authority in the matter after
having gone through the Charge Sheet, Enquiry Report, penalty
order and appeal of Ms Mohanty observes that she was given
ample opportunity during the course of enquiry to defend her case
which she failed to do by not participating and leaving the
proceedings. Providing her the reports of Vigilance and Internal
Audit has no relevance to the charges. She was given Leave
Record and photocopies of Attendance Register for the period
covered under the Charge Sheet. As regards remittance of salary,
till the charge is proved, the Charged Employee continues to be
treated as an "Employee" of the company. Points raised in her
Appeal Representation have been considered by the Disciplinary
Authority and are repetitive in nature. Even after the issuance of
Charge Sheet she has not mend (sic) herself and remained on
unauthorized absence for 250½ days. The undersigned observes
that the charges proved against her are grave in nature.
19 98010
AND THEREFORE the undersigned does not find any reason to
interfere with the decision taken by the Disciplinary Authority and
the same is upheld without any modification.
Ms Abha C Mohanty be informed accordingly.
Sd/-
[M RAMADOSS]
CHARMAN CUM MANAGING DIRECTOR
AND
APPELLATE AUTHORITY"
11. In view of the order of removal from services, the Estate
Officer proceeded with the action of taking back possession of the service
quarters occupied by the petitioner. According to the petitioner, that action
was also replete with high-handedness so as to victimise the petitioner, and
the petitioner and her family members were thrown out on streets at odd
hours.
12. As aforesaid,the petitioner has not only challenged the charges
framed against her, but also the findings and conclusion reached by the
Enquiry Officer, as also the decision of the Competent Authority which is
founded on the opinion of the Enquiry Officer. The petitioner has also
challenged the order of the Appellate Authority by way of present petition.
20 98010
13. In the petition as filed, it is stated by the petitioner that, in or
about June, 1989, she was promoted to the Administrative Officer Cadre,
and was assigned to the Miscellaneous (Technical) Department in the
Regional Office. Her husband was General Secretary of Officers'
Association. In that capacity, he was spearheading officers' grievances and
espousing their causes. On one occasion, R.K. Jain, in-charge, was forced
to roll back certain in-principle decisions taken by him. The petitioner was
directly working under the said R.K. Jain. Because of the forced roll back
decisions required to be taken by him, he took it as affront, and started
victimising the petitioner so as to get to Mr. Mohanty. It is stated that, after
string of harassments suffered by the petitioner at the hands of said
Mr. Jain, the petitioner and her husband, Mr. Mohanty, were denied
promotions in years 1996 and 1997. On the other hand, the entire batch of
1985, to which the petitioner belongs, was promoted. The petitioner,
therefore, registered protest with the Chairman and Managing Director, and,
after his intervention, she was promoted as Assistant Manager in year 1998.
The petitioner and her husband Mr. Mohanty were, however, shunted out
from Indore to Mumbai, as the Management did not want Mr. Mohanty in
Indore. It is the petitioner's case that, when she was transferred to Mumbai
in year 1998, she did not have any problems until one R.C. Suri from
21 98010
Indore Office joined the Regional Office in Mumbai. By that time,
however, the petitioner's husband, Mohanty, was elected as the General
Secretary of All India Officers' Association of the Company. According to
the petitioner, Bharat C. Shah was the Regional Manager of the Regional
Office No.2. He ensured that the petitioner was transfered to the
Miscellaneous Department, which was directly under R.C. Suri. According
to the petitioner, the said R.C. Suri and Bharat Shah got together and began
a string of harassments and victimisation of the petitioner and her husband,
using their superior positions. They issued oral orders to the staff
subordinate to the petitioner for disallowing interaction with her or
promoting insubordination or non-cooperation.
14. It is the case of the petitioner that the petitioner had repudiated
the fraudulent Mediclaim of Ms. Lata Shah, sister of R.C. Shah, Manager
(Marketing), who was close to Bharat C. Shah (Regional In-charge). Thus,
out of spite, the said Bharat Shah and R.C. Suri started victimising the
petitioner. The petitioner, with a view to avoid continuous harassment at
the hands of the said officers, requested for transfer. However, that request
was rejected.
22 98010
15. The petitioner further states that she was denied opportunity to
take training unlike the other similarly placed officers. Similarly, her
option to leave for G.I.C., in year 2001, was not forwarded. Her deductions
from salary towards repayment of loan taken from the Credit Society were
not made and withheld, causing accumulation of interest and penalty on the
loan taken. She was disallowed from signing the register for attendance,
while other officers continued to sign the same. She was assured that her
attendance would be marked. The Attendance Register and records were
not shown to the petitioner, in spite of repeated demands. When this
grievance was brought to the notice of In-charge, Bharat C. Shah, she was
assured that needful will be done.
16. It is also the case of the petitioner that she was P.F optee from
the inception, and had not changed her option. However, behind her back,
her option was shown as Pension Optee. As a result, for one full year, her
P.F. contribution was not sent to her P.F. Account. Only after the petitioner
complained about this to the Personnel Department, remedial steps were
taken to restore the correct contribution.
23 98010
17. According to the petitioner, the harassment continued even in
April, 2000 when show-cause notice was issued. Besides giving reply to
the said show-cause notice, she requested to transfer her out of Mumbai.
Instead, the petitioner received charge-sheet alleging that she remained
unauthorisedly absent on various dates from 25th May, 1998 to 31st
December, 1999. The said charge sheet is in respect of misconduct during
earlier period between May, 1998 to December, 1999. The charges therein
read thus:-
"Mrs. A.C. Mohanty while posted at MROII as Asstt. Manager
has committed the following misconduct during the year
1998-99:
1) Mrs. A.C. Mohanty on her transfer (on promotion) from
Indore RO to MRO II took a travelling advance of Rs.
30,000/-. However, Mrs. A.C. Mohanty did not submit the
T.E. Bill and did not get the amount adjusted for almost a
period of 16 months from the date of her joining duties at
MRO II (i.e. on 25.5.98) in spite of various reminders to do
so. As per Rules in vogue as regards Advances, an
employee has to submit the T.E. Bill within 7 days from
the date of resuming of duties. However, Mrs. A.C.
Mohanty submitted the bill only on 30.6.99. After scrutiny,
the same was finally settled for Rs.19,062/- and the
balance of Rs.10,938/- was ultimately deposited by her on
01.10.99. Thus Mrs. A.C. Mohanty is deemed to have
misappropriated the Company's funds to the extent of
Rs.10,938/- for a period of 16 months.
2) Further, Mrs. A.C. Mohanty has remained
unauthorisedly absent on various dates from 25.5.98 to
31.12.99 whilst posted at MRO II. She has also not
submitted leave applications for the various dates of her
absence in spite of various reminders given to her by the
Controlling Office.
Mrs. A.C. Mohanty has thereby, committed the Misconduct of
Misappropriation of Company's funds, remaining willfully on
24 98010
unauthorized absence, disobeying the lawful and reasonable
orders of her superiors, exhibited conduct unbecoming of a public
servant, acted in a manner prejudicial to the interest of the
Company thereby contravening Rule 3 (1) (iii), (iv) and Rule 4 (5)
(7) (8) (17) and 18 (1) (2) of the General Insurance (Conduct,
Discipline and Appeal) Rules, 1975 (Amended).
Head Office Sd/-
New Delhi (S.K. CHANANA)
ASST. GENERAL MANAGER
&
DISCILINARY AUTHORITY"
18. The petitioner contested the proceedings, pointing out that the
charges framed against her were trumped up and concocted one. The
enquiry, however, was later on dropped. The Disciplinary Authority in its
order noted that it was taking a lenient view, and the petitioner was merely
cautioned to be careful in future. According to the petitioner, this was
notwithstanding the clear circumstances prevailing that no case could be
made out against the petitioner. The decision of the Disciplinary Authority
was communicated to the petitioner vide letter dated January 17, 2001. The
same reads thus:-
"The Oriental Insurance Company Limited,
Oriental House P.B. No. 7037
A-25/27, Asat Ali Road, New Delhi
Deptt. Personnel
Ref. HO/Pers/CDA/555. 17th January, 2001.
Ms. A.C. Mohanty,
Assistant Manager,
MCDO-16
25 98010
Madam,
This has reference to the Charge-sheet dated 6.7.200 and your
reply dated 6.10.2000 together with enclosures. I have gone
through the same and observe that you have admitted not being
diligent in submission of bills in time and also the leave
applications for your absence. However, in view of the
circumstances explained in your letter, the undersigned is inclined
to take the lenient view of the matter and you are hereby
cautioned to be careful in future in adhering to the Rules and
Regulations of the Company.
Yours faithfully,
Sd/-
(B.K. Sarkar)
ig Asst. Genl. Manager."
19. According to the petitioner, the harassment was then continued
by non-release of her salary cheque for the month of July, 2000. That
salary cheque was released only in January, 2001. It is the case of the
petitioner that her salary was arbitrarily deducted. The same was not
streamlined despite reminders. As a result, the petitioner made
representation to Bharat Shah.
20. The petitioner has then adverted to the incident of non-
mentioning of details against the name of the petitioner regarding her
earned leave balance, which Notification was circulated by the Personnel
Department dated 11th May, 2001. It is the case of the petitioner that, on or
26 98010
about 15th September, 2001, the petitioner, in discharge of her official duty,
repudiated the claim under Mediclaim put up before her of Lata Shah, sister
of R.C. Shah, Manager (Marketing) at the Regional Office and henchman
of Bharat Shah. That was done in her capacity as Assistant Manager. On
the instructions of Bharat Shah, the In-charge of the office, by an office
order, stripped all work of the petitioner by memo dated 24th September,
2001. Even the petitioner's husband was subjected to harassment and
victimisation. He was forced to resign from service of the respondent-
Company in January, 2002.
21. According to the petitioner, her victimisation and harassment
continued further. On or about 19th June, 2002, when the petitioner reported
for work, she found that her cabin was locked - ostensibly on instructions of
her superiors. It is only after her insistence, the cabin was opened. That
fact was placed on record by the petitioner in her letter of the same date.
Since the petitioner was apprehending departmental action, by her letter
dated 23rd August, 2002, she sought confirmation from A.A. Hallary.
22. The petitioner has asserted that the Estate Officer at the behest
of her superiors initiated eviction proceedings against the husband of the
27 98010
petitioner. This was done, even though no decision was taken on the
resignation papers submitted by the petitioner's husband, till then.
The Estate Officer wanted the petitioner and her family members to be
evicted from the premises and also recover compensation from them for
unauthorised use and possession of the premises. The said proceedings
were resisted by the petitioner's husband. The eviction proceedings were
eventually dropped only after the retirement of Bharat Shah and R.C. Suri
in the month of March, 2004 and consequent to decision of M.K. Chintan
allegedly regularising the flat in the name of the petitioner. This is one
more circumstance, which the petitioner submits, is indicative of bias of
superior officers against the petitioner and her husband, under whom, they
were working. The petitioner states that, although the official residence
was regularised in the name of the petitioner and also indicating that the
eviction case was being withdrawn, the communication was addressed to
the petitioner's husband and not to the petitioner. This argument has been
advanced by the petitioner to demonstrate that the departmental action
against the petitioner, which is subject-matter of this petition, is
continuation of the said harassment and victimisation of the petitioner and
her husband.
28 98010
23. As is noticed from the Articles of Charge dated 8th March,
2004 and Addendum to the Charges dated 8th November, 2004, it is evident
that the same pertain to period commencing from 1st January, 2003 and
onwards till the issuance of the Articles of Charge.
24. With reference to the said charges, according to the petitioner, she
proceeded on Maternity Leave in and around March, 2003. On 18 th March,
2004, the petitioner wrote directly to Bharat Shah to stop harassment and
restore her position as Assistant Manager. The said Bharat Shah, prior to
his retirement, however, by letter dated 8th March, 2004, initiated
proceedings against the petitioner. According to the petitioner, no
preliminary enquiry was conducted. No show-cause notice was issued. No
details were collected by said Bharat Shah, and yet, vague charge-sheet was
sent to the petitioner. According to the petitioner, she, in fact, gave birth to
a baby on 18th April, 2003. She submitted hospital bills with surgeon's
certificate on 30th December, 2003. The Personnel Department had asked
her to submit Discharge Card of the concerned hospital and treating
doctor's certificate within a period of three days. Even that compliance was
made by the petitioner. According to the petitioner, if these documents
were perused, the question of proceeding against her for unauthorised
29 98010
absence for the relevant period after March, 2003 would not arise. The
petitioner, therefore, filed her interim reply to Charge-sheet, dated 29th
March, 2004. The petitioner was served with Addendum to Charge-sheet,
dated 8th April, 2004.
25. The petitioner then asserts that the Divisional Manager
informed the petitioner that attempt could be made to resolve the issues
across the table. The petitioner, by her letter dated 18th November, 2004,
thanked the Divisional Manager for the said communication, as also for the
clearance of her maternity bill of Rs. 50,000/-. She maintained that she was
forced out and isolated from the office by actions of the previous Divisional
Manager, who, in active connivance with Bharat Shah, the then Regional
Manager, resorted to innumerable instances of harassment to her. By her
letter dated 18th November, 2004, she requested to streamline the attendance
/ leave records, as the same were used as an instrument by her superior and
Bharat Shah to run her down. She asserted that the records have been
tampered and falsified for that purpose.
26. The petitioner asserts that, on the basis of the impugned
charge-sheet, when the enquiry commenced, she requested the Enquiry
30 98010
Officer to allow her husband, N.R. Mohanty, to be her defence assistant,
and also requested for furnishing specified documents. The petitioner also
expressed apprehension that Mrs. P. Hariharan, a proposed prosecution
witness, was likely to proceed on maternity leave and consequential delay
of the enquiry. She, therefore, requested for examination and cross-
examination of the said witness in the same week. However, no reply
whatsoever was received by the petitioner. Instead, the petitioner, almost
after gap of five months, received letter dated 22nd June, 2005.
ig The
petitioner was informed that one Mr. Saluja was appointed as the Enquiry
Officer and the enquiry would proceed on day-to-day basis from 28th June,
2005. The petitioner, by her letter dated 28th June, 2005, expressed her
anxiety about the manner in which the proceedings were being delayed and
also asked the Enquiry Officer to reconsider her request to provide her
defence assistant. Once again, during the enquiry proceedings on 29th June,
2005, request was made by the petitioner for supplying relevant documents
for her defence and to permit her defence assistance of N.R. Mohanty, who
was yet to be relieved by the Company. The petitioner, by letter dated 29th
June, 2005, had informed the Assistant General Manager and the
Disciplinary Authority of the irregularities in the enquiry pending against
her. According to the petitioner, by letter dated 30th June, 2005, the Enquiry
31 98010
Officer informed the petitioner that her request to appoint Mohanty as
defence assistant was not accepted by the Competent Authority; and,
therefore, she should produce some other defence assistant. This, according
to the petitioner, was indicative of the Enquiry Officer acting under
dictation of the Competent Authority. The petitioner, therefore, once again,
by letter dated 5th July, 2005, requested the Enquiry Officer to consider her
request for defence assistant, as also to furnish the specified documents.
The petitioner sent another letter dated 22nd August, 2005, listing out the
desired documents, which were denied to her, as not relevant in the
proceedings.
27. According to the petitioner, the resignation papers submitted
by her husband in year 2002 were surreptitiously and in haste accepted by
the Appropriate Authority on 23rd August, 2005. Thus, according to the
petitioner, she has been denied the benefit of taking her husband as defence
assistant. The petitioner, however, was informed by the Enquiry Officer, by
letter dated 29th August, 2005, that she was free to take N.R. Mohanty as
her defence assistant, subject, however, to bringing No Objection
Certificate from the in-charge of the office, in which Mohanty was
working, with a clear noting that, as and when he would be required to
32 98010
attend the enquiry, he would be relieved for the same, and the in-charge of
that office would have no objection in that behalf. According to the
petitioner, such condition could not have been imposed as per the C.D.A.
Rules. On the one hand, the Enquiry Officer gave impression of allowing
the petitioner to take assistance of N.R. Mohanty, her husband, subject to
certain conditions, but, at the same time, that opportunity was negated by
accepting the resignation papers of N.R. Mohanty on 23rd August, 2005.
Thus, the petitioner was denied assistance of N.R. Mohanty on the specious
ground that, on acceptance of his resignation, he became ex-employee of
the Company.
28. The petitioner has then adverted to the letter dated 16th
September, 2005, placing on record objection regarding recording of
improper proceedings by the Enquiry Officer. It is her case that, on 20 th
September, 2005, the Enquiry Officer refused to record the objections of the
petitioner. Therefore, she was constrained to inform the Enquiry Officer
that, until the proceedings were correctly recorded verbatim, no fruitful
purpose would be served by continuing with the farce of an enquiry.
She wanted the Enquiry Officer to conduct the enquiry in a fair, impartial
and just manner. She was then compelled to request the Disciplinary
33 98010
Authority to take corrective action by next date.
29. According to the petitioner, in her absence, minutes of the
meetings of proceedings held on 20th September, 2005 were recorded by the
Enquiry Officer to indicate that the petitioner walked out of the proceedings
without taking permission of the Enquiry Officer, and that, all throughout,
she was making irrelevant submissions. After these minutes were received
by the petitioner, she wrote to the Disciplinary Authority for intervention
and correction of the record.
ig She also requested that she should not be
discriminated, because she is a woman officer. She should not be harassed
and put to ridicule.
30. The petitioner then wrote to the Enquiry Officer vide letter
dated 25th September, 2005 to supply the specified documents.
The Enquiry Officer, instead, proceeded ex parte against the petitioner, as
was evident from the communication dated 3rd January, 2006 received from
the Enquiry Officer. The petitioner immediately wrote to the Enquiry
Officer by letter dated 6th January, 2006 that she should be furnished with
the said documents forthwith and also to intimate the next date of enquiry,
after arranging for the relevant documents. However, the Enquiry Officer
proceeded ex parte against the petitioner, disregarding the request of the
34 98010
petitioner.
31. Thus, according to the petitioner, the enquiry has been
conducted in an unfair and biased manner. According to the petitioner, the
ex parte enquiry culminated in an ex facie perverse report of
the Enquiry Officer.
32. The petitioner eventually made application under the Right to
Information Act, 2005, calling upon the Appropriate Authority to furnish
the documents, of which access was not provided to the petitioner, in spite
of requests made by the petitioner to the Enquiry Officer in that behalf.
The petitioner was, however, informed by the State Public Information
Officer that the documents specified by the petitioner could not be divulged
to her under Sections 8 and 9 of the Right to Information Act.
The grievance of the petitioner is that the enquiry did not proceed in fair
and unbiased manner and, in any case, the same was vitiated on account of
non-furnishing of the relevant documents to the petitioner. According to
the petitioner, the Enquiry Officer jumped to the conclusion that the charges
have been proved against the petitioner.
33. The petitioner was then called upon to offer her comments in
35 98010
relation to the report of the Enquiry Officer. Even at that stage, no
documents were annexed to the said report. Once again, the cardinal
principle of fair play was not observed. The petitioner has also placed on
record that the order passed by the Competent Authority of removing the
petitioner from service was communicated to the petitioner by her
subordinate at her residence, despite being present in office at the relevant
time, vide letter dated 24th May, 2006.
34.
The petitioner has then referred to the fact that she was not
given personal hearing on the specious reasoning that there is no provision
for giving personal hearing under the Rules. The petitioner further asserts
that, even at the appellate stage, she fervently requested to furnish the
specified documents. However, even the Appellate Authority discarded that
request of the petitioner, and did not furnish the relevant documents, but
proceeded to dispose of the appeal without appreciating the entire evidence
and the order of the Enquiry Officer. The Appellate Authority also did not
offer personal hearing to the petitioner.
35. According to the petitioner, after the disposal of the appeal, the
documents, which have now been furnished to the petitioner, would reveal
36 98010
that the charge, as framed against the petitioner, ought to fail. In that,
sufficient leave was available to the credit of the petitioner. Thus, the
charge that no admissible leave was due to the petitioner was untenable.
Further, from the Salary Certificate for the relevant period, the charge
framed against the petitioner that she unauthorisedly remained absent from
office from January, 2003 till 8th April, 2004 was belied. For, that reason is
not mentioned in the Salary Certificate. Even the personal record does not
mention that the petitioner had taken leave for more than six weeks.
36. The petitioner has also adverted to the manner in which the
petitioner came to be evicted from the official residence. Even that
circumstance is indicative of biased action at the behest of her superiors.
In this backdrop, the petitioner has not only challenged the charge-sheet
and the orders passed by the Competent Authority and the Appellate
Authority, but also the action of the Estate Officer in ousting the petitioner
from the official residence in a high-handed manner.
37. The respondents have filed reply-affidavit sworn by Vivek
Shukla, Manager of the respondent-Company, and have countered all the
material allegations. At the outset, the respondents have asserted that the
37 98010
petition should be dismissed on the ground of laches, as it has been filed in
April, 2010 to question the orders passed against the petitioner by the
Competent Authority on 18th May, 2006 and by the Appellate Authority on
28th June, 2007. On merits, according to the respondents, the disciplinary
action was instituted because of the acts of commission and omission of the
petitioner constituting misconduct of a serious nature. The disciplinary
proceedings were conducted in accordance with the norms specified in the
extant Regulations. The petitioner was given full opportunity, but the
petitioner walked out of the proceedings, for reasons best known to her. As
a result, the proceedings were continued ex parte against the petitioner
culminating in the finding of guilt by the Estate Officer, which finding and
conclusion is accepted and concurred by the Competent Authority. Even
the Appellate Authority concurred with the said conclusion.
38. The respondents further contend that the genesis of this
petition is that the departmental proceedings initiated against the petitioner
were the outcome of bias against the petitioner. That basis is completely
ill-advised. In that, the petitioner, during the relevant period of three years,
reported to three different superior officers. It is not the case of the
petitioner that all the three officers were biased against her. Further, the
38 98010
fact that the petitioner was absent from office unauthorisedly during the
relevant period, and did not bother to submit applications for leave, in spite
of being called upon to do so in itself is a serious misconduct, warranting
disciplinary action and imposition of penalty of removal from service.
In fact, the order passed by the Competent Authority is one of removal of
the petitioner from services of the respondent-Company, without
disqualification for future employment. This penalty is imposed on the
finding of fact arrived at by the Authorities that the charge, as framed
against her, has been proved. The petitioner did not produce any evidence
to rebut the charge that she had proceeded on leave after taking necessary
permission / sanction. According to the respondents, therefore, no
interference, in exercise of Writ Jurisdiction, is warranted in the fact
situation of the present case, especially when there is no merit in the
contention that the charges, as framed, were vague, coupled with the fact
that the Management produced documentary as well as oral evidence to
substantiate the charge; and the petitioner failed to rebut the onus placed on
her that she had proceeded on leave after taking permission / sanction in
that behalf.
39. As regards the grievance of the petitioner of non-supply of
39 98010
documents, resulting in unfair enquiry against the petitioner, it is contended
that all the relevant documents in the context of the charge framed against
the petitioner were already furnished to her. The documents which were
not supplied to the petitioner had no bearing on the said charge.
40. With regard to the grievance of the petitioner that she has been
denied opportunity of taking defence assistance, it is contended by the
respondents that her request to allow her to appoint N.R. Mohanty (her
husband) as defence assistant was not permissible. In that, as per Rule
25(6) of the G.I.C. D.A. Rules, 1975, the charged officer can nominate only
an employee of the Company to be his Defence Assistant. Her husband,
after acceptance of his resignation, became ex-employee of the Company,
and, therefore, could not have been appointed as Defence Assistant of the
petitioner.
41. With regard to the petitioner's plea that the relevant registers
have been tampered, it is contended by the respondents that the same is
devoid of merits. In that, the respondents have proved the relevant
documents during the enquiry. Besides, the respondents examined witness,
whose version has gone unchallenged. The said witness was not cross-
40 98010
examined by the petitioner. The petitioner, on her own, has not produced
any evidence in support of her plea that she, in fact, attended office during
the relevant period, or that she remained absent during the said period, for
which, she had obtained prior permission or, for that matter,
ex-post facto sanction. None of the documents now pressed into service by
the petitioner have been proved by her in evidence. As a result, the same
cannot be taken into account. The respondents also contend that non-
mention of any remark in the salary slip or leave record will not militate
against the respondents. Those documents, however, will be of no avail to
the petitioner to contend that she "authorisedly" remained absent from the
office during the relevant period.
42. Even the grievance of the petitioner that no personal hearing
was given to her by the Competent Authority or the Appellate Authority has
been refuted by the respondents. According to the respondents, there is no
provision in the Rules to provide personal hearing to the delinquent officer
before the Competent Authority or the Appellate Authority. Thus, there is
no infraction of any procedure prescribed by the Rules.
43. Having considered the material on record and the rival
submissions, we shall first proceed to answer the preliminary objection
41 98010
raised by the respondents about the maintainability of this petition. Indeed,
the petitioner has challenged the charge-sheet dated 8th March, 2004 and
the Addendum to Charge-sheet, dated 8th April, 2004 as well as the orders
passed by the Competent Authority on 18th May, 2006 and by the Appellate
Authority on 28th June, 2007 by way of this petition, which is filed in April,
2010. However, it is noticed that the petitioner had filed writ petition for
the same relief on 9th June, 2008 through advocate. That petition was
eventually withdrawn with liberty, by her advocate, on 13th April, 2009.
According to the petitioner, who is now appearing in person in the present
petition, she was ill-advised to withdraw the said writ petition. In fact, the
petitioner was hopeful that the advocate would take further steps after the
withdrawal of the earlier writ petition; but, for reasons best known to him,
the petitioner had to fend for herself. Eventually, the petitioner, having
realised that the matter was not being properly pursued by her advocate,
filed the present writ petition in person. In the rejoinder-affidavit, the
petitioner has made allegations against her former advocate. It is not
necessary for us to examine those allegations. Suffice it to observe that the
petitioner did challenge the self-same charge-sheet and orders by way of
writ petition, which was withdrawn with liberty to file the present petition.
The present petition has been filed pursuant to the said liberty. It is true
42 98010
that the petitioner took almost one year for filing the present writ petition.
Nevertheless, in view of the explanation offered in the rejoinder-affidavit,
in our view, it will not be proper to non-suit the petitioner on this technical
ground, who has approached this Court for enforcement of her fundamental
rights. In the circumstances, we are inclined to reject the preliminary
objection about the maintainability of writ petition on the ground of laches.
Instead, we would prefer to examine the matter on merits.
44.
The primary grievance of the petitioner is that the disciplinary
proceedings initiated against her were the outcome of bias of her superiors,
R.C. Shah and Bharat Shah in particular. That was on account of
repudiation of Mediclaim of sister of R.C. Shah, Manager (Marketing).
The said R.C. Shah was henchman of Bharat C. Shah (Regional In-charge).
At his behest, said Bharat Shah, the immediate superior of the petitioner at
Mumbai after the petitioner was transferred to Miscellaneous Department,
started victimising and harassing the petitioner. The petitioner was directly
under R.C. Suri. The said R.C. Suri and Bharat Shah got together and
began string of harassments and victimisation, using their superior
positions. They not only harassed and victimised the petitioner, but also
her husband.
43 98010
45. The petitioner has pressed into service several circumstances,
which have unfolded from 1998, and more particularly, after year 2000, to
contend that it was a clear case of victimisation of the petitioner.
Further, the petitioner was proceeded for similar charge on the earlier
occasion, which charge, however, was dropped, as it was noticed that the
same could not be proved against the petitioner. In the first place, all the
circumstances preceding the issuance of show-cause notice to the
petitioner and initiation of departmental proceedings on the earlier occasion
are in respect of acts of commission and omission of the then superior
officers of the petitioner. Further, they have not been named as party-
respondents in the present petition. Even for that reason, the allegations
made against them cannot be taken forward. As aforesaid, the said
circumstances are in respect of period relevant for the earlier disciplinary
action initiated against the petitioner, which, however, was eventually
dropped in January, 2001 with giving caution to the petitioner, as she had
admitted that she was not diligent in submission of bills in time and also
leave applications for her absence. That cannot be the basis to answer the
points in issue in the present petition. Inasmuch as, the present petition
emanates from the Articles of Charge framed against the petitioner for
44 98010
having remained unauthorisedly absent for several days during years 2002
to 2004. A bare perusal of the Articles of Charges, the case made out
against the petitioner was that she was highly irregular in her attendance
during the stated period. She remained absent for several days, though no
admissible leave was due to her during the relevant period between 2002
and 2004. She did not submit leave applications for the leave period, that,
too, in spite of several letters issued to her to do so. She did not submit
Medical Certificate for her Maternity Leave within the prescribed time. On
many occasions, she used to attend office only for a few hours / minutes
and also used to come to office late and leave office early at any time she
liked, without taking permission of her superiors.
46. Understood thus, the circumstances which preceded issuance
of the show-cause notice on the earlier occasion or initiation of previous
disciplinary proceedings cannot be the basis to hold that the charges framed
in the subject Departmental proceedings against the petitioner are trumped
up charges. To refute the said charges, the petitioner was expected to prove
that she was, in fact, regularly attending office during the said period or that
she was on leave with prior permission / sanction of the Competent
Authority or, at least, ex-post facto permission for the relevant period.
45 98010
Unauthorised absence by itself is normally a serious misconduct. If the
proved unauthorised absence is persistent and for a long period - as in the
present case - it will be inexcusable. The Apex Court in the case of Delhi
Transport Corporation vs. Sardar Singh reported in (2004) 7 SCC 574
(paras 9 to 11), opined that when the employee concerned proceeds on
leave without permission, it inevitably affects the work of the employer. In
such cases, the employee concerned is required at least to bring some
material on record to show as to how his absence was on the basis of the
sanctioned leave and as to how there was no negligence. That burden is cast
on the employee, who claims that there was no negligence and/or lack of
interest to establish it by placing relevant materials in support thereof. In
the case of Mithilesh Singh vs. Union of India reported in (2003) 3 SCC
309, the employee was charged for having left duties without permission. In
defence, the employee had contended that he had made application for
grant of leave. The Court opined that mere application for grant of leave
cannot be considered to be proper intimation for absence. On that finding,
the Court proceeded to hold that absence from duty without proper
intimation is a grave offence warranting removal from service. [Also see
Regional Manager, Central Bank of India v. Vijay Krishna Neema & Ors. -
(2009) 5 SCC 567]. Thus, we have to examine whether the petitioner has
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successfully rebutted the charges framed against her in the present
proceedings and substantiated her defence by producing any evidence and
contemporaneous record in that behalf.
47. Furthermore, we find force in the opinion recorded by the
Authorities below that it is too much to complain that all the three officers,
under whom, the petitioner had to work during the relevant period of three
years between 2002 to 2004, were biased against her. It is not the case of
the petitioner that other superior officers, under whom, the petitioner had
to work during the relevant period, had any bias against her. Accordingly,
we have no hesitation to reject the argument of the petitioner that the
charges framed against her, which are subject-matter of challenge in this
petition, were either trumped up or the same are vitiated, being mala fide
and colourable exercise of power by the Authority concerned.
48. The next question is: Whether the impugned charges as
framed can be said to be vague, thereby misleading the petitioner to
effectively defend herself? On conjoint reading of Articles of Charges and
the Statement of Imputation of Misconduct in support of the Articles of
Charges framed against the petitioner, it is amply clear that the same
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mention about the unauthorised absence of the petitioner between
(i) January, 2003 to March, 2003, (ii) 2nd March, 2003 to 15th October, 2003
and (iii) 17th October, 2003 till 8th November, 2004. It is not as if no period
of absence has been spelt out in the charges and the Statement of
Imputation. Thus, the petitioner could have filed reply to deny the said
allegation and also assert that she was, in fact, present and worked during
the said period, or that she remained absent after taking permission /
sanction of the Appropriate Authority either for the entire period or part
thereof, as the case may be.
49. Indeed, the petitioner has asserted that the registers were
tampered. However, the two Authorities below have recorded finding of
fact that it is incorrect to state that attendance sheets were manipulated.
No legal evidence has been brought to our notice to hold that the said
finding of fact is perverse, manifestly wrong or error apparent on the face
of record. Notably, the petitioner has not substantiated that defence in the
disciplinary enquiry. The petitioner, in fact, walked out of the disciplinary
enquiry, albeit under protest. We are in agreement with the argument of the
respondents that, if the delinquent officer walks out of the enquiry
proceedings without a just cause, it is not open to him to complain about the
48 98010
reasonable opportunity not afforded to him in the said enquiry. This
position is well-established [See (1994) 2 SCC 615 (para 4) - Bank of India
v. Apurba Kumar Saha, (1997) 10 SCC 386 (para 1) - Ranjan Kumar Mitra
v. Andrew Yule & Co. & Ors. and (2009) 11 SCC 266 (paras 22 and 23) -
Chairman, Ganga Yamuna Gramin Bank & Ors. v. Devi Sahai].
50. As aforesaid, the petitioner has not only failed to produce any
material to substantiate her defence that she, in fact, attended the office
during the relevant period or that she had taken prior permission / sanction
or ex-post facto sanction of the Competent Authority for the relevant
period. Moreover, the petitioner, having failed to even cross-examine the
prosecution witnesses or challenge the documentary evidence proved by the
Management during the enquiry, we fail to understand as to how the
petitioner can succeed in the argument that the official records of the
respondent-Company were tampered with. More so, to persuade us that
those documents could not be used against the petitioner in the subject
departmental proceedings. The respondents have rightly relied on the
decision of the Apex Court in the case of Dharmarathmakara Raibahadur
Arcot Ramaswamy Mudaliar Educational Institution vs. Educational
Appellate Tribunal & Anr. Reported in (1999) 7 SCC 332 to contend that in
49 98010
the present case, the petitioner having boycotted the enquiry and the charge
framed against her of admitted absence, having been duly proved from the
Attendance Muster itself, there was no plausible defence available to the
petitioner. It is well established position that in a domestic inquiry, once a
conclusion is deduced from the evidence, it is not possible to assail that
conclusion even though it is possible for the Court to arrive at a different
conclusion on the same evidence. (See the Banaras Electric Light & Power
Co.Ltd. vs. The Labour Court II Lucknow & Ors. - 1972 LAB I.C. 939 (V 5
C 182) (para 4). The Apex Court in the case of B.C.Chaturvedi vs. Union
of India reported in 1995 (6) SCC 749 has held that judicial review is not
an appeal from a decision but a review of the manner in which the decision
is made. Once it is found that the inquiry in relation to charges of
misconduct is held in conformity with the Rules and in particular, Rules of
natural justice, coupled with the fact that the finding reached by the
concerned Authority is based on some evidence, the Court must be loath in
interfering with the said findings. Further, the technical rules of Evidence
Act nor of proof of fact or evidence as defined therein, apply to the
disciplinary proceedings. It will be useful to refer to the decision of the
Apex Court in the case of Divisional Controller, KSRTC (NWKRTC) vs.
A.T.Mane reported in (2005) 3 SCC 254 (para 9), wherein the Court
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expounded that once a domestic tribunal based on evidence comes to a
particular conclusion, normally it is not open to the Appellate Tribunal and
courts to substitute their subjective opinion in place of the one arrived at by
the domestic tribunal (Also see State of Rajasthan & Ors. vs. Mohd.Ayub
Naz - (2006) 1 SCC 589) (para 9) and Noharlal Verma v. District Co-
op.Central Bank Ltd. - (2008) 14 SCC 445..
51. The next grievance of the petitioner is that the petitioner has
been denied facility of Defence Assistant, even though the prosecution
appointed Enquiry Officer having background of legal knowledge. It is
true that, initially, the Enquiry Officer declined the request of the petitioner
to allow her to appoint N.R. Mohanty (her husband) as Defence Assistant.
The petitioner is also right in pointing out that the letter sent by the Enquiry
Officer does indicate that the Competent Authority had not approved of the
said request. Relying on this observation, it was argued by the petitioner
that the Enquiry Officer was acting under dictation of the Competent
Authority. It is not possible to comprehend this proposition canvassed by
the petitioner. For, the communication sent by the Enquiry Officer will
have to be read in its entirety and in proper perspective. If so read, all that
it conveys, is that, N.R. Mohanty was not eligible for being appointed as
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Defence Assistant. The Enquiry Officer, at the same time, gave option to
the petitioner to nominate some other eligible person of her choice as
Defence Assistant. It is also noticed that, subsequently, the Enquiry
Officer changed his decision, and allowed the request of the petitioner to
permit her to avail assistance of N.R. Mohanty (her husband) as Defence
Assistant; but that was subject to obtaining permission of the department in
which N.R.Mohanty was working that, whenever he would be required for
enquiry, he should be relieved by that department, and the in-charge of that
department will have no objection in relieving him for the purpose of
enquiry against the petitioner. That decision was communicated to the
petitioner by the Enquiry Officer vide letter dated 29th August, 2005.
In connection with this letter, two-fold grievance has been made by the
petitioner. The first is that no such pre-condition could be attached to the
permission. There is no provision in the CDA Rules to impose such
condition. In other words, the condition for granting permission was
obviously pre-determined to deny opportunity of defence to the petitioner.
We are not impressed by this submission. Merely because such condition
has been mentioned in the communication sent by the Enquiry Officer that,
by itself, does not mean that the Enquiry Officer intended to deny benefit
of defence assistance to the petitioner. All that the Enquiry Officer
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conveyed was that the in-charge officer of the department, in which N.R.
Mohanty was working, should consent to relieve him, whenever required
for the purpose of enquiry. That would have ensured uninterrupted
progress of the enquiry and avoidable adjournment on the ground of
non-availability of the Defence Assistant. To get over this, it was argued
that, to ensure that the petitioner does not get defence assistance of N.R.
Mohanty (her husband), the resignation papers submitted by him as back as
in year 2002 were hurriedly accepted on 23rd August, 2005. Because, on
acceptance of his resignation papers, he would cease to be the employee of
the respondent-Company. In that case, he would be ineligible to represent
the case of the petitioner, by virtue of Rule 25 of the Rules. In the first
place, there can be no doubt that, as per Rule 25 of the Rules, only
employees of the respondent-Company in the region can represent the
delinquent officer as Defence Assistant. With acceptance of resignation
papers of the petitioner's husband on 23rd August, 2005, in fact and in law,
he would cease to be employee of the respondent-Company. Thus, as per
Rule 25, N.R Mohanty was ineligible to represent the petitioner as Defence
Assistant. The fact that acceptance of resignation of N.R Mohanty
coincided in August, 2005, cannot be the basis to assume that the same was
hastily accepted to deny defence assistance to the petitioner. Besides, the
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Enquiry Officer had made it clear that the petitioner was free to nominate
any other eligible person of her choice as Defence Assistant. That
opportunity was not availed by the petitioner, for reasons best known to her.
In our opinion, therefore, the argument of the petitioner that the enquiry
proceedings are vitiated on the ground that the petitioner has been denied
defence assistance cannot be countenanced.
52. That takes us to the other ground vehemently urged on behalf
of the petitioner, which, according to the petitioner, will have the inevitable
effect of vitiating the enquiry proceedings. According to the petitioner, the
relevant documents demanded by her were not supplied to her until the
conclusion of the enquiry. That has deprived the petitioner of the
opportunity to effectively defend herself in the proceedings. In the context
of this submission, we may have to bear in mind as to whether the
documents, which have not been supplied to the petitioner, were
indispensable for answering the charges framed against her and must have
caused serious prejudice to her in defending the action. The record
indicates that the petitioner was supplied with the compilation of
documents, which consisted of 39 letters addressed to her in the past
regarding her unauthorised absence. In the said communications, it has
54 98010
been noted that the photo-copies of Attendance Registers for years 2002,
2003 and 2004 have been already furnished to her. It is seen that the
petitioner received letter dated 13th July, 2005 on 15th July, 2005, as is
apparent from her signature bearing on the copy of letter dated 13th July,
2005. The attendance sheets were proved through the Management
witness. It has also been found, as of fact, by the two Authorities below,
that the petitioner was furnished with the documents forming part of
Annexure III of the charge-sheet. It has also been found that internal audit
report and vigilance check report, which were insisted by the petitioner,
have had no relevance with her charges. For that reason, the same were not
provided to her.
53. We are unable to comprehend as to how the internal audit
report and vigilance check report could have rebutted the charges framed
against her or, for that matter, substantiated her defence. It has also been
found by the two Authorities below that self-appraisal forms are part and
parcel of confidential report and were privileged documents of the
Company. Be that as it may, we are in agreement with the respondents that
even the self-appraisal forms, which were part and parcel of confidential
report, would have no bearing on the charges framed against the petitioner
55 98010
that she was highly irregular in her attendance, remaining absent for several
days, though no admissible leave was due to her during the relevant period
and she had not submitted leave applications for the said period, that, too,
in spite of several letters issued to her, calling upon her to do so. In other
words, the documents insisted by the petitioner could not have rebutted the
charges framed against the petitioner that she used to attend office only for
a few hours / minutes and also come to office late and leave office early at
any time she liked, without taking permission. Admittedly, the petitioner
was given leave record and attendance sheets for the period covered under
the charge-sheet, as has been found by the Authorities below. Those were
the relevant documents either to rebut the charges framed against the
petitioner or to substantiate her defence that she was, in fact, attending
office regularly and punctually, and that, whenever she was on leave, her
leave was duly sanctioned / approved.
54. The Authorities below have found, as of fact, that the petitioner,
during the years 2002 to 31st March, 2004, remained on L.O.P. /
unauthorised absence for 495½ days. The Appellate Authority has noted
that even after issuance of charge-sheet, the petitioner did not mend her
ways and remained "absent unauthorisedly for 250½ days, which
56 98010
constituted serious misconduct on her part. Further, the petitioner had never
made representation/protest regarding the correctness of the entries in the
attendance register. Moreover, although the petitioner was given
opportunity to defend her case, she abruptly abandoned the enquiry
proceedings on a specious and unsubstantiated plea that the enquiry was not
being conducted fairly, leaving no option to the Enquiry Officer but to
proceed ex parte against her.
55.
According to the petitioner, after the enquiry proceedings were
concluded, as also the appeal was disposed of, she was furnished
documents under the Right to Information Act. It was submitted that the
said documents would belie the charges framed against her. Emphasis was
placed on the salary slips and leave record. It was contended that the
petitioner was paid salary, as was evident from the salary slips for the
relevant period. The fact that the petitioner received salary for the relevant
period, by itself, does not militate against the charges as framed against her
and more so belie the documentary and oral evidence produced by the
Management, which evidence has gone unchallenged. Even the leave
record, assuming that it indicates that leave was available to the credit of
the petitioner, will be of no avail to her, as that does not substantiate the
57 98010
defence of the petitioner that she was not unauthorisedly absent during any
of the stated 495½ days between 2002 to 31st March, 2004. We fail to
understand as to how the documents now furnished to the petitioner under
the Right to Information Act can undo the overwhelming unchallenged
evidence produced by the Management during the enquiry, establishing the
charges against her of having proceeded on unauthorised leave for 495½
days during the relevant period. That, by itself, is a serious misconduct.
56.
As aforesaid, the evidence on record establishes that the
petitioner did not submit any representation/protest or for that matter, leave
applications for the relevant period, that, too, in spite of repeated letters sent
to her to do so. The Competent Authority and the Appellate Authority has
upheld the said findings of the Enquiry Officer on the basis of the proved
uncontroverted evidence on record. That finding of fact is unassailable.
Suffice it to observe that the stated documents not supplied to the petitioner,
have been rightly held to be not relevant qua the charges framed against her
nor useful to substantiate the defence. The non-furnishing of any
document, by itself, is not enough to vitiate the enquiry proceedings. The
document should be such that it is indispensable and without which the
charge could not have been proved or, for that matter, the defence available
58 98010
to the delinquent officer could be rebutted. Only in that eventually, non-
supply of the document may cause serious prejudice or miscarriage of
justice. In the present case, for the reasons recorded hitherto, it is not
possible to hold that the documents referred to by the petitioner were such
that it would have caused any prejudice to the petitioner in pursuing her
defence that she, in fact, attended the office during the relevant period
regularly and punctually or that she was on leave with permission / sanction
of the Appropriate Authority. Accordingly, the argument of the petitioner
that the enquiry proceedings are vitiated due to non-supply of certain
documents will have to be stated to be rejected.
57. The next grievance of the petitioner is that proper procedure
was not followed during the enquiry. This grievance has been duly
considered by the Authorities below. It is found, as of fact, that the enquiry
report was not corrected by Ms. Kala (prosecution witness), but she carried
out correction only in respect of typing errors in the minutes of the enquiry
proceedings, which were duly signed by the Enquiry Officer and the
Presenting Officer. This is a finding of fact. No legal evidence is brought
to our notice to suggest that this finding of fact is perverse or error apparent
on the face of the record. Besides, it is noticed that the Enquiry Officer
59 98010
proceeded with the enquiry as per the norms, and more so, after giving due
opportunity to the petitioner, who, in fact, squandered that opportunity by
abruptly walking out of the enquiry proceedings. Thus understood, the
petitioner cannot be heard to complain about the fairness of the enquiry
and more so, any irregularity therein, which, however, does not vitiate the
entire enquiry.
58. Even the grievance of the petitioner that she did not get fair
opportunity at the enquiry and the Enquiry Officer hastily proceeded with
the enquiry ex parte against her does not commend to us. The petitioner
has referred to several circumstances to persuade us to take the view that
the totality thereof would leave no manner of doubt that the entire action
against the petitioner was replete with bias and was colourable exercise of
power. As has been noticed earlier, grievance of the petitioner about bias
was against specific officers. However, during the relevant period between
2002 and 2004, the petitioner worked under three different set of superior
officers, and it is not the case of the petitioner that even those superior
officers or any one of them was biased against her. Assuming that the
petitioner was entitled to pursue her plea of bias against her superior, the
said officer has not been named as a respondent in the present petition.
60 98010
59. The fact that, soon after the impugned removal order was
passed by the Competent Authority against the petitioner, the Estate Officer
proceeded in the matter also cannot be the basis to assume that the charge
as framed and established against the petitioner is untenable. The opinion
of the Enquiry Officer having found favour with the Competent Authority
as well as the Appellate Authority, it is not possible to lightly brush aside
the said finding on the basis of conjectures and surmises. As has been
noted earlier, we are inclined to hold that the Enquiry Officer gave
sufficient opportunity to the petitioner to defend herself. It is the petitioner
who failed to avail of that opportunity. She did not appoint some other
person of her choice as her defence assistant. She did not cross-examine the
prosecution witnesses, as also failed to produce her own evidence to
substantiate her defence. Instead, she chose to abruptly walk out of the
enquiry proceedings. Accordingly, the grievance of the petitioner that there
has been unfair enquiry against her or that the enquiry was vitiated because
it proceeded ex parte against her is devoid of merits.
60. That takes us to the next argument of the petitioner that the
General Manager, who passed the impugned removal order against her, was
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not competent in that behalf. Further, the appeal preferred by the petitioner
was heard by the Chairman, who was also incompetent to hear the same.
It is noticed that the petitioner was appointed to the post of
Assistant Administrative Officer. When the charges were framed against
the petitioner, she was working as Assistant Manager, MCDO-IV, during
the relevant period. Considering that fact, we fail to understand as to how
the General Manager was not competent to pass the removal order against
her. As the impugned removal order has been rightly passed by the
General Manager, the Chairman, being the superior authority, would
obviously be the Appellate Authority. In our opinion, therefore, there is no
substance in the grievance that the impugned removal order has been
passed by officer, who was not competent to pass the same, or, for that
matter, the Chairman of the Company was not competent to decide the
appeal preferred by the petitioner against the decision of the General
Manager and Competent Authority.
61. The last submission canvassed at the instance of the petitioner
is that the decision of the Appellate Authority, in any case, is vitiated, as the
appeal came to be decided against the petitioner without affording
opportunity of hearing before the Appellate Authority. As per the extant
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Regulations, the same do not provide for oral hearing before the Appellate
Authority. The validity of that Rule is not under challenge. Accordingly,
the Appellate Authority cannot be faulted for not affording oral hearing to
the petitioner before deciding the appeal. Even if we were to accept the
argument that oral hearing should have been given to the petitioner by the
Appellate Authority, since the petitioner has approached this Court and has
urged all questions on merits and invited decision thereon, the said
irregularity committed by the Appellate Authority cannot take the matter
any further for the petitioner.
62. That takes us to the last aspect, on the quantum of punishment.
Once it is held that the charges as framed against the petitioner have been
duly established, it would necessarily follow that the petitioner was guilty
of a serious misconduct. The penalty for such serious misconduct, as
provided in the extant Regulations, is of removal from the services of the
respondent Company. The Competent Authority has precisely imposed that
penalty against the petitioner, i.e., removal from the services of the
Company, which shall not be disqualification for future employment.
Considering the seriousness of the charges proved against the petitioner, we
do not think that the said punishment is excessive. It is well-established
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position that the Court cannot sit in appeal over the decision of the
Authority competent to impose punishment. The Apex Court in the case of
State of Punjab vs. Jit Singh reported in (2009) 16 SCC 351 has held that
in an inquiry with regard to charge of unauthorised absence from duty is
established in the departmental proceedings, the punishment to be inflicted
lies with the Disciplinary Authority. The Court cannot substitute its own
opinion to the punishment so imposed, unless, it was illogical or suffers
from procedural impropriety or was shocking to the conscience of the
Court. (Also see V.Ramana vs. A.P.SRTC & Ors. - (2005) 7 SCC 338 -
paras 11 and 12).
63. It was then suggested by the petitioner that, even before the
said enquiry proceedings, the petitioner, as in the case of her husband, had
shown willingness to resign and leave the Company. That offer was
reiterated by the petitioner, provided the impugned order of removal was to
be set aside. That arrangement could be worked out only if the respondent-
Company was willing to accept the said offer. We had put that suggestion
to the counsel for the respondent-Company, who, on instructions, stated
that, in the fact situation of the present case, it was not possible to accede to
the request of the petitioner, and the respondents would invite decision of
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the Court on merits. As aforesaid, the penalty imposed, in the fact situation
of the present case, cannot be said to be excessive. Accordingly, no
interference with the penalty imposed by the Competent Authority, and as
confirmed by the Appellate Authority, is warranted.
64. Considering the above, it is unnecessary for us to burden this
Judgment with the alternative argument of the respondents that even if the
inquiry against the petitioner was defective, the petitioner would not
automatically succeed in getting relief of reinstatement. In such a case, the
Court, at best, may make an order that the inquiry to proceed from the stage
found to be defective. In support of this submission, the respondents had
relied upon the decision of the Apex Court in State of Punjab & Ors. vs.
Dr.Harbhajan Singh Greasy reported in (1996) 9 SCC 322; U.P.State Textile
Corpn.Ltd. vs. P.C.Chaturvedi & Ors. Reported in (2005) 8 SCC 211. For
the same reason, it is not necessary to burden this Judgment with the
question whether the petitioner has pleaded and proved that she was in fact
unemployed during the relevant period for succeeding in the relief of back
wages. The respondents rely on decision of the Apex Court in the case of
Kendriya Vidyalaya Sangathan & Anr. vs. S.C.Sharma reported in (2005) 2
SCC 363 reported in (2005) 2 SCC 363 to buttress this submission.
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Reliance is also placed on the decision in the case of Senior Superintendent
Telegraph (Traffic), Bhopal vs. Santosh Kumar Seal & Ors. reported in
(2010) 6 SCC 773, wherein, it is held that an order of reinstatement is not a
must even if termination is held illegal.
65. That takes us to the grievance of the petitioner that she, along
with her family members, has been dispossessed from the service quarters
in a high-handed manner, for which, she should be compensated by way of
damages. Having gone through the pleadings on record, we do not intend
to traverse this ground in detail. Considering the fact that the petitioner
was evicted from the service quarters only after the Appropriate Authority
affirmed the penalty of removal from services after following the necessary
procedure, it is not possible to find fault with the action of dispossession. It
is noticed, the petitioner resorted to proceedings before the City Civil Court
against the action of dispossession. As the dispossession was resorted to by
following procedure established by law, the petitioner cannot be heard to
complain about prejudice caused to her because of dispossession so as to
claim damages and compensation from the Company for such
dispossession. Accordingly, even this relief does not commend to us.
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66. While parting, we place on record our appreciation for the
petitioner - who appeared as party in-person - for having conducted the
matter in a dignified manner and more or less adhering to the time schedule
indicated by her and concluding her oral arguments within a reasonable
time supported by written submissions.
67. Accordingly, this petition fails. The same is dismissed with no
order as to costs. Rule is discharged.
MRS. MRIDULA BHATKAR, J. A.M. KHANWILKAR, J.
