Bombay High Court
Sunil Punjaji Bhagwat vs Western Coalfields Ltd. Thr. ... on 4 September, 2017
Bench: B.P. Dharmadhikari
wp5604.11 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
WRIT PETITION NO. 5604 OF 2011
Sunil Punjaji Bhagwat,
aged about 36 years,
r/o & Post - Takarkheda
(Shambhu), Tahsil - Bhatkuli,
District - Amravati. ... PETITIONER
Versus
1. Western Coalfields Limited,
Civil Lines, Nagpur through
Chief Managing Director.
2. Deputy Chief Personal Manager,
Western Coalfields Limited,
Pimpalgaon Sub Area, Wani
North Area, P.O. Ukni, Tahsil -
Wani, District - Yavatmal.
3. Area General Manager,
Wani North Area, At - Bhallar
Township, Po. Bhallar, Tahsil -
Wani, District - Yavatmal (MS)
445 304. ... RESPONDENTS
Shri Nitin A. Gaikwad, Advocate for the petitioner.
Shri S.C. Mehadia, Advocate for the respondents.
.....
CORAM : B.P. DHARMADHIKARI &
ARUN D. UPADHYE, JJ.
SEPTEMBER 04, 2017.
ORAL JUDGMENT : (PER B.P. DHARMADHIKARI, J.)
Heard Shri Gaikwad, learned counsel for the
petitioner and Shri Mehadia, learned counsel for the
respondents.
2. The order of termination, earlier passed on
08.10.2009, was questioned before this Court by the petitioner
- employee in Writ Petition No. 3454 of 2010. That order was
set aside on 21.03.2011 and the employer was directed to
reconsider the issue of unauthorized absence of the petitioner
between 30.09.2003 till 19.06.2009, by extending to him
reasonable opportunity of hearing. Accordingly, that
opportunity of hearing was extended to the petitioner and fresh
order has been passed on 08.10.2011. The order has been
maintained and reinstatement has been rejected.
3. According to Shri Gaikwad, learned counsel, the
fact that the petitioner was lodged in prison, is not in dispute
and hence he could not have intimated and sought leave of
absence. He invites attention to the Division Bench judgment
of this Court in Criminal Appeal No. 629 of 2003 (Sau. Usha
w/o Vinayak Bhagwat vs. State of Maharashtra), with connected
appeals, acquitting the appellant on 19.06.2009. He states that
in the light of said acquittal, the petitioner ought to have been
reinstated back.
4. Shri Mehadia, learned counsel has taken us through
the order dated 08.10.2011. He submits that the incident has
taken place on 02.03.1991 i.e. before the petitioner became
employee of Western Coalfields Limited. As he remained
absent, he was terminated in the year 2005 and that
termination was communicated to him when he reported back
for duties, after his acquittal by the High Court. The said
communication dated 08.10.2009 was set aside by the Division
Bench of this Court in Writ Petition No. 3454 of 2010. He
points out the petitioner has in defence submitted that he was
not present at the time of incident i.e. on 02.03.1991. He
contends that as is apparent from the appellate judgment in
Criminal Appeal, three persons were killed on that day.
According to him, the Division Bench has given the petitioner
benefit of doubt, as prosecution could not explain genesis of the
crime.
5. Shri Gaikwad, learned counsel submits that wrong
explanation given by the petitioner during hearing, after orders
of this Court dated 21.03.2011, in Writ Petition No. 3454 of
2010, cannot be a valid ground to support the order of
termination.
6. We find that the petitioner was in jail from
30.09.2003 up to 25.06.2009. The employer noted that he was
absent without taking leave from 22.09.2003 to 15.05.2004
and hence he was charge sheeted on 15.05.2004 under
Standing Orders. He was called upon to give his explanation.
No reply to charge sheet was received and hence the Inquiry
Officer was also appointed. The notices of inquiry sent to him
were received back and ultimately as he did not appear in
inquiry, inquiry proceeded ex-parte. Thereafter inquiry report
along with second show cause notice was pasted on his quarter
in Bhalar Township, and ultimately on 04/05.02.2005, he was
terminated.
7. The petitioner - employee submitted an application
on 15.07.2009 informing that he was in jail from 30.09.2003 to
25.06.2009. This application was rejected on 08.10.2009. The
order rejecting this application was set aside on 21.03.2011 in
Writ Petition No. 3454 of 2010.
8. Thus, order of termination dated 04/05.02.2005
was not set aside and the employer was asked to give petitioner
an opportunity. The petitioner was accordingly given an
opportunity. In that opportunity, while speaking about the
incident dated 02.03.1991, the petitioner - employee took a
defence that he was not present at the time of alleged incident.
In that incident three persons died and after trial, in Sessions
Case No. 50 of 1997, the petitioner was sent to prison on
30.09.2003. Thus, he was in prison till his acquittal by the
High Court, as mentioned supra.
9. A perusal of judgment of the High Court, acquitting
the petitioner, reveals finding of injuries sustained by the accused
persons. The defence of accused persons was, those injuries
were caused to them when they exercised right of self defence.
The Division Bench of this Court found that genesis of event
could not be proved by the prosecution and hence in the light
of those injuries, the petitioner was acquitted. Thus, this
judgment in a way accepts presence of the appellant on the
spot of incident on 02.03.1991.
10. When the petitioner got an opportunity again, after
orders of this Court dated 21.03.2011, he has turned around
and disputed his presence also at the time of incident on
02.03.1991. It is this conduct that has weighed with the
employer in not setting aside the order of termination, already
passed by it for remaining absent.
11. The facts on record, prima facie, show that after
02.03.1991 incident, the appellant joined employment of
Western Coalfields Limited on 26.05.1997 with effect from
22.10.1996. Though, Shri Mehadia, learned counsel, has
attempted to urge that this offence was then suppressed, in the
absence of any show cause notice to the petitioner about it, we
cannot look into this aspect.
12. Taking overall view of the matter, we find that after
directions of this Court dated 21.03.2011, reasonable
opportunity was given to the petitioner and thereafter
impugned action has been taken. No case is, therefore, made
out warranting interference. Writ Petition is dismissed.
However, in the facts and circumstances of the case, there shall
be no order as to costs.
JUDGE JUDGE
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*GS.
