Rajiv Singh vs The Shipping Corporation Of India ...
2022 Latest Caselaw 5917 Bom

                                                                        WP-1153-2010-J.doc


                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                                  ORDINARY ORIGINAL CIVIL JURISDICTION


                                     WRIT PETITION NO.1153 OF 2010
                                                 WITH
                                  INTERIM APPLICATION (L) 1411 OF 2022
                                                  IN
                                     WRIT PETITION NO.1153 OF 2010

                      RAJIV SINGH                             )
                      Age 54 years, Indian Inhabitant         )
                      Residing at A-667, Indira Nagar,        )
                      Lucknow (U.P.)                          )...PETITIONER

                            Vs.

                      THE SHIPPING CORPORATION                )
                      OF INDIA LTD.                           )
                      (A Govt of India Enterprise) having     )
                      its registered office at shipping       )
                      house, 245, Madam Cama Road             )
                      Mumbai - 400 021                        )...RESPONDENT


                      Mr. Nitesh Bhutekar a/w. Ms. Ayodhya Patki a/w. Ms. Gargi
                      Warunjikar and Mr.Aniket Nangare, Advocate for the Petitioner
                      and Applicant.


                      Mr. Vijay Purohit a/w. Mr. Pratik Jhaveri, Mr. Virendra Vikram and
                      Mr. Samkit Jain i/by. P and A Law Offices, Mumbai, Advocate for
                      the Respondent.




ARTI
VILAS
                      avk                                                         1/25
KHATATE
Digitally signed by
ARTI VILAS
KHATATE
Date: 2022.06.27
17:15:37 +0530
                                                        WP-1153-2010-J.doc


                   CORAM       :     DIPANKAR DATTA, CJ &
                                     V.G.BISHT, J.

       RESERVED ON             :     5th May 2022
       PRONOUNCED ON           :     27th June 2022



JUDGMENT : (PER : V. G. BISHT, J.)


1      The present petition has been filed under Article 226 of the

Constitution of India for issuance of writ in the nature of

mandamus or any other writ, questioning the legality of letter

dated 24th August 2009 (Exh. H) and for quashing and setting

aside letter dated 23rd September 2009 (Exh. J) for closure of

service and directing the respondent to reinstate the petitioner on

his original post with backwages and continuity of service or in

the alternative, to release the terminal benefits, contribution

towards the Provident Fund and fleet service gratuity amount in

favour of the petitioner.

2 We shall first state the facts as discerned from the petition :

(a) The petitioner joined the services of respondent as "Cadet" in

the year 1975. He was promoted from the post of "Cadet" to

avk 2/25 WP-1153-2010-J.doc

the rank of 3rd Officer in the year 1979. During his service

with the respondent for more than 30 years, the petitioner

had unblemished service record with very good track record.

(b) On 23rd June 2001, the petitioner started sailing on vessel

named "Samudranidhi" which was going from Mumbai to

Dubai. When the vessel was sailing in the sea, on 26 th June

2001, because of some dispute with the captain of the ship,

the captain assaulted the petitioner, which resulted in

bleeding from his nose. The Medical Officer on the ship

immediately examined the petitioner. However, the captain

of the ship and the Medical Officer of the ship issued a false

certificate in the name of petitioner on 1st July 2001 stating

that the petitioner is chronic alcoholic and chain smoker.

Pertinently, "Samudranidhi" being an ONGC vessel, alcohol is

strictly prohibited. One cannot enter there if he is found

under the influence of alcohol. Even the petitioner made a

complaint to the DGM on 11th November 2001 against the

captain of the said ship in respect of the said incident.

avk                                                               3/25
                                                      WP-1153-2010-J.doc

(c) On 23rd March 2006 when the petitioner reported for medical

examination for joining duty, the petitioner was declared

temporarily unfit for sea service and was advised to report

after six to eight months after taking treatment and

abstinence from alcohol. The petitioner time and again

visited the office of respondent. However, he was not allowed

to resume and report for his services on one ground or the

other. Even he was not paid salary during that period. Since

the petitioner was without any income for nine to ten

months, he was constrained to work with other private

companies on temporary basis.

(d) On 24th August 2009 the petitioner received a letter (Exh. H)

from the respondent being a letter for closure of service

informing the petitioner that the services of the petitioner are

being closed without any terminal benefits and company's

contribution towards the Provident Fund and fleet service

gratuity is forfeited and the same will not be paid to him.

avk                                                            4/25
                                                      WP-1153-2010-J.doc

(e) Again on 23rd September 2009 the respondent issued another

letter (Exh. J) for dismissal from service stating that the

previous letter of closure of service be treated as dismissal

with effect from 24th August 2009. The petitioner alleges that

he was forced to sign on the said letter and accordingly whilst

signing on the said letter, the petitioner gave the said remark

"forced to sign". Therefore, the present writ petition.

3 The respondent, on the other hand, by way of Affidavit-in-

reply denied all the contentions raised in the petition. The

respondent denies the incident dated 26 th June 2001 which

allegedly took place when the vessel "Samudranidhi" was sailing

from Mumbai to Dubai. The respondent further denies that the

petitioner was not allowed to resume office and report for duty.

According to the respondent, the petitioner being an offshore

employee of the respondent-company is governed by the terms

and conditions stipulated in the INSA-MUI Agreement ("the

Agreement" for short). The Agreement contains the terms and

conditions of employment of foreign going officers by Indian

Shipping Companies on the basis of Memorandum of Agreement

avk 5/25 WP-1153-2010-J.doc

settled by the Indian National Shipowners Association on one

hand and the Maritime Union of India, on the other. Clause 124

of the said Agreement inter alia provides for medical examination.

The petitioner had become addicted to alcohol and was prone to

epileptic seizures and therefore was required to undergo periodic-

sea examination. On 23rd March 2006 the petitioner presented

himself for the periodical medical examination and was declared

"temporarily unfit" for reasons more specifically stated in the

medical certificate issued by the Company's Medical Officer.

Clause 93 of the Agreement provides that on the expiry of medical

treatment and/or convalescence leave, the officer concerned shall

report in writing and in person at the nearest office of the

company or at its Agent's office, unless advised otherwise by the

company and on his such reporting and on being found fit by the

company's Medical Officer, he shall be deemed to be as "on Staff".

The petitioner, however, did not report and instead, admittedly,

took up a job with other companies in breach of Clause 29 of the

Agreement. In the circumstances, the petition, being devoid of

merits, deserves to be dismissed with costs.

avk                                                         6/25
                                                     WP-1153-2010-J.doc


4     Mr. Nitesh Bhutekar, learned counsel for the petitioner,

vehemently submits that the petitioner is dismissed from his

service without giving any notice and following due process of

law, and thus, there was violation of principles of natural justice.

Not only the petitioner was dismissed illegally, but the respondent

forfeited Provident Fund contribution and fleet service gratuity

amount which clearly shows illegality and arbitrariness on the

part of the respondent.

5 The learned counsel then next strenuously submits that

although the petitioner was declared temporarily unfit on 27 th

March 2006 for sea services and was advised to report after

undergoing six to eight months of treatment, however, when the

petitioner went to the respondent for reporting, he was not

allowed to join the services on various grounds. Thus, no

opportunity of hearing was given nor any inquiry was conducted.

Even Clause 29 of the Agreement provides that services of an

officer can be terminated only if he takes up a job while in the

service of the respondent. Since the petitioner was not taken in

avk 7/25 WP-1153-2010-J.doc

service by the respondent on the ground that he was medically

unfit, he was required to work with other companies on

contractual basis, so as to earn his livelihood by exercising his

fundamental right, which could not have been denied to him.

Thus, for all these reasons, the petition deserves to be allowed,

argued learned counsel.

6 Mr. Vijay Purohit, learned counsel for the respondent, has

submitted written notes of arguments, which are taken on record.

Per contra, the learned counsel vociferously resisted the

submissions by submitting that since the petitioner was found

temporarily unfit, he was advised to report after undergoing six to

eight months of treatment, in view of Clause 93 of the Agreement.

Admittedly, petitioner did not report and rather secured

employment in other companies in breach of Clause 29 of the

Agreement. Thus, there was clear cut breach of above noted

clauses of the Agreement at the hands of the petitioner. Since the

petitioner had breached the clauses set out in the Agreement

while obtaining employment in other companies whilst in

avk 8/25 WP-1153-2010-J.doc

permanent employment of the respondent company and as also

suffered from an addiction to alcohol and bouts of epilepsy, there

was no necessity to issue any chargesheet and thus the respondent

company was justified in dismissing the petitioner from the

employment of the respondent company. There being no merit in

the writ petition, the same is liable to be dismissed with costs,

argued learned counsel. The learned counsel also placed reliance

on the decisions in Tejinder Kaur vs. State of Punjab and Another 1,

Aligarh Muslim University and Others vs. Mansoor Ali Khan 2,

Gadde Venkateswara Rao vs. Government of Andhra Pradesh and

Others3, South India Corporation (P) Ltd. vs. Secretary, Board of

Revenue Trivandrum and Another4, Sam K. Julius vs. The

Chairman & Managing Director, Shipping Corporation of India

Ltd., and Others5 and Vijay S. Sathaye vs. Indian Airlines Limited

and Others6 in support of his contentions.

1 2016 SCC Online P&H 9857 2 (2000) 7 Supreme Court Cases 529 3 (1966) 2 SCR 172 4 AIR 1964 SC 207 5 2015 SCC Online Ker 6366 6 (2013) 10 Supreme Court Cases 253

avk 9/25 WP-1153-2010-J.doc

7 Certain clauses of the Agreement have been pressed into

service during course of oral submissions and as also in written

arguments by learned counsel for the respondent. Since those

clauses have material bearing on the outcome of the present writ

petition, the clauses viz. 29, 93 and 135 to 139 are quoted

hereunder for better understanding and elucidation.

"29. It is agreed between MUI and INSA that an Officer on permanent employment of the Company, while in service takes up employment elsewhere, if proved, Company may take appropriate action, including dismissal of such errant officers without any terminal benefits being paid. It is further agreed that if an officer on leave (except on medical leave) does not report to the company within a maximum period of 12 months, it will be presumed that the officer has left the services of the company and the company may terminate the services of such officer without any further notice."

"93. On the expiry of medical treatment and/or convalescence leave, the Officer concerned shall report in writing and in person at the nearest office of the company or at its Agent's office unless advised otherwise by the Company and on his such reporting and on being found fit by the company's Medical Officers, he shall be

avk 10/25 WP-1153-2010-J.doc

deemed to be as "on staff"."

"135. An Officer guilty of misconduct may be -

      (a)     Warned or censured; or
      (b)     Reduced in seniority for a specified period; or
      (c)     Reverted to the next lower rank for a
              specified period; or
      (d)     Deprived of his annual increment for a
              specified period not exceeding two years
              but   which may be restored by the
              Company; or
      (e)     Suspended from service for a period not
              exceeding three months; or
      (f)     Discharged from service with or without
              notice; or
      (g)     Dismissed from service without notice."

"136. No action under (b), (c), (d), (e), (f) and (g) above shall be taken unless the Officer concerned has been given a charge sheet setting out therein the charges against him and unless he has been given an opportunity to tender his explanation and an inquiry has been held in respect thereof."

"137. In all cases under Clause 135 above, the Officer concerned shall be issued a charge-sheet within the shortest period possible of the incident or conduct of the

avk 11/25 WP-1153-2010-J.doc

Officer in respect of his disciplinary action is proposed to be taken and the entire process of charge-sheeting and inquiry shall be completed as early as possible."

"138. While holding an inquiry, principles and rules of natural justice shall be followed and observed, and the Union shall have the right to be present at the Inquiry to ensure that the same is conducted in a satisfactory manner."

"139. In awarding punishment, the Company shall take into account the gravity of misconduct, the previous record of the Officer and other relevant circumstances."

8 According to learned counsel for respondent, Clause 29 and

Clause 136 are on a different footing. While Clause 29 envisages a

situation resulting out of acceptance of employment under

another employer while being in service, as also abandonment of

service, Clauses 135 to 139 provide for the procedure to be

adopted in case of general misconduct. Therefore, as far as Clause

29 is concerned, it operates independent of Clauses 135 to 139.

Further, according to learned counsel, Clauses 135 to 139 would

apply in case of "onboard misconduct" of a seafarer and not

otherwise. On the other hand, Clause 29 would apply in

avk 12/25 WP-1153-2010-J.doc

situations other than those contemplated under Clauses 135 to

139.

9 There is need to guard against the self serving construction

and interpretation of Clauses 29 and 135 to 139, as canvassed by

the learned counsel for the respondent. The argument is unlikely

to cut the ground from under our feet. How, let us examine.

10 If Clause 29 is read carefully, then it would be seen that it

provides for taking of action in two eventualities i.e. (i) an action

(including dismissal) if an officer on permanent employment of

the Company takes up employment elsewhere; or (ii) termination

of service based on presumption if an officer on leave (except on

medical leave) does not report to the company within a maximum

period of twelve months. Significantly, in respect of the first

eventuality, action could be taken only if it is proved.

11 On the other hand, Clauses 135 to 139 pertain to

disciplinary action. While Clause 135 provides punishment to an

avk 13/25 WP-1153-2010-J.doc

officer having been found guilty of misconduct, Clause 136 lays

down that no action shall be taken against an officer if he is

sought to be dismissed from service unless the officer concerned

has been given a chargesheet setting out therein the charges

against him and unless he has been given an opportunity to tender

his explanation and an inquiry has been held in respect thereof.

12 Clause 135 is made further more clear and transparent by

Clause 137 which specifically provides that in all cases under

Clause 135, the officer concerned shall be issued a chargesheet

within the shortest period possible of the incident or conduct of

the officer in respect of his disciplinary action is proposed to be

taken and the entire process of charge-sheeting and inquiry shall

be completed as early as possible.

13 Assuming for the sake of argument that the respondent was

justified in taking recourse to Clause 29 of the Agreement, even

then the requirement of issuing charge-sheet before passing order

of dismissal as stipulated under Clauses 135 and 136 should be

avk 14/25 WP-1153-2010-J.doc

and ought to be read into provisions contained in Clause 29

regard being had to the words "if proved", appearing therein.

These clauses are so interweaved that they should not and ought

not to be read in isolation. Their intrinsic worth lies in reading

together.

14 Reverting to Clause 29 and more particularly first

eventuality that the petitioner had taken employment in some

other company and that is why it prompted the respondent to

base its action on one of these grounds, so as to terminate his

services, we appreciate the stand taken by the petitioner who has

been commendably candid in disclosing that he was forced to

undertake contractual employment in order to earn bread and

butter for his family as according to him he was refused to join his

regular employment despite his entreaties and visits to the office

of the respondent. The onus, obviously, in the light of Clause 29,

was on the respondent to prove after holding an inquiry that the

petitioner had obtained permanent employment in some other

company despite being on muster and regular appointment of the

avk 15/25 WP-1153-2010-J.doc

respondent company without justifiable cause. We do not find

material on record to show that any such exercise or procedure

known to law as is mandated by Clause 29 had been undertaken

by the respondent company.

15 Another allegation against the petitioner and which is also

made a ground for termination of his service, is that he violated

Clause 93 of the Agreement as the petitioner was under an

obligation to report to the nearest office after expiry of his medical

treatment and/or completion of convalescence leave. We may

note from the pleadings of the petitioner that after undergoing six

to eight months of treatment, he went to the office of the

respondent for reporting but was not allowed to join the services

on one or other grounds. Even assuming for the sake of argument

that after the period of treatment was over, the petitioner

neglected to join duty, even then it was incumbent on the part of

the respondent to call upon him by issuing show cause notice or

other established means of communication to command him to

join the service within a particular time frame with a further

avk 16/25 WP-1153-2010-J.doc

intimation of warning of taking appropriate action if he failed to

comply the notice or command, as the case may be. Again, we do

not find any material on record that the respondent infact and did

so intimate and despite that there was abysmal failure/violation

on the part of the petitioner.

16 During the course of argument much emphasis has been

placed by respondent on Exh. C at page 71 which is report of the

captain and Medical Officer. A perusal of this report reflects the

personal history of the petitioner as "patient is chronic alcoholic

and chain smoker." We also note aptly and appropriately here that

it is the specific case of the petitioner that "Samudranidhi" being

an ONGC vessel, alcohol is strictly prohibited. One cannot enter

there if he is found under the influence of alcohol. This piece of

pleading is nowhere controverted or denied in so many

unequivocal terms by the respondent. We also have advantage to

have service record of the petitioner and more particularly the

Continuous Discharge Certificate (CDC). Column "Copy of Report

of Character" gives remark of the employee as to the "ability" and

avk 17/25 WP-1153-2010-J.doc

"general conduct". The remarks given to the petitioner in that

column are very good (VG).

17 The facts and circumstances of the case beg the question

why the show cause notice was not given to the petitioner

particularly when in the words of respondent, the petitioner had

obtained permanent employment in some other company despite

being on the muster of respondent company and breached Clause

93 of the Agreement. The respondent is tellingly silent on this

material aspect. The approach of respondent has left us under a

state of palpable unease. Had such notice been issued, the

petitioner could have explained the circumstances forcing him to

accept employment elsewhere.

18 In Krushnakant B. Parmar vs. Union of India and Another 7 it

has been held by the Hon'ble Apex Court that in a departmental

proceeding, if allegation of unauthorized absence from duty is

made, the disciplinary authority is required to prove that the

absence is willful. In the absence of such finding, the absence will

not amount to misconduct.

7    (2012) 3 Supreme Court Cases 178

avk                                                                 18/25
                                                    WP-1153-2010-J.doc




19    In the present case, the respondent has utterly failed to

prove that the absence of petitioner from duty was willful in as

much as no such finding has been recorded for want of a proper

inquiry. The petitioner has taken a specific defence that he was

prevented from resuming duty on one or the other grounds and

keeping this defence in mind, it was all the more necessary for the

respondent to initiate an inquiry so as to take it to its logical

conclusion. We have set out hereinabove the actual facts and

circumstances of the case. The respondent ought to have drawn

up a chargesheet against the petitioner consistent with the

requirements of the situation and in accordance with the

principles of natural justice. The failure is all the more glaring,

considering the defence taken by the petitioner. We are

constrained to observe that there was an ominous abdication of

responsibility. The action smacks of arbitrariness and illegality.

This being so, the petitioner has every reason to be piqued over.

The petitioner's discomfiture is understandable. There is, thus,

little point in arguing that in the facts and circumstances of the

avk 19/25 WP-1153-2010-J.doc

case, there was no necessity to issue notice or initiate disciplinary

proceedings against the petitioner.

20 This brings us to the judgments cited by the learned counsel

for the respondent.

21 First of such judgments is of Tejinder Kaur (supra). In the

said case, the petitioner remained absent from duty for years

together on the basis of unauthorised leave which was never

sanctioned. Even she did not bother about the public notice

published in the newspaper. Not only unauthorized absence from

duty was there but the petitioner also left the country without

seeking any permission and that too at the cost of interest of the

children. It was held that the unauthorized absence from duty for

such a long period amounts to a presumption that the petitioner

was not interested in pursuing her job and had abandoned it and

as such the action of the respondent was found to be justified. It

was further held that in case of long unauthorized absence from

duty, a reasonable presumption can be drawn that the incumbent

was not interested in the job and for passing order, no notice or

avk 20/25 WP-1153-2010-J.doc

inquiry was required. The factual position obtained in the case in

hand is quite different. Neither it is a case of unauthorized

absence nor that of publication of notice in the newspaper calling

upon the petitioner to join the services. Therefore, the decision

has no utility to the case in hand.

22 In Aligarh Muslim University and Others (supra) the

employee obtained two years extraordinary leave to join a job in a

foreign country and therefore sought extension of leave by further

two years but was granted extension for only one year with the

warning that no further extension would be granted and that in

case of overstaying, he would be deemed to have vacated the

office. The said employee, despite this warning, joined a fresh

two year job in the foreign country. On account of omission to

join after the expiry of the third year of leave, he was held to

have vacated his office and therefore in such circumstances, the

Hon'ble High Court held that issuance of notice to him would not

have made any difference. Moreover, the conduct of the employee

in ignoring the employer's warning, disentitled him to the relief

under Article 226. Again, the factual narratives in the case in

avk 21/25 WP-1153-2010-J.doc

hand vis-a-vis above noted case are distinguishable and therefore,

the ratio laid down therein cannot be made applicable to the case

here.

23 In Sam K. Julius (supra), the Kerala High Court while

interpreting Clause 29 of the Employment Agreement of Shipping

Corporation of India inter alia held that "no doubt when an

abandonment arises, no proceeding need be initiated against the

employee for disciplinary proceeding for unauthorized absence."

In that case, the employee was permitted authorized study leave

and the Shipping Corporation of India did not grant extension

thereafter. However, the petitioner by writing a letter had made it

clear that he was very much inclined to join service if authorities

were not willing to grant leave. In this factual scenario, the court

held that the Shipping Corporation of India cannot place reliance

on Clause 29 to treat that the petitioner's service was deemed to

have been terminated.

24 In Vijay S. Sathaye (supra), the Hon'ble Apex Court ruled

that an employee cannot be termed as a slave. He has a right to

avk 22/25 WP-1153-2010-J.doc

abandon the service any time voluntarily by submitting his

resignation and alternatively, by not joining the duty and

remaining absent for long. Absence from duty in the beginning

may be a misconduct but when absence is for a very long period,

it may amount to voluntary abandonment of service and in that

eventuality, the bonds of service come to an end automatically

without requiring any order to be passed by the employer. Again,

here it is not the case of abandonment of service. On the contrary,

we have already pointed out that after medical / convalescence

leave was over, the petitioner many times visited the office of the

respondent in order to resume his services but was avoided on one

or the other grounds.

25 For the aforesaid reasons, we are inclined to allow the Writ

Petition No. 1153 of 2010. Therefore, the following order:

ORDER

1 We hereby quash and set aside letters dated 24 th August, 2009

(Exh.H) and 23rd September, 2009 (Exh.J).

avk                                                           23/25
                                                     WP-1153-2010-J.doc




2     The petitioner having attained the age of superannuation

during pendency of the writ petition, his reinstatement in

service cannot and does not arise. However, he shall be

treated to be on duty right from 24 th August 2009 till

attaining the age of superannuation. Whatever retiral

benefits are due and payable to him according to law shall be

released within 3 (three) months from date of service of an

authenticated copy of this judgment and order.

3 We find that the respondent has paid Rs. 6,83,840.78 (Rupees

Six Lakhs Eighty Three Thousand Eight Hundred Forty and

Seventy Eight Paise only) (Exhibit-A) towards provident fund

by way of cheque (Exhibit-B) No. 036614 dated 10 th October,

2009. In so far as back wages is concerned, we are of the

considered view that interest of justice would be sufficiently

served if the respondent pays to the petitioner 50% of the

back wages within the time frame as fixed above; hence, we

order accordingly.

avk                                                           24/25
                                                    WP-1153-2010-J.doc




4     In view of disposal of Writ Petition No. 1153 of 2010, the

Interim Application (L) 1411 of 2022 stands disposed of.

5     No costs.




       ( V. G. BISHT, J.)                (CHIEF JUSTICE)




avk                                                          25/25