G.Thukkamara vs Chairman And Managing Director ...
2008 Latest Caselaw 1110 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+     W.P.(C) No.311/1996

      G.THUKKAMARA                    ..... Petitioner
              Through: Mr. Zangpo Sherpa, Advocate

                             versus

      CHAIRMAN AND MANAGING DIRECTOR
      BHARAT HEAVY ELECTRICALS LTD.
      &ORS.                           ..... Respondents

Through: Mr. A.K.Roy, Advocate

CORAM:

HON'BLE MR. JUSTICE PRADEEP NANDRAJOG

DATE OF DECISION:

%                        23.07.2008

      CORAM:

Hon'ble Mr.Justice Pradeep Nandrajog

1. Whether reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not?

3. Whether judgment should be reported in Digest?

: PRADEEP NANDRAJOG, J.(Oral)

1. The rule in question is 9.13. It is a rule governing

the service condition of employees of BHEL (Bharat Heavy

Electricals Ltd.). It reads as under:-

"9.13 If an employee who remains absent from duty without leave or permission, or in excess of the period of leave originally sanctioned or subsequently extended and where such period of absence exceeds fifteen (15) consecutive days, he shall be liable to disciplinary action for the unauthorized

absence and his name may be struck off the rolls of the Company as a consequence thereof.

Provided further that if the concerned employee proves to the satisfaction of the Management that his absence was on account of sickness or other valid reasons, the Management may at their discretion, convert his absence into leave without pay or with pay as may be admissible to him under the rules."

2. Exercising power under the said Rule vide office

order dated 3.12.1992 name of the petitioner was struck off

the rolls of the company. The order reads as under:-

"OFFICE ORDER

WHEREAS Shri G.Thukka Ram, Staff No.2754851, Accountant, Regional Operations Division, Jabalpur, has been absenting from duty w.e.f. 22.06.1992 unauthrisedly; AND WHEREAS official communications were sent to him vide letters No.ROD/JBP/MPSA/446 dated 8.7.92, RE:PER:GT dated 24.7.92, RE:BOM:FIN:92 dated 19.9.92 and RE:PER:GT dated 7.11.92 besides personal counselling by Addl. General Manager, ROD, Bombay and General Manager, ROD, Madras directing him to rejoin duty, he has failed to comply with the same.

NOW THEREFORE in accordance with the provisions contained in Rule 9.13 of Company's extent Leave Rules, Shri G.Thukkaram is deemed to have left the services of the Company of his own accord without notice and his name is struck off the rolls of the Company with effect from 22nd June, 1992 (F/N).

Hid dues, if any, will be paid to him on production of 'No Demand Certificate' from all concerned.

This issues with the approval of the Competent Authority.

Sd/-

(HS SHARMA) SR.MANAGER (P&A)

DISTRIBUTION:-

1. Shri G. Thukkaram thro' DGM, ROD, Jabalpur

2. Shri G.Thukkaram, No.16, Indira Gandhi Street, Kannappar Nagar, Arumbakkam, Madras - 600 106.

3. Addl. General Manager, ROD, Bombay."

3. Appeal filed by the petitioner has been summarily

rejected by an order dated 6.1.1993. The order in appeal

reads as under:-

"Shri G.Thukkaram, No.16, Indira Gandhi Street, Kannapparnagar, Arumbakkam, MADRAS- 600 106.

Please refer to your Appeal dated 8.12.1992 to the Chairman & Managing Director as also the General Manager, ROD HQ regarding your reinstatement.

Your appeal has been considered by the competent authority and I am directed to inform you that the points mentioned therein are not true and contradictory to the advice given to you by the Addl.General Manager, ROD, Bombay and hence it is regretted that your request for reinstatement cannot be acceded to.

Sd/-

(R.KASTHURI RANGAN) SR.PERSONNEL OFFICER"

4. Before noting the relevant facts it may be recorded

that a counter affidavit has not been filed in the instant matter

but at the hearing today the relevant record has been

produced and the same has been treated as a response to the

rule.

5. Admitted facts are that the petitioners joined

service under BHEL on 12.7.1995 and was posted at Madras.

He served there till 25.6.1985 when he was posted at Korba.

He was reposted to Madras on 25.6.1987 where he served till

30.4.1991 on which date he was directed to report at Jabalpur.

He joined the unit at Jabalpur on 3.10.1991.

6. Hereinafter starts the dispute between the parties.

7. According to the petitioner he had found serious

financial irregularities at the unit at Jabalpur and to shut his

mouth the senior management personnel at Jabalpur hired

goons to physically attack him. This, according to the

petitioner made it impossible for him to serve the unit at

Jabalpur.

8. The rival version is that the petitioner was wanting

to go back to Madras as it was his native town and to further

said intention he made false allegations against senior

personnel at Jabalpur to pressurize the senior personnel to

send him back to Madras.

9. On 8.6.1992 the petitioner made the complaint to

which I have referred to hereinabove. It is not in dispute that

the complaint in question was duly investigated not only at

Jabalpur but a formal inquiry was conducted at Bombay for the

reason petitioner was alleging threat to his safety at Jabalpur.

The formal inquiry conducted with respect to the complaint of

the petitioner resulted in a report being submitted on

11.8.1992 by Sh. S.K.Gupta, General Manager recording that

there was no basis to sustain the allegation of the petitioner.

10. In this connection it would be relevant to note that

pertaining to certain bills submitted by the petitioner, on

30.4.1991, a charge memo was issued to him which resulted in

the petitioner being indicted. On 13.8.1991 a penalty order

was inflicted upon the petitioner withholding his increment for

a period of 1 year.

11. Reverting back to the facts relatable to the

termination of the petitioner, on 15.6.1992 petitioner

proceeded on leave till 20.6.1992. He obtained a sanction for

the leave.

12. Petitioner did not report back for duty at his work

place i.e. Jabalpur. On 8.7.1992 a memorandum was issued to

the petitioner informing him that his leave was over on

20.6.1992 and instead of reporting for duty he gave an

information that his wife had to undergo surgery requiring his

presence at Madras. That he was advised to submit the

medical papers but had not so done. Recording the said facts,

petitioner's attention was drawn to Rule 9.13. It was recorded

that if the petitioner did not produce the relevant medical

record pertaining to his wife evidencing her undergoing

surgery, action would be initiated under Rule 9.13.

13. Receiving no response, on 17.7.1992, another

communication was sent to the petitioner at his address in the

city of Madras drawing his attention to the memo issued on

8.7.1992 and informing the petitioner that the department had

not received any response thereto.

14. Petitioner responded by dispatching a telegram

which reads as under:-

"As my wife is undergoing surgery my presence is essentially required at Madras. Kdly extend EL/EOL for 1 month from 1.7.1992 to 31.7.1992."

15. On 22.7.1992 a telegram was sent to the petitioner

by the department, drawing his attention to Rule 9.13, and

calling upon him to submit the relevant medical papers. In the

interregnum, on 22.7.1992 the petitioner sent a letter. The

letter makes an interesting reading. It reads as under:-

"July 20th 1992.

FROM:

G.THUKKARAM Accountant/ROD/JABALPUR

16, Indira Gandhi Street Arumbakkam MADRAS-600 106.

TO:

Shri. H.S.Sharma Sr. Manager/P&A ROD/HQ NEW DELHI.

Sir:

To my shock and surprise I received a letter dated 17/7/92 from you advising me to furnish a medical certificate for my wife's illness. You are well aware of the episode that I have highlighted few of the financial irregularities of Shri M.P.S. Ahluwalia, RR, ROD/Jabalpur to ROD/Bombay & ROD/HQ/ND and how I had to run for my life on the night of 12/6/92. When things stand so, sending such a letter informing that action will be taken against me clearly reveals the stand taken by ROD/Management. I am at a less to understand why ROD/HQ wants to shield an individual who deliberately erred and want only committed such a magnitude of fraud and at the same time wants to punish the man who sincerely reported the malpractice to superiors; shielding such a magnitude of fraud only lead to complications in future.

Justice can be delayed and even denied. But it could never be defeated.

I request you to kindly consider your stand that if punishment is meted out to honest employees who then and there report the irregularities to their superiors, then there will not be any sincerity and honesty in the lower ranks and that is the reason why we have to witness today's multi-crore scandal of Security scam which rocks the entire country.

I request you to kindly help me in setting things right and help book the culprits in the interest of

organisation which you and me served for so many years.

Thanking you,

Yours sincerely,

Sd/-

(G.THUKKAMARAM)"

16. Relevant would it be to note at this stage that the

petitioner changed track and highlighted the cause of his not

joining at Jabalpur as being the danger to his life. The

petitioner referred to the same incident of the senior

management deploying goons to physically liquidate the

petitioner, a fact, which as noted above, was found false at an

inquiry held by Sh.S.K.Gupta.

17. The departmental file shows repeated letters written

to the petitioner calling upon him to forthwith join at Jabalpur

and if petitioner desired that his leave be extended to submit

the relevant papers. Obviously, the relevant papers were the

medical record pertaining to alleged surgery undertaken by the

wife of the petitioner. None came.

18. On 7.11.1992 a formal notice was issued to the

petitioner recording therein that having availed authorized

leave up to 20.6.1992, petitioner was not joining back and that

leave not having been regularized thereafter if petitioner did

not report at Jabalpur action would be taken against him under

Rule 9.13. It was also informed to the petitioner that the

stated reasons by him of not reporting back namely threat to

his life were unsubstantiated allegations. Reference was made

in this notice to the meetings held at Bombay relate to the

inquiry conducted at Bombay in respect of the allegations

made by the petitioner.

19. Receiving no positive response from the petitioner,

in that, neither that the petitioner report back nor did he

submit any medical record pertaining to the sickness of his

wife impugned order dated 3.12.1992 was passed.

20. I note that the memo dated 7.11.1992 has been

replied to by the petitioner on 17.11.1992. In his reply he has

justified his absence with reference to the alleged incidents at

Jabalpur. He did not submit any proof of his wife undergoing

surgery.

21. Learned counsel for the petitioner urges that the

principles of natural justice have been violated in that no show

cause notice was issued to him before impugned order was

passed.

22. I am afraid, not only was the petitioner repeatedly

cautioned that if he did not report back action would be taken

against him under Rule 9.13 but before passing the order

under challenge, a memorandum dated 7.11.1992 was served

upon him. Though not stated as a show cause notice, contents

thereof satisfy the requirements of a show cause notice.

23. In para 18 above, I have briefly noted the contents

of the memorandum dated 7.11.1992.

24. Indeed, petitioner's response to the memorandum,

vide his reply dated 17.11.1992, was false for the reason

alleged incidents at Jabalpur were enquired into and as noted

hereinabove were found to be false. Ex facie it is a case of an

employee not wanting to serve outside his home town.

25. It has to be noted that the initial response of the

petitioner to his unauthorized absence was the stated medical

illness of his wife and petitioner informing that his wife had to

undergo surgery. I cannot ignore the fact that in spite of

repeated letters written to the petitioner and even a telegram

sent required him to furnish medical papers pertaining to the

sickness or the surgery of his wife, none were ever filed. He

remained in a state of unauthorized absence from 20.6.1992

till he was sent back in December 1992.

26. As noted above, midway, petitioner change track by

alleging that he could not report at Jabalpur due to danger to

his life. The alleged incidents of goons being sent upon the

petitioner by the senior management were found to be false at

an inquiry in which the petitioner participated. I note that for

benefit of the petitioner the inquiry was conducted at Bombay.

27. I do not find that rules of natural justice have been

violated. I find no infirmity in the action taken against the

petitioner in exercise of the power conferred under Rule 9.13.

28. A last submission be noted.

29. Counsel urges that the order in appeal is without

reasons.

30. It is settled law that where the appellate authority

concurs with the view taken by the disciplinary authority it

need not pass a detailed speaking order.

31. The writ petition is dismissed.

32. No costs.

PRADEEP NANDRAJOG, J.

JULY 23, 2008 mm