Cement Corporation Of India Ltd & ... vs Shri D.B. Mathur & Anr.
2012 Latest Caselaw 3295 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                            Date of decision: 17th May, 2012

+                         LPA No.950-51/2006

CEMENT CORPORATION OF INDIA LTD & ANR. ..... Appellants
               Through: Mr. Arun Birbal, Advocate

                                    Versus

SHRI D.B. MATHUR & ANR.                                   ..... Respondents
                  Through:             Mr. Shankar Raju, Advocate.

CORAM :-
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J.

1. The appeal impugns the judgment dated 2 nd January, 2006 of the

Learned Single Judge allowing WP(C) No. 3121/1994 preferred by the

respondent, by setting aside the Inquiry Report dated 10 th September, 1993

and the order dated 5th October, 1993 of the Disciplinary Authority of the

appellant imposing the penalty of dismissal from service on the respondent

and further holding the respondent to be entitled to full salary for the period

of 1st January, 2002 onwards; liberty was however given to the appellant to

hold a fresh enquiry into the charges against the respondent and it was

directed that if the appellant chose to hold the said enquiry, it be completed

within six months.

2. Notice of this appeal was issued and subject to the appellant

depositing the back wages as directed to be paid by the learned Single Judge,

the operation of the judgment of the learned Single Judge was stayed. In

compliance of the said order dated 31.07.2006, a sum of Rs. 12,82,073/- was

deposited by the appellant in this Court. Though mediation was attempted

but failed. The appeal was admitted for hearing and the interim order was

confirmed till the decision of the appeal and the respondent was permitted to

withdraw the sum of Rs.4 lacs out of the amount deposited by the appellant

in this Court. The said amount of Rs. 4 lacs is reported to have been released

to the respondent. We have heard the counsels.

3. The respondent, an Electrical Engineer, joined the employment of the

appellant on 24th September, 1979 and though his services were transferable,

largely remained posted at Delhi only. On 27 th March, 1992, he was

transferred to the Tendur Plant (in Andhra Pradesh) of the appellant. On

representation of the respondent thereagainst, on the ground of illness of his

father, the place of his transfer/posting was changed to Charkhi Dadri, close

to Delhi. The respondent however failed to join at the transferred post.

4. The respondent was on 14th July, 1993 charged for having remained

absent w.e.f. 31st March, 1992, though absence from 31 st March, 1992 to 5th

February, 1993 was regularized by grant of leave and extraordinary leave

admissible to the respondent. The charge memo further stated, that though

the respondent vide his letters dated 12 th February, 1993, 11th March, 1993,

8th April, 1993, 5th May, 1993 and 14th May,1993 had sought leave from 6th

February, 1993 to 26th May, 1993 totalling 110 days but since the Rules

provided for leave on medical grounds beyond the period of 90 days to be on

recommendation of Medical Board, a Medical Board was constituted and

which visited the residence of the respondent on 16th June, 1993 and 23 rd

June, 1993; on both occasions the respondent was not met; though the

respondent reported for duty on 25th June, 1993 but on being tendered the

transfer order, again left; thereby the respondent did not comply with the

transfer order for more than 15 months.

5. The Inquiry Officer reported that the respondent had avoided

participation in the inquiry also and on the basis of the evidence of the

appellant submitted a report against which also the respondent failed to

represent despite opportunity.

6. The Disciplinary Authority as aforesaid, imposed the penalty of

dismissal from service on the respondent.

7. The learned Single Judge, in the impugned judgment, has

observed/found/held:

i) that though the respondent had set up a case of the order of his

transfer as also the proceedings against him being vitiated on

account of malafide but even the pleadings of the respondent lest

material did not support such a plea;

ii) that as per the Rules of the appellant, applications for leave on

medical grounds beyond 90 days were to be dealt with on the

basis of recommendations of the Medical Board; however the

five applications made by the respondent between 12 th February,

1993 and 14th May, 1993 did not seek 90 days medical leave at a

stretch and thus the said provision was not applicable thereto;

iii) that even otherwise the procedure for dealing with such

applications on the recommendation of the Medical Board had

been introduced only w.e.f. 8th June, 1993 and thus could not be

applied for the leave applications of the respondent of prior

thereto;

       vi.    that the Inquiry Officer had acted in a haste and had

             unreasonably    refused   the   adjournments    sought     by    the

             respondent; the inquiry was thus not fair.

vii. that since another writ petition preferred by the respondent

impugning the transfer order had been dismissed, the

disciplinary proceedings in the entirety could not be quashed.

8. Though the counsel for the respondent has sought to urge the ground

of malafides, which has not found favour with the learned Single Judge, but

has not been able to show any material therefor except for generally averring

that the proceedings against the then Managing Director of the appellant

(who is impleaded hereinabove as respondent no.2) for various illegalities

have since been taken. However there is nothing to show that the then

Managing Director of the appellant was vindictive or had any reason for

being vindictive towards the respondent. We are thus, to only adjudicate as

to whether the learned Single Judge was correct in holding the inquiry held

to be unfair. We must however record that the counsel for the respondent

though also sought to urge that even if the inquiry report were to be

accepted, the punishment meted out was disproportionate to the charge but

upon our inquiring from him as to how long unauthorized absence could be

condoned, was not able to support the said argument. We are of the opinion

that if such indiscipline is allowed to be perpetuated, the functioning of

entities as the appellant would come to a standstill. No organization can

afford to have its managerial level persons so absenting for long span of

time.

9. Before examining the aspect of the fairness of the inquiry, we may

record another admitted fact. The respondent, even if had continued in the

employment would have attained the age of superannuation on 31 st August,

2007. The learned Single Judge also has not found the respondent entitled to

wages from 1993 till 2002. The only question therefor is of the wages from

2002 to 2007 and of the retiral benefits of the respondent. In this regard

however it may be noticed that it is the plea of the appellant and not rebutted

by the respondent that the respondent is gainfully employed since April,

2003, though the counsel for the respondent states that he was so employed

till the year 2006 only. Once it is so found, the question of back wages for

the said period would also not arise. The counsel for the respondent also has

not been able to press the same. He has thus pressed for retiral benefits only

but informs that the respondent has served the appellant only for 17 years.

10. The crux of the matter being as to whether the respondent was

justified in remaining absent on medical grounds, we have first asked the

counsel for the respondent to show to us the documents in support thereof.

The counsel for the respondent has invited our attention to pages 152-154 of

the paper book, being the OPD Card of All India Institute of Medical

Science (AIIMS). The argument raised is that the respondent having visited

a premier medical institution and such premier medical institution having

certified the illness of the respondent, the non submission of the respondent

to the Medical Board constituted by the appellant pales into insignificance. It

is further argued that the Medical Board so constituted, did not find the

respondent at his residence because the respondent on those days was

visiting AIIMS.

11. However a careful perusal of the OPD Card of AIIMS shows that the

respondent had complained of "Episodic loss of muscle tones, difficulty in

reading in morning" and was referred to Cardiothoracic & Neuroscience

Centre of AIIMS. The said Neuroscience Centre found "no evidence of

neurological disease" and that "those episodes are related to acute anxiety

and stress". Upon such diagnosis, the respondent was prescribed only

"Alprax 0.25 mg" and "Capsule Becosule" which are a mild sedative and

vitamin B supplement respectively. Minute perusal of the OPD Card does

not show any other treatment to have been prescribed to the respondent.

Though the respondent in his leave applications had cited the ailment of low

blood pressure, hyper tension, typhoid, viral hepatitis, asthmatic disease with

eczema but no medical records in support thereof are shown nor do we find

any on record.

12. It is also worth highlighting that the OPD Card aforesaid records only

a complaint of respondent but does not record any investigation to have

established the same. Experience of life shows that prescription of mild

sedative and vitamin supplement is common on such complaint being made

to a medical practitioner. Today‟s life styles, especially in metropolitan

cities are fraught with stress and tension and if such stress and tension were

to become a cause for absenting from work, the entire country would come

to a standstill. We are thus not satisfied that the respondent had any medical

reasons for remaining absent from the work and it is clear as day light that

the cause for absence was the reluctance of the respondent to join at the

transferred place.

13. At this stage another argument of the counsel for the respondent may

be noticed. It is argued that the transfer order was not even served on the

respondent. This argument itself shows the conduct of the respondent. The

respondent after representing against transfer to far away Andhra Pradesh,

managed the affairs to evade even the service of subsequent order of change

of posting on himself.

14. We may clarify that we have examined the medical records not with

the intent of appropriating to ourselves the jurisdiction of the Inquiry Officer

but only to take a bird‟s eye view of the matter inasmuch as we are of the

opinion that the proceedings before the Inquiry Officer would necessarily be

coloured by an overview of the matter. If the Inquiry Officer, on the basis of

the material before him were to find no defence to the charge and no

material requiring detailed inquiry, no fault can be found with his action of

expediting the matter. Often the Courts themselves, finding a litigant to be

abusing the process of law, expedite the hearings by giving preference over

other matters, to reach the conclusion which is inevitable and writ large. The

learned Single Judge has recorded that the Inquiry Officer was appointed on

2nd August, 1993; notice of preliminary hearing on 9th August, 1993 was

served on the respondent on 7th August, 1993; the respondent did not appear

before the Inquiry Officer on 9th August, 1993 but on 10th August, 1993

when he submitted an application for adjournment; that the Inquiry Officer

asked the respondent to appear on 16 th August, 1993 when again

adjournment on medical ground accompanied with medical certificate dated

17th August, 1993 was made; that the Inquiry Officer fixed 23 rd August,

1993 for final hearing; again a request for adjournment was received which

was refused and inquiry proceeded with on 23 rd and 24th August, 1993 and

report dated 10th September, 1993 submitted. The learned Single Judge has

on the basis of said dates held the said procedure to be hasty.

15. In the facts aforesaid, we are unable to find that the Inquiry Officer

showed any haste. If even in such circumstances when the employee is

remaining unauthorisedly absent and is seeking adjournments during

inquiry, the inquiry is allowed to go on indefinitely, it would clearly amount

to abuse of the procedure of inquiry. It was the duty of the respondent to

participate in the disciplinary proceedings (see Pepsu Road Transport

Corporation Vs. Rawel Singh (2008) 4 SCC 42) and which he failed to do.

Similarly, in Chairman cum Managing Director, Coal India Ltd. Vs.

Ananta Saha (2011) 5 SCC 142 it was held that the Inquiry Officer, on

failure of employee to appear inspite of service of notice, is entitled to

proceed ex parte. It is found that violation of the principle of natural justice

has become the sword of the delinquent officials with no substantial defence

to the charge against them. The Supreme Court recently in S.B.I Vs.

Hemant Kumar (2011) 11 SCC 355 observed that the principles of natural

justice cannot be stretched to a point where they would render the in-house

proceedings unworkable. Earlier, in Board of Directors, H.P.T.C. Vs. K.C.

Rahi 2008 (3) SCALE 72 it was held that non participation in departmental

proceedings is at own risk and in such event principle of natural justice is

deemed to have been waived and the delinquent employee is estopped from

raising the plea of non compliance with principles of natural justice. The

allegations made of victimization have already been negatived and no cause

of any malafides on the part of the Inquiry Officer is urged. A departmental

inquiry is not to proceed like Court cases. It is not as if a litigant in a Court

has a right for the litigation to prolong for several years. That happens only

owing to number of cases being far more than the number of Courts.

However that still does not accrue any right in a litigant to have his case

prolonged. As aforesaid, the medical ground set up by the respondent for his

absence has already been found to be a sham. There is nothing to show that

the respondent on the days of hearing fixed by the Inquiry Officer was

unable to participate in the inquiry. Stress and strain even if suffered by the

respondent, were a result of order of transfer and reluctance thereto and

cannot themselves become a ground for vitiating the inquiry proceedings.

The counsel for the appellant has also invited our attention to the order dated

16th August, 1993 in Civil Writ No.3790/1993 also preferred by the

respondent where also a direction for completing the inquiry proceedings as

expeditiously as possible, was issued by this Court.

16. The counsel for the appellant has also argued that Rule of the

respondent requiring application for leave beyond 90 days to be dealt with

only on the recommendation of the Medical Board cannot be allowed to be

defeated by repeatedly applying for leave for less than 90 days but in all for

more than 90 days. However, in the light of the view we have taken, need is

not felt to deal with the said aspect.

17. The counsel for the respondent has invited our attention to Union of

India Vs. I.S. Singh 1994 Supp (2) SCC 518 to contend that in that case the

action of the Inquiry Officer of proceeding ex parte inspite of request for

adjournment was held to be bad. However, in that case it was found that the

Inquiry Officer had not paid any attention to the said request. Moreover,

ultimately in that case a consent order was passed. On the contrary, a

perusal of the order sheet dated 9th August, 1993 of the Inquiry Officer

shows that warning was given to the respondent that upon his non

appearance on the next date of 16 th August, 1993 he will be proceeded

against ex parte; the respondent was also asked to, besides his reply to the

charges, also place the documents in support thereof. The respondent in his

application for adjournment merely stated that on account of suffering from

viral fever he could not concentrate and contribute towards the inquiry. The

order sheet dated 23rd August, 1993 of the Inquiry Officer shows that the

said request of the respondent was duly considered and found to be frivolous

and rejected. The constitutional requirement for judging the question of

reasonableness and fairness on the part of the State, must be considered

having regard to the factual matrix obtaining in each case. It cannot be put

in a straight jacket formula. It must be considered keeping in view the

doctrine of flexibility. Before an action is struck down, the Court must be

satisfied that a case has been made out for exercise of power of judicial

review. (Ref M.P. Gangadharan Vs. State of Kerala (2006) 6 SCC 162).

In the present case, no case for judicial review is made out.

18. For this reason alone, the judgment cited by the counsel for the

respondent is not applicable. As far as the ground for rejection of leave

application being not communicated is concerned, we have already

concluded hereinabove that the ground of illness suffered by the respondent

has not been substantiated. The Inquiry Officer in his report also has

recorded that due intimation of each and every date of hearing / order sheet

was sent to the respondent and while the copies sent through courier were

served, the copies sent by registered post were refused and that the

adjournments sought were without any reason and the respondent had

avoided to participate in the inquiry.

19. We are afraid the learned Single Judge has taken bookish view of the

matter inspite of seeing through the game which the respondent was playing

and once it is found that the grounds set up by the respondent for remaining

absent for inordinately long time were not genuine and the reasons for not

participating in the inquiry are also unsubstantiated, it would be travesty of

justice to allow the respondent a second inquiry particularly when the

respondent has been unable to show as to what he is likely to produce or

prove therein.

20. Before parting with the case we may notice that though the counsel

for the respondent has during the hearing handed over synopsis of

submission with case laws, with copies of several other judgments but has in

oral hearing not referred to any other judgment except the one noticed

above. We do not deem it appropriate to burden our judgment with the

judgments included in the compilation handed over to us. The said

compilation is however placed on record

21. We thus allow this appeal, set aside the judgment of the learned

Single Judge and dismiss the writ petition of the respondent impugning the

order of his dismissal from service. Axiomatically the amount deposited by

the appellant in this Court together with interest accrued therein be refunded

to the appellant. Since no argument has been raised before us qua the

amount of Rs. 4 lacs which the respondent was permitted to withdraw and

which he, on the appeal being allowed, is liable to refund to the appellant,

even though the respondent is liable to refund the same with interest, we

direct the respondent to refund the same without any interest, within ten

weeks of today, failing which it will be refunded with interest thereon at

10% per cent per annum. We also refrain from imposing any costs on the

respondent.

RAJIV SAHAI ENDLAW, J

ACTING CHIEF JUSTICE MAY 17, 2012/„M‟