Naresh Kumar vs The Director, All India Institute ...
2014 Latest Caselaw 877 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
                                             Decided on February 17, 2014
+                             W.P.(C) 1075/2014
NARESH KUMAR                                              ..... Petitioner
            Represented by:              Mr.Rama Shankar, Mr.S.Garg,
                                         Mr.Rakesh Mehta, Advocates
                     versus

THE DIRECTOR, ALL INDIA INSTITUTE OF MEDICAL
SCIENCES                                 ..... Respondent
              Represented by: None

CORAM:
HON'BLE MR. JUSTICE V.KAMESWAR RAO
V.KAMESWAR RAO, J. (Oral)

CM No.2232/2014 (for exemption)

Allowed, subject to all just exceptions.

CM stands disposed of.

W.P.(C) 1075/2014

1. The challenge in this writ petition is to the award dated July 12, 2013 in I.D. No. 232/2011 passed by the Central Government Industrial Tribunal No. 1, Karkardooma Courts Complex, Delhi (Tribunal, in short), whereby the Tribunal has dismissed the Industrial Dispute, justifying the removal of the petitioner from the services of the respondent on account of unauthorized absence.

2. The brief facts are, the petitioner was working as a 'Sanitary Attendant', Grade-II with the respondent. He was issued a charge sheet for absenting from duties in unauthorized manner between the period

January 01, 2006 till the date of issuance of charge sheet. The petitioner did not file a reply to the charge sheet. The respondent appointed an Enquiry Officer, who sent a notice to the petitioner to join the enquiry proceedings. On October 3, 2006, the petitioner appeared before the Enquiry Officer. On subsequent hearings, he did not appear in the enquiry proceedings. This resulted in ex parte proceedings against the petitioner. The Enquiry Officer submitted his report wherein he has held the charges as 'proved'. The Disciplinary Authority forwarded a copy of the report to the petitioner and called upon him to make a representation, if any, to that report. The petitioner opted not to make any representation on the enquiry report. The Disciplinary Authority, after considering the proceedings of the enquiry, passed the final order of removal of the petitioner from services of the respondent vide his order dated March 13, 2007. The petitioner preferred an appeal to the Appellate Authority under the Rules. The appeal was also dismissed.

3. The Tribunal framed three issues; (1) Whether the enquiry conducted by the Management was just, fair and proper, (2) Whether the punishment awarded to the claimant is proportionate to his misconduct and, (3) As in terms of the reference.

4. Insofar as the issue Nos. 1 and 2 are concerned, the Tribunal was of the following view:

"25. Absence without leave constitutes a misconduct justifying disciplinary action the delinquent workman. Punishment can only be imposed either by complying

with the procedure prescribed by the standing orders of the establishment, if any, or the rules of natural justice. Normally punishment should be inflicted after the workman has been found guilty of the misconduct, after holding a domestic enquiry. Reference can be made to Mufatlal Narain Dass Barot (1966 (1) LLJ

437) and Kalika Prasad Srivastava (1987 Lab. I.C.

307). Quantum of punishment in case of misconduct for absence from duty without leave would depend upon the facts of each case. In order to justify the extreme penalty of discharge or dismissal, it is to be proved that the workman remained absent without leave for an inordinate long period. In Bokaro Steel Plant, Steel Authority of India Ltd. (2007 L.L.R. 238) removal of workman from service who remained unauthorizedly absent for a period of three months was held to be justified. In Sushil Kumar (2007 L.L.R. 45) it was ruled that absence, which is continuous for a long period, amounts to serious misconduct to justify dismissal from service. In Borman (2003 L.L.R. 364) 62 days absence of workman was held to be justified for his dismissal from service".

26. Now, question for consideration would be as to what punishment would be appropriate to the misconduct, committed by the claimant. An employee is under an obligation not to absent himself from work

placed without good cause. Absence without leave is misconduct in industrial employment warranting disciplinary punishment. Habitual absence from duty without leave has also been made misconduct under CCS (Conduct) Rules, 1964. When an employee absents himself, he must have applied for and obtained leave from the employer. No employee can claim leave of absence as a matter of right and remaining absent without leave will constitute violation of discipline. Quantum of punishment for such cases would depend upon facts of each case. In order to justify extreme penalty of discharge or dismissal it is to be proved that the employee remained absent without leave for an inordinate long period or has habituated to absent himself from duty. Here in the case the Institute has been able to project that the claimant remained absent for more than six and half months, without moving any application for leave. When letter dated 27.4.2006 was sent, advising him to join duties, he opted not to respond to it. Show cause notice dated 29.5.2006 was also not replied by him. He opted not to make a written statement of his defence, when charge-sheet was served upon him. He appeared before the Enquiry Officer on first date of hearing and thereafter abstained from the enquiry proceedings. He never explained reasons for his absence from duties. All these facts make it clear that his absence from duties

was without any justification. Such an employee has no right to remain in service. Hence punishment, awarded to the claimant is found to be proportionate to his misconduct. Issue is, therefore, answered in favour of the Institute and against the claimant. His removal from service would be justified, on account of his inordinate long absence without leave".

5. Learned counsel for the petitioner has raised only one issue before this Court i.e. that the penalty imposed upon the petitioner is disproportionate to the charge proved against him. On a specific query to the learned counsel for the petitioner, whether the petitioner has justified his absence by filing the necessary documents with regard to his illness before the Labour Court, the answer was in negative. It is noted that the petitioner has not filed the reply to the charge sheet neither, he has attended the enquiry proceedings before the Enquiry Officer, nor he has filed the reply to the enquiry report given to him by the Disciplinary Authority. It is as good as saying, the petitioner could not able to justify his unauthorized absence before the authorities below. The learned counsel for the petitioner relied upon the following Judgments in support of his contention:

1) 2008 (116) FLR 294, Ram Gulam Vs. Haryana Diary Development Co-operative Federation Limited and Ors.

2) 1996 (20) ACR 120, Vijay Bahadur Singh Vs. State of U.P. and Ors.

3) AIR 2003 SC 1377, Kailash Nath Gupta Vs. Enquiry Officer (R.K.Rai), Allahabad Bank and Ors., and

4) (2003)12 SCC 578, State (Union of India) Vs. Ram Saran.

6. I have considered the aforesaid judgments as relied upon by the learned counsel for the petitioner.

7. Insofar as the Judgment of Ram Gulam (supra) is concerned, the only plea before the Punjab and Haryana High Court was of discrimination and the Punjab and Haryana High Court has set aside the penalty imposed on the petitioner in that case, on the ground that similarly placed person was imposed a lesser penalty than the petitioner in that case. In the case in hand, no plea of discrimination has been raised by the learned counsel for the petitioner in the present petition nor before the Labour Court. Therefore, the said Judgment would not be applicable in the facts of this case.

8. Insofar as the Judgment of Vijay Bahadur Singh (supra) is concerned, the Allahabad High Court, after considering the case of absence of 132 days, was of the view that the impugned punishment was too harsh and disproportionate to the charge established. According to Allahabad High Court, the relevant provisions regulating procedural safeguards and factors indicated in decision of Shamsher Bahadur Singh Vs. State of U.P. [(1993) UPLBEC 488] were not taken into consideration while determining the quantum of punishment. In this case as well, it is noted that in the absence of the petitioner filing an appropriate evidence to justify his absence, this Court would not like to interfere with the impugned order, moreso, in exercise of the

jurisdiction under Article 226 of the Constitution of India. Suffice would it be to note that the Judgment of the Allahabad High Court in Vijay Bahadur Singh's case (supra) would be peculiar to the facts of that case and would have no bearing insofar as this case is concerned. Further, I find, the petitioner did not even care to respond to the letter of the respondent dated April 27, 2006, calling upon him to join the duties. Even show cause notice dated May 29, 2006, was not replied.

9. Insofar as the Judgment of the Supreme Court in Kailash Nath Gupta (supra) is concerned, the same was decided in the peculiar facts of that case. The charge against the petitioner in that case was not of an unauthorized absence, but, it was a case where the petitioner had given certain advances to the parties. The Supreme Court has come to a conclusion that since it is not a case of any misappropriation of any money, if any loss has been caused to the bank, that can be recovered from the appellant in that case. The Supreme Court had remanded the matter back to the High Court to examine the aspects which have been highlighted by the Supreme Court in the impugned order afresh and then, consider the case with regard to the quantum of punishment as was awarded on the petitioner in that case. This case can be differentiated. It is noted from the case in hand that in the disciplinary proceedings, even after issuing a charge sheet, the petitioner remained absent without any justifiable reason. On a specific query to the learned counsel for the petitioner, he has stated that even during the enquiry, the petitioner has not made any attempt to join the duties till the imposition of the penalty of removal on the petitioner. In other words, the petitioner remained absent for more than one year without

any justifiable reasons.

10. Insofar as the Judgment in the case of State (Union of India) Vs. Ram Saran (supra) is concerned, the Supreme Court was dealing with the provisions relating to the CRPF Act, 1949, wherein the provisions stipulate less heinous offences and more heinous offences. In the said case, the offence committed by the respondent was treated as a less heinous offence. Taking note of the relevant aspect, the Supreme Court had altered the punishment. It is noted even the Supreme in para 12 of the said Judgment had observed as under:

"...By altering the punishment we are not belittling the gravity of offence but, in our view deterrent punishment must be resorted to when such absence is resorted to avoid and evade undertaking a testing or trying venture or deployment essential at any given point of time, and not as a routine in the normal course. The appeal is allowed to the extent indicated above".

11. This Court do not find any infirmity in the conclusion arrived at by the Labour Court on the aspect of punishment. In the given facts of the case, I do not think that this is a fit case where this Court must interfere in exercise of jurisdiction under Article 226 of the Constitution of India. The wit petition is dismissed.

12. No costs.

(V.KAMESWAR RAO) JUDGE FEBRUARY 17, 2014/akb