Jitender Mathuria vs M/S Hindsutan Petroleum ...
2014 Latest Caselaw 3016 Del

     $~4 & 5
     * IN THE HIGH COURT OF DELHI AT NEW DELHI

     %                            Date of decision: 9th July, 2014

+     LPA 318/2014 CM Nos.6830-31/2014

      SH JITENDER MATHURIA                         ..... Appellant
                    Through :          Mr. Ajay Jawatkar, Adv.

                         versus

      M/S HINDSUTAN PETROLEUM
      CORPORATION LTD                    ..... Respondent
                   Through : Mr. Raavi Birbal, Adv.

+     LPA 319/2014 & CM Nos.6845-46/2014

      SH JITENDER MATHURIA                         ..... Appellant
                    Through :          Mr. Ajay Jawatkar, Adv.

                         versus

      M/S HINDUSTAN PETROLEUM
      CORPORATION LTD                    ..... Respondent
                   Through : Mr. Raavi Birbal, Adv.
      CORAM:
      HON'BLE MS. JUSTICE GITA MITTAL
      HON'BLE MS. JUSTICE DEEPA SHARMA

GITA MITTAL, J. (Oral)

CM No.6830/2014 in LPA No.318/2014 and CM No.6845/2014 in LPA No.319/2014

For the reasons stated, the delay in filing the writ petitions are condoned.

LPA Nos.318 & 319/2014                                page 1 of 18
       These applications are allowed.
LPA 318/2014 & 319/2014

1. The petitioner assails the judgment dated 11th February, 2014

passed by the learned Single Judge dismissing his writ petition

WP(C)No.2923/2007 and allowing the writ petition filed by the

respondent herein being WP(C)No.3747/2007.

WP(C)No.3747/2007 was filed by the present respondent

challenging the order dated 27th June, 2005 passed by the Tribunal

vitiating the inquiry conducted by the respondents against the

petitioner and award of the Central Industrial Tribunal - II, New

Delhi („Tribunal‟hereafter) dated 7th September, 2006 in I.D.

No.61/2003 and To the extent necessary, the facts giving rise to the

present writ petitions are briefly noted hereafter.

2. Upon death of petitioner‟s father, an employee to the

respondent, he was given appointment on compassionate basis on

the 29th March, 1998 in the post of „General Workman‟. The

petitioner was appointed at the LPG Plant, Village Asauda,

Bahadaurgarh, Haryana which appointment he accepted without

protest.

LPA Nos.318 & 319/2014 page 2 of 18

3. It appears that between the period from 1st December, 1998

to 31st January, 2000, the petitioner remained unauthorisedly absent

for a period of 101 days. The respondents issued several

intimations to the petitioner in this regard during the period from

2nd February, 1999 to 16th December, 1999 informing the petitioner

about his unauthorized absence. These communications were of no

avail. In this regard, the respondents proceeded in terms of Clause

31 (7) of the Certified Standing Orders which applied to the

respondents and issued a charge sheet dated 16th February, 2000 in

respect of the above unauthorized absence. In the response dated

25th March, 2000, the defence taken by the respondent was that he

was seriously ill.

4. In addition, the petitioner made a grievance that the

workplace was at a distance of 54-55 kms and even Shakurbasti,

the point from which the company bus carried the employees for

workplace at 5:30 a.m. was also 26-27 Kms. away from his

residence; therefore, the petitioner was unable to get his leave

application sanctioned from the plant manager before availing sick

leave. In this response the petitioner admitted that he was at fault

LPA Nos.318 & 319/2014 page 3 of 18 and begged pardon also for the same. It was also pleaded that he

would not repeat the mistake.

5. The respondent‟s response was not found satisfactory and

the matter proceeded to the domestic inquiry conducted by the

respondent.

6. The inquiry officer was appointed on 6th July, 2000 who had

fixed the 18th July, 2000 as the first date of hearing in the inquiry

proceedings.

7. The petitioner was permitted defence assistance of his

choice. All reasonable requests of the petitioner as per his rights

were complied with.

8. On 18th July, 2000, petitioner‟s request for giving charge

sheet in Hindi was acceded to.

9. The record would show that the petitioner attended the

inquiry upto 28th August, 2000 when the date of 20th September,

2000 was appointed as the next date of hearing. On the next date

of hearing, i.e, on the 20th of September, 2000, the petitioner did

not appear before the Inquiry Officer. He also absented himself

from all subsequent dates.

LPA Nos.318 & 319/2014 page 4 of 18

10. The inquiry culminated in the report submitted by the

Inquiry Officer on 13th February, 2001 whereby the Inquiry Officer

held that the charges against the petitioner stood proved.

11. The petitioner submitted a representation on 20th April, 2001

with regard to the inquiry report. After considering the matter, by

order dated 18th July, 2001, the Disciplinary Authority held that the

petitioner was guilty of the charged misconduct of habitual absence

without leave. Punishment of dismissal from service with

immediate effect was imposed upon the petitioner. The petitioner‟s

appeal to the appellate authority was also rejected after the

consideration of the facts on record. The petitioner raised an

industrial dispute. On failure of conciliation proceedings, by an

order dated 22nd April, 2003, the appropriate government referred

the following disputes to the Industrial Tribunal for adjudication:-

"Whether action of the management of Hindustan Petroleum Corporation Asaudah, Bahadurgarh in terminating the service of Jitender Mathuria S/o Late Sh. Radhey Shayan, General Workman with effect from 31.02.2000 is just and legal? If not, to what relief the workman is entitle to?"

12. It is noteworthy that by an order dated 27th June, 2005, the

LPA Nos.318 & 319/2014 page 5 of 18 Tribunal decided the preliminary issue regarding fairness of the

inquiry against the present respondent employer. The Tribunal was

persuaded to do so holding that the inquiry had proceeded ex-parte

without there being evidence that the workman applicant was given

intimation of the dates on which ex-parte proceedings were held.

The Tribunal was further of the view that the charges against the

petitioner were vague and that the management should have

considered the application filed by the workman which was

supported by the medical certificate but the same had not been

done. The Industrial Tribunal was of the view that the petitioner

had been denied opportunity to represent himself and to cross

examine the management witnesses.

13. After so holding, the Tribunal granted liberty to the

respondents to produce evidence in support of the charges. Upon

consideration of the material on record, the Tribunal passed an

Award dated 7th September, 2006 holding that termination of

service of the respondent was not legal and directed his

reinstatement without any backwages and without any

consequential benefits within two months from the date of

LPA Nos.318 & 319/2014 page 6 of 18 publication of the Award.

14. The respondent assailed the order of the Tribunal dated 27th

June, 2005 as well as the Award dated 7th September, 2006 by way

of WP(C)No.3747/2007 in this Court. The petitioner was

aggrieved by the rejection of his prayer for consequential benefits

and backwages and challenged the Award to this extent by way of

WP(C)No.2923/2007.

15. These writ petitions were considered by the learned Single

Judge. The learned Single Judge accepted the

WP(C)No.3747/2007 and rejected the workman‟s writ petition

being WP(C)No.2923/2007 by the judgment dated 11th February,

2014 which has been assailed by way of the present writ petition.

16. It is submitted on behalf of the petitioner that in terms of the

settlement between the petitioner and the Union whereunder a

dependant of a deceased employee was to be provided with a job

commensurating with the qualification and the experience at the

same place, provided he or she is otherwise eligible for regular

vacancy. If no regular vacancy was available, a supernumerary

post was to be created. Learned counsel for the petitioner has

LPA Nos.318 & 319/2014 page 7 of 18 reiterated the above grounds urging that the respondents had

wrongfully given him compassionate appointment at the LPG Gas

Plant at Village Asauda, Bahadurgarh, Haryana which was about

55 Kms from his residence in the plant which was running in

double shift. As a result the petitioner was required to report at

6:30 a.m. for his first shift for which he had to leave home at 4:30

a.m. If posted in the second shift, the petitioner would leave the

plant at 10:30 p.m. and reach home only at 00:30 a.m. adversely

affecting his health and he was compelled to avail extra leave on

medical grounds.

17. Learned counsel for the petitioner has contended that

unauthorised leave of 101 days was on medical grounds which was

supported by 25 medical certificates and that the petitioner had

produced fitness certificate on resumption of duties.

18. Learned counsel would also support the present challenge

contending that the chargesheet against him was vague and

submitted that the petitioner‟s absence on medical grounds could

not be termed as misconduct.

LPA Nos.318 & 319/2014 page 8 of 18

19. The respondents are represented before us on advance

notice. We have heard learned counsels for the parties.

20. We find from the record that the respondents had issued

several communications to the petitioner from 2nd February, 1999

to 16th December, 1999 notifying him about the unauthorized

absence which were duly received by him. In the letter dated 2 nd

February, 1999 the petitioner had endorsed that he shall not repeat

such conduct in the future. Some other letters dated 16 th

December, 1999, 9th November, 2000, 21st June, 2000 and 21st

August, 2000 were also sent to the petitioner. Despite receipt, no

objection at all was made by the petitioner either on the timing of

his duties or the location of his workplace. The petitioner never

expressed difficulty in communication. The petitioner certainly did

not ever inform the employer that he was unwell. No medical

certificate was forwarded by him to the employer.

21. We find that the learned Single Judge has noted that even if

the difficulties expressed by the petitioner were to be accepted,

nothing precluded him from forwarding his application as well as

medical certificates by post. This was not done.

LPA Nos.318 & 319/2014 page 9 of 18

22. So far as the objection that the charge sheet was vague and

not specific as the dates of alleged unauthorized leave were not

mentioned therein, the learned Single Judge has noted that the

period of absence was fully within the knowledge of the petitioner

and that he had also admitted the same. No dispute was raised by

him thereto.

23. We may also note the petitioner‟s response dated 25 th March,

2000 to the charge sheet dated 16th February, 2000. In this

response, the petitioner has submitted that he was unable to file

applications for leave on account of his sickness as well as distance

from his residence to take sanctioned leave. The petitioner makes

no grievance that he was not aware of the dates of his unauthorized

absence. On the contrary, the communication dated 25 th March,

2000 contains specific contentions on this aspect. The objection

that the charge sheet was vague is an afterthought. No prejudice

has resulted to the petitioner from the wording of the charges.

24. So far as finding of the Tribunal with regard to inquiry

having been conducted in violation of principles of natural justice

is concerned, the learned Single Judge has noted that the petitioner

LPA Nos.318 & 319/2014 page 10 of 18 was proceeded against ex-parte in the inquiry on 31st October, 2000

when neither the respondent or his defence assistance were present.

It is on record that the date of hearing of 31st October, 2000 was

duly communicated to the petitioner which communication stood

received by him in 24th October, 2000. The petitioner certainly had

sufficient time to make alternate arrangement in case he was unable

to attend the inquiry on the 31st October, 2000.

25. The record further shows that in the hearing fixed on 19 th

October, 2000 (on which occasion the next date of 31 st October,

2000 was fixed), Shri Mahabir Singh, the defence assistance of the

petitioner was present. On query of the Inquiry Officer, Shri

Mahabir Singh had disclosed that "employee is not coming to the

plant for so many dates and I am not having any document to

present his case." In this background, the direction to proceed ex-

parte against the petitioner in the disciplinary inquiry cannot be

held to be in violation of any legal principle.

26. So far as alleged medical certificates are concerned, the

petitioner had not submitted any of them to the Disciplinary

Authority. The learned Single Judge has noted that these medical

LPA Nos.318 & 319/2014 page 11 of 18 certificates were sent in a bunch at the time of replying to the

charge sheet and again while replying to the inquiry officer‟s

report. This has been noted by the Disciplinary Authority in his

order dated 18th July, 2001. This fact has also not been disputed

before the learned Single Judge or before us.

27. The learned Single Judge has agreed with the observations of

the Disciplinary Authority that the medical certificates were not

supported by any report of pathology test; no prescriptions were

attached nor any documents in supporting any treatment were

enclosed. If the medical certificates were genuine, the petitioner

would certainly have been in possession of the treatment which he

would have undertaken for recovery of the sickness which entailed

his absence from duty.

28. We find substance in the submission made by learned

counsel for the respondents that the very fact that these medical

certificates were produced for the first time while replying to the

chargesheet in support of the conclusion that the same were not

genuine and that the illness was also an afterthought or an excuse

to justify the unauthorized absence. The fact that no leave

LPA Nos.318 & 319/2014 page 12 of 18 application was attached which ought to have been done if the

employee was really suffering from serious illness compelling long

leave; the absence of supporting documents in the nature of

prescription; bill of purchase of medication; pathology test or other

test etc. clearly supports the reasoning of the learned Single Judge

and the finding of the Disciplinary Authority to the effect that the

medical certificates relied upon in support of the unauthorized

absence of the petitioner were not supported by documents is

justified. For all these reasons, we see no reason to disagree with

the findings of the learned Single Judge or the observations of the

Disciplinary Authority that the medical certificates were not

credible.

29. The petitioner‟s appointment was on compassionate basis

which he had accepted fully knowing the location of his work

place. No grievance was made by him at any point of time. No

representation was submitted to the employer.

30. The Tribunal has also noted that merely the fact of distance

between residence and the work place is not sufficient ground for

not getting the leave sanctioned. The Tribunal has also accepted

LPA Nos.318 & 319/2014 page 13 of 18 the respondent‟s contention that sick leave cannot be treated as

unauthorized absence. However, in the given facts, it was found

that there is nothing to support the justification of the petitioner‟s

absence on the ground of sickness as asserted.

31. The learned Single Judge has placed reliance on several

judicial precedents in support of the findings. In (2008) 1 SCC

224, L and T Komatsu Ltd. V. N. Udayakumar, the court has held

that the reliefs granted by the Courts must be seen to be logical and

tenable within the framework of the law and should not incur and

justify the criticism that the jurisdiction of the Courts tends to

degenerate into misplaced sympathy, generosity and private

benevolence. The court has further stated that it is essential to

maintain the integrity of legal reasoning and the legitimacy of the

conclusions.

32. The conduct of the petitioner clearly manifests the belief that

he could claim leave of absence as of right without permission or

even submission of an application. In the judgment reported

at(1960) II LLJ 261 SC Burn & Co. Ltd. V. Their Workmen and

Ors. the Supreme Court has held that this was gross violation of

LPA Nos.318 & 319/2014 page 14 of 18 discipline and held as follows:-

"There should have been an application for leave but Roy thought that he could claim as a matter of right leave of absence though that might be without permission and though there might not be any application for the same. This was gross violation of discipline. Accordingly, if the company had placed him under suspension that was in order. On these findings, it seems to us that the Tribunal erred in holding that it could not endorse the Company's decision to dispense with the services altogether. In our opinion, when the Tribunal upheld the order of suspension it erred in directing that Roy must be taken back in his previous post of employment on the pay last drawn by him before the order of suspension."

33. In AIR 2004 SC 4161 Delhi Transport Corporation v.

Sardar Singh, the Supreme Court has observed that if an employee

absents himself from duty, even without sanctioned leave for very

long period, it prima facie shows lack of interest in work. The

conclusion regarding negligence and lack of interest can be arrived

at by looking into the period of absence, more particularly, when

same is unauthorized. The Supreme Court also held that the

burden was on the employee who claims that there was no

negligence and/or lack of interest to establish it by placing relevant

material.

LPA Nos.318 & 319/2014 page 15 of 18

34. In the instant case, the petitioner has treated his employment

with utter casualness despite the fact that he had been given

appointment on compassionate basis upon the demise of his father.

He failed to even respond to the several communications sent by

the employer which clearly manifests the casualness,

irresponsibility and lack of interest in his employment.

35. The learned Single Judge has also noted the observations of

the Supreme Court in (2001) 1 SCC 214, Punjab & Sind Bank &

Ors. v. Sakattar Singh noting the rule requiring giving an

opportunity to the employer rejoin duty within the stipulated time

or to explain his position to the satisfaction of the Management that

he has no intention of not joining duty. The Supreme Court has

held that the presumption will be drawn that the employee does not

require the job anymore and will stand retired from service if he

fails to explain such position. The conduct of the petitioner has to

be examined in this legal background. Examined against this legal

background his conduct clearly manifests lack of interest in his

employment as the petitioner failed to tender any explanation, let

alone a satisfactory explanation, despite repeated notices from the

LPA Nos.318 & 319/2014 page 16 of 18 employer.

36. The petitioner‟s conduct displays utmost irresponsibility

even during the disciplinary inquiry when he opted to remain

absent therefrom. He also did not support his stand in his defence

by leading any evidence at all and made no efforts to prove the

genuineness and authenticity of the medical certificates.

37. In this background, the findings of the learned Single Judge

that the inquiry was held in accordance with the principal of natural

justice and that the charges against the petitioner had been duly

proved in the inquiry proceedings cannot be sustained on any

legally tenable grounds.

38. Before parting the case, we may note that in compliance of

the order dated 6th August, 2010 passed under Section 17B of the

Industrial Dispute Act during pendency of the

WP(C)No.3747/2007, the respondent has paid a sum of

approximately Rs.6,16,000/- to the workman.

The learned Single Judge has not directed any restitution.

LPA Nos.318 & 319/2014 page 17 of 18

39. These appeals are accordingly held to be without any merit

and are hereby dismissed.

(GITA MITTAL) JUDGE

(DEEPA SHARMA) JUDGE JULY 09, 2014 mk

LPA Nos.318 & 319/2014 page 18 of 18