All India Institute Of Medical ... vs Roshan Lal S/O Late Sh. Babu Lal And ...
2014 Latest Caselaw 1538 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                          Judgment Reserved on March 18, 2014
                                         Judgment Delivered on March 24, 2014


+                                  W.P.(C) 3127/1999
ALL INDIA INSTITUTE OF MEDICAL SCIENCES                       ..... Petitioner

                          Represented by:    Mr.Rishab Kaushik, Advocate

                          versus

ROSHAN LAL S/O LATE SH. BABU LAL AND ORS.

                                                            ..... Respondents
                          Represented by:    None

+                                  W.P.(C) 3476/1999
ROSHAN LAL S/O SH. LATE SH. BABU LAL AND ORS.

                                                              ..... Petitioners
                          Represented by:    None

                          versus

THE PRESIDING OFFICER AND ANR.

                                                           ..... Respondents
                          Represented by:    Mr.Rishab Kaushik, Advocate for
                                             R2/AIIMS

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

1. The above captioned writ petitions arise from the award dated January 11, 1999, whereby the Labour Court has answered the reference,

directing the reinstatement of the workman without back wages.

2. For convenience, the facts are culled out from the W.P.(C) No. 3127/1999 filed by the All India Institute of Medical Sciences (AIIMS, in short). It is noted that the respondent No. 1 has since expired and vide order dated September 28, 2011, the legal representatives of the respondent No. 1 were brought on record. I find, the amended memo of parties was filed on November 02, 2011, whereby seven legal representatives of the respondent No. 1 (hereinafter referred to as 'deceased-workman') were brought on record. It is also noted that original respondent No. 2 namely Govt. of NCT of Delhi has not been shown in the amended memo of parties, possibly for the reason that it was a performa party. The AIIMS would be referred as the 'petitioner' and the legal representatives of the deceased-workman as the 'respondents' in this judgment.

3. The challenge in W.P.(C) 3127/1999 by the petitioner is to the award of reinstatement granted by the Labour Court, whereas in W.P.(C) No. 3476/1999, the deceased-workman has challenged the award to the extent that the Labour Court has not granted back wages on his reinstatement with the petitioner.

4. The award is pursuant to a reference made by the appropriate Government on the following terms:

"Whether the termination of services of Sh. Babu Lal-II is illegal and/or unjustified and if so, to what relief is he entitled and what directions are necessary in this respect?"

5. It was the case of the deceased-workman that he was working as Nursing Orderly with effect from November 20, 1961. He was on

extraordinary leave without pay from April 20, 1982 to January 18, 1983. According to him, his services were terminated with effect from January 18, 1983 without any cause or reason. He would state that he was unemployed since the date of his termination.

6. The petitioner filed the written statement, raising a preliminary objection that the petitioner is an institution of national importance vide Section 5 of the AIIMS Act. On merit, it denied that the deceased- workman was on extraordinary leave without pay with effect from April 20, 1982 to January 18, 1983. According to the petitioner, the deceased- workman absented without prior intimation/permission with effect from April 20, 1982. Memo dated May 27, 1982 was issued and the deceased-workman was called upon to report for duty immediately. He was asked to submit his explanation as to why action be not taken against him for unauthorized absence. It was also mentioned that in case, he was sick, he should submit medical certificate from the Junior Staff Surgeon/Civil Surgeon. The deceased-workman neither joined the duties nor sent any reply. The petitioner sent letter to the Police Commissioner on September 04, 1982 requesting him to locate the deceased-workman and intimate his whereabouts. Even after the expiry of 232 days, the deceased-workman did not report for duties. It was logical to infer from large unauthorized absence, the deceased-workman had abandoned his services. According to the petitioner, the Competent Authority came to the conclusion that it was not practicable to conduct the enquiry and dispense with the same.

7. The petitioner invoked Rule 19 (ii) of CCS (CCA) Rules/Regulation 33 of the AIIMS Regulations, 1958. Before that, a letter dated November 08, 1982 sent to the deceased-workman was

returned with the endorsement of postal authorities that addressee was not available at the given address. According to the petitioner, only for the purpose of computation of his legal dues that its Accounts Branch intimated, vide memo dated February 15, 1984 that unauthorized absence of 274 days on the part of the deceased-workman was commuted retrospectively into extraordinary leave without pay.

8. On the basis of the pleadings, one issue was framed by the Labour Court, which was: "As in terms of reference". The Labour Court, inter alia, was of the view that since the petitioner did not frame any charge and the decision to dispense with the enquiry would have arisen only after the issue of charge sheet, the decision to dispense with the enquiry would be bad. Further, since the petitioner has not conducted an enquiry, the petitioner cannot be allowed to prove the charge by leading evidence in the Court. It was also the view of the Labour Court, since the petitioner itself had treated the absence from duty as leave without pay, it could not held the enquiry, on the ground that the absence stood regularized and there did not remain any subsisting misconduct. It was also further stated that the letter whereby it was decided to treat the period of absence as extraordinary leave, does not stipulate that the same was done for the purpose of computation of benefits.

9. The learned counsel for the petitioner would submit that the Labour Court has erred in holding that the decision to dispense with the enquiry can be taken only after the issuance of charge sheet. Further, he would submit that the conclusion of the Labour court that since the enquiry has not been held, the petitioner cannot be given an opportunity to lead evidence, is also bad inasmuch as had an opportunity been given, the petitioner would have placed before the Labour Court sufficient

material to show that the deceased-workman had actually remained unauthorizedly absent and thereby, committed the misconduct. Further, the conclusion of the Labour Court that the leave, having been treated as extraordinary leave and thereby holding that the misconduct does not subsist, is untenable. According to him, the decision of the petitioner to treat the absence of the deceased-workman as extraordinary leave is different aspect from taking action against the employee for a misconduct.

10. No-one appears for the respondents.

11. I have considered the submissions made by the learned counsel for the petitioner. Insofar as the finding of the Labour Court that the decision to dispense with the enquiry before the issuance of the charge sheet is bad, is concerned, the issue is no more res-integra. The Supreme Court in the case of Union of India Vs. Tulsiram Patel and Ors., (1985) 3 SCC 398 has held as under:

"134. It is not necessary that a situation which makes the holding of an inquiry not reasonably practicable should exist before the disciplinary inquiry is initiated against a government servant. Such a situation can also come into existence subsequently during he course of an inquiry, for instance, after the service of a charge-sheet upon the government servant or after he has filed his written statement thereto or even after evidence has been led in part. In such a case also the disciplinary authority would be entitled to apply clause (b) of the second proviso because the word "inquiry" in that

clause includes part of an inquiry. It would also not be reasonably practicable to afford to the government servant an opportunity of hearing or further hearing, as the case may be, when at the commencement of the inquiry or pending it the government servant absconds and cannot be served or will not participate in the inquiry. In such cases, the matter must proceed ex parte and on the materials before the disciplinary authority. Therefore, even where a part of an inquiry has been held and the rest is dispensed with under clause (b) or a provision in the service rules analogous thereto, the exclusionary words of the second proviso operate in their full vigour and the government servant cannot complain that he has been dismissed, removed or reduced in rank in violation of the safeguards provided by Article 311(2).

135. The second condition necessary for the valid application of clause (b) of the second proviso is that the disciplinary authority should record in writing its reason for its satisfaction that it was not reasonably practicable to hold the inquiry contemplated by Article 311(2). This is a Constitutional obligation and if such reason is not recorded in writing, the order dispensing with the inquiry and the order of penalty following thereupon would both be void and unconstitutional".

12. From the reading of the observation of the Supreme Court in Union of India Vs. Tulsiram Patel (supra), it can be inferred that the decision to dispense with the enquiry can be taken even before the disciplinary enquiry initiated against a government servant, provided such a situation exists. In this regard, the emphasis is given to the conclusion of the Supreme Court in the aforesaid case, "it is not necessary that a situation which makes the holding of an enquiry not reasonably practicable should exist before the disciplinary inquiry is initiated against a government servant. Such a situation can also come into the existence subsequently during the course of an inquiry.....XXX". Suffice to state that the Labour Court, in the impugned award, was convinced that the decision to dispense with the enquiry was taken by the Competent Officer. It refers to the proposal to dispense with the enquiry and which proposal culminated in a decision of the Competent Authority. The conclusion of the Labour Court is untenable.

13. Further, in the present case, it is noted that the deceased-workman remained absent for 274 days. That apart, the petitioner has written to the Police Commissioner to verify the whereabouts of the deceased- workman. Unfortunately, his whereabouts could not be located. That apart, a notice was sent to the deceased-workman on November 08, 1982, which was returned with the endorsement of the postal authorities that the addressee was not available at the given address. In the given facts, the Competent Authority was justified in dispensing with the enquiry on the ground that it is not practicable to hold the same, which is also clear from the order of removal dated January 18, 1983, wherein the Competent Authority has invoked Rule 19 (ii) of the CCS (CCA) Rules, 1965 read with Regulation 33 of the AIIMS Regulations, 1958.

14. Insofar as the finding of the Labour Court that since the enquiry has not been held, the petitioner cannot be given an opportunity to lead evidence is concerned, in view of my finding on the aspect of dispensing with the enquiry, this issue would not arise any further for consideration.

15. That apart, insofar as the conclusion of the Labour Court that the unauthorized absence having been treated as extraordinary leave and pursuant thereto, misconduct does not subsist is concerned, I agree with the counsel for the petitioner that treating the period of absence as extraordinary leave is a different aspect from taking action against the employee for the misconduct. The absence was treated extraordinary leave without pay purely for computation of his legal dues and in no way, treating the period of extraordinary leave without pay can be construed to mean that the misconduct does not subsist. In this regard, I refer to the judgment of the Supreme Court in the case reported as (2003) 8 SCC 458, State of Punjab and Ors. Vs. Charanjit Singh, where the Supreme Court, while answering the issue whether stipulation amounts to condonation of misconduct and order of dismissal becomes bad in law and void ab-initio, has held that it is for regularisation of leave and not for condonation of misconduct.

16. Further, in the case reported as (2003) 3 SCC 464, Maan Singh Vs. Union of India and Ors., the Supreme Court has held that if the departmental authorities, after passing the order of punishment, passes an order for maintaining a correct record of the service of the delinquent officer and also for adjustment of leave due to the delinquent officer, the said action cannot be treated as an action condoning the lapse and the misconduct of the delinquent officer. It was held that the period of absence when treated as leave without pay, was with a view to regularize

the leave and not for condonation of misconduct.

17. In view of my conclusion above, I hold that the order of the Labour Court is not sustainable in law and the same is liable to be set aside. I allow W.P.(C) No. 3127/1999 filed by the petitioner-AIIMS.

18. Insofar as W.P.(C) No. 3476/1999 filed by the deceased-workman is concerned, in view of my conclusion above in W.P.(C) 3127/1999, the same is liable to be dismissed. I order accordingly.

19. No costs.

(V.KAMESWAR RAO) JUDGE

MARCH 24, 2014 akb