General Manager, Bank Note Press, ... vs Shri Arjun Singh
2021 Latest Caselaw 837 MP

HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR



WRIT PETITION NO.                               17701/2012
Parties Name                   GENERAL MANAGER. BANK NOTE PRESS,
                               DEWAS
                                         VS.
                               ARJUN SINGH
Bench Constituted              Single Bench
Judgment delivered By          HON'BLE SHRI JUSTICE VISHAL DHAGAT
Whether       approved    for YES/NO
reporting
Name of counsel for parties For petitioner: Shri N. K. Salunke, Advocate.

                               For Respondent : Shri Sanjay Verma, Advocate

Law laid down Significant paragraph number

(O R D E R ) 18/03/2021

Petitioner has filed this writ petition challenging award

dated 14.05.2012 contained in Annexure P/1 passed by Presiding

Officer, CGIT cum Labour Court, Jabalpur in Case

No.CGIT/LC/R/128/1996, whereby Tribunal directed reinstatement

of respondent no.1 with full back wages.

2. Brief facts of the case are that respondent no.1 Arjun Singh

was appointed as Mazdoor on 20.5.1980. Thereafter he was

made Mazdoor (control) on 26.4.1983 and was made Examiner

on 30.9.1987. It is averred by him that he became ill on 1.6.1988

and was taken to Ujjain for treatment. Petitioner started

departmental enquiry against respondent no.1 for unauthorized

absence from work. Respondent remained absent from duty

from 1.6.1988. A letter dated 9.9.1988 was issued to him to join

duty. He did not submit any application nor submitted medical

certificate and, therefore, his services were terminated in exparte

departmental enquiry vide order dated 5.7.1989.

On the same day i.e. 5.7.1989, respondent gave an

application for joining and submitted his medical certificate

before the authorities. In departmental enquiry proceedings

were initiated under Rule 19(ii) of the Central Civil Services

(Classification, Control and Appeal) Rules, 1965 (hereinafter

referred to as 'the CCS(CCA) Rules, 1965') and his services were

terminated.

Respondent filed an appeal which was also dismissed.

Thereafter he approached the Assistant Commissioner, Labour

and matter was referred to Central Government Industrial

Tribunal cum Labour Court (hereinafter referred to as 'CGIT') on

following questions:-

"1. Whether the action of the management of

Bank Note Press, Dewas in terminating the services of

Shri Arjun Singh is legal and justified ?

2. If not, to what relief the workman is entitled

to ?"

3. Learned Presiding Officer of CGIT, Jabalpur set aside the

order of termination and passed orders to reinstate the

respondent with full back wages and consequential benefits.

Presiding Officer, CGIT held that only one witness namely; K. K.

Pandit who was working as Administrative Officer was examined

in departmental enquiry. He has stated that Workman was

unauthorizedly absent from duty w.e.f. 1.6.1988 and Disciplinary

Authority invoked provisions of Rule 19(ii) of the CCS(CCA) Rules,

1965. Tribunal held that Workman was not working under Shri K.

K. Pandit. No documentary evidence was filed to show that he

was unauthorizedly absent from work. The card, which is kept in

card time office and is punched in machine to show

presence/absence of Workman, was not produced in evidence.

Attendance register was also not filed before the Tribunal. No

explanation was given for producing the said documents.

Statement of absence of respondent was filed but document on

basis of which statement was prepared was not filed before the

Tribunal, therefore, it was held that Management has failed to

show the misconduct of Workman. Departmental Enquiry was

conducted exparte, therefore, Management was given a chance

to show the misconduct but Management failed to do so.

Tribunal further held that only two documents were filed in the

case, they are Exhibits M-1 and M-2. Said documents also does

not prove the misconduct. It was further held that when the

services of Workman was terminated on 5.7.1989, he was

present before the Management and had produced application as

well as medical certificate. Registered notices were issued to

Workman and he refused to accept the same as endorsed in

document M-6. In view of same, CGIT held that Management

committed an error in proceeding against Workman under Rule

19(ii) of the CCS (CCA) Rules 1965 and it ought to have

proceeded exparte enquiry in proceedings under Rule 14(20) of

CCS (CCA) Rules 1965. On basis of aforesaid premises CGIT

allowed the reference in favour of Workman and set aside the

termination of respondent with back wages.

4. Learned counsel for the petitioner argued that CGIT did not

consider the documents, M-1 to M-22. Management has rightly

proceeded under Rule 19(ii) of CCS (CCA) Rules 1965 as it was

not possible to serve the Workman. Tribunal committed an error

in law in holding that departmental enquiry ought to have been

made under Rule 14(20) of the CCS (CCA) Rules 1965. Tribunal

committed an error in assuming that Workman has applied for

leave. The burden was on the Workman to show that he had

applied for leave and no documents were filed by the Workman

to show that he applied for leave or has filed medical certificate.

Medical certificate filed on 5.7.1989 was after termination,

therefore, same is of no value. Learned Tribunal has further

committed an error in granting full backwages to Workman

without verifying that there is delay on his part. Workman

preferred conciliation proceedings after 5 years from the date of

his removal from service and delay caused cannot be attributable

to Management.

5. Learned counsel for the respondent supported the

order/award passed by CGIT. It is submitted that termination

amounted to retrenchment and no compensation was given to

the respondent. Learned Tribunal has rightly held that

proceedings were wrongly undertaken under Rule 19(ii) of the

CCS (CCA) Rules 1965. Respondent was present on 5.7.1989 and

gave an application for joining and has filed medical certificate,

therefore, Management could not have proceeded under Rule

19(ii) of the CCS (CCA) Rules 1965, against the Workman. It was

also submitted by him that Workman was unemployed and he

was under treatment at Ujjain. As he was unemployed for the

whole period, therefore, Tribunal has rightly awarded

reinstatement with back wages. In view of the same, learned

counsel for the respondent prayed for dismissal of the writ

petition.

6. Heard the learned counsel for the petitioner as well as the

respondent and perused the records of the CGIT.

7. From a perusal of the records it is found that number of

documents have been filed by the Management. Most of the

documents which were filed by the Management before the

Tribunal is regarding sending of registered notices and their

acknowledgement. Proceedings of departmental enquiry and

order sheets were also filed before the Tribunal. From a perusal

of the document (M-6) it is found that endorsement was made

on document "refused, returned to sender". Said endorsement

does not show that who has refused to accept the registered

letter. Whether Workman Arjun Singh refused or some other

person refused to accept the said letters/notices.

8. In view of the same, Workman cannot be treated to be

served by said endorsement. CGIT has relied on said

endorsement for holding that Disciplinary Authority committed

an error in initiating proceedings under Rule 19(ii) of the CCS

(CCA) Rules 1965 and it ought to have proceeded under Rule

14(20) of the CCS (CCA) Rules 1965. The said finding of Tribunal

is erroneous as endorsement does not state that Workman has

refused to accept the service, therefore, he can be treated as

served. In view of the same, said finding is set aside and it is

held that Disciplinary Authority has rightly proceeded under Rule

19(ii) of the CCS (CCA) Rules 1965, as it was not possible to

serve the Workman.

9. On going through the records it is evident that Management

made lots of effort to serve the Workman. Repeated registered

notices were sent to the Workman and each registered notice

was returned to the sender with endorsement that house is

locked. This shows that Workman was not available for enquiry,

therefore, authorities proceeded under Rule 19(ii) of the CCS

(CCA) Rules 1965. Tribunal held that Disciplinary Authority did

not resort to publication in the newspaper and, therefore,

proceedings undertaken under Rule 19(ii) of the CCS (CCA) Rules

1965, is bad. Service of Workman and procedure adopted under

Section 19(ii) is legal or illegal pales into insignificance as CGIT

vide order dated 10.1.2011 has permitted the Management to

prove misconduct in Court. Both the parties i.e. Workman and

Management was give full opportunity to prove their case. Now

evidence and documents adduced by parties is to be considered

in the case.

10. Tribunal further held that Management has failed to prove

the misconduct of Workman. Documents were not filed and

evidence was not sufficient to show his unauthorized absence

from duty. On perusal of the records, it is found that

Management has filed documents (M-3) which is the statement of

absence of Workman from duty. As per the said statement,

respondent no.1 remained absent from duty for 579 days in

between year 1983 to 1988. He remained absent for 6 days in

1984, for 21 days in 1985, for 107 ½ and for 29 days in 1986.

Said chart/statement was prepared by Pradhan Samaypal dated

19.8.1989. In affidavit T. Ahakey, S/o M. B. Ahakey has stated

that Workman remained unauthorizedly absent from 1.6.1988

and for that he relied on M-3 wrongly mentioned as "M-4". In

cross-examination no cross-questioning was done on M-3 with

regard to unauthorized absence of Workman. M-3 was not

challenged in the cross-examination. One witness K. K. Pandit

has also filed its affidavit before the Tribunal. He has also stated

that Workman remained unauthorizedly absent from duty. This

witness has been cross-examined in respect of statement M-3.

In his cross-examination he has stated that he had filed the

statement M-3 regarding unauthorized absence of Workman. He

admitted that punching card and attendance register was not

filed. It was also admitted by him that document, on basis of

which statement (M-3) was prepared, was not filed by him.

However, in cross-examination document (M-3) was not

challenged to be false. Workman Arjun Singh has filed his

affidavit and in para 5(b) he has stated that due to adverse

circumstances it was not possible for him to attend duty. He

made no statement on affidavit that he had given any application

for leave or has produced medical certificate before Management

for grant of leave.

11. On the basis of affidavit it is clear that it is admitted by

Workman that he remained absent from duty. He had not stated

anything that he had filed any application or medical certificate

before the authority explaining his absence. He did not file any

document to show that he had filed any application for leave. On

the contrary, on affidavit he has stated that he remained absent

from duty due to unavoidable circumstances but he did not state

on affidavit that he had filed any application for grant of leave or

informed the management regarding his ill health. In view of

affidavit filed by Workman and his admission in filing of

documents on basis of which M-3 is prepared will not absolve

Workman from misconduct.

12. In view of the documents filed, affidavit of parties and

cross-examination it is clear that Workman has failed to prove

that he had filed any application for grant of leave. He had

admitted that he remained absent from duty due to unavoidable

circumstances. In view of this misconduct of Workman has been

proved before CGIT. Learned Presiding Officer committed an

error in holding that unauthorized absence of Workman and his

misconduct was not proved by the Management. No

presumption can be drawn that Workman has filed an application

for grant of leave before the Management. Though a finding has

been given that Workman appeared before Management for

joining on 5.7.1989 and also filed medical certificate, said

application and certificate is of no value because when workman

learnt about his termination order, he immediately appeared

before the authorities with application and medical certificate.

Dishonesty of a person may not be given any premium.

Workman did not accept the notice and on the date when final

order was passed in departmental enquiry, he appeared before

the authorities and filed application and medical certificates for

joining. There is no point of filing application for leave and

medical certificate before the Management after termination of

services of Workman.

13. In view of the aforesaid discussion and the evidence

available on record, award dated 14.5.2012 passed by Presiding

Officer, CGIT cum Labour Court, Jabalpur in Case

No.CGIT/LC/R/128/1996 is quashed and it is held that action of

Management of Bank Note Press, Dewas in terminating the

services of Shri Arjun Singh is legal and justified.

14. Writ petition, filed by the petitioner, is allowed.

(VISHAL DHAGAT) JUDGE mms

Digitally signed by MONSI M SIMON Date: 2021.03.25 11:02:50 +05'30'