Madhya Pradesh High Court
Bholaram Lodhi vs Union Of India on 21 April, 2022
Author: Sheel Nagu
1
IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SHEEL NAGU
&
HON'BLE SHRI JUSTICE MANINDER S. BHATTI
ON THE 21st OF APRIL 2022
WRIT PETITION NO.10293 OF 2019
Between:-
BHOLERAM LODHI S/O SHRI FAGURAM LODHI
AGED ABOUT 36 YEARS, OCCUPATION-PRIVATE
JOB, R/O 342/2B, LOCO TALAIYA CIVIL LINE
JABALPUR (M.P.)
PETITIONER
(BY SHRI AKASH CHOUDHARY, ADVOCATE)
AND
1. UNION OF INDIA THROUGH GENERAL
MANAGER, WEST CENTRAL RAILWAY,
NEAR INDIRA MARKET, JABALPUR (M.P.)
2. CHIEF MECHANICAL ENGINEER
WEST CENTRAL, RAILWAY INDIRA MARKET,
JABALPUR (M.P.)
3. CHIEF WORKSHOP MANAGER,
CRWS NISHATPURA BHOPAL (M.P.)
4. SHRI LAXMI RAMAN, CHIEF WORKSHOP
MANAGER, CRWS NISHATPURA
BHOPAL (M.P.)
RESPONDENTS
2
(BY SHRI ATUL CHOUDHARY, ADVOCATE)
This petition coming on for admission this day, Hon'ble Shri
Justice Maninder S. Bhatti passed the following:
ORDER
The challenge in this petition is to the order dated 02.05.2014,
passed in Original Application No.200/00154/2014 by the Central
Administrative Tribunal, Jabalpur.
2. The facts reveal that the petitioner herein was appointed as
TADK (bungalow peon), vide order dated 27.07.2012. In the said order of
appointment, condition no.1 was incorporated to the effect that the services
of the petitioner were temporary and his services could be terminated
without assigning any reasons any time. Thereafter, petitioner met with an
accident, as a result of which, he was hospitalized on 27.01.2013, however,
he was declared fit w.e.f. 16.03.2013 but he did not join his duty and
ultimately, the order of termination of his services was passed on 30.03.2013
by paying one month salary in lieu of notice period in accordance with
Section 25 (f) of Industrial Dispute Act 1947.
3. This order was challenged by filing an original application being
O.A.No.681/2013 before the Central Administrative Tribunal, however, the
said original application was disposed of vide order dated 26.08.2013 with a
direction to the respondent to consider the petitioner's representation within
a period of 60 days. Pursuant to the said order dated 26.08.2013, the
respondent considered and rejected the petitioner's representation vide order
dated 21.10.2013. Thus, challenging the order dated 21.10.2013, the
petitioner again filed an original application before the Central
Administrative Tribunal which was registered as Original Application
No.200/00154/2014, however, the same also suffered dismissal vide order
dated 02.05.2014 which is assailed in the present petition.
4. Learned counsel for petitioner submits that the order of
termination in fact is stigmatic inasmuch as the order was passed under the
garb of allegation of unauthorized absence and therefore, the termination was
not simpliciter and since this order was casting stigma, the same could not
have been passed without resorting to due process of law. He further urges
that an inquiry ought to have been conducted before terminating the services
of the petitioner. He further submits that in the present case, the veil was
required to be lifted to ascertain soul of the order inasmuch as the reasoning
on which the representation was rejected clearly reflecting that the order of
termination was stigmatic. Thus, while placing reliance upon L. Robert
D'Souza vs. The Executive Engineer, Southern Railway and another
reported in AIR 1982 SC 854, the petitioner submits that absence without
leave constitutes misconduct and therefore, in such a case employer could
not have terminated the services of employee without taking recourse to
issuance of notice as well as conducting a departmental inquiry. The learned
counsel for petitioner has also relied upon the judgments of Apex Court in
Collector of Central Excise, Hyderabad vs. Fenoplast (P) Ltd. (I)
reported in 1994 Supp (2) SCC 671 and Chairman, State Bank of India
and another vs. M.J. James reported in (2022) 2 SCC 301 and submitted
that termination without holding inquiry was bad and thus prayed that the
order of termination as well as order passed by the Tribunal deserve to be
set-aside.
5. Per contra, learned counsel for respondents submits that the
order of Tribunal which is being sought to be assailed in the present petition
was passed on 02.05.2014 whereas the present petition has been filed
somewhere in the month of May 2019 and the explanation for delay which
finds mention in paragraph 4 of the writ petition is not sufficient and can not
be said to be satisfactory and thus while relying upon the decision of Apex
Court in Life Insurance Corporation of India and others vs. Jyotish
Chandra Biswas reported in (2000) 6 SCC 562 has submitted that writ
petition filed after inordinate unexplained delay of four and half years,
deserves to be dismissed.
6. We have heard both the counsels.
7. Upon due consideration of records as well as submissions made
before us, if the order of termination dated 30.03.2013 is examined carefully,
the same nowhere contains any allegation of any kind of misconduct. The
order of termination palpably reveals that since the work of petitioner was
not satisfactory against the post of TADK (bungalow peon), therefore, he
was terminated from the said post. Here, it is relevant to mention that this
order does not speak about any misconduct or alleges unauthorized absence.
8. Therefore, in our considered view the order is not stigmatic but
simplicitor, issued in consonance with the conditions incorporated in the
original appointment order. Even the rejection of the representation of the
present petitioner which is contained in Annexure P/3 before Tribunal dated
21.10.2013 nowhere shows that the order of termination was based on the
allegation of unauthorized absence. Thus, the argument pertaining to the
order impugned being stigmatic is misconceived and untenable. The reliance
which has been placed in the case of L. Robert D'Souza (supra) is also
misconceived, inasmuch as in the said case, the order of termination itself
contained specific statement to the effect that the employee concerned was
unauthorizedly absent and the Apex Court held that the same constituted
misconduct, thus, it was not open for the employer to terminate service
without notice and inquiry. However, in the present case as discussed above,
the order of termination was simplicitor and did not contain any allegation of
misconduct, therefore, the decision in the case of L. Robert D'Souza (supra)
is distinguishable and does not apply to the facts of the present case.
9. The maxim "Vigilantibus non dormientibus aequitas subvenit"
(Equity assists the vigilant and not those who sleep on their rights), aims to
discourage attempt to revive stale claims. By efflux of time reluctance
weighs more than interference. More particularly, in the cases pertaining to
employment where a litigant is out of job and his livelihood is at stake, still
sits over his rights without justifiable reason, the Courts tend to get reluctant
in entertaining stale claims of re-employment. Moreover, by encouraging
such litigation the employer cannot be saddled with liability to accommodate
employee particularly when employer having assured that the terminated
employee has accepted his termination in absence of further challenge, grant
employment to other suitable candidate. Therefore, during this long passage
of time, the employer alters its position to his detriment and therefore, cannot
be expected to confront litigation after prolong and inordinate delay of 4-5
years.
10. Thus, the single line reason which is mentioned in paragraph 4
of the memorandum of writ petition explaining inability to approach this
Court earlier, due to paucity of funds, in our opinion is neither satisfactory
nor sufficient and therefore, the said explanation deserves to be rejected.
11. In view of preceding analysis, the present writ petition is not
only sans merit but also deserves dismissal on the ground of delay and
latches. Resultantly, the writ petition fails and is hereby dismissed without
any order as to costs.
( SHEEL NAGU) (MANINDER S. BHATTI )
JUDGE JUDGE
sp
SAVITRI PATEL
2022.04.27 15:46:40
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