Madhya Pradesh High Court
Deenu Gohe vs The State Of Madhya Pradesh on 2 February, 2023
Author: Sanjay Dwivedi
1
IN THE HIGH COURT OF MADHYA
PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 2 nd OF FEBRUARY, 2023
WRIT PETITION No. 1548 of 2020
BETWEEN:-
DEENU GOHE S/O NABU GOHE W/a EX ASSISTANT
MANAGER (TECHNICAL) M.P. MATSYA MAHA
SANGH (SAHKARI) MARYADIT, BHOPAL R/O-
GRAM CHHURI TAHSIL GHODADONGRI DISTRICT
BETUL (MADHYA PRADESH)
.....PETITIONER
(BY SHRI ANSHUMAN SINGH - ADVOCATE WITH MS GUNCHA
RASOOL - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THR.
PRINCIPAL SECRETARY DEPARTMENT OF
FISHERIES WELFARE AND DEVELOPMENT
VALLABH BHAWAN, BHOPAL (MADHYA
PRADESH)
2. MANAGING DIRECTOR THROUGH M.P.
MATSYA MAHA SANGH (SAHKARI)
M ARYAD I T, BADBADA ROAD, BHOPAL
(MADHYA PRADESH)
3. ADMINISTRATIVE COMMITTEE THRUGH
PRESIDENT M.P. MATSYA MAHA SANGH
(SAHKARI) MARYADIT BADBADA ROAD
BHOPAL (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI DARSHAN SONI - GOVERNMENT ADVOCATE )
(SHRI PUSHPENDRA YADAV - ADVOCATE - FOR RESPONDENT
NO.3)
Reserved on : 11/01/2023
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KUSHWAHA
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2
Delivered on : 02/02/2023
This petition coming on for hearing this day, the court passed the
following:
ORDER
By the instant petition filed under Article 226 of Constitution of
India, the petitioner is questioning the legality validity and propriety of
orders dated 12/07/2019 (Annexure-P-1) and 04/01/2020 (Annexure-P-2).
By order dated 12/07/2019 the respondents after conducting ex-
parte departmental enquiry as petitioner did not participate in it passed an
order of removal from service as the charge leveled against the petitioner
for unauthorized absence from duty was found proved. By order dated
04/01/2020 appeal preferred by the petitioner against the aforesaid order
was rejected by the respondents.
To decide the controversy involved in the case, certain relevant
facts need to be adumbrated in a nutshell are :-
The petitioner was appointed on the post of Assistant Manager
(Technical) on 04/01/1990 and he was placed in Indira Sagar Project.
Thereafter, by order dated 03/07/2017 he was sent to Gandhi Sagar
Project for one month and on 21/08/2017 again that period has been
extended for a period of one month.
The petitioner submitted a leave application for two days i.e
18/08/2017 and 19/08/2017 before Regional Manager Gandhi Sagar but
after two days he did not join the duties. As per the petitioner, he was
fallen ill and was bed ridden for one and half month. According to him, it
was duly apprised to the competent authority by moving an application for
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leave.
On 27/08/2017, the petitioner was directed to make his presence at
Bhopal and he was travelling in train from his home town Hoshangabad to
Bhopal but unfortunately while using the bathroom in the train he fell down
due to twist in his ankle, which resulted into grave injury in his head and he
also suffered neurological disorder. He became unconscious and infact
lost his memory. He was running from pillar to post in the whole country
for a long time and after coming to a conscious mind appeared before the
competent authority, placed all those facts and requested to allow him to
join the duties.
During the period when the petitioner was absent from duty the
department proceeded with a disciplinary proceeding; conducted ex-parte
enquiry and also passed an order on 12/07/2019 inflicting major penalty of
removal from service for unauthorized absence of a period of 23 months.
The petitioner thereafter preferred an appeal under Rule 37(kha) of
M.P.Matsya Mahasangh (Sahkari) Maryadit, Service Rules but the same
was dismissed by order dated 04/01/2020.
It is contended by counsel for the petitioner that despite placing
sufficient material before the authorities so as to explain the reason for
unauthorized absence, they did not consider the same. It is also contended
that looking to the overall circumstances and the fact that petitioner
remained unauthorized absent for the reason which was beyond his control
the punishment of dismissal is disproportionate and as such orders
deserve to be set-aside.
The respondents have submitted their reply.
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As per the respondents, the notice was issued to the petitioner but
he remained absent in departmental enquiry. There was no option with the
enquiry officer but to proceed ex-parte.
In the reply, it is stated that petitioner did not appear on 21/08/2017
to perform the duties and on 24/08/2017 sent an application for two weeks
through E-mail but thereafter nothing was informed and even thereafter he
remained absent from duty. Then, a public notice was issued in a news
paper namely Dainik Bhaskar asking petitioner to submit his joining within
a week but even though he remained absent. On 24/01/2018 a letter was
sent to the petitioner on his address shown in his service record asking
him to submit his explanation within 15 days and when reply was not filed
departmental enquiry was instituted and one V.K.Rai Regional Manager,
Bhopal was appointed as enquiry officer. Letters were also sent to the
petitioner through registered and speed post and also by public notice to
appear in the departmental enquiry and to produce his evidence and
witnesses but he did not turn up. As per the respondents, letters sent to
the petitioner were returned back as he was not available at his residence.
Under such a circumstance, it cannot be said that petitioner was not
provided any opportunity and action of the respondents suffers from
violation of principles of natural justice. The respondents have also
submitted that in a matter of disciplinary proceeding this Court has limited
scope of interference while exercising power under Article 226 of
Constitution of India.
Counsel for the petitioner has mainly emphasized that in the existing
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circumstances it was obligatory for the respondents to give an opportunity
of hearing to the petitioner to explain reasons for his unauthorized
absence. He submits that the situation was beyond the control of the
petitioner to appear in the departmental enquiry or to inform the authorities
about his absence. According to him, the petitioner has infact lost his
memory and, therefore, he was not appeared before the authorities to
explain as to why he was not performing his duties and remained
unauthorized absent. Otherwise, it could have been proved before the
authorities that absence was not deliberate.
Counsel for the petitioner has drawn attention of this Court towards
the documents which have been filed by petitioner along with a covering
memo in which a missing report was lodged on 04/09/2017 at Police
Station, Kotwali, Hoshangabad, informing the police that w.e.f 29/08/2017
the petitioner was missing and the documents from which it can be
gathered that the doctors have suggested the petitioner to take rest. He
submits that the petitioner was not in a position to inform the authorities
about his absence, therefore, no question arises for making appearance in
the pending departmental enquiry. Moreover, after submitting his joining
an opportunity is required otherwise it would amount to violation of
principles of natural justice. To substantiate his submission he has placed
reliance on (Union of India and others Vs. Dinanath Shantaram Karekar
and others) reported in (1998) 7 SCC 569, in which the Supreme Court in
paragraph 10 has observed as under :-
10. Where the disciplinary proceedings are
intended to be initiated by issuing a charge-
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sheet, its actual service is essential as the
person to whom the charge-sheet is issued is
required to submit his reply and, thereafter, to
participate in the disciplinary proceedings. So
also, when the show-cause notice is issued, the
employee is called upon to submit his reply to
the action proposed to be taken against him.
Since in both the situations, the employee is
given an opportunity to submit his reply, the
theory of communication cannot be invoked and
actual service must be proved and established. It
has already been found that neither the charge-
sheet nor the show-cause notice were ever
served upon the original respondent, Dinanath
Shantaram Karekar. Consequently, the entire
proceedings were vitiated.
It is submitted by counsel for the petitioner that in the present
case also the service of notice was not made to the petitioner and
according to the respondents, it was served upon his brother and,
therefore, it cannot be considered to be actual serviceÂ. He further has
relied upon a case of Uptron India Ltd Vs. Shammi Bhan and another
reported in (1998) 6 SCC 538, in which the Supreme Court has dealt with
the similar situation. For ready reference paragraphs 20 and 21 are
reproduced as under:-
20. There is another angle of looking at the
problem. Clause 17(g), which has been extracted
above, significantly does not say that the services
of a workman who overstays the leave for more
than seven days shall stand automatically
terminated. What it says is that the services are
liable to automatic terminationÂ. This provision,
therefore, confers a discretion upon the
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management to terminate or not to terminate the
services of an employee who overstays the leave.
It is obvious that this discretion cannot be
exercised, or permitted to be exercised,
capriciously. The discretion has to be based on an
objective consideration of all the circumstances
and material which may be available on record.
What are the circumstances which compelled the
employee to proceed on leave; why he overstayed
the leave; was there any just and reasonable cause
for overstaying the leave; whether he gave any
further application for extension of leave; whether
any medical certificate was sent if he had, in the
meantime, fallen ill? These are questions which
would naturally arise while deciding to terminate
the services of the employee for overstaying the
leave. Who would answer these questions and who
would furnish the material to enable the
management to decide whether to terminate or not
to terminate the services are again questions which
have an answer inherent in the provision itself,
namely, that the employee against whom action on
the basis of this provision is proposed to be taken
must be given an opportunity of hearing. The
principles of natural justice, which have to be read
into the offending clause, must be complied with
and the employee must be informed of the grounds
for which action was proposed to be taken against
him for overstaying the leave.
21. This Court in D.K. Yadav v. J.M.A. Industries
Ltd. [(1993) 3 SCC 259 : 1993 SCC (L&S) 723]
has laid down that where the Rule provided that
the services of an employee who overstays the
leave would be treated to have been automatically
terminated, would be bad as violative of Articles
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14, 16 and 21 of the Constitution. It was further
held that if any action was taken on the basis of
such a rule without giving any opportunity of
hearing to the employee, it would be wholly unjust,
arbitrary and unfair. The Court reiterated and
emphasized in no uncertain terms that principles of
natural justice would have to be read into the
provision relating to automatic termination of
services.
It is further submitted by counsel for the petitioner that the view
of the Supreme Court is very clear that if a person remained unauthorized
absent and punishment of dismissal is inflicted upon him and the reason
for unauthorized absent was beyond the control then whenever he comes
to explain the reason for unauthorized absence, the authorities should give
an opportunity of hearing to him. He submits that in the present case
when petitioner became conscious, he approached the respondents-
authorities then the authorities should have given an opportunity to explain
as to why he could not perform the duties and remained unauthorized
absent and also not participated in the enquiry.
Further, he placed reliance upon the judgment passed in
(V.C.Banaras Hindu University and others Vs. Shrikant) reported in
2006(11) SCC 42, wherein the Supreme Court in paragraphs 54 to 61 has
observed as under:-
54. This Court opined that right to life enshrined
under Article 21 would include the right to
livelihood and thus before any action putting an
end to the tenure of an employee is taken, fair play
requires that reasonable opportunity to put forth his
case is given and domestic enquiry conducted
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complying with the principles of natural justice.
5. In Uptron India Ltd. v. Shammi Bhan [(1998) 6
SCC 538 : 1998 SCC (L&S) 1601] this Court was
considering the validity of the provisions of the
Standing Orders of the Company containing a
clause that services of the workmen would be
liable for automatic termination. This Court opined
that if prior to resorting thereto an opportunity of
hearing is not granted, such a provision would be
bad in law.
56. The said legal position was reiterated in
Scooters India Ltd. v. M. Mohd. Yaqub [(2001) 1
SCC 61 : 2001 SCC (L&S) 148] where again
requirement to comply with the principles of
natural justice was highlighted.
57. The matter may, however, be different in a
case where despite having been given an
opportunity of hearing, explanation regarding his
unauthorised absence is not forthcoming or despite
giving him an opportunity to join his duty, he fails
to do so, as was the case in Punjab & Sind Bank v.
Sakattar Singh [(2001) 1 SCC 214 : 2001 SCC
(L&S) 209] .
58. In Lakshmi Precision Screws Ltd. v. Ram
Bahagat [(2002) 6 SCC 552 : 2002 SCC (L&S)
926] (SCC p. 556, para 4) a Division Bench of this
Court was considering clause 9(f)(ii) of the
Standing Orders which reads as under:
9. (f) Any workman who,
***
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(ii) absents himself for ten consecutive working
days without leave shall be deemed to have left the
firm's service without notice, thereby terminating
his service.
59. The workman therein offered an explanation
and having regard thereto, the Labour Court came
to the conclusion that the action of the management
in terminating the services of the workman therein
was not justified. When the matter reached this
Court, it was opined: (SCC p. 557, para 10)
10. Let us, therefore, analyse as to whether this
particular Standing Order in fact warrants a
conclusion without anything further on record or to
put it differently does it survive on its own and
that being a part of the contract of employment
ought to govern the situation as is covered in the
contextual facts.
Referring to the decisions noticed by us
hereinbefore, it was held: (SCC p. 560, para 15)
œ15. It is thus in this context one
ought to read the doctrine of natural justice
being an inbuilt requirement of the Standing
Orders. Significantly, the facts depict that the
respondent workman remained absent from duty
from 13-10-1990 and it is within a period of
four days that a letter was sent to the workman
informing him that since he was absenting
himself from duty without authorised leave he
was advised to report back within 48 hours and
also to tender his explanation for his absence,
otherwise his disinterestedness would thus be
presumed.
The well-settled principle of law as regards
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necessity to comply with the principles of
natural justice was again reiterated, stating:
(SCC p. 561, para 16)
Arbitrariness is an antithesis to rule of law,
equity, fair play and justice ÂÂÂ"contract
of employment there may be but it cannot be
devoid of the basic principles of the concept of
justice. Justice-oriented approach as is the
present trend in Indian jurisprudence shall have
to be read as an inbuilt requirement of the basics
of concept of justice, to wit, the doctrine of
natural justice, fairness, equality and rule of
law.
60. A provision relating to abandonment of service
came up for consideration yet again in Viveka
Nand Sethi v. Chairman, J&K Bank Ltd. [(2005) 5
SCC 337 : 2005 SCC (L&S) 689] before a
Division Bench of this Court. This Court opined
that although in a case of that nature, principles of
natural justice were required to be complied with,
a full-fledged departmental enquiry may not be
necessary, holding: (SCC p. 345, para 20)
limited enquiry as to whether the employee
concerned had sufficient explanation for not
reporting to duties after the period of leave had
expired or failure on his part on being asked so to
do, in our considered view, amounts to sufficient
compliance with the requirements of the principles
of natural justice.
61. Mr Dwivedi placed strong reliance upon the
decision of this Court in Aligarh Muslim
University v. Mansoor Ali Khan [(2000) 7 SCC
529 : 2000 SCC (L&S) 965] (SCC pp. 536-37,
para 10). In that case, interpretation of Rule 5(8)
(ii) came up for consideration which is in the
following terms:
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œ5(8)(ii) An officer or other
employee who absents himself without leave or
remains absent without leave after the expiry of
the leave granted to him, shall, if he is permitted
to rejoin duty, be entitled to no leave allowance
or salary for the period of such absence and
such period will be debited against his leave
account as leave without pay unless his leave is
extended by the authority empowered to grant
the leave. Wilful absence from duty after the
expiry of leave may be treated as misconduct for
the purpose of clause 12 of Chapter IV of the
Executive Ordinances of AMU and para 10 of
Chapter IX of Regulations of the Executive
Council.
It was held that a show-cause notice and reply
would be necessary. If no show-cause notice
had been given, this Court held that the
principles of natural justice would be held to be
complied with [Ed.: Though principles of
natural justice had been violated as no notice
contemplated by Rule 5(8)(i) had been given
(para 19), but the Court found that no prejudice
had been caused (Paras 29, 33 and 35). Hence
even if notice had been given it would not have
made any difference (para 35).] .
The view taken by the Supreme Court in the cases of terminating
the services of employee for unauthorized absence is very clear that before
doing so the employee concerned should have been given an opportunity
of explaining the reasons for not reporting the duties and then only it can
be said that the requirement of principles of natural justice has been
followed.
Counsel for the petitioner has further placed reliance upon the order
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passed by the Supreme Court in (Raghubir Singh Vs. General
Manager Haryana, Roadways, Hissar) reported in (2014) 10 SCC 301,
wherein the Supreme Court has held that if unauthorized absence is not
deliberate then imposing penalty of dismissal and termination is not
proper. The Supreme Court has considered the rule of doctrine of
proportionalityÂÂÂ. In the aforesaid case the employee remained
unauthorized absent as he was falsely implicated in a criminal case and
during the period of custody of two months he could not approach the
authorities informing the reason for remaining unauthorizedly absent. As
per the Supreme Court, his termination was not proper.
It is submitted by counsel for the petitioner that petitioner did not
get any opportunity to explain his stand or reasons for unauthorized
absence which according to him was not deliberate, therefore, inflicting
punishment of removal from service is not proper and that punishment
deserves to be set-aside. He submits that as per the view taken by the
Supreme Court in aforementioned cases decision of respondents is in
violation of principles of natural justice. He submits that atleast one
opportunity should have been granted to the petitioner to explain as to why
he remained absent unauthorizedly. He submits that documents as filed by
the petitioner along with memo clearly indicate that the stand taken by the
petitioner is proper and reason for his unauthorized absence was bonafide
and as such the same cannot be considered to be misconduct.
I have considered the submissions made by counsel for parties and
perused the record.
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However, this Court does not find any defect in the steps taken by
the respondents under the existing circumstance but on the contrary the
Court cannot shut its eyes and ignore the reasons explained before this
Court by the petitioner for his unauthorized absence. They have not been
tested by the disciplinary authority or by the appellate authority as
employer has not given any opportunity of hearing to the petitioner when
he became conscious and was in a position to explain the same that his
absence was not deliberate as situation was beyond his control. The
findings given by the authorities that the absence of the petitioner was
unauthorized suffers from principle of natural justice and as such not
sustainable, therefore, the orders dated 12/07/2019 (Annexure-P-1) and
04/01/2020 (Annexure-P-2) passed by the disciplinary authority and
appellate authority are hereby set-aside. The liberty is granted to the
respondents to initiate enquiry afresh if they so require giving charge-sheet
to the petitioner and give him proper opportunity to explain whether his
unauthorized absence was bonafide but not deliberate.
With the aforesaid petition is allowed. No order as to costs.
(SANJAY DWIVEDI)
JUDGE
sushma
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