GANESH LAL SONI Vs. SECL

JUDGEMENT

(1.) Heard. By this petition, the petitioner has called in question the correctness and validity of order 24.9.2005 (Annexure P-4), by which the petitioner's appeal against order of penalty dated 2.4.2004 (Annexure P-1) has been dismissed. The petitioner has also prayed for direction to respondents not to take any action against his eviction from the official quarter. The petitioner was appointed as Workman Category-11 in the employment of respondent and posted at Deepka Expansion Project. A charge sheet dated 6.5.1998 was issued to the petitioner which contained the allegation that the petitioner remained on unauthorized leave from 1.3.1998 to 6.5.1998. The Inquiry Officer was appointed. It is the case of the petitioner that proper and sufficient opportunity to defend himself was not granted. Vide order dated 2.4.2004 (Annexure P-1), disciplinary authority imposed penalty of removal from service. Aggrieved by the order of removal, the petitioner preferred an appeal which remained unheard for quite some time. Writ petition was, therefore, filed by the petitioner before this Court, wherein a direction was issued on 20th July, 2005, directing decision of the appeal within a period of one month. In compliance of the order passed by this Court, the respondents, though belatedly, passed an order on 24.9.2005, dismissing the appeal. It is this order which is under challenge in this writ petition.

(2.) Learned counsel for the petitioner raised two-folds contentions. The first contention of learned counsel for the petitioner is that the petitioner was not granted due and proper opportunity of hearing in the inquiry. He submits that even the charge-sheet was not served upon him. He further submits that even during the course of inquiry, proper opportunity was not afforded to him and when the case was listed before the inquiry officer on 3.9.1999, though the petitioner appeared, the inquiry was hurriedly completed and closed by examining one witness of the department. Further submission is that the respondents have made farce of inquiry and they have neither afforded proper opportunity of hearing nor made proper inquiry. Further submission is that the grounds relating to denial of opportunity have not been considered by the appellate authority in its proper perspective. The other submission of learned counsel for the petitioner is that even otherwise, the order of penalty is shockingly disproportionate to the gravity of misconduct alleged against the petitioner. He submitted that the charge related to unauthorized absence for a short period of 1.3.1998 to 6.5.1998. Even if it were to be assumed that the petitioner remained on unauthorized leave, imposition of extreme punishment of removal from service was totally unwarranted in the situation and the petitioner ought to be given one opportunity, particularly when there is nothing on record to show that earlier also, the petitioner was visited with penalty for similar allegation. Therefore, the order passed in appeal and the order passed by the disciplinary authority are liable to be set aside and the petitioner reinstated in service.

(3.) On the other hand, the foremost objection to the maintainability of the petition raised by learned counsel for the petitioner is that the petitioner is a workman, therefore, he ought to have availed remedy of raising a dispute under the provision of the Industrial Disputes Act. Next submission of learned counsel for the respondents is that the petitioner has not made any specific averments in the writ petition that charge-sheet was not served upon him. He submits that averments in the rejoinder regarding non-submission of charge-sheet would not cure the defect of pleading. Further submission is that in the inquiry, due and proper opportunity was afforded to the petitioner. At the request of the petitioner, inquiry proceedings were fixed on 2.9.1999. On that date, the petitioner sought a day's adjournment and the inquiry was accordingly fixed on 3rd September, 1999. On that date, the petitioner again requested for adjournment of the inquiry proceedings, which was not acceded to. The witness of prosecution was examined and the inquiry report was prepared, in which, it was found that the petitioner had remained unauthorizedly absent between period from 1.3.1998 to 6.5.1998. He further submits that a copy of inquiry report was served upon the petitioner along with the show-cause notice dated 31.1.2004 by registered post, to which the petitioner submitted his reply, which was not found satisfactory. Therefore, taking into consideration the period of unauthorized absence, the penalty of removal from service was imposed on the petitioner. Learned counsel for the respondents further added to his submission that even after completion of inquiry, the petitioner did not attend the duties till the passing of order of penalty. This fact was noticed by the appellate authority and the appeal of the petitioner has been correctly dismissed, which does not warrant any interference. In support of his submissions, learned counsel for the respondents placed reliance on the judgment of the Supreme Court in the cases of Chairman, Ganga Yamuna Gramin Bank & Ors. Vs. Devi Sahai, 2009 LLR 344 and New India Assurance Co. Ltd. Vs. Vipin Behari Lal Shrivastava, 2008 AIR(SCW) 1629.