EASTERN COLFIELDS LTD Vs. KHOGEN BOURI

JUDGEMENT

(1.) Heard the learned counsel for the parties. This appeal is directed against a judgment and order dated December 9, 1999 passed by a learned single Judge of this Court whereby the learned single Judge was pleased to hold that a departmental proceeding which was held against the petitioner for dismissal from service by an order dated May 24, 1996 are unsustainable and the entire disciplinary proceedings including the final order of dismissal were quashed. There was also an order directing the respondents to forthwith reinstate the petitioner in service along with his arrears of salary and other benefits. Against the said judgment there was an order of stay by the Appeal Court as a result of which the writ petitioner/respondent was not reinstated by the appellants herein.

(2.) Pursuant to our order previously passed in this Appeal the original records relating to the departmental proceeding viz. dismissal order, the enquiry proceeding and the charge-sheet were placed before us. We have looked into all those records. We find that only charge against the petitioner was of absenting from duties with effect from December 12, 1995 allegedly without any information and sufficient reasons. The authorities held that the same amounted to serious misconduct in terms of the model standing order. On being served with such a charge-sheet dated April 9, 1996 the petitioner gave a reply on April 11, 1996 stating therein that he had an attack of asthma. He has also stated in his explanation that he is a chronic patient of asthma and as he had been affected by an attack of asthma he could not attend his office to discharge his duties for the said period of about three months. From the explanation given by the writ petitioner it appears that he has frankly admitted that he was suffering from asthma for sometime and he could not attend his duties in view of that illness and he wanted his case to be sympathetically considered and wanted permission for resumption of duties. He also attached a medical certificate along with his reply to the charge sheet.

(3.) From the enquiry report we find that the enquiry was held only on May 4, 1996 in which the statement of one Management's representative was recorded. The statement of Management's representative merely reiterated the recitals in the charge-sheet. Then the statement of the writ petitioner was recorded. Nothing else was recorded in the enquiry proceeding. From the enquiry report, we find that in the finding which was arrived at by the Enquiry Officer the truth of the explanation given by the petitioner was not disbelieved. The finding of the Enquiry Officer is not that the petitioner was not suffering from such disease or that his explanation was false. As such this Court does not understand how could, inspite of the aforesaid factual position, the Enquiry Officer held that the absence is without sufficient cause. We find that if a worker is a patient of asthma and was prevented from attending his duties due to an attack of asthma, and when this explanation of his was not doubted or disbelieved by the Management, then there is sufficient cause for him not to attend his duties. It is not expected that a person with an attack of asthma will work in the mines. It is humanly not possible.