BIDHAN DUTTA Vs. A S E B

JUDGEMENT

(1.) The petitioner, who was working as an Executive Engineer under the Assam State Electricity Board at Dhubri Electrical Division, has challenged in this writ petition two orders both dated 25.9.95 of the Chairman of the Assam State Electricity Board (for short, "ASEB") terminating /dismissing him from service.

(2.) The facts briefly are that by order dated 16.7.94, the Chairman of the ASEB acting as the Disciplinary Authority asked the petitioner to show cause under regulation 10 of the Assam State Electricity Board (General Service) Regulations, 1960 (for short, " the Regulations") as to why he should not be penalised for the charge of absence without leave and the charge of neglect of duty. The prtitioner submitted his reply dated 30.7.94 to the said show cause notice denying the charges and an enquiry was conducted in respect of the said charges by the Enquiry officer and in the said enquiry the managment of the ASEB and the petitioner adduced their documentary and oral evidence. The Enquiry officer in his report held that the petitioner was absent from duty from 30.9.93 to 19.11.93 and from 14.12.93 onwards without authority and to that extent the first charge of misconduct was established. The Enquiry officer also held that by not attending to his duties during the period of unauthorised absence the petitioner ne- gledted his duty and the misconduct of negligence of duty had also be established against the petitioner. Almost simultenously another disciplinary proceeding was held against the petitioner. By order dated 19.12.94 the Chairman of the ASEB acting as the Disciplinary Authority required the petitioner to show cause under regulation 10(1) of the regulations as to why he should not be penalised for the charge of dis-obedience of lawful orders off the superiors. The petitioner submitted'his reply to the said show-cause notice denying the said charge. An enquiry was conducted in which the petitioner and the mamagement of the ASEB led evidence and the Enquiry officer submitted his reply holding that the charge against the petitioner had been established. The Disciplinary Authority thereafter recorded his own findings in the two impugned orders dated 25.9.95 that the petitioner was quilty of the charges and considering the seriousness of the misconduct committed by the petitioner inflicted penalty of termination/dismissal from service with effect from 25.9.95. Aggrieved by the said two orders of termirnation/dis-missal passed by the Disciplinary Authority, the petitioner preferred appeals before the Board of the A.S.E.B. on or about 8.10.95. by letter dated 8.1.96, however, the Deputy Personal Manager (R), ASEB, informed the petitioner that the Board in its resolution No. 4 dated 21.02.95 after scrutinizing the relevant records and the appeal petitions found that the penalty of termination /dismissal inflicted on the petitioner was appropriate considering the nature and degree of misconduct committed by the petitioner. Unable to get any relief from the appelate authority, the petitioner has now moved this Court under Article 226 of the Constitution of India for appropriate relief.

(3.) At the hearing, Mr. R..P. Sharma, learned counsel appearing for the petitioner, vehemently contended that under regulation 10 of the Regulations " habitual negligence or neglect of duty" and not just neglect of duty amounts to misconduct. Similarly, "absence without leave or overstay of sanctioned leave without sufficient cause" amount to misconduct and this would mean that where there is sufficient cause for remaining absent or overstay in case of sanctioned leave, there is no misconduct on the part of the delinquent employee. He further submitted that wilful in-subordination or disobedience of any lawful or reasonable order of the superior amounts to misconduct as per the said regulation 10 and, accordingly, as there was no deliberate or intentional insubordination or disobedience, there was no misconduct on the part of the delinquent employee. He cited the decision of the Supreme Court in the case of Union of India & others vs. J.Ahmed, (1979) 2 SCC 286, for the proposition that in the absence of culpable mind or mens rea on the part of the delinquent employee, he cannot be held to be guilty of misconduct for a technical breach of the rules of conduct. He further contended that in his replies to the show-cause notices, the petitioner had stated that he had left the headquarters on 29.9.93 while he was posted as the Executive Engineer, Dhubri Electrical Division because of the agitation on the part of the contract labourers claiming their wages and continuty of their services and could not resume his duties till 20.11.93 beacuse of his heart trouble and advice of the Doctor to take complete rest; but this defence of the petitioner had been brushed aside by the Enquiry officer and the Disciplinary Authority and the petitioner had been arbitrarily held to be guilty of the charges of remaining absent from duty with effect from 30.9.93 and for neglect of duty. Similarly, in this show-cause reply, the petitioner had explained that he was suffering for a long period from heart disease and was undergoing treatment under a Heart Specialist at Guwahati and his wife after meeting with an accident had been suffering from slip- disc and it is for these reasons that he could not join at Haflong in the office of the Chief Engineer (Hills & Barak Valley) and continued a' Guwahati. But the said defence of the petitioner had not been considered and he was found to be guilty by the Enquiry Officer and the Disciplinary Authority for disobeying the order of transfer dated 3.10.94 issued by the superior authority. Mr. Sharma sumitted that the petitioner had althrough unblemished career as an employee of the A.S.E.B. and there were very compelling reasons as indicated in his show-cause replies and various letters adduced as documentary evidence during the enquiry to show as to why he had to remain absent from Headquarters from 30.9.93 to 19.11.93 and as to why he could not join pursuant to his transfer to Haflong and instead remained at Guwahati. But the Enquiring Officer and the Disciplinary Authority have mechanically without any application of mind held the petitioner guilty of the charge of misconduct. Mr. Sharma cited the decision of the Supreme Court in the case of Ahmedabab Urban Development Authoority vs. Manilal Gobardhandas and others, (1996) 11 SCC 482, for the proposition that where there is no application of mind by the administrative authority, the Court in exercise of its power of judicial review can quash the orders passed by the administrative authority. Mr. Sharma further pointed out that even the Appellate Authority had not considered all these aspects and had passed a very cryptic order and had not indicated the reasons for its appellate order as would be clear from the communication dated 8.1.96 of the Deputy Personal Manager (R) of the ASEB. Mr. Sharma also contended that even if it is held that misconduct had been established, considering the fact that thig was the first lapse ever made by the petitioner in his entire career, the penalty of termination/dismissal from service was dis--proportionate on the facts and in the circumstances of the case ought to be quashed by this Court. He also argued that the disciplinary proceedings stood vitiated as the copy of the Board's order dated 12.1.94 which was a document relied on by the management and exhibited as Exit. 8 was not furnished to the petitioner, nor was it listed in the list of document furnished to the petitioner along with the charges. He submitted that similarly copy of the letter dated 26.12.93 exhibited as Exit. 10 in the enquiry was not furnished to fhe petitioner nor included in the list of documents furnished to the petitioner along with the charges.