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Kuldeep Kumar v. The Chief Production Manager, I.O.L. Mathura Refinery & Ors. - SPECIAL APPEAL No. 1061 of 2006  RD-AH 20044 (27 November 2006)
Special Appeal No.1061 of 2006
The Chief Production Manager, Indian Oil Corporation Ltd., Mathura Refinery, Mathura and others
Counsel for the appellant: 1. Sri Sant Sharan Upadhyaya, Adv.
2. Smt. Sadhna Upadhyaya, Adv.
Counsel for the respondents: 1. Sri V.K. Agrawal, Sr. Adv.
2. Sri Piyush Bhargava, Adv.
Hon'ble Ajoy Nath Ray, CJ.
Hon'ble Ashok Bhushan, J.
This is an appeal from a judgment and order of an Hon'ble Single Judge dated the 11th of August, 2006. By that judgment, his Lordship has dismissed the writ petition of the appellant and upheld the two departmental orders dated 3.4.2006 and 20.7.2006, the latter one being by way of appeal, whereby the services of the writ petitioner were dispensed with.
The writ petitioner joined the Mathura Refinery Plant sometime in or about the year 1982. Up to 1999, there was no problem faced by the writ petitioner, and in 1996 and 1999 he obtained two minor promotions to Grade C and Grade B Operator post.
Sometime around this period, he was put in the ETP, which is the abbreviation for the 'Effluent Treatment Plant'. It is an admitted case that the Effluent Treatment Plant has particles and suspensions in the air, which have to be resisted by the workers. The case of the Refinery is that these impurities are strictly within limit and are not health hazards by any medical standard. We are not entering into the facts either in this matter, or in any other.
The case run by the writ petitioner however, is that at least for him, the working in the ETP proved to be a source of great health hazard. That although previous records show continuous and faithful presence at duty with many an overtime drawing, yet his health soon broke down and because of the working condition, he developed the serious problems of Psoriasis a skin disease, and also Tuberculosis (T.B.) which, needless to say, was very serious.
He was absent from duty on many occasions and the number of days of absence is huge.
Every time his explanation was sickness and sickness alone. There is no record, which shows that he was ever undisciplined at work.
The employer also went on giving him chance again and again, but one thing they did not do in spite of repeated requests, and this was that they never removed him from the Effluent Treatment Plant to some other Plant, where there is no problem of any suspended particles.
In these circumstances, a charge sheet was issued by the employer on the 24th of February, 2004, on the basis of which an inquiry was held and the two impugned orders were passed. There was no breach of natural justice; the sittings were numerous and there were about 29 sittings before the presenting officer.
Evidence was taken; opportunity of cross examination was permitted.
The reading of the charge sheet of 24.2.2004 shows that the large absences of the years 2001, 2002 and up to October, 2003 are mentioned there. It is also stated that on 7.10.2003, the writ petitioner was asked to be regular in duties. Thereafter 31 days' absence is mentioned in the two months of October and November, 2003 and it is said that on 28.11.2003, the employer issued another letter, whereby he was being given a last opportunity to improve his attendance.
Then comes the charge sheet, i.e., that part of the charge sheet, which contains the charges; it is quoted below:-
"Despite the repeated opportunities given to you, you are unauthorisedly absenting from duty w.e.f. 13.12.2003 till date.
The above alleged act of yours constitute misconducts under Clause 17.20 and 17.43 under Certified Standing Orders as applicable to you. Besides as per Clause 13 of the Certified Standing Orders, you are also liable to lose your lien on your appointment with the Corporation, on account of your continued unauthorized absence from duty.
You are hereby advised to submit a satisfactory written explanation as to why disciplinary action should not be taken against you for your prolonged unauthorized absence as mentioned above within seven days of receipt of this letter. In case you fail to submit your explanation as above, further action as deemed fit shall be taken, in accordance with the Certified Standing Orders as applicable to you."
A letter by way of reply was written by the writ petitioner, which was received by the employer on the 16th of March, 2004.
The writ petitioner basically stated that he was being treated at the district Hospital and that he should be allowed to join duty since he had been declared fit also by the Chief Medical Officer of the respondents.
He was allowed to join duty on the 17th of March, 2004, but large absences continued on his part, a chart with regard to which was handed over to us in course of argument. Ultimately in September, 2005, on 27.9.2005 to be exact, the writ petitioner was ultimately shifted from the ETP and thereafter, according to him his days of absence were not so many.
Again we would not want to enter into the facts, and this chart of post inquiry period attendance is reproduced below:-
"Summary of Absence Chart of Appellant/Petitioner from 24.02.2004 to 03.04.2006.
No. of Days Absent
No. of Days of Leave
Total Absence from Work
The chart was handed up on behalf of the respondents, and it is not for the writ Court to enter into this chart in regard to deciding whether the departmental decision given on the charge sheet is correct or not. It is a subsequent fact, which, no doubt might affect the quantum of punishment, but it has nothing to do with whether the orders passed on the inquiry are legally vitiated or not.
The charge sheet will show that Clauses 17.20 and 17.43 of the Standing Orders of the respondents are mentioned. Clause 17.43 refers to indiscipline; Clause 17.20 refers to several contingencies, and these include both, A- habitual absenteeism, and B- unauthorized absence over 8 (eight) days. The other aspects are not material.
A bare look at the charge sheet and at the explanation given by the writ petitioner would show that the writ petitioner was being charged with unauthorized absence from 13.12.2003 until 24.2.2004. No fair reading of the charge sheet can include and add a charge of habitual absenteeism. The following report of the Inquiring Officer in regard to the period 1.1.2004 to 2.3.2004 is as follows:-
"As far his absentee period from 1.1.04 to 2.3.04-62 days, he produced a medical certificate from Dr. O.P. Pareek, Mathura dated 2.3.04, advising him rest for 62 days and declaring fit to join on 2.3.04. No clear evidence could be produced which indicates that the charge sheeted employee had informed his employer about his leave on account of sickness and even after joining duties, the sick leave was applied by him on 17.03.04 after lapse of 15 days, which indicates the casual way he was treating his job responsibilities."
The issue is again the same old one, it is the issue of illness; there are also the related issues of his getting treatment at the District Hospital instead of his going to the refinery's Chief Medical Officer; there are added problems of leave applications being made later, or, as claimed by the writ petitioner, those being made after the oral intimations being given to co-workers, who allegedly make up for one another's absence. We do not enter into this fact, and we make no pronouncement in this regard.
The writ petitioner was in fact dismissed from service, and he would get nothing more than his Provident Fund dues and Gratuity payment, which were stated by Mr. Agarwal to be as on date roughly Rs.3.95 lac and Rs.2.62 lac respectively.
The writ petitioner is aged 46. The age of retirement is 60. According to him, if he is not put in the ETP again, he has a reasonable chance of going back to the good period, which he had between 1982 and 1999. We cannot pronounce on this expectation, or hopeful thinking of the writ petitioner.
All that we can and must pronounce upon is that the orders passed in the inquiry are not limited at all to the short and single charge of unauthorized absence from 13.12.2003 until 24.2.2004. The writ petitioner's case is that he produced the certificate of Dr. O.P. Pareek of the District Hospital and that he is not an unknown Doctor. The further allegation is that these certificates were countersigned by the Chief Medical Officer of the Refinery. These would all be for the authorities to examine.
However, the inquiry report and the orders show that the effect of the singleness of the charge in the charge sheet has been totally lost sight of; the writ petitioner was tried for habitual absenteeism, although the charge was for the period from 13.12.2003 to 24.2.2004, and to which charge alone, his letter of reply was confined, which was received by the respondents on 16.3.2004.
The charge sheet in an inquiry is somewhat like the plaint in a Suit, and the orders must have a strong and sufficient link with the charge sheet; the rule of natural justice requires that he be not held guilty of charges, which were not squarely levelled against him. When we said in the beginning that the rules of natural justice were complied with, what we meant was that he was heard and he was not denied an opportunity of making out his case. But this is the technical aspect of fair hearing, i.e., whether the ultimate order related sufficiently strictly to the charges levelled against the delinquent and those charges only were weighed and examined by the authorities.
The flaw is a pure technical flaw, but the flaw is so serious and that it cannot be overlooked because overlooking it might affect seriously the justice of the case.
The Hon'ble Single Judge has also held that there are disputed questions of fact, which the writ Court need not enter into, and has thus sent the writ petitioner to the Industrial Tribunal. When a technical legal matter, like the above, is present in the case, and the parties have battled out the proceedings for quite a long time, it would not be just to send the writ petitioner to the Industrial Tribunal, with our observations only, to get an order, which we ourselves are quite able to pass in the writ Court, without in any manner going into the disputed facts and without in any manner blaming either this party, or the other.
As such, the impugned order under appeal is set aside. The appeal is allowed. The departmental orders impugned in the writ petition dated 3.4.2006 and 20.7.2006 are set aside. The authorities need not conduct any inquiry afresh on the basis of the charge sheet dated 24.2.2006. However, they should, within a period of three months from the date hereof, after hearing the writ petitioner once again pass a fresh order on the basis that the charge levelled against the writ petitioner was only one of unauthorized absence from 13.12.2003 till 24.2.2004, and the authorities shall determine whether the explanation given by the writ petitioner is satisfactory, and what steps in future should be taken in regard to him. Our orders and observations, however worded, are without prejudice to the rights and contentions of the parties in the fresh proceeding to be undertaken, or any subsequent, or other legal proceeding.
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