306 CWPNo11939 of 2009 THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWPNo11939 of 2009 DATE OF DECISION December 202011 Kuldip Sharma ePetltlOner versus The Doaba Cooperative Milk Producers Union Ltd Jalandhar and others e 1 0 0 CORAM HOATBLE DS JUSTICE DAYA CHAUDHARY C5 Present MrDKBhattiAdvocate for the petitioner I MrSPatwalia Advocate for respondent Nos1 to 5 Z MsKavita Arora Punja 2 lr DAYA CHAUDHARY J I Feeling aggrieved by the order dated l3 z 62005 nnexure P301 passed by respondent Nol QO and resolution dated 2672006 mexure P331 passed 7 by respondent No 5 the petitioner has approached Z this Court A prayer 1S also made to 1SSue Qm directions to the respondents to reinstate him lIl servlce with all consequential benefits Before dealing with the contentions of both the parties I would refer to the relevant facts in short The petitioner was charge sheeted vide order dated 18122003 for his wilful absence from duty for a period of 152112 days with effect from January 6 Batra Amit 2014.04.03 15: 59 TRUE SCANNED COPY OF ORIGNAL PHHC CHANDIGARH Sahil Soni 2016.03.21 12:24 I attest to the accuracy and integrity of this document 91 307 CWP No11939 of 2009 2 2002 to Septenber 2003 No eAplanation was furnished for such a long absence Departmental proceedings were initiated Apart from this the petitioner was given show cause notice regarding illegal absence from duty for 164 days with effect from October 2003 to June 2004 No reply was filed Vide order dated 152004 he was served with supplementary charge sheet for the aforesaid purpose and the departmental 1 C enquiry was ordered Earlier to conclusion of first 0 enquiry 1 later charge sheet was ordered to be 0 clubbede After conclusion of inquiry the services I 0 of the petitioner were dismissed vide order dated I 872005 Even the appeal and revision also met with Z the fate of dismissal r Learned counsel for the petitioner has I vehernently argued that the petitioner has wrongly C Z been dismissed from servlCe The petitioner was 00 suffering from various diseases and therefore he 7 was to proceed on leave and in case his leave was Z rejected before availing the leave he should not ll have availed the same He further submits that both the charge sheets could hot have been clubbed together and therefore the inquiry lIl both the charge sheets should be carried separately Even the reply submitted by the petitioner on 302005 was not considered by the authorities On that basis it has been maintained that dismissal order passed by Batra Amit 2014.04.03 15: 59 TRUE SCANNED COPY OF ORIGNAL PHHC CHANDIGARH Sahil Soni 2016.03.21 12:24 I attest to the accuracy and integrity of this document 308 CWPNo11939 of 2009 the respondents 1S bad in law More so similarly situated employee Kulwant Singh who was glven punishmentalmost similar to that of the petitioner was reduced to the punishment of stoppage of one increnent Even the appeal filed by the petitioner was lismissed without hearing him which is violative of principles of natural justice As per Rule 336 of the Cooperative Milk Producers Union 8nployees L Service Non Common Cadrel Rule 1996 the Board of 0 Directors was not competent to dismiss the appeal 0 without the recomnendation of the Committee I 0 RevlSlOn filed by the petitioner also met with the I same fate of dismissal In support of his arguments Z learned counsel for the petitioner has placed V2 r reliance upon the judgments rendered in Hazarilal Das I State of WeBe and others 2010 51 SLR 645 and Ve z Nabin Kr Sarma ve Life Insurance corporation of OO India and Orse 2004 SLR 128 7 The claim of the petitioner was assailed on Z varlous grounds Learned counsel for respondent Nos1 to 5 submits that the writ petition being time barred is not maintainable Strongly attacking on the arguments of learned counsel for the petitioner it has been submitted that in the entire service the petitioner absented himself from duty for more than 1734 days On earlier occasion also the petitioner was served with charge sheet for absence from duty Batra Amit 2014.04.03 15: 59 TRUE SCANNED COPY OF ORIGNAL PHHC CHANDIGARH Sahil Soni 2016.03.21 12:24 I attest to the accuracy and integrity of this document 1 309 CWPNo11939 of 2009 4 with effect from 30101994 to 2231995 In that 6 matter he was awarded punishment of stoppage of two increnentswith cumulative effect The said period treated as being absence from duty Even no was reply was submitted to the charge sheet The purpose of cling both the charge sheets together was that both pertain to absence from duty A detailed as enquiry was conducted wherein the petitioner was 1 C found guilty and therefore his servlces were 0 rightly terminated No appeal was preferred ln C0 accordance with law and only a simple conicatlon C5 made to the authorities for reinstatenent ln was I service which was rejected vide order dated 912007 Z On that basis it has been submitted that Rule 336 r is not attracted to the case of the petitioner The I filed by the petitioner under Section 69 of revlSlOn C0 Z the Punjab Cooperative Societies Act was also rightly clismissed by the revisional authority vide order emo dated 11122008 on the ground being not maintainable Z as no order of any subordinate authority was under challenge More so the revisional order was not challengedby the petitioner and therefore he has no cause of action to approach this Court In support of his arguments learned counsel for the respondent Nos 1 to 5 has relied upon the judgments in 1 Kumar Ve State of Hanrana 199711 SCT 281 Anwar Sinah ve The State of Puniab and another 200921 SCT Batra Amit 2014.04.03 15: 59 TRUE SCANNED COPY OF ORIGNAL PHHC CHANDIGARH Sahil Soni 2016.03.21 12:24 I attest to the accuracy and integrity of this document 1 810 CWPNo11939 of 2009 5 428 ce ConstableSatnam Sinqh ve State of Punjab mdA 199641 SCT 130 and State of Puniab and orse Ve Mohinder Sinqh 20051121 SCC 182 After hearing learned counsel for the parties I am of the view that the present petltlOn deserves to be dismissed It is not in dispute that the petitioner was absent from duty for a period of 152112 days with from January 2002 to September 2003 and 164 CL effect 0 1ays with effect from October 2003 to June 2004 for 0 which he was issued two separate charge sheets He I C5 was issued show cause notices for the aforesaid I lapse however he did not furnish any reply 1 Z althoughit has been stated that the reply was made r on 302005 just a few days earlier to the dismissal I order A detailed and thorough enquiry was conductede L0 Z Argument of learned counsel for the petitloner 1S that for the aforesaid two absent periods separate enqulry was to be conducted Both ne Z the charge sheets were issued for being absent from Om duty Both the charge sheets contain more Or leSS similar allegations that the petitioner wilfully absented himself from duty In case the enquiry ln both the charge sheets was conducted together it would not have adversely affected the interest of the petitioner because ample opportunitles were granted 1 Batra Amit 2014.04.03 15: 59 TRUE SCANNED COPY OF ORIGNAL PHHC CHANDIGARH Sahil Soni 2016.03.21 12:24 I attest to the accuracy and integrity of this document l 311 CWPNo11939 of 2009 6 to him to defendhis case Thus the argument of the petitioner 1S not accepted Other argument of learned counsel for the petitioner 1S that similarly situated enployee Kulwant singh who was also awarded almost same punisnt but his punishment was reduced to the stoppageof one increment has no merit because there 1S nothing on record to show that the said employee m remained absent for such a long period and also moreover it is discretion of the authoritY tO decide 0 0 how much punishment 1S to be awarded to the I C9 delinquentwhich should not be an act malafide I The third argument 1S that the appeal of Z the petitioner was not decided in consonance with the provisionsof Rule 336 The said argument has also I no merit as the petitioner has only moved an z application before the concerned authorities fOr hiS reinstatement ln servlce Comnunications Annexures aO 7 P31 and P32 clearly show that no appeal was filed Z That being the position no question of violation of principles of natural justice arlses as the representation filed for the aforesaid purpose was rejected The last argument of learned counsel for the petitioner has also no force as the revision before the Revisional Authority is not maintainable because no order passedby the Appellate Authority has been Batra Amit 2014.04.03 15: 59 TRUE SCANNED COPY OF ORIGNAL PHHC CHANDIGARH Sahil Soni 2016.03.21 12:24 I attest to the accuracy and integrity of this document 812 CWPNo11939 of 2009 7 made the subject matter of challenge ln the present petltlOlle More SOl the petitioner has also not challenged the order of revisional authority 1 Annexure P38 before this Court The cases of Hazarilal Das and Nabin KU Sarma are not applicable to the facts of the Present case as the petitioner was issued charge sheets for remainlng absent for two periods whereas the judgments in Raj Kumar Anwar Sinh Kxe Constable 0 Satnam sinqh and Mohinder Sinah it has been held that 1 0 repeatedact of absence amounts to gravest misconduct I C5 ar therefore the penalty of dismissal 1S I justified Z It 1S well settled proposition of law that 0 the Courts cannot sit over the order passed by the I administrative authorities unless and until it has Z been shown that there is some malafide Nothing has been shown that the order of dismissal was passed on CO 7 account of malafide intention or the same is in Z violation of principles of natural justice or Om contrary to Rules More so the petitioner on earlier varlous occaslons also remained wilfully absent from duty He remained absent from duty for more than 1734 days The argument that in case his leave was rejected before availing the same he should not have availed the same is no ground as the employee 1S supposed to proceed on leave after obtaining Batra Amit 2014.04.03 15: 59 TRUE SCANNED COPY OF ORIGNAL PHHC CHANDIGARH Sahil Soni 2016.03.21 12:24 I attest to the accuracy and integrity of this document l 813 CWPNo11939 of 2009 8 Proper procedure was followed while conducting the enquiry Personal hearing was also afforded He 1S a habitual absentee an therefore the petitioner does not deserve any leniency It is thus held that the petitioner has rightly been dismissed from service Habitual absence from duty does amount to grave act of misconduct particularly when such absence has been 1C found to be unauthorised 0 Even othewise the writ petition was filed 0 by the petitioner after much unexplained delay as the I 0 impugnedorder was passed Oll 62005 and it was I challenged ln the year 2009 It is thus apparent Z that even the civil suit for the aforesaid purpose 1S not maintainable View expressed above 1S duly supported by the judgment rendered 111 Banda z 10t AuthoritYe B ve Moti Lal Aqal and others 2011 SCC 394 The relevant observations m 3 read as under Z lt lS true that no limitation has been 0m prescribed for filing a petition under Article 226 of the onstitution but one of the several rules of self imposed restraint evolved by the superior courts is that the High Court will not entertain petltions filed after long lapse of time because that may adversely affect the settledl Batra Amit 2014.04.03 15: 59 TRUE SCANNED COPY OF ORIGNAL PHHC CHANDIGARH Sahil Soni 2016.03.21 12:24 I attest to the accuracy and integrity of this document l 814 9 CWPNo11939 of 2009 crystallizedrights of the parties If the L writ petitlon 1S filed beyond the period of limitation prescribed for filing a civil suit for similar cause the High Court will treat the delay unreasonable and decline to the grievance of the petitioner on entertaln merltSe Il In VleW of the aforesaid discussion the 1 devoid of merit and the same is present petitlon 1S 0 dismissede 0 I C5 I December 202011 DAYA JUDGE KD 9 Cn w Z 11 Batra Amit 2014.04.03 15: 59 TRUE SCANNED COPY OF ORIGNAL PHHC CHANDIGARH Sahil Soni 2016.03.21 12:24 I attest to the accuracy and integrity of this document