IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE TWENTY SEVENTH DAY OF NOVEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION NO:13723 of 1997 Between: Kannam Nageswara Rao S/o.Nookinaidu Department, Visakhapatnam Steel Plant, Resident of MIG-II, Sector-II, Plot No.113/2 M.V.P.Colony, Visakhapatnam ..... PETITIONER AND 1 Rashtriya Ispat Nigam Limited Visakhapatnam Steel Plant, rep.by its Chairman & Managing Director Visakhapatnam 2 Chief Superintendent (WRM) Visakhapatnam Steel Plant, Visakhapatnam 3 Superintendent (O) (WRM) Visakhapatnam Steel Plant, Visakhapatnam .....RESPONDENTS Counsel for the Petitioner:MR.RAMA RAO MAVIDI Counsel for the Respondents:MR.V.RAVINDER RAO The Court made the following : ORDER: This writ petition is filed for a writ of certiorari to quash order, dated 05.05.1997 passed by respondent No.2 whereby he confirmed order, dated 27.02.1997 passed by respondent No.3. The petitioner was a Junior Technician (O) in respondent No.1 Company. On the ground of alleged unauthorised absence for a period of 235 days, disciplinary proceedings were initiated against him for different charges, namely, habitual absence from duty for various periods commencing from February, 1995 to September, 1996 for a total period of 235 days and also for violation of Clause Nos.22.2 and 22.4 read with Clause No.27.65 of the Certified Standing Orders of respondent No.1 Company. The petitioner failed to submit his explanation to the charge sheet. An enquiry Officer was appointed and in response to the notice of enquiry, the petitioner attended the enquiry on 20.11.1996. At his request, the enquiry was postponed to 28.11.1996. Subsequently, the petitioner did not attend the enquiry, which was adjourned on several occasions, and eventually, on 31.12.1996, the enquiry Officer proceeded with the enquiry ex parte and after receiving the documentary evidence marked as Exs.A.1 to A.23, he submitted a report to respondent No.3. After furnishing a copy of enquiry report to the petitioner, who received the same, respondent No.3 passed order, dated 27.02.1997 imposing on the petitioner penalty of removal from the service of respondent No.1 Company. The said order was questioned in an appeal before respondent No.2, who by his order, dated 05.05.1997, dismissed the same. Questioning these two orders, the petitioner filed the present writ petition. At the hearing, Sri M.Rama Rao, learned counsel for the petitioner advanced the following contentions: 1) The petitioner was not given a proper opportunity by the enquiry Officer and, therefore, the whole enquiry proceedings are vitiated by non-observance of the principles of natural justice. 2) No final show cause notice was issued to the petitioner calling upon him to submit his explanation against the proposed punishment. 3) Past conduct was taken into consideration by the disciplinary authority to impose punishment on the petitioner, which is not permissible in law, and the enquiry Officer based his findings on the documents, which were not received through established legal procedure and, therefore, the evidence based on which, he recorded his findings as accepted by the disciplinary and appellate authorities, does not constitute legal evidence and, hence, the entire disciplinary proceedings culminating in the punishment of the petitioner stood vitiated. 4) The documents, on which, reliance was placed by the enquiry Officer were not supplied to the petitioner, and 5) imposing on the petitioner penalty of removal is disproportionate to the alleged misconduct. Opposing these contentions, Sri V.Ravinder Rao, learned counsel for the respondents submitted that the facts recorded by the enquiry Officer clinchingly establish that in spite of giving repeated opportunities, the petitioner did not avail the same and he avoided participating in the enquiry and, therefore, the enquiry Officer had no option other than proceeding with the enquiry ex parte. The learned counsel further submitted that after the 42nd amendment of the Constitution, there is no requirement of a final show cause notice and admittedly, the petitioner was served with the enquiry report and he failed to submit his explanation. He further submitted that as past conduct of the petitioner was relied upon only for the purpose of considering the existence of extenuating circumstances to award lesser punishment, there was no need for the respondents to put the petitioner on notice about the past conduct. The learned counsel further submitted that since the petitioner failed to participate in the enquiry and give requisition for supply of documents, there was neither occasion nor obligation on the enquiry Officer to supply the documents. He also submitted that as the petitioner did not participate in the enquiry, there was no need for adducing any oral evidence and for marking of documents, no such oral evidence is required to be adduced. I have carefully examined the respective submissions of the learned counsel. With regard to the first contention of the learned counsel, the facts recorded in the enquiry report have not been disputed. The enquiry Officer issued notice, dated 02.11.1996, wherein the petitioner was informed that the enquiry was fixed for 20.11.1996. Accordingly, the petitioner appeared before the enquiry Officer on the said date and when the charge sheet was read out and explained to him by the enquiry Officer, the former stated that he was actually sanctioned leave for some periods and that if he is given an opportunity, he would produce necessary documentary evidence in support of his contention. In view of this representation of the petitioner, enquiry was adjourned to 28.11.1996, on which date, the petitioner appeared in the enquiry and requested the enquiry Officer to postpone the enquiry to a later date, as his father was reportedly not feeling well. Accepting this request, the enquiry Officer adjourned the enquiry to 05.12.1996. On that date, the petitioner did not appear and after waiting for some time, the enquiry Officer adjourned the enquiry to 21.12.1996. While making it clear in his proceedings that if the petitioner fails to appear on 21.12.1996, the enquiry will be held ex parte. Enquiry proceedings, dated 05.12.1996 were sent to the petitioner by the enquiry Officer under registered post with acknowledgment due to the same address, to which, earlier notice, dated 02.11.1996 was sent and acknowledged by the petitioner. However, the envelopes were returned undelivered. In the meantime, the petitioner addressed letter, dated 17.12.1996 enclosing medical certificate, dated 19.11.1996, wherein he stated that he was suffering from Infective Hepatitis and was advised to take rest from 19.11.1996 onwards and that soon after his resuming duties, he will attend the enquiry. On receipt of this letter, the enquiry Officer sent letter, dated 21.12.1996 to the petitioner stating that as the petitioner failed to inform the enquiry Officer about his alleged sickness from 19.11.1996 on the earlier two occasions, namely, 20.11.1996 and 28.11.1996, he was of the view that the purported sickness was not genuine and that the petitioner was trying to avoid the enquiry on one plea or the other. In order to give one more opportunity to the petitioner to produce evidence, the enquiry Officer adjourned the enquiry to 31.12.1996. He sent the said letter through registered post acknowledgment due and also under certificate of posting. Both the said envelopes were not returned either delivered or otherwise. Therefore, the enquiry Officer proceeded with the enquiry ex parte on 31.12.1996. In the above admitted factual scenario, I am unable to appreciate the contention of the learned counsel for the petitioner that the petitioner was denied a reasonable opportunity. The learned counsel for the petitioner relied on the judgment of the Supreme Court in The State of Mysore v. K.Manche Gowda[1] and contended that presumptive knowledge of the enquiry proceedings cannot be imputed to the petitioner. This judgment is of no help to the petitioner, because the observations of the Supreme Court in the said case were made in the context of punishment imposed on an employee on the basis of past conduct, which was not put to him in the final show cause notice issued under Article 311(2) of the Constitution of India which stood at that time, before it was amended by the 42nd constitution amendment. Indeed, the petitioner does not dispute the fact that notices, dated 05.12.1996 and 21.12.1996 were sent to him to the correct address. As already noted, the petitioner received the earliest notice sent on 02.11.1996 to the same address. There is no plea raised by the petitioner in the writ petition that the findings of the enquiry Officer on this aspect are factually incorrect. Hence, in my opinion, the enquiry Officer is justified in coming to the conclusion that the petitioner was deliberately avoiding to participate in the enquiry on one pretext or the other. In Har Charan Singh v. Shiv Rani [2], the Supreme Court held that Section 27 of the General Clauses Act, 1897, raises a presumption of due service or proper service if the document is sent by properly addressing, pre-paying and posting by registered post to the addressee and such presumption is raised irrespective of whether any acknowledgment due is received from the addressee or not. It relied on Section 114(f) of the Indian Evidence Act, 1872, which envisages that the Court may presume that the common course of business has been followed in a particular case, and held that when a letter is sent by posting, pre-paying and properly addressing it, the same is deemed to be received by the addressee. In view of this settled legal position, the contention of the learned counsel for the petitioner that there was no proof of service of notices on the petitioner has no merit. From the facts noted above, it is clear that the petitioner was offered a fair opportunity by the enquiry Officer more than once and he failed to avail the same. For these reasons, I hold that the enquiry proceedings were not vitiated by violation of principles of natural justice. With regard to the contention of the learned counsel for the petitioner that no final show cause notice was issued, Article 311(2) of the Constitution of India, which envisaged a final show cause notice on the nature and quantum of punishment to be imposed, was amended by 42nd constitution amendment with effect from 1976, dispensing with the service of a second show cause notice before imposition of punishment with effect from 03.01.1977. However, as held by the Supreme Court in Union of India v. Mohd.Ramzan Khan[3] and further explained in Managing Director, ECIL, Hyderabad v. B.Karunakar,[4] the delinquent is entitled to be supplied with a copy of the enquiry report in order to enable him to submit his explanation, which will be considered by the disciplinary authority before imposing the penalty. In view of this change in law, there is no obligation on the disciplinary authority to issue a final show cause notice. This contention is, therefore, rejected. As regards the contention that the enquiry Officer has not followed the proper procedure, inasmuch as, the marking of documents, Exs.A.1 to A.23, was not through examination of any witness, I find no substance in this contention because the strict rules of evidence are not applicable to a domestic enquiry. In a case of this nature, where the petitioner stayed away from the enquiry, it was not necessary for the enquiry Officer to observe the formalities of examining witnesses, adducing of oral evidence and marking of documents through such oral evidence. With regard to the contention of the learned counsel for the petitioner that the respondents have relied upon the petitioner’s past conduct, as rightly contended by Sri V.Ravinder Rao, learned counsel for the respondents, the past conduct of the petitioner was considered only for the purpose of finding out whether there are extenuating factors in his favour to impose lesser punishment than the one that was imposed on the petitioner and not for the purpose of finding him guilty of misconduct. The judgment of the Supreme Court in K.Manche Gowda (1 supra), on which, reliance was placed by the learned counsel for the petitioner has no application to the present case, because the said judgment was rendered on the basis of Article 311(2) of the Constitution of India prior to it’s amendment, which mandated that the employer should issue a second show cause notice calling upon the explanation from the charged employee on the proposed punishment, and such a requirement is done away with by the said constitution amendment. Regarding the contention, namely; the petitioner was not supplied with the documents relied upon in the domestic enquiry, the documents were marked after the petitioner was set ex parte. The service regulations concerned do not impose any obligation on the enquiry Officer to supply the documents, which were marked after the charged employee is set ex parte. It is not the case of the petitioner that at any time either during the enquiry or after it’s completion, he asked for supply of the documents. Therefore, non- supply of documents marked in the enquiry and relied upon by the enquiry Officer has not resulted in violation of any procedure or it has caused any prejudice to the petitioner. With regard to the last contention of the learned counsel that penalty of removal is disproportionate to the misconduct, it is not in dispute that on three previous occasions, the petitioner suffered punishments for unauthorized absence. On the first occasion, he was unauthorisedly absent for 116 days, on the second occasion, he was absent for 80 days and on the third occasion, he was absent for 303 days. Various punishments were imposed on him for the said unauthorised absence on all the three occasions. As the petitioner is a habitual absentee, in my view, removal from service is very appropriate punishment and reinstatement of such an employee causes serious inconvenience and hardship to any employer. For the above-mentioned reasons, I do not find any illegality or jurisdictional error in the orders passed by respondent Nos.2 and 3 and hence, the writ petition is dismissed. C.V.NAGARJUNA REDDY, J 27th NOVEMBER, 2008. Note: L.R.Copies to be marked. kvni [1] AIR 1964 SC 506 [2] AIR 1981 SC 1284 [3] AIR 1991 SC 471 [4] AIR 1994 SC 1074