IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Writ Petition No.10721 of 2002 DATE OF DECISION : JANUARY 15, 2009 M.V. KUTUMBA RAO ....... PETITIONER(S) VERSUS HINDUSTAN MACHINE TOOLS LTD. & ORS. .... RESPONDENT(S) CORAM : HON'BLE MR. JUSTICE AJAI LAMBA PRESENT: Mr.Vikram Bali, Advocate, for the petitioner(s). Mr. RK Chhibbar, Sr. Advocate, with Mr. Anand Chhibbar, Advocate, for respondents. AJAI LAMBA, J. (Oral) Challenge in this petition is to order dated 2.11.2000 (Annexure P-4) vide which the services of the petitioner were placed under suspension, charge-sheet dated 4.4.2001 (Annexure P-11), order dated 25.6.2001 (Annexure P-14) vide which the Deputy General Manager (F) ordered the dismissal of the petitioner from service, order dated 13.11.2001 (Annexure P-16) vide which the appeal of the petitioner was dismissed, and order dated 3.4.2002 (Annexure P-18) vide which the order of dismissal of the petitioner has been affirmed. A perusal of order (Annexure P-11) indicates that there were serious allegations constituting misconduct on the part of the petitioner. Civil Writ Petition No.10721 of 2002 2 Upon this, vide order dated 2.11.2000 (Annexure P-4), the services of the petitioner were placed under suspension. It has been provided in order (Annexure P-4) that the charge-sheet, setting out in precise terms the misconduct, would be served separately. The petitioner was further advised that during the period of his suspension, he would neither enter the premises of the factory nor shall leave the station, without permission of the Management. In charge-sheet (Annexure P-11), it has been given out that the petitioner had been absenting from station since 10.11.2000, without permission of the Management. Repeated communications had been sent to the address of the petitioner for further investigations/necessary action in the pending disciplinary proceedings, however, instead of following lawful instructions of the Management, the petitioner had been deliberately avoiding presence at the station. It was, therefore, found that the petitioner was acting in violation of the rules of the company. It was made clear to the petitioner that he would be responsible for all the acts of omission and commission. The charge-sheet further provided that besides the act of leaving the station without permission of the Management, the petitioner had failed to obey lawful orders of the Management, which was a misconduct under the provisions of Rules 22(b), 22(c) and clause 23.1.1 of the HMT Limited Conduct, Discipline and Appeal Rules (for short 'the Rules'). The petitioner was asked to submit his explanation as to why disciplinary action be not taken, as provided under the Rules. The reply was required to be filed within 7 days of receipt of a copy of the charge- sheet. Civil Writ Petition No.10721 of 2002 3 Be that as it may, an inquiry was conducted and report dated 30.5.2001 has been placed on record as Annexure P-13. On a perusal of the inquiry report, it transpires that exhaustive measures were taken to inform the petitioner in regard to the pending proceedings to enable him to state his case and join the proceedings. A registered letter was sent to the petitioner, which was received back undelivered from the postal authorities. Thereafter, public notices dated 12.5.2001 were issued in the Dainik Tribune (Hindi) and Eenadu, a local Telgu daily newspaper, which is circulated in Hyderabad and, subsequently, through an Acknowledgment Due letter. Since the petitioner did not come present and join the inquiry proceedings, ex-parte inquiry was held and the report was prepared. It has been mentioned in the report that after the proceedings had concluded, a telegram was received from the petitioner with a request for next date of inquiry for 12.6.2001. The Inquiry Officer, however, did not accede to the request because the telegram was received at 12.45 p.m. i.e. after the conclusion of inquiry proceedings, which had concluded at 11.00 a.m. Vide order (Annexure P-14), while taking into account the inquiry report and the charges, order of dismissal was passed. Annexure P-15 is a brief letter, which has been termed as an appeal in which it has been stated that wife of the petitioner was seriously ill with heart and cancer ailments. The petitioner was a man with heavy family responsibility and the case be considered sympathetically. Vide order (Annexure P-16), on a perusal of the documents Civil Writ Petition No.10721 of 2002 4 and service record of the petitioner, the appeal was dismissed. Annexure P-17 is a detailed appeal in which various grounds have been taken. The appeal has been dismissed vide order (Annexure P- 18). Learned counsel for the petitioner has drawn the attention of the court, particularly towards Annexures P-5 to P-10, to contend that the circumstances were beyond the control of the petitioner in so much as the family of the petitioner was living at Hyderabad. The wife of the petitioner had serious ailments. The daughter of the petitioner was being subjected to dowry harassment at the hands of her in-laws. The petitioner himself had high blood pressure and sugar problems. Vide order dated 10.11.2000 (Annexure P-5), the petitioner had approached the respondent-Management to give him permission to join his family on account of the afore given reasons. Annexure P-6 is a document, which indicates the dates on which the wife of the petitioner was taken to Government Cancer Hospital and Radium Institute. Annexure P-7 is a document dated 12.1.2001 which conveys that the petitioner had received the telegram of the Management. The petitioner, however, informed the Management that the petitioner was having “unbearable” problems. Various difficulties, as noticed above, have been detailed in the letter and a request has been made to the Management to send the charge-sheet at Hyderabad address and the petitioner undertook to send the reply from Hyderabad itself. Annexure P-8 relates to medical record of the wife of the Civil Writ Petition No.10721 of 2002 5 petitioner. Vide letter dated 16.2.2001 (Annexure P-9), addressed by the petitioner to the Management, it was indicated that the wife of the petitioner was under treatment for cancer, Chemotherapy and Radiotherapy and was under depression. The petitioner sought permission till the first week of March, 2001. Annexure P-10 dated 11.3.2001 is a certificate certifying that the wife of the petitioner had “Carcinoma right breast”, which had been operated upon and subsequent treatment was going on. Learned counsel for the respondents has argued that absence of the petitioner alone is a sufficient reason for dismissal, as has been laid down by the Hon'ble Supreme Court of India in Maan Singh v. Union of India and others, JT 2003 (2) SC 514. The other argument of the learned counsel for the respondents is that the petitioner has concealed material facts and has made various mis-statements in the petition, which have been given out in paras 7 and 9 of the written statement. The petition is liable to be dismissed on these grounds alone. In this regard, learned counsel for the respondents has relied on a Full Bench judgment of this Court in Charanji Lal and others v. Financial Commissioner Haryana, Chandigarh and others, AIR 1978 Punjab & Haryana 326 (Full Bench). On facts, learned counsel for the respondents has contended that the conduct of the petitioner has been bad, rather, criminal. The petitioner has not only indulged in embezzlement but also forgery. The details of the conduct of the petitioner are contained in Annexures R-12 to Civil Writ Petition No.10721 of 2002 6 R-17. It has been argued that a charge-sheet was in the process of being vetted for the actions of the petitioner, however, in the intervening period, the petitioner was dismissed from service on 25.6.2001. Vetted charge- sheet dated 12.7.2001 has been placed on record as Annexure R-18. Learned counsel for the respondents contends that the employer can certainly take into account the over-all conduct of an employee while passing the order of penalty, although the petitioner had not been confronted with the specific charges. No other argument has been addressed. I have considered the contentions of the learned counsel in the context of the documents to which reference has been made. One fact that cannot be disputed is that wife of the petitioner was suffering from cancer and she, subsequently, died. Thus, the petitioner was facing hardship. The inquiry report (Annexure P-13) itself indicates that a telegram had been received by the Inquiry Officer on 28.5.2001 i.e. the date on which the inquiry proceedings were concluded. In the telegram, a request had been made to postpone the inquiry to 12.6.2001. The Inquiry Officer, however taking into account the fact that the proceedings had been concluded at 11.00 a.m. and the telegram had been received at 12.45 p.m., chose to ignore the request and concluded the inquiry. The report of inquiry is, however, dated 30.5.2001. Thus, in my opinion, the petitioner has not been heard in the inquiry proceedings and the stand of the petitioner has not been considered at all. The charges, on the basis of Annexures R-12 to R-17, were in pipe line. The charges, as per the pleaded case on behalf of the Civil Writ Petition No.10721 of 2002 7 respondents, did influence the mind of the Management at the point in time when penalty of dismissal from service was awarded. The charges, however, were not put to the petitioner for his response. Per se, therefore, all that has been considered by the Management is the absence of the petitioner from station and that too during the period of suspension. The proceedings are, therefore, rendered against the principles of natural justice as no proper hearing had been given to the petitioner with regard to the grounds that form the basis of awarding extreme penalty of dismissal from service. Considering the above, order dated 2.11.2000 (Annexure P- 4), charge-sheet dated 4.4.2001 (Annexure P-11), order dated 25.6.2001 (Annexure P-14), order dated 13.11.2001 (Annexure P-16) , and order dated 3.4.2002 (Annexure P-18) are hereby set aside and the matter is referred back to the respondents. The respondents would be at liberty to compile a charge-sheet containing all the charges and serve the same on the petitioner within three weeks of receipt of a copy of this order. The petitioner would be given 15 days time to reply to the charges. The inquiry proceedings would be undertaken and concluded expeditiously, but not later than six weeks of the petitioner filing the reply. The proceedings would be conducted as provided under the Rules. The petitioner is present in person and has been made aware of the contents of the order. In case, the petitioner does not join the proceedings or for any reason whatsoever remains absent during the proceedings, the authorities would be at liberty to proceed with the proceedings. Civil Writ Petition No.10721 of 2002 8 In view of the fact that the matter is being remitted back to the authorities for fresh inquiry, the judgments referred to on behalf of the respondents are not being considered, lest the observations should influence the authorities. Anything said hereinabove be not considered as an observation on the merits of the case. With the above observations, the petition is disposed of. January 15, 2009 ( AJAI LAMBA ) Kang JUDGE