WP(C) 258/2004 BEFORE THE HON’BLE MR.JUSTICE AMITAVA ROY THE HON’BLE MR.JUSTICE A.C.UPADHYAY SL.No.122016 WA (In WP(C) No.258/2004) Shri Dinesh Chandra Das, S/O. Late Sadhi Ram Das, Milanpur, Bamunimaidan, Guwahati-781021, Kamrup, Assam. & Appella nt -VS- 1. National Building Construction Corporation Limited (A Govt. of India Enterprises) represented by its Chairman -Cum-Managing Director. N.B.C.C. House, Lodhi Road, New Delhi-3. 2. The Addl. General Manager N.B.C.C Limited, Rajgarh Road, Bye land-8, Guwahati-3. 3. The Deputy General Manager N.B.C.C Ltd.,Thangal Bazar,Imphal-1. 4. The Deputy Project Manager, N.B.C.C limited, Thangal Bazar, Imphal-1. & Respond ents. BEFORE THE HON’BLE MR. JUSTICE AMITVA ROY THE HON’BLE MR. JUSTICE A.C.UPADHYAY For the Appellant : Mr.B.D.Das Mr.K.K.Sarma Mr.D.Nath. For the Respondents : Ms.J.R.Thakur. Date of hearing : 25.02.2011. Date of Judgment & Order : 25.03.2011. JUDGMENT AND ORDER. 25.3.2011 ( Amitava Roy,J) Heard Mr. B.D.Das, learned senior counsel appearing for the appellant an d Ms. J.R.Thakur, learned counsel appearing for the respondent -Corporation. Register the appeal. The appeal is admitted. The challenge in the instant appeal is against the Judgment and order da ted 6.1.2009 passed in WP(C) No.258/2004. The pleaded case of the appellant is that he, while serving as a Work Su pervisor Grade-III under the respondent-Corporation, was dismissed from service by an order dated 3.5.2003 by the Deputy Project Manager of the respondent -Corp oration for being unauthorizedly absent from duty from 21.1.2000 without taking prior permission from the Unit Incharge. The Memorandum dated 16.3.2000 was issu ed by the Administrative Officer of the respondent-Corporation levelling the sam e imputation and treating the said lapse as misconduct as per Order No. 16(3)(e) of the NBCC (certified) Standing Orders. He was, thereafter, asked to submit hi s explanation within 10 days of the receipt of the said memorandum. The appellan t - respondent contended in his written statement that he had left the station o n 21.1.2000 with the permission of the Unit Incharge. He also stated that during the relevant time his wife was in her family way and gave birth to a child on 2 2.01.2000 and as the condition of both of them was very critical he could not re port for duty immediately thereafter. The disciplinary authority not being satisfied with the explanation subm itted by him decided to proceed with the enquiry and thereafter, issued the abov e communication dated 16.3.2000 to him to participate therein. In that communica tion it was mentioned that his absence has been construed to be a misconduct as per Order No. 16(3)(e) of the NBCC Standing Orders. Though the Corporation set u p an enquiry committee, inspite of repeated reminders the appellant did not pres ent himself before the Enquiry Officer in defence to the charges. The Enquiry of ficer submitted his report on 20.8.2001 and on a consideration thereof, the disc iplinary authority proposed to impose the penalty of dismissal from service. The appellant was afforded an opportunity to show cause against the same. In his re ply, the appellant, however, took the stand of being denied the opportunity to d efend himself in the enquiry. The disciplinary authority, thereafter, with refer ence to the proceeding of the enquiry concurred with the findings of the Enquiry Officer to the effect that the charge against the appellant had been proved. It rejected the objection of want of opportunity to participate in the enquiry as well as bias of the Enquiry Officer towards him. Whereas, Mr.Das in consonance with the pleaded stand of the appe llant has emphasized that the disciplinary proceeding as well as the impugned or der of penalty are vitiated by the vice of unfairness in action, Ms. Thakur, wit h reference to the official records pertaining thereto, has asserted to the cont rary. According to her, the writ appellant had been afforded opportunities in ab undance in defending himself against the charges and that no interference with t he impugned Judgment and Order dated 6.1.2009 is called for. The pleadings on record and the arguments advanced by the learne d counsel for the parties have been duly considered. That the writ appellant had remained absent from duty on and from 21.1.2000 is a matter of record and has n ot been disputed by his learned counsel. A perusal of the records and pleadings before this Court demonstrate in clear terms that the writ appellant was detaile d for official duty on 20.1.2000 to report to C.P.M. Office, Guwahati for works relating to submission of tenders at C.A.U, Imphal Unit and was instructed to re port back within a period of 4 days. He since 21.1.2000 was unauthorizedly absen t. By memorandum dated 3.2.2000 issued by the Resident Engineer of the responden t Corporation, the writ appellant was asked to report for duty immediately faili ng which he was intimated that disciplinary action would be taken against him. T he appellant did not respond and, therefore, memorandum dated 10.2.2000 in the s ame line was issued pointing out that his absence was in violation of the NBSC’s Service Conduct Rules. As this memorandum as well did not evoke any response, t he memorandum dated 16.3.2000 was issued terming his failure to be a misconduct as per Standing Order Rules No. 16(3)(e) of the NBCC Standing Orders. The show c ause notices dated 3.4.2000 and 10.4.2000 reiterated the above. Meanwhile, on 5. 4.2000 and 20.4.2000, the writ appellant submitted representation stating family problems as reasons for not being able to attend his duty on and from 21.1.2000 . This reply of the writ appellant was not found satisfactory by the disciplinar y authority. Thereafter, notices were issued on 2.1.2001, 22.1.2001, 23.10.2001 asking the appellant to participate in the proceedings. He, however, did not res pond thereto. The Enquiry Officer, therefore, submitted the report on 20.8.2001 as mentioned hereinabove. The writ appellant in his reply to the Enquiry Office r’s report complained of denial of opportunity in the disciplinary proceeding. On scrutiny of the official records as above, we are not persuaded to ac cept the plea of denial of opportunity. The writ appellant having persistently f ailed to present himself before the Enquiry Officer in the disciplinary proceedi ng, this plea is not available to him and is per se untenable. The records also do not disclose any material to substantiate his allegation of bias against the Enquiry Officer. No other point has been raised before us vis-à-vis the discipl inary proceeding and the impugned order of dismissal. We have scrutinized the findings recorded by the learned Single Judge in the impugned Judgment and Order dated 6.1.2009 and we are in agreement therewit h. The writ appeal, therefore, lacks in merit and is dismissed. No costs.