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2003 Supreme(Cal) 57
High Court Of Calcutta
A. K. MATHUR, JAYANTA KUMAR BISWAS
GENERAL MANAGER, EASTERN COALFIELDS LTD. - Appellant
Versus
RAJENDER SINGH ALIAS RAJENDRA SINGH - Respondent
M. A. T. 46 Of 2000
Decided On : 02/11/2003
A.K.MANDA, Ashis Kumar Sanyal, N.ROY, P.Basu, R.N.MAJUMDAR, SUSANTA PAL
A writ petition challenging a disciplinary action taken by an employer against a workman is maintainable in the High Court even if an alternative remedy is available under the Industrial Disputes Act, 1947, provided that the respondent agitates the question of availability of statutory alternative remedy at the earliest opportunity.
Headnote:
INDUSTRIAL DISPUTES - WRIT PETITION - MAINTAINABILITY - AVAILABILITY OF ALTERNATIVE REMEDY - SERVICE OF PUNISHMENT ORDER - ENQUIRY OFFICER'S FINDINGS - JUDICIAL REVIEW - PRINCIPLES OF NATURAL JUSTICE - ARTICLE 14 OF THE CONSTITUTION OF INDIA - STANDING ORDERS 17 (1) (D) AND 17 (1) (N).
Fact of the Case:
The respondent, a Pump Operator, was dismissed from service by the appellant, Eastern Coalfields Ltd., following an enquiry into his unauthorized absences from duty. The respondent challenged the dismissal order by filing a writ petition in the High Court, alleging that the charges against him were not maintainable, that the enquiry officer's findings were vitiated by total non-application of mind, and that the punishment order had not been served on him.
Finding of the Court:
The High Court allowed the writ petition and directed the reinstatement of the respondent with full back wages. The High Court held that the charge of habitual absence was not maintainable, as the previous cases of unauthorized absence had already been punished, and that the charge of continuous absence failed because of the enquiry officer's non-application of mind to the evidence on record.
Issues: 1. Whether the writ petition was maintainable in light of the availability of an alternative remedy under the Industrial Disputes Act, 1947? 2. Whether the charge of habitual absence was maintainable? 3. Whether the enquiry officer's findings were vitiated by total non-application of mind? 4. Whether the punishment order had been served on the respondent?
Ratio Decidendi: 1. The availability of an alternative remedy does not altogether oust the Writ Court's jurisdiction to entertain a petition, but it is for the respondent to agitate the question of availability of statutory alternative remedy at the earliest opportunity. 2. A charge of habitual absence can be founded only on the basis of previous cases of unauthorized absence. The past cases of unauthorized absence had not ended with infliction of any major penalty and were cited only as the basis for the charge of habitual absence. Therefore, the levelling of the charge of habitual absence is not reopening of closed old cases. 3. The enquiry officer's findings were not vitiated by total non-application of mind. He recorded four reasons in support of his conclusion, which were based on the facts and materials on record of the enquiry. 4. The punishment order was served on the respondent. The respondent had full knowledge of both the punishment order and the office order directing the deletion of his name from the records with effect from the date of dismissal.
Final Decision: The appeal was allowed, the impugned judgment and order were set aside, and the writ petition was dismissed.
( 1 ) THIS Letters Patent appeal is against a judgment and order dated December 10, 1999 passed by a learned single Judge of this Court on a writ petition, being Civil Order No. 19764 (W) of 1995; it was filed by the respondent No. 1 herein. The appellants were respondent Nos. 3 and 6 in the said writ petition.
( 2 ) THE relevant portion of the impugned order, passed by the learned single Judge, reads as under:"in view of the discussions made hereinabove I declare the findings of the enquiry officer and the order of dismissal as null and void and I set aside and quash both the findings of the enquiry officer and the order of dismissal dismissing the writ petitioner from the service. The writ petitioner is entitled to his back wages from the date of his dismissal till he is allowed to resume his duty or until he retires from the service whichever is earlier. I direct the respondents to pay the writ petitioner his salaries from the date of dismissal till he is allowed to resume his duty or until he retires from the service whichever is earlier within six weeks from date of communication of this order. I also direct the respondents to pay the petitioner Rs. 5000/- (Rupees five thousand) as cost of this litigation. Such cost should be paid within six weeks from the date of communication of the gist of this judgment and order. "
( 3 ) ON March 7, 2000 the following interim order was passed in this appeal:"after considering the facts and circumstances of the case and after going through the materials on record we direct that the operation of the order dated December 10, 1999 passed by the learned single Judge shall remain stayed to the extent that the petitioner respondent No. 1 will not be entitled to any arrears of salary from September 5, 1994 till he had attained the age of superannuation. However, the appellant shall release all other terminal benefits, including salary if there is any due to the petitioner/respondent, within four weeks from date. "
( 4 ) WHILE working as Pump Operator at Sarpi Unit of Shyamsundarpur Colliery of the Eastern Coalfields Ltd. (a subsidiary of Coal India Ltd.- a Government of India Public Sector Undertaking), a chargesheet dated July 22/28, 1994 was issued against the respondent No. 1 by his employer. The contents of the said chargesheet were as follows: from the records it is evident that you are in the habit of remaining absent without leave or permission from the Competent Authority. The following chargesheets and warning letters were issued to you for unauthorized absence:1. Ref. No. Shyam/pd/cs/90/641 dated February 09, 1990. Absent from December 14, 1989 to February 09, 1990 against suspended for 10 (ten) days from March 03, 1990 to March 12, 1990. 2. Ref. No. Shyam/w. L/pd/91/02 dated January 01, 1992. Absent from October 21, 1991 to December 31, 1991 against a warning. 3. Ref. Np. Shyam/pd/cs/92/1759 dated May 15, 1992. Absent from March 06, 1992 to May 15, 1992 against 3 (three) days suspension were issued from May 15, 1992 to May 17, 1992 4. Ref. No. Shyam W. L. /pd/92/3991 dated November 14, 1992. Absent from August 10, 1992 to November 14, 1992 against a warning letter issued.
( 5 ) REF. NO. SHYAM/pd/wl/94/689 dated February 28, 1994. Absent from February 03, 1994 to February 26, 1994 against a warning letter issued. Again you are absenting from April 21, 1994 to till now. Your above act amounts to misconduct on your part as per the Standing Orders of the Company applicable to you under Sections 17 (1) (d) and 17 (1) (n), which reads (sic) as follows:17 (1) (d): "habitual late attendance and habitual absence without leave and permission or without satisfactory cause. "17 (1) (n); "continuous absence without permission and without satisfactory cause for more than ten days. "you are, hereby, asked to explain in writing within 48 hours of the receipt of this chargesheet as to why disciplinary action should not be taken against you, for your above misconduct. "5.
