Irregularities in the enquiry and disproportionate punishment vitiate the dismissal order, and the employee is entitled to reinstatement with compensation.

1. THE petitioner before me was an employee of Eastern Coalfields Ltd., who worked as an underground loader. He was dismissed from his service on the ground of unauthorised absentism.

2. CLAUSE 26.29 of the Certified Standing Order of Eastern Coalfields Ltd. CECL) treats absence from duty beyond ten days without leave as misconduct, which can result in dismissal from service of an employee. CLAUSE 26 lays down the list of irregularities which would constitute misconduct, and includes, as per CLAUSE 26.29 "Absence from duty beyond 10 days without sanctioned leave or sufficient cause or overstaying beyond sanctioned leave without valid reasons." Admittedly, the writ petitioner had absented from duty for a period of about 24 days between 22nd August and 17th September, 2002. It is also the admitted position that he did not take prior leave. He also did not intimate the reason for his absence during the period he remained absent prior to 12th September, 2002, on which date he appears to have submitted a medical certificate issued by one Dr. H. N. Singh, a private medical practitioner. On the day of joining itself, the petitioner was issued a chargesheet asking him to explain in writing within three days as to why disciplinary action should not be taken against him. This chargesheet has been annexed at page 42 of the writ petition as "Annexure-P2". The writ petitioner replied to the chargesheet on the very next date, i.e. on 18th September, 2002. His reply was short. He indicated in his reply that he could not attend his duty since 22nd August, 2002 due to "acute fever" and he attended doctor of Kajoragram village. On the same date, i.e. 18th September, 2002, by a communication, a copy of which has been made Annexure-"P-4", to the writ petition, the petitioner was informed that an enquiry had been fixed on 20th September, 2002 at 11 a.m. in connection with the chargesheet and he was requested to appear in the enquiry.

3. THE petitioner participated in the enquiry and was examined by an Enquiry Officer. His reply to the questions put by the Enquiry Officer for not applying for leave and also for non-disclosure of information being sick, and for not reporting at the colliery dispensary was that he could not do so. He was given opportunity of producing his own witness and also for cross- examining the management representative, but he declined on both counts. THE Enquiry Officer found him guilty of "unauthorised absentism". Thereafter, the General Manager of the colliery where he was employed passed an order of dismissal accepting the finding of the Enquiry Officer. This order of dismissal has been challenged in this writ petition on two grounds.

4. FIRST, it is submitted that the manner in which the enquiry was conducted was fraught with irregularities. As regards the imposition of punishment, it is submitted that the punishment imposed was disproportionate vis-a-vis the offence alleged. The irregularities alleged in holding of the enquiry are these:

(a) Enquiry was decided to be held before considering the petitioner's reply to the chargesheet and, thus, there was absence of proper application of mind before the enquiry was directed to be held.

(b) No second show cause notice was issued giving him an opportunity to defend himself against the punishment sought to be imposed, after the disciplinary authority accepted the finding of the Enquiry Officer and proposed to impose punishment against him.

As regards disproportionate nature of the punishment imposed, the main submission of the petitioner is that for mere absence of about 24 days, the punishment of dismissal is harsh.

5. ON behalf of Eastern Coalfields Ltd. it has been submitted that there has been no irregularity in the conduct of the enquiry. It has further been submitted that the petitioner was a habitual absentee for which the work of colliery had been suffering, and in the facts of the given case, the punishment imposed was proper.

6. A case was sought to be made out