Kudumulla Yahosua Vs Managing Director

the learned Single Judge in WPL No. 4742 of 2011 ( Kudumulla Yahosua vs. Managing Director, Bhilai Steel Plant Bhilai ), whereby the writ petition filed by the writ petitioner/appellant herein came to be dismissed.

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3. Learned counsel for the appellant submits that the appellant was appointed to the post of Plant Attendant (S-1 Grade) in Bhilai Steel Plant vide appointment order dated 01.11.1999 and was allotted Personnel No. 942277 and Token No. 36319, and thereafter discharged his duties under the respondent establishment diligently.

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4. It is further submitted by learned counsel for the appellant that during the course of his service, the appellant was constrained by compelling family circumstances, inasmuch as his aged mother was suffering from chronic ailments including asthma and arthritis and required continuous medical care and attention. Due to such unavoidable circumstances, the appellant was occasionally unable to attend duties, though he had duly informed the department whenever leave was required. It is also submitted that the appellant himself fell seriously ill and was diagnosed with Hepatitis, on account of which he remained hospitalized and was declared medically unfit for the period from 02.01.2004 to 31.01.2004.

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5. Learned counsel for the appellant would submit that thereafter a charge-sheet dated 23.08.2004 was issued alleging habitual absence from duty without leave, to which the appellant submitted his explanation. It is further contended that the departmental enquiry

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conducted against the appellant was not fair and proper and was in violation of the principles of natural justice, as the appellant was summoned before the Enquiry Officer on 22.09.2004 and was prevailed upon to admit the charges on an assurance that a lenient view would be taken.

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6. Learned counsel for the appellant further contended that under such pressure and inducement, the appellant admitted the charges, and solely on the basis of such admission, the Enquiry Officer submitted his report dated 22.09.2004, pursuant to which the disciplinary authority passed the order dated 18.03.2005 terminating the services of the appellant. It is also contended that the appellant challenged the said termination before the Labour Court, Durg, which came to be rejected without assigning cogent reasons, and the appeal preferred before the Industrial Court, Raipur was also dismissed vide order dated 07.08.2007. Thereafter, the writ petition preferred by the appellant was dismissed by the learned Single Judge, giving rise to the present writ appeal.

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7. Learned counsel for the appellant submits that the authorities below failed to appreciate that the absence of the appellant was neither willful nor deliberate, but was on account of his own illness and the serious medical condition of his aged mother, which constituted sufficient cause. It is further submitted that the medical certificates and explanations furnished by the appellant were not properly considered by the disciplinary authority as well as by the Labour Court and the

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Industrial Court. The enquiry is vitiated as the alleged admission of guilt was not voluntary but obtained under pressure, and even otherwise, such admission does not dispense with the requirement of a fair and proper enquiry.

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8. It is submitted that the allegation pertains to absence of about 89 days between February 2003 and July 2004, which could not have warranted the extreme punishment of dismissal, rendering the punishment grossly disproportionate. It is further submitted that reliance placed upon past punishments for similar misconduct is erroneous, as the appellant had already undergone punishment for those instances. It is also contended that unauthorized absence constitutes a minor misconduct under the Madhya Pradesh Industrial Employment (Standing Orders) Rules, 1963, and in absence of clear classification in the Certified Standing Orders, the Model Standing Orders ought to have been applied.

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9. Learned counsel for the appellant, in support of his submissions, places reliance upon the judgment of the Hon’ble Supreme Court in Bhartiya Kamgar Karmchari Mahasangh vs. M/s Jet Airways Limited ( Civil Appeal No. 4404 of 2023 ), wherein it has been held that service conditions and standing orders are to be interpreted in a manner beneficial to workmen and fairness in employer action must be ensured.

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10. Reliance is also placed on State of Punjab vs. Dr. P.L. Singla , reported in (2008) 8 SCC 469 , wherein it has been emphasized that disciplinary punishment must be proportionate to the misconduct and

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not arbitrary. Further reliance is placed upon Kishore Jaikishandas Icchaporia vs. M.R. Bhope ( 1987 SCC OnLine Bom 477 ), wherein it has been held that Model Standing Orders would prevail over Certified Standing Orders if the latter are silent or less beneficial to the employee.

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11. Reliance is also placed on Anil Kumar Gupta vs. Union of India ( 2022 SCC OnLine ), wherein it has been reiterated that adherence to the principles of natural justice is mandatory and any violation thereof vitiates the disciplinary proceedings.

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12. Per contra , learned counsel appearing for the respondent submits that the impugned order has been passed strictly in accordance with law and does not warrant any interference. It is submitted that the appellant was a habitual absentee having a chequered service record, and the departmental enquiry was conducted strictly in accordance with the applicable Standing Orders and principles of natural justice. Adequate opportunity of hearing was afforded to the appellant and all relevant documents were duly supplied to him.

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13. Learned counsel for the respondent further submits that the contention regarding coercion in admitting guilt is an afterthought, as no such plea was raised by the appellant before the Labour Court or the Industrial Court. In absence of any contemporaneous protest or material on record, the appellant cannot be permitted to resile from his admission at this stage.

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14. It is further submitted by the learned counsel for the respondent

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that the record clearly demonstrates that the appellant was repeatedly absent without leave on earlier occasions as well and had been subjected to several punishments, namely: (i) unauthorized absence for 75 days during the year 2000, resulting in reduction of pay for one year; (ii) absence for 110 days during 2001–2002, resulting in reduction of pay to the minimum stage for two years with cumulative effect; and (iii) absence for 193 days during 2002–2003, resulting in reduction of pay for four years with cumulative effect. Despite repeated leniency, the appellant continued to remain absent, establishing habitual misconduct.

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15. Learned counsel for the respondent submits that in view of such repeated misconduct, the punishment of dismissal cannot be said to be disproportionate or arbitrary. It is further submitted that the contention regarding applicability of the Madhya Pradesh Industrial Employment (Standing Orders) Rules, 1963 is misconceived, as the respondent establishment is governed by the Central enactment, namely the Industrial Employment (Standing Orders) Act, 1946.

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16. It is also contended by the learned counsel for the respondent that the appellant has approached this Court after an inordinate delay of about four years from the date of the order passed by the Industrial Court, which itself disentitles him to any discretionary relief under writ jurisdiction.

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17. Reliance is placed by the learned counsel for the respondent on the judgment of the Hon’ble Supreme Court in Chennai Metropolitan Water Supply and Sewerage Board vs. T.T. Murali Babu , reported in

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(2014) 4 SCC 108 , wherein it has been held that long unauthorized absence, particularly in absence of sufficient explanation, constitutes grave misconduct and does not necessarily require a specific finding of willfulness in every case. He further submitted that the reliance placed by the appellant on Anil Kumar Gupta (supra) is misplaced, as the said judgment was rendered in peculiar facts and does not apply to the present case where habitual absence stands clearly established.

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18. Having considered the rival submissions and upon a careful perusal of the entire material available on record, this Court finds that the appellant has a long and consistent history of unauthorized absence, which stands duly proved from the service record. The record reveals that despite being subjected to multiple minor as well as major penalties on earlier occasions for similar misconduct, the appellant failed to mend his conduct. The repeated instances of absence, spanning over several years, clearly establish that the appellant was a habitual absentee and had scant regard for discipline required in an industrial establishment.

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19. This Court further finds that the departmental enquiry was conducted strictly in accordance with the applicable Standing Orders and the principles of natural justice. The appellant was duly served with the charge-sheet along with relevant documents and was afforded adequate opportunity to defend himself. The contention that the admission of guilt was obtained under coercion is not supported by any contemporaneous material on record. Significantly, no such plea was

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raised by the appellant either before the Labour Court or the Industrial Court. In absence of any protest, complaint or evidence at the relevant time, such a plea raised at a belated stage is clearly an afterthought and does not inspire confidence.

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20. Even otherwise, the findings of guilt are not based merely on the admission of the appellant, but are supported by documentary evidence on record reflecting continuous and prolonged absence without authorization. Thus, the enquiry cannot be said to be vitiated on this ground.

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21. This Court also finds no merit in the submission that the absence was justified on account of illness of the appellant or his mother. Apart from a limited period for which medical documents were produced, there is no cogent or sufficient material to justify the prolonged and repeated absence extending over several spells. The explanation offered does not satisfactorily account for the entire period of absence and, therefore, cannot absolve the appellant of misconduct.

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22. The contention regarding disproportionality of punishment also deserves to be rejected. It is well settled that in matters of disciplinary action, the quantum of punishment lies primarily within the domain of the disciplinary authority, and interference is warranted only when the punishment shocks the conscience of the Court. In the present case, considering the appellant’s persistent and habitual absenteeism despite repeated leniency and earlier punishments, the penalty of dismissal cannot be said to be excessive or disproportionate. On the contrary, the

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conduct of the appellant demonstrates incorrigibility, justifying the ultimate penalty.

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23. The argument regarding applicability of the Madhya Pradesh Industrial Employment (Standing Orders) Rules, 1963 is also misconceived. The respondent establishment, being governed by the Industrial Employment (Standing Orders) Act, 1946, is not bound by the said Rules of 1963. Even otherwise, the nature and gravity of misconduct, coupled with the past record of the appellant, fully justify the action taken by the disciplinary authority.

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24. This Court also finds substance in the submission of the respondent that the appellant approached this Court after an inordinate and unexplained delay of approximately four years from the date of the order passed by the Industrial Court. Such delay further disentitles the appellant from invoking the discretionary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India.

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25. The reliance placed by the appellant on the judgments cited is clearly distinguishable on facts and does not advance his case. On the contrary, the law laid down by the Hon’ble Supreme Court in Chennai Metropolitan Water Supply and Sewerage Board (supra) squarely applies to the facts of the present case, wherein it has been held that prolonged unauthorized absence reflects lack of devotion to duty and can constitute a serious misconduct warranting major penalty.

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26. In light of the aforesaid analysis, this Court is of the considered view that the findings recorded by the Labour Court and the Industrial

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Court are based on proper appreciation of evidence and do not suffer from perversity, illegality or procedural irregularity. The learned Single Judge has rightly declined to interfere with the same in exercise of writ jurisdiction.

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27. Consequently, this Court finds that the learned Single Judge has rightly dismissed the writ petition, and no ground is made out for interference in the present writ appeal.

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28. Accordingly, the writ appeal, being devoid of merit, is dismissed . The orders passed by the Labour Court, Durg and the Industrial Court, Raipur, as affirmed by the learned Single Judge, are upheld. No order as to cost(s).

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Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice

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Brijmohan

Kudumulla Yahosua v. Managing Director

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