High Court · 2012

By this writ petition the petitioner has challenged the charge-sheet dated 02.08 .2001 (Annexure-P); the order dated 24.10.2002 (Annexure-R); the communication d ated 25.10.2002 (Annexure-S) and finally the order dated 03.06.2003 (Annexure-Y) . By the impugned charge-sheet the petitioner was charged with the following : (cid:28)MEMORANDUM UNAUTHORISED ABSENCE FROM DUTY CHARGE SHEET As you are continuing to be unauthorisedly absent from duty since 14.11.2000, it has been decided to initiate disciplinary proceedings against you under (cid:28)Gross Misconduct (cid:29). Accordingly, you are hereby charged with the following allegation: (cid:28)Remaining (unauthorisedly) absent without intimation continuously for a period exceeding 30 days- an employee found guilty of (cid:28)Gross misconduct (cid:29) and liable to be dismissed without notice (cid:29) 02. Any submission against the above charge may be intimated to the undersigned within 15 days of receipt of the charge sheet otherwise ex-partee decision will be taken as Bank may deem fit. (cid:29) On conclusion of the departmental enquiry, the petitioner was imposed with the p enalty of dismissal from service and the appeal was also dismissed by the afores aid order dated 03.06.2003(Annexure Y). According to the petitioner, while he was serving in the respondent bank had suf fered from some illness and consequently could not attend his duties. It has bee n stated that he suffered from cough and cold in the month of October, 2000 and thereafter consulted with medical practitioner and remained under his treatment. In the writ petition the petitioner has stated about the purported treatment he had undergone. It has also been stated that his wife namely, Smt. Roma Ghose ha d informed the bank on 15.11.2000 about the illness of the petitioner. In paragraph 17 of the writ petition the petitioner has stated that he had sent a leave application to the respondent bank on 17.11.2000 along with the supporti ng medical papers. It has also been stated that he had submitted further applica tion on 17.10.2002 along with medical certificate. In paragraph 21 of the writ p etition, it has been stated that Bank published a notice in the Assam Tribune da ted 05.01.2003 stating therein that the petitioner was dismissed from services o f the bank w.e.f. 24.10.2002. According to the petitioner, the said order of dis missal from service was passed behind his back without affording any opportunity . Being aggrieved by the said order of dismissal, the petitioner preferred a depar tmental appeal which was dismissed by the impugned order dated 03.06.2003 as com municated vide Annexure Z latter dated 13.06.2003. I have heard Mr. R. Sarma, learned counsel for the petitioner and also heard Mr. S. S. Sarma, learned Senior counsel assisted by Ms. F. Khan, learned counsel re presenting the respondent bank. Mr. R.Sarma learned counsel for the petitioner submits that everything having be en done behind the back of the petitioner, the entire departmental proceeding is liable to be set aside and quashed. Mr. Sarma further submits that the document s pertaining to the departmental proceeding including the enquiry report having not been furnished to the petitioner, impugned orders are not sustainable in law and accordingly liable to be interfered with. Countering the above argument, Mr. S. S. Sarma, learned Senior Counsel for the B ank submits that since unauthorised absence from duty on the part of the petitio ner is an admitted fact, the grounds of which the writ petition has been filed a re not sustainable both in fact as well as in law. He submits that there being s uppression of material facts in filing the writ petition, on that count alone th e writ petition is liable to be dismissed. Referring to the counter affidavit fi led by the respondent bank, Mr. S. S. Sarma, learned Senior Counsel submits that since the petitioner in spite of receipt of notice and charge-sheet did not par ticipate in the departmental enquiry, the enquiry proceeding had to be conducted ex-prate and thus it is not correct to say that the petitioner did not receive any notice etc. in respect of enquiry proceeding. I have given my anxious consideration to the submissions made by the learned cou nsel for the parties and have also perused the entire materials on records. Although, it is the stand of the petitioner that he had suffered from some kind of illness and resultantly could not attend to his duties but the fact of the ma tter is otherwise as has been disclosed in the counter affidavit. In the counter affidavit the respondent bank has taken the definite plea that the petitioner h as taken recourse to falsehood and thereby he is guilty of fabricating actual fa ct. It has been stated that a sick leave application dated 30.10.2000 along with a medical certificate from an Ayurvedic Physician was sent to the respondent ba nk, in which it was stated that the petitioner had suffering from (cid:28)Gastritis (cid:29) bu t on the other hand in the writ petition the petitioner has stated about the suf ferings from cough and cold. Thus, the petitioner took contradictory stand. In t he writ petition, the petitioner has stated that he was advised for rest, but th e certificate did not disclose any such advice. The affidavit in the opposition further states that the plea of the petitioner that he had undergone various tr eatments is not sustainable as nothing was communicated to the respondent bank. The respondent bank has also denied the plea of the petitioner that his wife had visited the respondent bank on 15.11.2000. It has also denied that a leave appl ication was submitted on 15.11.2000. The respondent bank has also denied the sta tement of submission of any further leave application by the petitioner. In paragraph 18 of the counter affidavit it has been stated that the charge-shee t was duly received by the petitioner and it was confirmed by the postal authori ty by their latter dated 20.03.2002 that the petitioner had received the charge- sheet on 10.08.2001, but deliberately abstained from attending the enquiry proce ss that was started from 03.07.2002. The Enquiry Officer had issued notice to th e petitioner on 03.07.2002, 05.08.2002 and 10.09.2002 but the petitioner in spit e of receipt of the notices did not respond to the enquiry proceeding. One of th e notices came back to the respondent bank with the remark (cid:28)refused (cid:29) meaning the reby, the petitioner declined to accept the notice. The charge against the petitioner as noted above was that of unauthorised absenc e from duty. In spite of granting opportunity to defend his case, the petitioner decided not to respond to the said proceeding and thus the Enquiry authority ha d no other option than to decide the enquiry proceeding ex-parte. As regards the plea of the petitioner that he was not furnished with the require d documents, the said plea was raised by him only after the impugned order of di smissal was passed. The petitioner although received the charge-sheet and the no tices pertaining to the enquiry proceeding, but he decided not to respond to the same and coming to the writ Court has taken the plea of suffering from illness and his perported resultant failure to attend his duties. In the process he had also taken course to falsehood stating that the enquiry proceeding was conducted behind his back. The fact of the matter is that he had never intimated the bank about his perported illness and also did not respond to the enquiry proceeding. As regards the non furnishing of documents including the enquiry report, suffice is to say that unless any prejudice is shown, the said plea in not sustainable. In the instant case the petitioner has not even pleaded any prejudice caused to him coupled with the fact that the petitioner himself decided not to participat e in the enquiry proceeding in spite of having sufficient knowledge of the same. The pleas raised by the respondent bank in their counter affidavit have also no t been denied by the petitioner by filing any affidavit in reply. In view of the above, I do not find any merit in the writ petition and according ly it is dismissed. However there shall be any orders as to costs.