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Judgment
Pradeep Nandrajog, J.—The rule in question is 9.13. It is a rule governing the service condition of employees of BHEL (Bharat Heavy Electricals Ltd.). It reads as under:
9.13 If an employee who remains absent from duty without leave or permission, or in excess of the period of leave originally sanctioned or subsequently extended and where such period of absence exceeds fifteen (15) consecutive days, he shall be liable to disciplinary action for the unauthorized absence and his name may be struck off the rolls of the Company as a consequence thereof.
Provided further that if the concerned employee proves to the satisfaction of the Management that his absence was on account of sickness or other valid reasons, the Management may at their discretion, convert hit absence into leave without pay or with pay as may be admissible to him under the rules.
Exercising power under the said Rule vide office order dated 3.12.1992 name of the petitioner was struck off the rolls of the company. The order reads as under:
OFFICE ORDER
WHEREAS Shri G. Thukka Ram, Staff No. 2754851, Accountant, Regional Operations Division, Jabalpur, has been absenting from duty w.e.f. 22.06.1992 unauthorisedly; AND WHEREAS official communications were sent to him vide letters No. ROD/JBP/ MPSA/446 dated 8.7.92, RE:PER:GT dated 24.7.92, RE:BOM:FIN:92 dated 19.9.92 and RE:PER:GT dated 7.11.92 besides personal counselling by Addl. General Manager, ROD, Bombay and General Manager, ROD, Madras directing him to rejoin duty, he has failed to comply with the same.
NOW THEREFORE in accordance with the provisions contained in Rule 9.13 of Company''s extent Leave Rules, Shri G. Thukkaram is deemed to have left the services of the Company of his own accord without notice and his name is struck off the rolls of the Company with effect from 22nd June, 1992 (F/N).
Hid dues, if any, will be paid to him on production of ''No Demand Certificate'' from all concerned.
This issues with the approval of the Competent Authority.
Sd/-
(HS SHARMA)
SR. MANAGER (P&A)
DISTRIBUTION:-
Shri G. Thukkaram thro DGM, ROD, Jabalpur
Shri G.Thukkaram, No. 16, Indira Gandhi Street, Kannappar Nagar, Arumbakkam, Madras - 600 106.
Addl. General Manager, ROD, Bombay.
Appeal filed by the petitioner has been summarily rejected by an order dated 6.1.1993. The order in appeal reads as under:-
Shri G. Thukkaram,
No. 16, Indira Gandhi Street,
Kannappar nagar,
Arumbakkam,
MADRAS- 600 106.
Please refer to your Appeal dated 8.12.1992 to the Chairman & Managing Director as also the General Manager, ROD HQ regarding your reinstatement.
Your appeal has been considered by the competent authority and I am directed to inform you that the points mentioned therein are not true and contradictory to the advice given to you by the Addl. General Manager, ROD, Bombay and hence it is regretted that your request for reinstatement cannot be acceded to.
Sd/
(R. KASTHURI RANGAN)
SR.PERSONNEL OFFICER
Before noting the relevant facts it may be recorded that a counter affidavit has not been filed in the instant matter but at the hearing today the relevant record has been produced and the same has been treated as a response to the rule.
Admitted facts are that the petitioners joined service under BHEL on 12.7.1995 and was posted at Madras. He served there till 25.6.1985 when he was posted at Korba. He was reposted to Madras on 25.6.1987 where he served till 30.4.1991 on which date he was directed to report at Jabalpur. He joined the unit at Jabalpur on 3.10.1991.
Hereinafter starts the dispute between the parties.
According to the petitioner he had found serious financial irregularities at the unit at Jabalpur and to shut his mouth the senior management personnel at Jabalpur hired goons to physically attack him. This, according to the petitioner made it impossible for him to serve the unit at Jabalpur.
The rival version is that the petitioner was wanting to go back to Madras as it was his native town and to further said intention he made false allegations against senior personnel at Jabalpur to pressurize the senior personnel to send him back to Madras.
On 8.6.1992 the petitioner made the complaint to which I have referred to hereinabove. It is not in dispute that the complaint in question was duly investigated not only at Jabalpur but a formal inquiry was conducted at Bombay for the reason petitioner was alleging threat to his safety at Jabalpur. The formal inquiry conducted with respect to the complaint of the petitioner resulted in a report being submitted on 11.8.1992 by Sh. S.K. Gupta, General Manager recording that there was no basis to sustain the allegation of the petitioner.
In this connection it would be relevant to note that pertaining to certain bills submitted by the petitioner, on 30.4.1991, a charge memo was issued to him which resulted in the petitioner being indicted. On 13.8.1991 a penalty order was inflicted upon the petitioner withholding his increment for a period of 1 year.
Reverting back to the facts relatable to the termination of the petitioner, on 15.6.1992 petitioner proceeded on leave till 20.6.1992. He obtained a sanction for the leave.
Petitioner did not report back for duty at his work place i.e. Jabalpur. On 8.7.1992 a memorandum was issued to the petitioner informing him that his leave was over on 20.6.1992 and instead of reporting for duty he gave an information that his wife had to undergo surgery requiring his presence at Madras. That he was advised to submit the medical papers but had not so done. Recording the said facts, petitioner''s attention was drawn to Rule 9.13. It was recorded that if the petitioner did not produce the relevant medical record pertaining to his wife evidencing her undergoing surgery, action would be initiated under Rule 9.13.
Receiving no response, on 17.7.1992, another communication was sent to the petitioner at his address in the city of Madras drawing his attention to the memo issued on 8.7.1992 and informing the petitioner that the department had not received any response thereto.
Petitioner responded by dispatching a telegram which reads as under:
As my wife is undergoing surgery my presence is essentially required at Madras. Kindly extend EL/EOL for 1 month from 1.7.1992 to 31.7.1992.
On 22.7.1992 a telegram was sent to the petitioner by the department, drawing his attention to Rule 9.13, and calling upon him to submit the relevant medical papers. In the interregnum, on 22.7.1992 the petitioner sent a letter. The letter makes an interesting reading. It reads as under:
July 20th 1992.
FROM:
G.THUKKARAM Accountant/ROD/JABALPUR
16, Indira Gandhi Street
Arumbakkam
MADRAS-600 106.
TO:
Shri. H.S. Sharma
Sr. Manager/P&A
ROD/HQ
NEW DELHI.
Sir:
To my shock and surprise I received a letter dated 17/7/92 from you advising me to furnish a medical certificate for my wife''s illness. You are well aware of the episode that I have highlighted few of the financial irregularities of Shri M.P.S. Ahluwalia, RR, ROD/Jabalpur to ROD/Bombay & ROD/HQ/ND and how I had to run for my life on the night of 12/6/92. When things stand so, sending such a letter informing that action will be taken against me clearly reveals the stand taken by ROD/Management. I am at a less to understand why ROD/HQ wants to shield an individual who deliberately erred and want only committed such a magnitude of fraud and at the same time wants to punish the man who sincerely reported the malpractice to superiors; shielding such a magnitude of fraud only lead to complications in future.
Justice can be delayed and even denied. But it could never be defeated.
I request you to kindly consider your stand that if punishment is meted out to honest employees who then and there report the irregularities to their superiors, then there will not be any sincerity and honesty in the lower ranks and that is the reason why we have to witness today''s multi-crore scandal of Security scam which rocks the entire country.
I request you to kindly help me in setting things right and help book the culprits in the interest of organisation which you and me served for so many years.
Thanking you,
Yours sincerely,
Sd/
(G. THUKKARAM)
Relevant would it be to note at this stage that the petitioner changed track and highlighted the cause of his not joining at Jabalpur as being the danger to his life. The petitioner referred to the same incident of the senior management deploying goons to physically liquidate the petitioner, a fact, which as noted above, was found false at an inquiry held by Sh. S.K. Gupta.
The departmental file shows repeated letters written to the petitioner calling upon him to forthwith join at Jabalpur and if petitioner desired that his leave be extended to submit the relevant papers. Obviously, the relevant papers were the medical record pertaining to alleged surgery undertaken by the wife of the petitioner. None came.
On 7.11.1992 a formal notice was issued to the petitioner recording therein that having availed authorized leave up to 20.6.1992, petitioner was not joining back and that leave not having been regularized thereafter if petitioner did not report at Jabalpur action would be taken against him under Rule 9.13. It was also informed to the petitioner that the stated reasons by him of not reporting back namely threat to his life were unsubstantiated allegations. Reference was made in this notice to the meetings held at Bombay relate to the inquiry conducted at Bombay in respect of the allegations made by the petitioner.
Receiving no positive response from the petitioner, in that, neither that the petitioner report back nor did he submit any medical record pertaining to the sickness of his wife impugned order dated 3.12.1992 was passed.
I note that the memo dated 7.11.1992 has been replied to by the petitioner on 17.11.1992. In his reply he has justified his absence with reference to the alleged incidents at Jabalpur. He did not submit any proof of his wife undergoing surgery.
Learned counsel for the petitioner urges that the principles of natural justice have been violated in that no show cause notice was issued to him before impugned order was passed.
I am afraid, not only was the petitioner repeatedly cautioned that if he did not report back action would be taken against him under Rule 9.13 but before passing the order under challenge, a memorandum dated 7.11.1992 was served upon him. Though not stated as a show cause notice, contents thereof satisfy the requirements of a show cause notice.
In para 18 above, I have briefly noted the contents of the memorandum dated 7.11.1992.
Indeed, petitioner''s response to the memorandum, vide his reply dated 17.11.1992, was false for the reason alleged incidents at Jabalpur were enquired into and as noted hereinabove were found to be false. Ex facie it is a case of an employee not wanting to serve outside his home town.
It has to be noted that the initial response of the petitioner to his unauthorized absence was the stated medical illness of his wife and petitioner informing that his wife had to undergo surgery. I cannot ignore the fact that in spite of repeated letters written to the petitioner and even a telegram sent required him to furnish medical papers pertaining to the sickness or the surgery of his wife, none were ever filed. He remained in a state of unauthorized absence from 20.6.1992 till he was sent back in December 1992.
As noted above, midway, petitioner change track by alleging that he could not report at Jabalpur due to danger to his life. The alleged incidents of goons being sent upon the petitioner by the senior management were found to be false at an inquiry in which the petitioner participated. I note that for benefit of the petitioner the inquiry was conducted at Bombay.
I do not find that rules of natural justice have been violated. I find no infirmity in the action taken against the petitioner in exercise of the power conferred under Rule 9.13.
A last submission be noted.
Counsel urges that the order in appeal is without reasons.
It is settled law that where the appellate authority concurs with the view taken by the disciplinary authority it need not pass a detailed speaking order.
The writ petition is dismissed. No costs.