Smt. Toufiq Rizwan vs Madhya Pradesh State Electricity Board and 3 Others

Alok Aradhe, J.—In this writ petition under Article 226 of the Constitution of India, the petitioner has assailed the validity of order dated 25.11.2003, by which the penalty of dismissal was imposed on husband of the petitioner as well as the order dated 12.3.2008, by which the claim of the petitioner for appointment on compassionate ground has been rejected. Facts leading to filing of the writ petition briefly stated are that husband of the petitioner was appointed on the post of Leading Fireman on 25.8.1987 on probation for a period of two years. The services of the husband of the petitioner were regularised on the aforesaid post on 19.9.1989. The husband of the petitioner had rendered 14 years and 26 days continuous satisfactory service, which is evident from the certificate (Annex.P/4) issued by the Fire Officer of erstwhile MPEB, Darri, Korba.

The petitioner, who was pregnant and was a Gas victim, suddenly fell ill. There was nobody to look after the petitioner, who was ailing. The husband of the petitioner thereupon proceeded on leave on 1.9.2000 for treatment of his ailing wife. The husband of the petitioner thereafter submitted applications on 2.11.2001, 27.12.2001 as well as on 19.1.2002, by which he sought sanction of leave of three weeks each so as to enable him to take care of ailing wife. However, a show-cause notice dated 13.3.2002 was issued to husband of the petitioner, asking him to resume the duties within a period of seven days failing which, the husband of the petitioner was informed that disciplinary proceeding would be initiated against him. Thereafter, it appears that the disciplinary proceedings was initiated against the husband of the petitioner which proceeded ex-parte and eventually, by an order dated 25.11.2003, penalty of dismissal of services was imposed on husband of the petitioner. The husband of the petitioner expired on 26.6.2007. Thereafter, the petitioner submitted an application seeking appointment on compassionate basis. Thereupon her claim for appointment was rejected vide order dated 12.3.2008 on the ground that she is not eligible for appointment on compassionate ground, as penalty of dismissal of service was imposed on her husband. The petitioner on receipt of aforesaid order learnt that penalty of dismissal was imposed on her husband. In the aforesaid factual background, the petitioner has approached this Court.

Learned counsel for the petitioner submitted that husband of the petitioner had rendered satisfactory service for a period of 14 years and 26 days and the husband of the petitioner proceeded on leave due to circumstances beyond his control. The husband of the petitioner had submitted applications from time to time by which the respondents were apprised with regard to reason of his absence. It is further submitted that the service record of husband of the petitioner is clean and unblemished and he was not habitual absentee. It is also submitted that during the period when the husband of the petitioner was on leave, he was transferred vide order dated 28.4.2001 and was asked to join at the transferred place. It is further submitted that imposition of penalty of dismissal in the facts of the case is shockingly disproportionate. In support of his submissions, learned counsel for the petitioner has placed reliance on the decision in cases of M.P. State Electricity Board and Another Vs. S.K. Yadav, and Chairman cum Managing Director, Coal India Limited and Another Vs. Mukul Kumar Choudhuri and Others, .

On the other hand, learned counsel for the respondents submitted that husband of the petitioner by communication dated 13.3.2002 was informed that there is no leave in his leave account and he should immediately resume the duties. However, despite intimation, husband of the petitioner remained absent for a period of approximately two years. The petitioner was relieved on 29.5.2001 from Sarni for joining at Chachai. However, he did not join at the place where he was transferred. The petitioner could as well be treated for her illness where her husband was posted and the husband of the petitioner was under obligation to carry out order of transfer. It is further submitted that unauthorised absence is a major misconduct under the standing orders. Therefore, the punishment imposed upon the husband of the petitioner by no stretch of imagination can be said to be shockingly disproportionate. In support of his submission, learned counsel for the respondents has placed reliance on the decisions of Supreme Court in the case of S.C. Saxena Vs. Union of India and Others, (2006) 9 SCC 583, State of Uttar Pradesh and Others Vs. Maharaja Dharmander Prasad Singh and Others, and U.P. State Road Transport Corporation Vs. Subhash Chandra Sharma and Others, .

I have considered the submissions made by learned counsel for the parties. The Supreme Court in the case of Chairman-cum-Managing Director, Coal India Limited (supra) has held that in case an employee remains absent purely for personal reason and for the reasons beyond his control, the order of removal cannot be said to be said to justified, since no reasonable employer would impose extreme punishment of removal. In Chandra Kumar Chopra Vs. Union of India (UOI) and Others, , the Supreme Court has held that judicial intervention is required where quantum of punishment is out of proportion to the default.

Admittedly, upto 1.9.2000 the service record of husband of the petitioner was clean and unblemished. The husband of the petitioner proceeded on leave for treatment of the petitioner, who at the relevant time was pregnant and was a Gas victim. There was nobody to look after her except her husband. The husband of the petitioner from time to time had submitted applications for sanction of leave i.e. on 2.11.2001, 27.12.2001 and 19.2.2002. The husband of the petitioner submitted representations to post him to a place situate near Bhopal, so that treatment could be given to his wife. Taking into account the peculiar facts of the case that the husband of the petitioner was absent due to circumstances beyond his control, to attend the petitioner who was pregnant and was a Gas victim, the penalty of dismissal in the considered opinion of this Court cannot be said to be commensurate to misconduct. No reasonable employer would have imposed punishment of dismissal of service, in the peculiar facts of the case. For the aforesaid reasons, orders dated 25.11.2003 and 12.3.2008 are hereby quashed. The matter is remanded to the disciplinary authority to decide the question of quantum of penalty afresh in the light of facts narrated supra and thereafter the competent authority shall decide the claim of the petitioner for appointment on compassionate basis, in accordance with law by a reasoned order.

Accordingly, the writ petition is disposed of.