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Judgment
S. Haque, J.—This is an application under Article 226 of the Constitution of India for quashing the order of dismissal of the Petitioner from service passed by the Deputy Commissioner, Kamrup, Gauhati.
The Petitioner Shri Sonali Hazuri was appointed as Copyist in 1970 and in 1932 he was serving at Barnagar Circle, Sarbhog, On 29.6.1982 the normal work and movement were disrupted on account of the Assam Bundh Call given by the leaders of antiforeigners movement in Assam. It is stated in the petition that the Petitioner made all possible endeavor to attend his office on 29.6.82 but be could not do so on account of physical obstruction, given by some unknown youth when the Petitioner was on his way to attend his office, It is stated that the Petitioner''s absence from duty on 29.6.82 was entirely due to reason beyond his control and was not due to any negligence or willfulness on the part of the Petitioner, The Petitioner was served with a notice dated 30.8.32 (Annexure 1 to the petition) issued by the Sub-divisional Officer, Barpeta to show cause as to why disciplinary action should not be taken against him for his unauthorized absence from duty on 29.6.82. The Petitioner submitted his explanation dated 7.9.82 by Annexure 2 to the petition. Thereafter, the Petitioner was served with a notice No. 364/82 dated 23.9.82 of the disciplinary proceeding issued by the Deputy Commissioner, Kamrup, Gauhati, with the charges which read as follows:
That on 29.6.82 while you were holding the post of Copyist you have remained absent from duty and did not attend the office even though you have been working in a service relating to the affairs of the State as defined in Section 2(1)(b)(xiii) of the Essential Services Maintenance (Assam) tot, 1980, and that by your aforesaid conduct there was retardation of works in the said office.
You are, therefore, charged with resorting to ''strike'' as defined in Section 2(1)(c) of the said Act.
That you have violated the directions given under the Government notification No. ABP 355/81/116 dated 28.6.82 by remaining absent from duty on the days aforesaid.
The copy of the said charge is made Annexure 3 to the petition. The Petitioner submitted written explanation dated 19.10.1982 in respect of the charges as per Annexure A/4 to the petition. As regards the first charge it was stated that he was prevented from attending office on that day on account of the facts and circumstances prevailing in and around Barnagar arising out of the Assam Bundh call given by the leaders of the anti-foreigners movement and the Petitioner was physically prevented by some unknown Youngman from proceeding to his work and that his fear was not unfounded has been established by facts of physical violence resulting even to death of others on that day. Regarding the second charge, it was stated that he was not aware of the notification No. ABP 355/81/116 dated 28.6.1982.
Shri D.N. Biswas, E.A.C., Barpeta, was the Enquiry Officer of the said disciplinary proceeding. The Petitioner was personally heard and his statement was recorded by the Enquiry Officer. On 9.6.83, the Enquiry Officer submitted his report holding that the charges against the Petitioner have been proved. Thereupon, the Disciplinary Authority, namely, the Deputy Commissioner, Kamrup, Gauhati accepted and agreed with the findings of the Enquiry Officer and passed the order dated 29.6.1983 dismissing the Petitioner from service. This had compelled the Petitioner to come with this writ application.
It is submitted by Shri A. Sarma, the learned Counsel for the Petitioner that the Enquiry Officer as well as the Disciplinary Authority failed to appreciate the written explanation and the statement given by the Petitioner to meet the allegations of the charges and the authority was not justified to bold the Petitioner guilty of the charge of resorting to strike as defined in Section 2(1)(C) of the E. S. M. (Assam) Act. It is further submitted by the learned Counsel that the Enquiry Officer did not ascertain from the Sub-deputy Collector, Barnagar, whether there was retardation of work in his office on 29.6.82 due to the absence of the Petitioner and also the facts and circumstances prevailing in and around Barnagar on that day arising out of Assam Bandh although the Petitioner made such request by his statement to the Enquiry Officer. The learned Counsel also submitted that there was nothing to hold that the contents of Government notification No. ABP 355/81/116 dated 28.6.82 reached to the employees of Barnagar circle in lime and the same was also not ascertained from the Sub-deputy Collector of Barnagar Circle in the said Disciplinary Proceeding and so the charge No. 2 was also not substantiated.
The Respondents Nos. 1, 2 and 3 have not filed any counter affidavit to this writ application. Mr. D.P. Chaliha, the learned Government Advocate, fairly submitted that there was no sufficient material on record for a finding that the Petitioner had resorted to stike as defined in Section 2(1)(c) of the E. S. M, (Assam) Act. The learned Government Advocate also has no document nor information to submit that the Government Notification No. ABP 355/81/116 dated 28.6.82 reached in time to the employees of Barnagar Circle.
Admittedly, there was Assam Bandh on 29.6.82 on call given by the leaders of the anti-foreigners movement in Assam and the Petitioner could net attend his duty in Barnagnr Circle Office on that day. He was charged for resorting to strike as defined in Section 2(1)(c) of the E. S. M. (Assam) Act "Strike" has been defined u/s 2(1)(c) of the Act, as follows:
''Strike'' means the cessation of work by a body of , persons employed in any essential service acting in combination or a concerted refusal or a refusal under a common understanding of any number of persons who are or who have been so employed to continue to work or to accept employment, and includes -
i) refusal to work overtime where such work is necessary for the maintenance of any essential service ;
ii) any other conduct which is likely to result in or results in, cessation or substantial retardation of work in any essential service.
When a body of persons employed in any essential service, ceased to work in combination op refused to work in concert or under common understanding, then their act is said to be a strike. It includes a refusal to work overtime and any other conduct which is likely to result in cessation or retardation of work in essential service. It is clear that absence of one employee in any essential service will not amount to resorting to stike as defined in Section 2(1)(o) of the Act.
Admittedly, at the relevant time, the Petitioner was in the service relating to the affairs of the State as defined in Section 2(1)(b)(xiii) of the E. S. M. (Assam) Act, 1980. There was no iota of evidence in the disciplinary proceeding to show that there was cessation of work by more than one employee in combination or refusal to work in concert or under common understanding in that Barnagar Circle Office on 29.6.1982. The Sub-deputy Collector of that Circle was the best person to give correct information in that regard, but neither his report was called for nor his statement was recorded in that proceeding in spite of the request made by the Petitioner before the Enquiry Officer. There was nothing to hold that a strike was resorted to fry a body of employees on 29.6.1982 at the Barnagar Circle Office. The absence of the Petitioner from duty on that day itself cannot be termed as resorting to strike within the meaning of Section 2(1)(c) of the Act, and therefore the Departmental Proceeding that the charge of resorting to strike against the Petitioner was void. Consequently, the finding of the Enquiry Officer that the Petitioner resorted to strike on 29.6.1982 and indorsing the same by the Disciplinary Authority were illegal. The imposition of punishment on the Petitioner by virtue of Section 4 of the E.S.M. (Assam) Act was bad in law.
Neither the Enquiry Officer nor the Disciplinary Authority ascertained if the Government Notification No. ABP 355/81/116 dated 28.6.82, actually reached Barnagar Circle Office on that very day to apprise the employees including the Petitioner about the directions given therein by Government. It is not known what was the content of the said notification. The contents/directions of the said notification wore not specifically mentioned in charge No. 2. The said charge was vague. There was nothing in the record of the Disciplinary Proceeding to show that the Petitioner was aware of the said notification and intentionally violated the directions given therein. The edquiry Officer only examined the Petitioner. His report, Annexure 6, was a very cryptic one. He had not assigned any reason as to how be held the Petitioner guilty of the charges. The Disciplinary Authority also committed the same error. The Petitioner''s statement that be was not aware of the said notification should have been accepted by the authority. Therefore, the finding of the authority that the Petitioner was guilty of the charge No. 2 was also illegal.
We have no hesitation to hold that the impugned order of dismissal was bad in law and liable to be quashed. Accordingly, we allow this application by making the rule absolute. The order of dismissal dated 29.6.1983 is quashed. The Petitioner is re-instated in his service. He should be treated to be in duty all throughout. We mentior no order as to costs.