- (1.) RESPONDENT/writ petitioner was an employee of the appellant. He was a habitual absentee. In 1983 he was absent for 53 days, in 1985 for 30 days, in 1987 for 58 days (in two phases), in 1988 for 92 days and in 1989 for 72 days. Each time he assured the authority that he would not repeat this in future. Such assurance was performed in breach. Even then the authority condoned the absence and granted extraordinary leave of absence. For the unauthorised absence in later part of 1989, the authority issued a chargesheet after being satisfied that such gross indiscipline must be proceeded with. This time he was absent for 240 days during the period November, 1989 to October, 1990. He was proceeded with departmentally. The Enquiry Officer found him guilty. Ultimately the disciplinary authority imposed a punishment of dismissal from service. Before the order of dismissal was passed the delinquent was given adequate opportunity to defend himself in the proceeding. He approached the learned Single Judge against the order of dismissal. The learned Single Judge allowed the writ petition by quashing the order of dismissal coupled with a direction to reinstate him in service along with all back wages. Hence this appeal by the appellant.
(2.) ALTHOUGH several grounds were taken before His Lordship, His Lordship set aside the order of dismissal mainly on the ground of absence of provision for appeal. His Lordship held that since the appellate authority acted as a disciplinary authority the delinquent lost the opportunity to prefer appeal. Hence, on that ground alone the order of dismissal could not be sustained. Another issue highlighted by the learned Judge was non-furnishing copy of the enquiry report at the appropriate stage. The copy of the enquiry report had been furnished admittedly before the final order of dismissal was passed. His lordship was, however, of the opinion that since the copy of the enquiry report was sent while proposing the punishment the disciplinary authority not only formed a tentative decision in respect of the finding of charge but also proposed a punishment which depicted its firm conclusion on the finding of the charges. These two issues really prompted the learned Judge to quash the order of the disciplinary authority as we find on a plain reading of the judgment. CONTENTION OF THE APPELLANT:
(3.) MR. Kalyan Bandopadhyay, learned Counsel appearing for the appellant contended that although several grounds were urged before His Lordship since his Lordship's judgment was based upon the above two issues he wanted to restrict his argument on the same. On the issue of enquiry report Mr. Bandopadhyay cited the three Apex Court decisions reported in 1993 (4) SCC page 727 (Managing Director, ECIL, Hyderabad and Ors. vs. B. Karunakar and ors.); 2006 (4) SCC page 348 (A Sudhakar vs. Postmaster General, Hyderabad and Anr.); 2006 (8) SCC page 776 (P. D. Agarwal vs. State Bank of India and Ors. ).;