NARENDRA NATH TIWARI, J. - (1.) THE original Petitioner (since dead) prayed for quashing order dated 5.10.1999, contained in Annexure -18 of the writ petition, whereby he had been awarded punishment of dismissal from And Ors. service.
(2.) THE short fact of the case is that the said Petitioner was appointed as a Sought Firer on 7.10.1966. Since the date of appointment he was sincerely discharging his duty. In the year 1979 he had passed Mining Sirdar examination. The Petitioner had developed heart disease in the year 1990. He was examined at Indira Gandhi Institute of Cardiology on 18.7.1990. Again in 1996 he suffered heart pain. Due to his sickness he had to go on medical leave on 20.1.1996 and remained on leave for about four months till 3.5.1996. The Petitioner was treated by the company doctor. The Respondents had also sanctioned Rs. 5,000/ - for medical treatment. However, the said amount was not paid to the Petitioner. The Petitioner, thereafter, was under treatment in All India Institute of Medical Sciences from 9.7.1996 to 10.9.1996. In the meanwhile, in the general transfer, the Petitioner was transferred to Bhalgora Colliery. The Petitioner filed representation against his transfer order and requested to stay the order on medical ground. In stead of entertaining the said representation, the Respondents asked him to join in Bhalgora Colliery. When the Petitioner went to join, he was not allowed to join as he was not found fit for the duty. In the meanwhile, the Respondents modified and stayed the order of transfer of 79 employees. However, the Petitioner 'srepresentation was not considered and his transfer order was not stayed. The Petitioner could not join his duty due to his sickness and treatment to the notice and knowledge of the Respondents. In stead of showing sympathy, the Respondents issued a memorandum of charge imputing the charges of disobedience and misconduct against the Petitioner, vide charge -sheet dated 20.3.1999. The Petitioner filed his reply denying the charges and explaining the circumstance under which he could not join on his transferred post. But his explanation was not accepted and departmental proceeding was initiated. The Petitioner appeared and adduced cogent evidence in support of his written explanation. There was no contrary evidence and material on record to substantiate the charges. But without considering the evidence and materials on record, the Enquiry Officer held him guilty of the alleged charges. On the basis of the said enquiry report the disciplinary authority awarded punishment of dismissal against the Petitioner. It has been submitted by the Petitioner that the impugned order is arbitrary, illegal and unjust. The Petitioner was not a habitual absentee and a single absence howsoever long does not come within the definition of misconduct under the certified standing order of the company. The impugned order has been passed without applying mind properly and without giving sufficient opportunity to the Petitioner. It has been lastly submitted that for over -staying medical leave for the first time in his long service career punishment of dismissal is severely disproportionate and unconscionable.
(3.) MR . A.K. Mehta, Learned Counsel appearing on behalf of the Respondents, on the other hand, supported the impugned order of punishment and opposed the Petitioner 'sprayer. Learned Counsel even took preliminary objection of maintainability of the writ petition in view of the availability of alternative remedy to prefer appeal or raise industrial dispute against the impugned order. He further submitted that the Petitioner was sick in the year 1996 for which medical treatment was provided to him in the hospital of the company. Thereafter, the Petitioner was not found unfit for discharging his duty. He was also given a lighter duty in the magazine section. The Petitioner has not only over -stayed leave, he had also disobeyed the order of transfer. The Petitioner was habitual discipline breaker. Domestic enquiry was properly held after serving charge sheet against the Petitioner and the enquiry officer, on due consideration of materials and evidence on record, found the Petitioner guilty of the charges. On the basis of enquiry report the disciplinary authority has awarded punishment of dismissal.;