- (1.) In the aforesaid writ application, the petitioner has inter alia prayed for issuance of a writ in the nature of mandamus commanding upon the respondents particularly respondent nos.5 and 6 to send to this Court all records appertaining to termination of service issued vide annexure-5 and for quashing and setting aside the letter of termination issued vide Ref. No.ECL/GM/MA/09/1468 dated 12/13.05.2009 (Annexure-6) and for reinstatement on the post of 'Underground Loader' with payment of back wages.
(2.) The factual matrix as delineated in the writ application in a nutshell is that due to untimely death of the father of the petitioner in harness, the petitioner was appointed on compassionate basis as an 'Underground Loader' in the year 1995. The petitioner continued to discharge his duty diligently without any blemishes till first half of January, 2004 but due to Acute Bronchitis and Pneumonia the petitioner remained absent from duties without any sanctioned leave. A departmental proceeding was initiated against him on 02.11.2007 and the petitioner appeared in the said proceeding. During inquiry, the petitioner has apprised the Inquiry Officer relating to his illness which forced him to remain absent from duties with effect from 27.01.2004. The petitioner also pleaded before the Inquiry Officer that his absence has not caused any pecuniary loss to the company since he was an 'Underground Loader' on piece rated basis, meaning thereby that wages were paid to him only on the basis of coal he would dig/cut and there was no salary for any time rated benefit extended to the petitioner. The enquiry report was submitted and second show cause notice was issued to the petitioner on 04.12.2008, vide Annexure-2 to the writ application and in pursuance to the said show cause the petitioner filed his reply on 18.09.2007 and subsequently on 10.10.2007, vide annexures-3 and 4 to the writ petition. But, without considering the said replies in a right prospective the respondent no.5 has terminated the petitioner from services with immediate effect, vide annexure-6 to the writ petition. 2. Being aggrieved by the said termination order the petitioner left with no alternative of any efficacious remedy, has approached this Court invoking extraordinary jurisdiction under Article 226 of the Constitution of India for redressal of his grievance.
(3.) Per contra, a counter affidavit has been filed on behalf of respondent no.5 repelling the averments made in the writ application. In the counter affidavit, it has been inter alia stated that the petitioner was a regular absentee from duty and was not performing his duty properly. The details of the attendance of the proceeding of last three years is as follows: (i) 2001 -Petitioner has worked 110 days (ii) 2002 -Petitioner has worked 43 days (iii) 2003 -Petitioner has worked 67 days On previous occasions, the petitioner was warned but he continued with his habit and never tried to mend himself. But, on the present occasion the petitioner absented from his duty without any information and without taking leave/permission from the competent authority since 27.01.2004, which is a misconduct. Leave without permission is a misconduct under Clause 26.29 of the Certified Standing Order applicable to the petitioner and his service condition. Accordingly, a charge sheet was issued to the petitioner on 18.05.2006, vide annexure-A to the counter affidavit and in pursuance to the said charge sheet, an Inquiry Officer was appointed as per Annexure-B to the counter affidavit and the petitioner was requested to participate in the departmental enquiry proceeding, vide Inquiry Notice dated 05.06.2007 and its reminder vide Inquiry Notice dated 09.07.2007 as per annexures -C and D to the counter affidavit. On conclusion of the enquiry, the petitioner was issued with the show cause and the reply submitted by the petitioner was found unsatisfactory. In the enquiry, the charge against the petitioner was proved beyond any doubt and a copy of the enquiry report is annexed as Annexure-G to the counter affidavit. It would not be out of place to mention that the petitioner admitted his guilt and fervently pleaded not repeat same as per his written undertaking dated 24.10.2008, vide annexure-H and I to the counter affidavit. Thereafter, the petitioner was issued second show cause notice dated 12.02.2008 and to which the petitioner replied on 23.02.2008, vide annexures-J and K to the counter affidavit. After due consideration of the enquiry report and reply to the second show cause notice, the letter of termination of the petitioner dated 12/13.05.2009 has been passed by General Manager of Mugma Area of ECL, vide annexure-L to the counter affidavit. Against the order of termination, the petitioner has not filed any departmental appeal nor he has raised any Industrial Dispute and on account of alternate remedy the prayer has been made for rejection of the writ petition.;