(1.) The sole writ petitioner died on 1.9.2010, therefore, his Legal Representatives are impleaded as petitioners 2 to 6 in the writ petition. The first petitioner/deceased employee was given a charge memo on 1.4.2008. The main charge being misconduct under sub-clause (xiiv) of Neyveli Lignite Corporation (NLC) Standing Order No. 46. There are six other charges also. He sent a reply on 22.11.2008. The disciplinary authority found that his explanation was not satisfactory, hence, an Enquiry Officer was appointed. In the enquiry conducted before the Enquiry Officer, the first petitioner participated, though, he was not given an assistance of a lawyer, he himself has conducted the case, ultimately, the findings were given by the authority on 12.3.2009 holding the first petitioner guilty of all the charges. Therefore, a copy of the Enquiry Report together with the findings were furnished to the first petitioner and he was asked to submit his objections. Accordingly, he submitted his objections on 14.4.2009. Thereafter, the respondent issued a show cause notice dated 9.9.2009 stating that a provisional conclusion has been arrived at to inflict the punishment of dismissal from service without notice or pay/wages in lieu of notice. According to the petitioners, under Clause 47(h) of the Certified Standing Order or the Company, the disciplinary authority has to give an opportunity to the employee to make a representation on the proposed punishment. According to the petitioners, as there was violation of principles of natural justice in not granting the assistance of a lawyer, the deceased writ petitioner earlier filed a writ petition in W.P. No. 19945 of 2009, challenging the show cause notice dated 9.9.2009. This writ petition was dismissed on 11.11.2009. Thereafter, the first petitioner was directed to submit his reply regarding the provisional show cause notice and time was granted till 5.12.2009, subsequently at the request of the first petitioner, the time was extended till 23.12.2009. In the meanwhile, the first petitioner filed a writ appeal in W.A. No. 1852 of 2009 and obtained stay on 17.5.2009. The writ appeal was dismissed for non-prosecution on 12.7.2010. Even though, the first petitioner filed a restoration petition, after the dismissal of the writ appeal on 12.7.2010, by the impugned order dated 16.7.2010, the deceased employee was dismissed from service. According to the petitioners, the respondent has deliberately failed to give the first petitioner an opportunity to make a representation regarding the proposed punishment as contemplated under Clause 47(h) of the Certified Standing Order. The petitioners only grievance is that after the dismissal of the writ appeal also, the respondent should have issued a notice calling for explanation, but, without issuing such notice, the impugned order has been passed, which is non est in the eye of law, illegal and against the principles of natural justice, hence, the present writ petition. The respondent has filed a detailed counter, Mr. N.A.K. Sarma, learned counsel for the respondent would firstly contend that the employee A. Lawrence died on 1.9.2010, after the dismissal order dated 16.7.2010, therefore, the writ petition is not maintainable by the Legal Representatives. The prayer of reinstatement cannot be granted therefore, the writ petition is not maintainable. The first petitioner/deceased employee has not exhausted the remedy of appeal as against the dismissal order, therefore also, the writ petition is not maintainable. The first petitioner ought to have approached the Labour Court as against the dismissal order, but, he has not done so, therefore also, the writ petition is liable to be dismissed at the threshold.
(2.) The learned counsel for the respondent would further contend that for the charge memo given to the first petitioner on 1.4.2008, he has given an explanation and the Enquiry Officer conducted a detailed enquiry and after giving all opportunities, the first petitioner was found guilty in the enquiry proceedings. Then the provisional show cause notice dated 9.9.2009 was issued to him and even though, he was originally given ten days time to submit his explanation, but, at his request, the time was extended upto 5.10.2009, but, he did not chose to give the reply, on the contrary, he filed a writ petition in W.P. No. 19945 of 2009. After the dismissal of the writ petition on 11.11.2009, time was given to submit his explanation till 5.12.2009, but, at his request, the time was extended further upto 15.12.2009. Then also, the first petitioner did not submit his reply, but, he chose to file a Writ Appeal in W.A. No. 1852 of 2009, which was dismissed for default on 12.7.2010. Even thereafter, he did not reply to the show cause notice dated 9.9.2009, therefore, there is no need or necessity to give any further notice as the writ petition itself has been filed only challenging the show cause notice and when that has culminated in the final judgment in writ appeal, there need not be any further notice. In any view of the matter, after four days of the judgment in W.A. No. 1852 of 2009, dated 12.7.2010, the authority passed the final order of dismissal from service on 16.7.2010.
(3.) According to the respondent, as per the Supreme Court decision in D. G. Railway Protection Force and Others v. K. Raghuram Babu, 2008 4 SCC 406 : there is no vested or absolute right in any charge-sheeted employee to make a representation either through a counsel or through any other person, unless, the statute or rules/standing orders provide for such a right.