Aarti Sathe, J.
1. This Petition under Article 226 of the Constitution of India is filed by the Petitioner challenging the departmental inquiry held against her pursuant to the Memo of Charges dated 29th March 2017, the order dated 10th January 2018 passed by the Regional Manager and Appointing Authority of Respondent No.1-National Insurance Company Limited, order dated 11th April 2018 passed by Respondent No.2-Deputy General Manager/Appellate Authority and the final order dated 6th February 2019 passed by Respondent No.3-Chairman-cum-Managing Director imposing penalty and removal from service with immediate effect from the service of Respondent No. 1 (hereinafter collectively referred to as “the impugned orders”). The prayers as made by the Petitioner in the present Petition read thus:-
“(a) This Hon'ble Court may be pleased to issue a Writ of mandamus or any other order, writ or direction calling for the records and proceeding of the Departmental Inquiry held against the Petitioner pursuant to the Charge Memo dated 29.03.2017, issued to her and be please to quashed and set aside Order dated 10.01.2018 (Exh. K) passed by Regional Manager and Appointing Authority of Respondent No.1 thereby imposing penalty of removal of service with immediate effect and further quashed and set aside the Order dated 11.04.2018 (Exh.M) passed by the Respondent No.2 rejecting Appeal filed by the Applicant and further quashed and set aside Order dated 06.02.2019 (Exh. O) passed by the Respondent No.3 rejecting the Memorial of the Petitioner.
(b) That this Hon'ble be pleased to direct Respondents to allow Petitioner to resume her duty alongwith all the back wages / Salary and all the monetary benefit during the period of her absenteeism and during the period of Departmental Inquiry conducted against her.
(c) That this Hon'ble Court may please to direct Respondent to release in favour of Petitioner all her arrears of pay revision due from the year 2013 till date.
(d) Pending and hearing final disposal of the present Petition this Hon'ble Court be pleased to stay the effect and implementation of the Order dated 10.01.2018 passed by the Appointing Authority imposing penalty of 'removal of service' and to allow petitioner to resume on duty.”
2. Briefly the facts are as under:-
i. The Petitioner joined the services of Respondent No. 1 as an Assistant on 3rd April 1995, at its Divisional Office No. 14 situated at Fort, Mumbai. The Respondent No.1 is an Insurance Company incorporated under the General Insurance Business (Nationalization) Act, 1972 and is a State within the meaning of Article 12 of the Constitution of India, thereby making it amenable for an appropriate writ to be issued by this court in exercise of its jurisdiction under Article 226 of the Constitution of India.
ii. It is the petitioner’s contention that between 2008 to 2010, she started suffering from Polymenorrhagia cum huge post wall fibroid, and was operated upon for the aforesaid illness.
iii. The Petitioner was promoted as Senior Assistant in September 2013. It is the Petitioner’s contention that she rendered services to the best of her ability during the said period and there was no complaint in respect of her employment. The Petitioner has further contended that in her service, she was transferred from one Divisional Office to another and throughout her service, she had an excellent track record insofar as her employment is concerned, in spite of these frequent transfers. The Petitioner was working in the Lower Parel Branch of Respondent No.1 as Senior Assistant, DAB X (2) under Divisional Office-X having branch office address at A/501, Prathamesh Tower, Raghuvanshi Mill Compound, Lower Parel (W), Mumbai 400013.
iv. The Petitioner contends that sometime in the year 2014, due to frequent illness and hospitalization of family members, including the father-in-law of the Petitioner, the Petitioner was unable to attend the office regularly and was required to stay home to take care of the health of her family and herself.
v. The Petitioner contends that by a fax message dated 29th January 2014 she informed her superiors that she was unwell and could not report on duty. However, the said message was silent on the duration of her absenteeism. In response to the aforesaid fax message dated 29th January 2014 received, the Senior Divisional Manager of Respondent No.1, on 31st January 2014, informed the Petitioner that after going through the office records, it was observed that she had not attended the office on 26th and 27th December 2013 and continued to remain absent without any intimation to the office. It was further informed to the Petitioner that she did not have any leave to her credit and the said leave was treated as loss of pay. She was further requested to report to office immediately on receipt of the aforesaid letter or furnish a proper ground for her absence from duty, failing which disciplinary action, would be initiated against her as per the provisions of the General Insurance (Conduct, Discipline, Appeal) Rules, 1975.
vi. The Petitioner was issued letters on 10th February 2014, 13th August 2014, and 12th September 2014, once again requesting her to report to office immediately on receipt of the aforesaid letters, as it was observed that she had attended office from 27th March 2014 to 21st April 2014, but continued to remain absent from 22nd April 2014.
vii. On account of the Petitioner’s absence from duty and not responding to the letters asking her to resume duties, Respondent No. 1 issued a show-cause notice dated 13th July 2015 asking her to show-cause as to why disciplinary action under the National Insurance (CDA) Rules, 2014 (for short “CDA Rules 2014”) should not be initiated against her and she was asked to furnish her reply within 15 days from the date of receipt of the said show-cause notice.
viii. It is the Petitioner’s contention that on 4th August 2015, 3rd September 2015, and 14th October 2015 she had informed Respondent No. 1 about her ill-health and further from 30th June 2015 till 19th July 2015 the Petitioner had attended to her duties. However, there are no letters to that effect annexed by the Petitioner in the Petition as also in her affidavits.
ix. It is the Petitioner’s case that in May 2016, the Petitioner’s health deteriorated considerably and on account of her ill health, she was unable to attend the office completely and it is her contention that she had kept her seniors informed about her absence and also produced her medical certificates to that effect.
x. On such backdrop, it is the Petitioner’s contention that she is entitled for the arrears of her pay revision for the period when she was absent till 2016, however the said revised amount have not been paid to the Petitioner till date due to her irregularity in attending the office.
xi. The Petitioner contends that she was suffering from Polymenorrhagia cum huge post wall fibroid since June 2008 and even was operated for the aforesaid ailment. On account of this operation, the Petitioner had to go for regular check-ups and was on heavy antibiotics which caused a lot of weakness to the Petitioner and hence she was unable to attend the office. The Petitioner also submits that thereafter she started suffering from fissures and piles which resulted in heavy blood loss and she became anaemic and further underwent a medical procedure for the same. It is in these difficult medical circumstances that the Petitioner was unable to attend the office and hence remained absent from the services.
xii. It is the Petitioner’s contention that on 14th January 2016 the Petitioner addressed a letter of even date to the Branch Manager of Respondent No. 1 inter-alia explaining her absence from duty from 1st November 2014 to 29th June 2015 due to Fissure in Ano C bleeding and thereafter she joined duty on 30th June 2016. The Petitioner has annexed the said letter as part of her additional affidavit dated 25th March 2025. It is further the Petitioner’s contention that from 18th April 2016 to 29th April 2016 she had attended Dadar D.O.X, Mumbai Office for accounts finalization for the years 2015-16. Respondent No. 1 released arrears of pay revision for period of 2013, however, arrears of pay revision amounting to Rs. 70,000/- (approx.) were not released to the Petitioner on the ground of irregularity in attending office duty.
xiii. On 10th July 2016 the Branch Manager of Respondent No. 1 addressed an email of even date to the Petitioner to produce medical papers and doctor’s certificate to substantiate her claim of ill-health and her long absenteeism from work. The said email is annexed as Exhibit R1 to the affidavit in sur-rejoinder dated 12th August 2021 filed by the Respondents.
xiv. On 5th October 2016, the Petitioner addressed a letter to the Branch Manager, Lower Parel Branch of Respondent No. 1 and tendered her apology for her absence from duty without intimation. In the said letter, the Petitioner categorically informed that she had remained absent from duty without intimation on account of her ill-health and she conveyed her deepest regrets for the same. She also requested the Branch Manager, Lower Parel Branch of Respondent No. 1 to consider her case sympathetically and condone her absence from the duty.
xv. On 29th March 2017, the Petitioner was issued a Charge Memo under Rule 25 of the CDA Rules 2014 by the Senior Divisional Manager and Disciplinary Authority of Respondent No. 1. The Charge Memo which was issued to the Petitioner on 29th March 2017, set out the charges against the Petitioner and the primary charge was that the Petitioner had remained absent from her duty from 22nd April 2014 without having obtained permission of the competent authority and further she was on loss of pay for 993 days as on date of the Charge Memo i.e. 29th March 2017. Another charge made out in the said Charge Memo was that of willful insubordination or disobedience by the Petitioner by absenting herself from duty without taking proper leave from her office superiors. The Charge Memo therefore alleged that the Petitioner had contravened Rules 18 (1 and 2) of the CDA Rules, 2014 as amended up to date and thus committed misconduct under Rule 4 (7 and 8) of the CDA Rules, 2014 as amended as on date. The relevant annexures to the Charge Memo were also annexed, along with the names of witnesses, namely, the Branch Manager one Ms. Khushboo T. Singh and Mr. Sanjay Patkar. Further, by way of the aforesaid Charge Memo, the Petitioner was directed to submit a written statement in her defence within 15 days of the receipt of the Charge Memo. It was also informed that an inquiry would be conducted in respect of the charges not admitted by the Petitioner and therefore she should specifically admit or deny each article of charge. It was also informed that if the Petitioner did not submit her written statement of defence on or before the date specified or otherwise failed or refused to comply with the provisions of Rules and/or direction issued in pursuance to the CDA Rules, the Authority may conduct an inquiry against her ex-parte. The Petitioner was also barred from making any attempt to bring any political or outside influence to bear upon any superior authority to further her interest in respect of the matters pertaining to her service with Respondent No. 1. It was also made clear in the aforesaid Charge Memo that if any representation is received on behalf of the Petitioner from another person in respect of the matter dealt within these proceedings, it will be presumed that the Petitioner is aware of such representation and that it has been made at her instance and action will be taken against her for violation of the said Rule.
xvi. The disciplinary proceedings against the Petitioner commenced sometime in July 2017 which were held between 13th July 2017 to 25th July 2017 whereat, on the Petitioner’s own admission it was evident that, she could not attend the inquiry proceedings on account of her daughter’s ill-health and further she did not make any written representation from March 2017 to July 2017 defending the charges as made out against her by the Charge Memo dated 29th March 2017. The Petitioner annexed a copy of the medical certificate issued by the doctor to substantiate her claim that her daughter was suffering from Dengue fever from 13th July 2017 to 28th July 2017, but the same was submitted much after the issuance of the penalty order dated 10th January 2018.
xvii. On account of the Petitioner’s failure to participate in the inquiry proceedings, the presenting officer closed the inquiry proceedings on 27th July, 2017 against the Petitioner. The Presenting officer submitted her report to the Inquiry Officer and Deputy Manager on 24th August 2017 and further on 21st September 2017 the Inquiry report was submitted to the Disciplinary Authority. On 22nd September 2017, the Inquiry Officer forwarded a copy of the report to the Petitioner inviting her comments on the same on or before 19th October 2017 and informing her that in the event of the failure of the Petitioner to comment upon the same, appropriate disciplinary proceedings would be proceeded against the Petitioner. In response to the aforesaid inquiry report dated 22nd September 2017, the Petitioner replied by a letter dated 9th October 2017 addressed to the Deputy Manager of Respondent No. 1 categorically apologizing for her absence from her duty purportedly from 17th May 2017. In the said letter, the Petitioner once again gave a detailed description of her ill-health and asked the Deputy Manager to consider her case sympathetically. The Petitioner contends that on the same date, she also sent an email to the Branch Manager and to the Inquiry Officer requesting him to allow her to attend the office and followed up the aforesaid email by way of a telephonic communication, as she was not suspended from the duty during the said period.
xviii. The Petitioner once again on 29th December 2017, addressed a letter of even date to the Branch Manager of Respondent No. 1 requesting them to consider her case sympathetically and allow her to join duty regularly. It is the Petitioner’s contention that she did not receive any reply to the aforesaid letters written by her from time to time. Thereafter, on 10th January 2018, an order was passed by the Appointing Authority holding that the Petitioner had contravened the Rules and had committed misconduct, thereby rendering the Petitioner liable to penalty of “removal from service which shall not be a disqualification for a future employment” with immediate effect. The order also categorically provided that if the Petitioner was aggrieved by the aforesaid order, she had right to prefer an Appeal in terms of Rule 31-34 of the CDA Rules within a period of three months from the date of the said order.
xix. Being aggrieved by the order dated 10th January 2018 passed by the Appointing Authority, (removing the Petitioner from the services) the Petitioner preferred an Appeal to the Competent Authority. In her submissions, the Petitioner requested the Management and the Seniors to consider her case sympathetically and to cancel the imposition of the penalty of “removal of service”. In the said Appeal, the Petitioner also assured the Management that she shall henceforth be regular in attending the office and shall never give any opportunity to anybody to complain about her. The Appellate Authority by order dated 11th April 2018, rejected the Appeal filed by the Petitioner and upheld the order dated 10th January 2018 primarily on the ground that the Appointing Authority, who had passed the order dated 10th January 2018 had appreciated all the evidences and records and also had dispassionately come to a view that the Petitioner was guilty of misconduct, especially in view of the fact that she had remained absent from her duty without intimation and also that she had not participated in the inquiry proceedings to substantiate her defence. The Appellate Authority therefore rejected the Appeal filed by the Petitioner and upheld the decision of the Appointing Authority dated 10th January 2018.
xx. Being aggrieved by the order passed by the Appellate Authority, the Petitioner preferred a memorial against the said order in terms of Rule 40 of the CDA Rules and once again reiterated her plea regarding ill-health of her family and herself, which forced her to remain away from the duty and once again requested the Authority to consider her case sympathetically.
xxi. The Petitioner also contended that the entire inquiry proceedings including the appeal order was passed against her in violation of principles of natural justice and she was not given a fair opportunity to present her case, and the aforesaid orders were passed without following the due process of law as envisaged under the CDA Rules. The Petitioner therefore requested that she be taken back into service and her memorial may be considered and justice be given to her.
xxii. On 6th February 2019 Respondent No. 3-Chairman-cum-Managing Director passed an order upholding the Appointing Authority’s order dated 10th January 2018 and the order dated 11th April 2018 passed by the Appellate Authority on the ground that the Petitioner’s case was a fit case to impose the penalty as conferred by the order in question. Respondent No. 3-Chairman-cum-Managing Director also held that the order dated 10th January 2018, and 11th April 2018 were passed after following due process of law and it was the Petitioner who had not remained present or co-operated during the inquiry proceedings. It was also held that the Petitioner had neither attended the subsequent hearings nor had she submitted the documents describing the cause of her not attending the departmental inquiry. It was also held that the medical certificate showing her daughter’s illness was submitted later on much after issuance of the penalty order dated 10th January 2018. Respondent No. 3-Chairman-cum-Managing Director by order dated 6th February 2019 on the memorial application of the Petitioner, rejected the Petitioner’s contention.
xxiii. The Petitioner being aggrieved by the impugned orders, has preferred the present Petition. In the backdrop of the aforesaid facts, the issue which has fallen for consideration before this Court is whether the impugned orders have been passed following the due process of law and not in violation of the principles of natural justice in imposing penalty and removing the Petitioner from the services of Respondent No.1-Company.
3. We have heard learned Counsel for the parties. We have perused the record and the impugned orders and also the affidavits filed on behalf of the parties.
4. Learned Counsel for the Petitioner Mr. Shetty, primarily contended that the impugned orders have been passed without considering the facts of the case and the circumstances under which the Petitioner was unable to attend her duties. Learned Counsel for the Petitioner Mr. Shetty has primarily contended as follows:-
i. The Petitioner had from time to time informed the Respondents that she could not attend office duty from 3rd November 2014 to 29th January 2015 due to her family problems and health issues and also asked the Respondents to consider her request on a humanitarian ground. It was also submitted that the Petitioner was suffering from fissures and piles and was severely anaemic and hence was unable to report for duties and the same was substantiated by requisite medical certificates. It is submitted that if the Respondent No. 1 had any doubts about serious illness of the Petitioner, they could have sent her for medical examination to their empanelled doctor or to any Government hospital to test the veracity of the claims of the Petitioner at any point of time.
ii. The Petitioner had a long and unblemished service of 22 years and as a special case, she should have been taken back into service by Respondent No. 1.
iii. The inquiry proceedings were not conducted as per the CDA Rules, and no show-cause notice was issued to the Petitioner. Even the charge memo has been issued without appropriate details or particulars. Although the Petitioner had chosen not to participate in the proceedings and not filed written statement, the same should not be construed as an admission of her charges as made out in the Charge Memo. That no fair hearing was given to the Petitioner and all the impugned orders have been passed in a mechanical manner without any application of mind.
iv. The impugned orders hence are liable to be set aside and that the Petitioner at all times explained her absence from the duty and the inquiry proceedings were conducted in undue haste and in violation of principles of natural justice, without giving adequate opportunity to the Petitioner to defend her case. Learned Counsel on behalf of the Petitioner has therefore submitted that the Petitioner is still willing and ready to join the services of Respondent No. 1 as she is in a better health condition today and willing to join the duties immediately.
5. In response to the aforesaid submissions as made on behalf of the Petitioner, the learned Counsel for the Respondents Mr. Amol Gatne submitted that the impugned orders have been passed on a proper appreciation of the facts and the evidence and there have been no lapses on the part of the Respondents in passing the impugned orders. He has vehemently contended that the termination of the Petitioner has been affected after following the due process of law as laid down by the CDA Rules and there has been no violation of the principles of natural justice as alleged by the Petitioner. He has contended that in fact before issuing the Charge Memo dated 29th March 2017, letters and reminders dated 10th February 2014, 13th August 2014 and 12th September 2014 were issued to the Petitioner asking her to resume duties, failing which disciplinary action would be initiated against her. However, the Petitioner did not resume duty nor informed the Respondents as to why she chose to remain absent from service for such a long period of time. It was further contended that the Petitioner herself chose not to respond to the Charge Memo dated 29th March 2017 and did not participate/co-operate in the inquiry proceedings. He reiterated the submissions as made in the affidavits dated 17th January 2020, 12th August 2021 and 9th January 2023 filed by one Mr. Dayanand Pawar, Deputy Manager of Respondent No. 1, on behalf of the Respondents
6. Learned Counsel for the Respondents also sought to place reliance on the CDA Rules and specifically on the definition of misconduct as envisaged in Rule 4 (7, 8 and 9) of the CDA Rules, which categorically envisage that absenteeism without sanctioned leave for more than four consecutive days, habitual late or irregular attendance, neglect of work or negligence in the performance of duty including malingering or slowing down of work would attract penal action under the CDA Rules. He also sought to place reliance on the documents annexed to the affidavit in reply dated 17th January 2020 wherein based on the letters annexed thereto, it was seen that the Petitioner had not attended her duties from 27th March 2014 without any intimation to the office. The said letters on which he sought to place reliance were from the period of 2014 to 2015. As stated above, various affidavits in rejoinder and sur-rejoinders have been filed and the Petitioner in the affidavit in rejoinder dated 29th February 2020 and in her additional affidavit dated 25th March 2025 has refuted all the allegations as made out in the impugned order. The Respondents in the affidavit in sur-rejoinder dated 12th August 2021 has categorically submitted that the Petitioner was called upon to produce the doctor’s certificate and medical papers to prove her ill-health. However, the same were not submitted by her. It was also submitted that the Petitioner had remained absent from duties without sanctioned leave for almost three years without providing any medical evidence and therefore a mere apology of the Petitioner for remaining absent on duty is not acceptable. The Respondents also submitted that the burden was on the Petitioner to place on record the reasons for her absence before the inquiry officer, and the same was not discharged by the Petitioner, and in fact, it was the Petitioner who had chosen not to participate in the inquiry proceedings. Hence, it would not lie in her mouth now to canvass before this Court that the impugned orders were passed in violation of the principles of natural justice.
7. Learned Counsel for the Respondents therefore contended that all the impugned orders were passed after due diligence of charges, evidence on record and in compliance of the CDA Rules. Both the Counsels on behalf of the Petitioner and the Respondents have relied on various case laws which we shall deal with later.
8. The following affidavits were filed by the Petitioner and the Respondents respectively-
| Affidavit | Date |
| Affidavit-In-Reply by the Respondent | 17th January 2020 |
| Affidavit-In-Rejoinder by the Petitioner | 29th February 2020 |
| Affidavit-In-Sur Rejoinder by the Respondent | 12th August 2021 |
| Additional Affidavit-In-Sur Rejoinder by the Respondent | 9th January 2023 |
| Additional Affidavit by the Petitioner | 25th March 2023 |
9. We have heard the rival contentions and on perusal of the records and submissions canvassed by the Petitioner as well as the Respondents, we are of the view that this is gross case of misconduct on the ground of illegal absenteeism on the part of the Petitioner, which under no circumstances can be condoned or given the imprimatur of law. The entire conduct of the Petitioner shows that the Petitioner was never interested in attending her duties and even assuming that she was suffering from ill-health, she chose not to keep the management in the loop and with impunity continued to remain absent from service thereby raising serious doubts on such plea. The impugned orders have categorically held that the Petitioner herself chose to remain absent and participate in the enquiry proceedings and hence it would be incorrect on the part of the Petitioner now to contend that the impugned orders have been passed in violation of the principles of natural justice. At this stage, it would be beneficial to reproduce the impugned orders to understand that whether the same have been passed after following due process of law. The impugned orders are reproduced below:-
Charge Memo dated 29th March 2017
MEMORANDUM
The undersigned proposes to hold an inquiry against Ms.Neha N Sawant, Employee No. 35238, Senior Assistant, DAB X(2) under Divisional Office - X, Mumbai, under Rule 25 of the National Insurance (Conduct, Discipline & Appeal) Rules, 2014 as amended til date. The substance of the imputation of misconduct, in respect of which inquiry is proposed to be held, is set out in the enclosed statement of Articles of Charge (Annexure-l). A statement of imputation of misconduct in support of Articles of charge is enclosed (Annexure-ll). A list of witnesses by whom and a list of documents by which the Articles of Charge are proposed to be substantiated are enclosed (Annexure-lI& IV respectively).
Ms.Sawant is directed to submit within fifteen days of the receipt of this Memorandum, a Written Statement of herdefence. She is informed that an inquiry will be conducted only in respect of the charges not admitted. She should therefore specifically admit or deny each article of charge.
Ms.Sawant is further informed that if She does not submit her Written Statement of defence on or before the date specified in Para 2 above or otherwise fails or refuses to comply with the provisions of the National Insurance (Conduct, Discipline & Appeal) Rules, 2014 or the orders and/or directions issued in pursuance of the said Rules, the Inquiring Authority may conduct the inquiry against herex-parte.
Attention of Ms.Sawant is invited to Rule 41 of National Insurance (Conduct, Discipline & Appeal) Rules, 2014, under which no employee shall bring or attempt to bring any political or outside influence to bear upon any superior authority to further her interest in respect of matters pertaining to her service in the Company. It any representation is received on her behalf from another person in respect of any matter dealt within these proceedings, it will be presumed that Ms.Sawant is aware of such representation and that it has been made at her instance and action will be taken against her for violation of the said Rule.
The memo is issued in duplicate. Ms.Sawant is advised to sign on the copy of this Memo in token of her acknowledgement.
(Annexure - I)
(Attached to and forming part of Memorandum dated 29.03.2017)
Articles of Charge framed against
Ms.Neha N Sawant, Employee No. 35238, Sr.Assistant,
DAB X(2) under Divisional Office - X, Mumbai
That Ms.Neha N Sawant ,Employee No. 35238, Senior Assistant, DAB (2) under Divisional Office - X, Mumbai., in a most unethical manner and in total disregard to the laid down Rules, guidelines, procedures and instructions of the company, committed following misconducts.-
It is charged that during April 2014to till date she committed the following Misconducts:
1) Ms. Neha N Sawant remained absent from her duties from 22.04.2014 without having obtained the permission of Competent authority and without permission or intimation she is on loss of pay for 993 days as on date of this memorandum (Details attached)
2) Has shown her wilful insubordination or disobedience by absenting herself from duty without taking proper leave from her office superiors.
Thus, Ms.NehaSawant contravened Rules 18(1 and 2) of National Insurance (Conduct, Discipline and Appeal) Rules 2014, as amended up to date and thus committed misconduct under Rule 4(7 & 8) of the said Rules as amended as on date.
ANNEXURE - II
STATEMENT OF IMPUTATION OF MIS-CONDUCT FOR ARTICLE OF CHARGES FRAMED AGAINST Ms.Neha N Sawant ,Employee No. 35238, Senior Assistant, DAB (2) under Divisional Office-,Mumbai OF NATIONAL INSURANCE COMPANY LIMITED.
Article No. 1
Ms.Neha N Sawant remained absent from her duties from 22.04.2014 without havingobtained the permission of Competent authority and without permission or intimationshe is on loss of pay for 993 days as on date and thus committed misconduct under NIC (CDA) Rules of the Company.
ANNEXURE - III
LIST OF DOCUMENTS BY WHICH THE ARTICLE OF CHARGES FRAMED AGAINST Ms.Neha N Sawant ,Employee No. 35238, Senior Assistant, DAB X(2) under Divisional Office-,Mumbai, NATIONAL INSURANCE COMPANY LIMITED ARE PROPOSED TO BE SUBSTANTIATED.
| Sr. No. | Letters issued by DAB-X(2) |
| 1 | Letter dated 13/08/2014 & 12/09/2014 |
| 2 | 13th July 2015 |
| 3 | 23/12/2015 |
| 27/06/2016 | |
| 4 | 24/08/2016 |
| 5 | 23/09/2016 |
| 6 | Mail dated 07/10/2016 from BM |
| 7 | 18/11/2016 |
| 8 | Leave records |
LIST OF WITNESSES BY WHOM THE ARTICLE OF CHARGES FRAMED AGAINST Ms.NehaN Sawant ,Employee No. 35238, Senior Assistant, DAB X(2) under Divisional Office-X,Mumbai OF NATIONAL INSURANCE COMPANY LTD., ARE PROPOSED TO BE SUBSTANTIATED.
1) Shri. Sanjay Patkar, Branch Manager ,DAB X(2),Mumbai
2) Ms.Khushboo T Singh,AO,DAB X(2),Mumbai
Order dated 10th January 2018
“ORDER
WHEREAS a Charge-memo dated 29.03.2017 under Rule 25 of National Insurance Company (Conduct, Discipline & Appeal Rules, 2014 was issued to Ms.Neha N Sawant, Employee No. 35238, Senior Assistant, DAB (2) under Divisional Office -X, Mumbai that during April 2014 to till date she committed the following Misconducts:
1) Ms.Neha N Sawant remained absent from her duties from 22.04.2014 without having obtained the permission of Competent Authority and without permission or intimation she is on loss of pay for 993 days as on date of this memorandum (Details attached)
2) Has shown her wilful insubordination or disobedience by absenting herself from duty without taking proper leave from her office superiors.
WHEREAS Ms.Neha N Sawant did not submit her reply to the aforesaid Charge-memo. Inquiry proceedings were initiated on 13.07.2017and continued on 25.07.2017 and closed on 27.07.2017. On all the dates Ms. Sawant remained absent. The Inquiry officer submitted the report dated 21.09.2017 stating that the charges as proved.
WHEREAS The Disciplinary Authority vide her letter Reference:240400/Pers/Sawant/III/2017 dated 22.11.2017 has written that the inquiry findings was communicated to Ms.Neha Sawant vide letter dated 22.09.2017. In response to letter dated 22.09.2017, Ms.Sawant has submitted a medical certificate dated 06.10.2017 which states that she is fit to resume duties from 10.10.2017.Neither Ms.Sawant has resumed duties nor intimated the office about her absence.
WHEREAS the undersigned in the capacity of Appointing Authority viewed all evidences and records dispassionately and observed that Ms Neha Sawant had neither replied to the charged Memo nor attended the Inquiry proceedings showing scant respect to the entire exercise which in the end leads to ex-parte Order.
WHEREAS the Undersign keeping the Inquiry Officers Report and the response of Ms Neha Sawant I propose to impose penalty of "Removal from service which shall not be a disqualification for future employment" on Ms. Neha Sawant with immediate effect.
However, Ms.Neha Sawant, has the right to prefer an appeal, if desires against this order in terms of Rule 31-34 of National Insurance (CDA) Rules 2014 and amendments thereof within a period of three months from the date of this order.
Order dated 11th April 2018
ORDER
WHEREAS a Charge-memo dated 29.03.2017 under Rule 25 of National Insurance Company (Conduct, - Discipline & Appeal) Rules, 2014 was issued to Ms.Neha N Sawant, Employee No. 35238, Senior Assistant, DAB (2) under Divisional Office -X, Mumbai with following Charges:
1) Ms.Neha N Sawant remained absent from her duties from 22.04.2014 without having obtained the permission of Competent Authority and without permission or intimation she is on loss of pay for 993 days as on date of memorandum.
2) Has shown her wilful insubordination or disobedience by absenting herself from duty withcut taking proper leave from her office superiors.
WHEREAS Ms.Neha N Sawant did not submit her reply to the aforesaid Charge-memo. Inquiry proceedings were initiated on 13.07.2017and continued on 25.07.2017 and closed on 27.07.2017.0 all the dates Ms.Sawant remained absent. The Inquiry officer submitted the report dated 21.09.2017 stating that the charges as proved.
WHEREAS The Disciplinary Authority vide her letter Reference: 240400/Pers/Sawant/III/2017 dated 22.11.2017 has written that the inquiry findings was communicated to Ms.Neha Sawant vide letter dated 22.09.2017. In response to letter dated 22.09.2017, Ms. Sawant has submitted a medical certificate dated 06.10.2017 which states that she is fit to resume duties from 10.10.2017.Neither Ms.Sawant has resumed duties nor intimated the office about her absence.
WHEREAS Mr. V.Sudhakar in the capacity of Appointing Authority viewed all evidences and records dispassionately and observed that Ms Neha Sawant had neither replied to the charged Memo nor attended the Inquiry proceedings showing scant respect to the entire exercise which in the end leads to ex-parte Order.
WHEREAS the Appointing Authority keeping in view the Inquiry Officers Report and the response of Ms Neha Sawant proposed to impose penalty of "Removal from service which shall not be a disqualification for future employment" on Ms. Neha Sawant with immediate effect vide order dated 10.01.2018.
And Whereas, Ms.Neha Sawant have preferred an appeal dated 09.04.2018 along with medical papers in support of her case against the aforesaid penalty order.
And whereas, the undersigned as the Appellate Authority, having perused the Appeal application of Ms.Neha Sawant and other documents, observes that sufficient opportunities were given to her to improve upon and no additional facts have been brought to my notice to support her case. Her misconducts are clearly evident in the records. As such, the undersigned feels that the penalty imposed on her is just and proper and does not call for any interference by the Appellate Authority.
NOW, THEREFORE, the undersigned in exercise of the powers conferred under NIC(CDA) Rules 2014 hereby rejects, the appeal preferred by Ms.Neha Sawant and upholds the decision of the Appointing Authority as passed vide order dated 10.01.2018.
However, Ms.Neha Sawant, has the right to prefer a memorial, if desires against this order in terms of Rule 40 of National Insurance (DA) Rules 2014 and amendments thereof within a period of six months from the date of this order.
Order dated 6th February 2019
ORDER
WHEREAS a Charge-memo dated 29.03.2017 under Rule 25 of National Insurance Company (Conduct, Discipline & Appeal) Rules, 2014 was issued against Ms. Neha N Sawant, Ex-Senior Assistant, on the charges that whilst working as Sr. Assistant in DAB -2 under Mumbai DO X during the period 2014 to 2017 had committed the following misconduct:
1. Ms. Neha N Sawant remained absent from her duties from 22.04.2014 without having obtained the permission of Competent Authority and without permission or intimation she was in loss of pay for 993 days as on the date of Charge-memo.
2. She has shown wilful insubordination or disobedience by absenting herself from duty without taking proper leave from her office superiors.
AND WHEREAS MS. Neha N Sawant did not submit her reply to the aforesaid charge-memo. Inquiry proceedings were initiated and on completion of the inquiry proceedings; the Inquiring Authority. had submitted his Report dated 21.09.2017 with the findings that the all charges were proved The Disciplinary Authority vide Order dated 10.01.2018 imposed the penalty of "Removal from service which shall not be a disqualification for future employment" on Smt. Neha N Sawant.
AND WHEREAS Ms. Neha N Sawant preferred an Appeal against the aforesaid Penalty Order and her Appeal was disposed of by the Appellate Authority vide Order dated 11.04.2018 by rejecting the Appeal.
WHEREAS Ms Neha N Sawant preferred a Memorial dated 20.04.2018 inter alia stating therein that no notice of inquiry proceedings was served or given to her due to which she was denied the opportunity to defend her case. The Inquiry Proceedings were stated to be conducted on 25.07.2017 and 27.07.2017. In fact her daughter was suffering from dengue for the period 13.07.2017 to 28.07.2017 and Medical Certificate for the said period had already been submitted along with her Appeal. The Copies of daily sheets which were prepared after. every day of inquiry were not given to her at all. No Notice of ex-parte hearing being conducted against her was served on her. The copy of inquiry report was not given to her by The Competent Authority. Therefore, the inquiry proceedings against her was conducted without proper procedure as contemplated under CDA Rules of the Company. She had never denied that there were certain mistakes committed by her in not following the office procedure while taking the leave. She had requested to the concerned authorities many times to allow her to join duties and had also submitted appropriate medical certificate. However. she was never given opportunity to do so and therefore it would be incorrect to say that she had failed to resume the duties. She had worked with utmost integrity and sincerity during her unblemished past record, except due to reason of her poor heath in between and if she is given one last opportunity, she will work with full devotion and to the entire satisfaction of the Management. She earnestly requested to consider her Memorial favorably and give her justice.
AND WHEREAS the undersigned having perused all the relevant papers/documents pertaining to this case, observes that the contention of Ms. Neha N Sawant that inquiry proceedings were conducted against her without following proper procedure as per CDA Rules, is not considerable as the documents mentioned by her not delivered are supposed to have been delivered as the documents were sent by 'Speed Post' and were not returned back by the Postal Authorities. The matter of ex-parte hearing has clearly been mentioned in the Charge-sheet itself. Therefore, no separate notice had to be served regarding the same. Ms. Neha N Sawant submitted a Medical certificate dated 06.10.2017 vide her letter dated 09.10.2017 which certify her fit as on 10.10.2017. However she did not join her duties till the date of issuance of Penalty Order. There is no documentary proof that the office did not allow her to join the duties. Ms. Neha N Sawant had been on LOP for more than 993 days as on 29.03.2017 after exhausting her available leave balances. During her period of leave, she had neither informed the Office nor given documents in support of her absence, despite repeated reminders. Moreover, the LOP days as on date of Penalty Order works out to be about 1280 days with no contribution from her end towards her duties for which she had been recruited. She did not co-operate with the IO/PO in the inquiry proceedings. She had neither attended the subsequent hearings nor had she submitted the document describing the cause of her not attending the departmental inquiry. The Medical Certificate showing her daughter's illness was submitted later on much after issuance of Penalty Order. The personal problems narrated by Ms. Sawant as well as her disease "Chronic Fissure" does not justify her absenteeism to such extent.
The undersigned further observes that the submission of the memorial application doesn't merits review of the decision taken earlier.
NOW, THEREFORE, the undersigned, in exercise of the powers conferred under Rule 40 of National Insurance Company (Conduct, Discipline & Appeal) Rules, 2014 hereby the rejects the Memorial preferred by Ms. Neha N Sawant.”
(emphasis supplied)
10. On a combined reading of all the aforesaid orders, we do not see how the Respondents have failed in giving appropriate opportunity to the Petitioner before passing the above orders, and in fact, all the notices and the charge memos were served upon the Petitioner, which remained un-responded to by the Petitioner. In fact, the order dated 6th February 2019 makes a categorical observation that the Petitioner submitted a medical certificate as late as 6th October 2017 vide her letter dated 9th October 2017 which certifies her fit as on 10th October 2017 and in spite of that she did not join her duties till the date of issuance of penalty order dated 10th January 2018. The order also goes on to note that the Petitioner was on loss of pay for more than 993 days as on 29 th March 2017, after exhausting her leave balance. She had neither informed the office nor given documents in support of her unauthorized absenteeism despite repeated reminders. The order dated 6th February 2019 further goes on to hold that as on the date of the penalty order her loss of pay works out to about 1280 days with no contribution from her end towards her duties for which she had been recruited.
11. It is also seen that the Petitioner was issued letters from time to time dated, 10th February 2014, 13th August 2014, and 12th September 2014 asking the Petitioner to resume duties. However, the same were not adhered to by the Petitioner. Further, the impugned orders also have taken note of the fact that the Petitioner did not provide any medical certificates even prior to issuance of the Charge Memo dated 29th March 2017 to substantiate her long and unexplained absenteeism from duty. These medical certificates in fact have been submitted as late as February 2025 before this Court by way of Additional Affidavit by the Petitioner. It is our view that the last additional affidavit dated 25th March 2025 whereby the Petitioner has submitted additional documents seems more like an afterthought. The Petitioner had not participated in the inquiry proceedings and also further submitted no documents while the inquiry was being conducted and also chose to remain absent from all the hearings. It is also pertinent to note that in her appeal dated 9th April 2018 preferred against the order 10th January 2018, the Petitioner has made a categorical submission that she had remained absent from duties without obtaining proper permissions from her senior officers. This admission on the part of the Petitioner itself shows that the Petitioner has at no point of time shown any responsible behaviour or inclination to resume her services.
12. The Petitioner has submitted a compilation of judgments which have been taken on record, to support her case that the impugned orders have not considered her submissions and have been passed in violation of the principles of natural justice. On perusal of the decisions submitted by the Petitioner in support of her aforesaid contention, we are of the view that the same are not applicable in the facts of the case and/or distinguishable on facts. They are certainly not apposite to the facts of the present case. We discuss these decisions hereunder:-
13. The decision in Krushnakant B. Parmar V/s. Union of India(2012 I CLR 753) was rendered in the context of dismissal of service of the Appellant therein which was challenged by the Appellant on the ground that the said order was passed without considering the appellant’s submission that his plea of bias against the officer who instituted disciplinary proceedings and also the fact that he was not allowed to participate in the inquiry proceedings were not considered by the CAT before passing the impugned order. The Appellant had taken a specific defence that he was prevented from attending duty by the Officer of the Intelligence Bureau and also, he was prevented to sign the attendance register rendering him absent from duty and the same was not considered in the decisions passed by the Inquiry Officer, Disciplinary Authority and subsequently by CAT. This decision to our mind would not apply to the facts of the present case, inasmuch as in the present case, the Petitioner had unauthorisedly remained absent from duty without providing any legitimate reason to the management, in fact, by letters dated 10.02.2014 and 13.08.2014, the Respondent No.3 Management had asked the Petitioner to resume her duties which also the Petitioner failed to do. Thus, the ratio laid in Krushnakant B. Parmar (supra) is far from being applicable to the facts of the present case.
14. In Chairman-cum-Managing Director, Coal India, Ltd., and Anr. V/s Mukul Kumar Choudhuri and Others(2009 (4) L.L.N. 75), the Supreme Court dealt with the Doctrine of Proportionality in respect of the quantum/length of punishment, once the charge of misconduct stood proved. The Supreme Court held that the award of punishment, which is grossly in excess to the allegations, remains open for interference under limited scope of Judicial Review. In such case, the unauthorized absence of duty was only for a period of six months, the delinquent employee had admitted his guilt and explained the reasons of his absence from work stating that he did not have any intention or the desire to disobey the order of a higher authority to violate any of the Company’s Rules and Regulation, and the reason was purely personal and beyond his control. In fact, a resignation was sent which was not accepted. It is in this fact pattern, that the Supreme Court came to the view that the punishment was unduly harsh and grossly in excess of the allegations against the delinquent employee. Thus, the ratio of this decision is inapplicable to the facts of the case, inasmuch as the Petitioner’s length of absence from duty was for a far longer period i.e. for unauthorised absence from duty was for a period of more than 3 years, which was never explained by her and neither did she participate in the inquiry proceedings. The punishment meted out to her was commensurate to her long absenteeism from duty.
15. In Shamsundar Yashwant More V/s State of Maharashtra and Ors.(2010 II CLR 1005), the facts are totally different form the facts of the present case, inasmuch as in that case the challenge was to the order of punishment withholding five increments with cumulative effect passed by the management against the Appellant after holding an inquiry for the misconduct which was upheld by the authority. In the inquiry proceeding the Appellant was not given a reasonable time to file his say to the second show-cause notice and hence this Court had come to the conclusion that the appellate authority had erred in passing the orders against the Appellant and had acted in a hasty manner without giving a reasonable opportunity to the Appellant by not considering the reply given by the Appellant on record even though it was submitted within the stipulated time.
16. In the facts of the present case, in fact the Petitioner was served with the chargesheet on 29.03.2017 wherein she was given fifteen days to file her reply in defence of the charges levelled against her, which she failed to respond. Thereafter, Inquiry proceedings were initiated against the Petitioner in which she did not participate. It is in fact only after a long gap of 6 months 12 days after the issuance of the memo of chargesheet that the Petitioner for the first time replied to the Inquiry Report dated 24.08.2017. The impugned orders in the present case are passed following the due procedure, required to be adhered in the enquiry proceedings. Hence the contention of the Petitioner that the impugned order has been passed in violation of principles of natural justice fails on this ground alone. The decision of Shamsundar Yashwant More (supra) thus does not apply to the facts of the present case.
17. Similarly, the decision of Association of Engineering Workers, Mumbai V/s. Hindustan Motor Manufacturing Company, Mumbai(2004 1(102) FLR 154), would also not apply to the facts of the present case inasmuch as in that case also this Court had come to the conclusion that the Inquiry Officer nowhere disclosed analysis of evidence nor any efforts on the part of the Inquiry Officer to link any part of the evidence with the allegation of misconduct on the part of the employee was made, and hence the findings arrived at by the Inquiry Officer were held to be perverse.
18. In the case of Union of India V/s. K. A. Kittu and Ors(2001 I LLJ 157), the principles of natural justice were not followed hence the Supreme Court held that the order of the Central Administrative Tribunal (CAT) needs to be upheld. The Supreme Court categorically held that there were several contradictions in the order of the Inquiry Officer which the CAT had rightly set aside.
19. The decision in Sur Enamel and Stamping Works Ltd., V/s. Their Workmen(1963-64 25 FJR 88), has also been rendered in a different fact pattern, which dealt with the retrenchment of a workman and the question whether he would be entitled to the benefit of Section 25-F of the Industrial Disputes Act 1947. It is in such context the Supreme Court held that before a workman can be entitled to the benefits of Section 25-F of the Industrial Disputes Act, 1947, it must be proved that he has completed one year of continuous service, which under Section 25-B, meant that it must be proved that during a period of twelve calendar months, he worked in an industry for not less than 240 days. It was observed that it was therefore to be first proved that he was employed for a period of not less than twelve months, and, secondly during the twelve calendar months had worked for not less than 240 days. It was held that when the workman was not employed for a period of 12 months, he cannot claim the benefits of section 25-F of the Act, even if he has worked for not less than 240 days. Also the charges set out in the charge sheet in question were different from the charges mentioned in the order of dismissal. The Supreme Court held that since the dismissal order was made for something other than the charge mentioned in the charge-sheet i.e. wilful insubordination or disobedience, this ground alone would be adequate for setting aside the order of dismissal. However, in the facts of the present case, the charges mentioned in the Charge Memo dated 29.03.2017 and the impugned orders are the same (absence from duty) and therefore the decision of the Court in Sur Enamel and Stamping Works Ltd (supra) would not assist the Petitioner in advancing her case.
20. The decision passed by the Orissa High Court in Bisra Stone Lime Company Ltd. Vs. Their Workmen(1990 SCC OnLine Ori 87), passed in favor of the Respondent Workman, was confined only to 2/3rd arrears of back wages from the date of termination till the date of award as the Respondent did not suffer from continued ill-health but was terminated illegally/arbitrarily. In this case, the Respondent Workman was notified of his retirement one month in advance, citing continuous ill-health as the reason for his retirement. Subsequently, the Respondent Workman raised an industrial dispute, which was referred to the Industrial Tribunal by the Central Government. The Tribunal, after considering the matter, concluded that the situation amounted to retrenchment and directed the reinstatement of the Respondent Workman with full back wages from the date of termination. The employer, disputed the claim, contending that the situation did not constitute retrenchment as defined under Section 2(oo) of the Industrial Disputes Act, 1947. Upon reviewing the documents submitted by both the employer and the Respondent, the High Court ultimately upheld the Tribunal’s decision, agreeing that this case indeed constituted retrenchment. As a result, the Court ordered the payment of two-thirds of the arrears of back wages to the Respondent, from the date of termination to the date of award. This decision, in our considered view, would not apply to the facts of the present case as in the said case, the employer illegally terminated the Respondent Workman in spite of the fact that the worker was fit to discharge his duties. It is in such set of facts that the Court came to the view that the termination was not legal. In the present case, the Petitioner was not subject to retrenchment; instead, she was provided with an opportunity for a fair hearing, despite her unauthorized absence totaling 993 days. Further, she was not terminated on the ground of ill-health but was rather terminated on the ground of prolonged absence from duty without an explanation.
21 In Lalit Mohan Puri V/s. Pune Drinks (New Delhi) Ltd.(Civil Writ Petition No. 444 of 1989), the Petitioner workman challenged the order of termination passed by the Labour Court which had passed the order in favour of the management. On a consideration of facts and the rival contentions, the Delhi High Court was of the view that mere refusal on the part of the Petitioner to get himself medically examined from a particular doctor may at the most amount to misconduct but it certainly could not be a ground to terminate the services of the Petitioner. If at all the Petitioner had refused to get himself medically examined, the same could have been a different ground for a charge of misconduct and only if the Petitioner continued to be suffering from ill health, the Respondent was open to hold an inquiry where the Petitioner could be examined. In such facts, the Delhi High Court held that the termination of the services of the Petitioner is illegal and set aside the order of the Labour Court and reinstated the Petitioner with backwages and consequential benefits. In the present case, however, the termination of the Petitioner was not on the ground of “continued ill-health” but was on account of prolonged and unauthorized absence without any valid justification. Therefore, the ruling in Lalit Mohan Puri (supra) is of no assistance to the Petitioner.
22. The decision of the Supreme Court in the case of Anand Bihari & Ors vs Rajasthan State Road Transport((1991) 1 SCC 731) also dealt with the termination of the Appellants, who were the employees, due to their deteriorating eyesight and deliberated upon the meaning of “ill-health” for the purposes of retrenchment under the Industrial Disputes Act, 1947. In the aforesaid case, the Supreme Court held that the termination of long services of bus drivers on the ground of their defective or abnormal eyesight developed during the course of employment as unjustified, inequitable and discriminatory, though not amounting to retrenchment under Section 2(oo) of the Industrial Disputes Act, 1947, on the ground that the same were discriminatory, as the Corporation had treated their case in the same manner and fashion as it treated the cases of other workmen who on account of reasons not connected with the employment suffer from ill-health or continued ill-health. Relevant paragraphs of the aforesaid decision are reproduced below: -
“9. Although the order of termination of service per se cannot be faulted on the ground of the breach of the Act, the important question that still remains to be considered is whether in the circumstances of the case and against the background of the relevant provisions of our Constitution, it can be said that the action of the Corporation is proper, equitable and justified. The facts on record show that all the workmen have put in service with the Corporation for long periods. All of them are above 40 years of age. Their superannuation age is 58 years. There is no dispute that they developed a weak or sub-normal eyesight or lost their required vision on account of their occupation as drivers in the Corporation. As is commonly known, the drivers of the buses run by the Corporation such as the present one, have to drive the heavy motor vehicles in sun, rain, dust and dark hours of night. In the process, they are exposed to the glaring and blazing sunlight and beaming and blinding lights of the vehicles coming from the opposite direction. They are required to strain their eyesight every moment of the driving, keeping a watchful eye on the road for the bumps, bends and slopes, and to avoid all kinds of obstacles on the way. It is this constant straining of eyes on the road which takes its inevitable toll of the vision. The very fact that in a short period, the Corporation had to terminate the services of no less than 30 drivers who are before us shows the extent of the occupational hazard to which the drivers of the Corporation are exposed during their service. It also shows that weakening of the eyesight is not an isolated phenomenon but a widespread risk to which those who take the employment of a driver expose themselves. Yet the Corporation treats their cases in the same manner and fashion as it treats the cases of other workmen who on account of reasons not connected with the employment suffer from ill-health or continued ill-health. That by itself is discriminatory against the drivers. The discrimination against the employees such as the drivers in the present case, also ensues from the fact that whereas they have to face premature termination of service on account of disabilities contracted from their jobs, the other employees continue to serve till the date of their superannuation. Admittedly, no special provision is made and no compensatory relief is provided in the service condition for the drivers for such premature incapacitation. There is no justification in treating the cases of workmen like drivers who are exposed to occupational diseases and disabilities on par with the other employees. The injustice, inequity and discrimination is writ large in such cases and is indefensible. The service conditions of the workmen such as the drivers in the present case, therefore, must provide for adequate safeguards to remedy the situation by compensating them in some form for the all-round loss they suffer for no fault of theirs.
10. It is for this reason that we had suggested to the Corporation to frame a suitable scheme of compensatory relief to the drivers. The Corporation has filed two affidavits — one dated October 9, 1990 by one Shri Navin Chaturvedi, Depot Manager at Delhi and the other dated November 17, 1990 by one Shri L.N. Shah, Executive Director (Administration) who is also in charge of the present litigation, In paragraph 2 of the first affidavit an amusing statement has been made that "the Corporation considered the difficulties of the drivers who have been terminated from their service under Section 2(00) of the Industrial Disputes Act" without realising that it has all along been the case of the Corporation that the services of the drivers were not terminated under Section 2(00) of the Act. This statement shows a total non-application of mind and a casual approach to the issues involved in the case. The same attitude is discernible by what is proposed in the latter portion of the said paragraph by way of a relief scheme for the drivers, which is as under:
“The Corporation after considering the matter sympathetically resolved as under:
Shri L.N. Shah, Executive Director (Admn.) explained the background of the proposal, specifically with reference to the observations made by the Hon'ble Supreme Court on last date of hearing of the case. After detailed discussions and exploring the possibilities of the scheme of rehabilitation for their alternative employment. Resolution No. 51/90: As a measure of rehabilitation for the drivers terminated on medical grounds, it was resolved that RSRTC may provide margin money loan to the extent of shortfall in the borrowers' own contribution, comprising of (sic) benefits available under Industrial Disputes Act and inclusive of CPF, gratuity etc. in case these employees form a Co-operative Society duly registered and willingly agree to engage such financed new buses) with RSRTC on contract till RSRTC loan along with interest is repaid."
11. In the additional affidavit of November 17, 1990 Shri L.N. Shah himself has stated firstly that neither the Employees' State Insurance Act (hereinafter referred to as the "ESI Act") nor the Workmen's Compensation Act, 1923 (hereinafter referred to as the "WC Act"), the provisions of which we had suggested should be applied to the drivers, would "strictly speaking" cover the loss of sight in question as "employ-ment injury" as defined in Section 2(8) of the ESI Act. "Loss of sight in question is also not covered in Section 3(2) of the WC Act". The affidavit then proceeds to state that loss suffered by the Corporation up to 1989-90 is to the extent of Rs 37.15 crores and the loss estimated for the current year is Rs 15 crores. The Corporation on an average operates fleet of 2800 buses and runs approximately 240 lakhs kilometres in a month, for which the Corporation is presently having a huge staff of 24,000 and thus the ratio of staff per bus comes to 8.35 which is approximately double the normal ratio of staff. The average operated kilometres by a bus is 276 kilometres per day for which normally 5 to 6 hours' working of the driver would be needed. The drain on account of wages is 42 per cent of the income.
12. In other words, the Corporation has taken an unhelpful stand in the matter. The scheme with which it has come out is both unrealistic and impracticable. The Corporation has not appreciated that what we had asked them was to formulate a scheme of relief which is the legitimate due of the workmen and not a scheme on compassionate or charitable basis. The workmen are not denizens of an Animal Farm to be eliminated ruthlessly the moment they become useless to the establishment. They have not only to live for the rest of their life but also to maintain the members of their family and other dependants, and to educate and bring up their children. Their liability in this respect at the advanced age at which they are thus retired stands multiplied. They may no longer be of use to the Corporation for the job for which they were employed, but the need of their patronage to others intensifies with the growth in their family responsibilities.
13. Although as stated by the Corporation, the workmen are covered by the ESI Act no provision is made there for compensation of the occupational injury such as the present one. Item 4 of Part I of the Second Schedule of the ESI Act talks of "loss of sight to such an extent as to render the claimant unable to perform any work for which eyesight is essential" and classifies such injury as permanent total disablement resulting in hundred per cent loss of earning capacity. Items 31, 32 and 32-A of Part II of the same Schedule refer respectively to "(i) loss of one eye, without complications, the other being normal (i) loss of vision of one eye without complications or disfigurement of eyeball, the other being normal (iii) partial loss of vision of one eye" and classify all the said injuries as permanent partial disablement resulting in 40, 30 and 10 per cent loss of earning capacity respectively. Item 11 in Third Schedule refers to occupational cataract due to infra-red radiations incurred in "all work involving exposure to the risk concerned" and classifies it as one of the occupational diseases.
14. It is, therefore, clear from the provisions of the ESI Act that the present case, viz., that of sub-normal eyesight or loss of the required vision to work as a driver would not be covered by the provisions of that Act as an employment injury or as an occupational disease, for no provision is made there for compensation for a disability to carry on a particular job. The present workmen cannot be said to have suffered either a permanent, total or partial disablement to carry on any job or to have developed cataract due to infra-red radiations. The workmen are and will be able to do any work other than that of a driver with the eyesight they possess. Hence, a provision for a compensatory relief for such workmen has to be made separately on a different basis suitable to the peculiar loss that they suffer on account of the premature retirement necessitated by their unfitness to work as drivers.
15. In view of the helplessness shown by the Corporation, we are constrained to evolve a scheme which, according to us, would give relief as best as it can to the workmen such as the ones involved in the present case. While evolving the scheme and giving these directions we have kept in mind that the workmen concerned are incapacitated to work only as drivers and are not rendered incapable of taking any other job either in the Corporation or outside. Secondly, the workmen are at an advanced age of their life and it would be difficult for them to get a suitable alternative employment outside. Thirdly, we are also mindful of the fact that the relief made available under the scheme should not be such as would induce the workmen to feign disability which, in the case of disability such as the present one, viz., the development of a defective eyesight, it may be easy to do. Bearing in mind all the aforesaid factors, we direct the Corporation as follows :
(i) The Corporation shall in addition to giving each of the retired workmen his retirement benefits, offer him any other alternative job which may be available and which he is eligible to per-form.
(ii) In case no such alternative job is available, each of the work men shall be paid along with his retirement benefits, an additional compensatory amount as follows:
(a) where the employee has put in 5 years' or less than 5 years service, the amount of compensation shall be equivalent to 7 days' salary per year of the balance of his service;
(b) where the employee has put in more than 5 years' but less than 10 years'service, the amount of compensation shallbe equivalent to 15 days' salary per year of the balance of his service;
(c) where the employee has put in more than 10 years' but less than 15 years' service, the amount of compensation shall be equivalent to 21 days' salary per year of the balance of his service;
(d) where the employee has put in more than 15 years' service but less than 20 years' service, the amount of compensation shall be equivalent to one month's salary per year of the balance of his service;
(e) where the employee has put in more than 20 years' service, the amount of compensation shall be equivalent to two months' salary per year of the balance of his service.
The salary will mean the total monthly emoluments that the workman was drawing on the date of his retirement.
(iii) If the alternative job is not available immediately but becomes available at a later date, the Corporation may offer it to the workman provided he refunds the proportionate compensatory amount.
(iv) The option to accept either of the two reliefs, if an alternative job is offered by the Corporation, shall be that of the workman.
16. The scheme proposed by us in paragraph 15 above disposes of Civil Appeal Nos. 1859-61 of 1990. Since the workmen involved in these appeals have been retired already, in case suitable jobs are available to be offered and the Corporation offers them and the workmen concerned accept them, they would be employed on such jobs from the date they resume their duty. They should be paid proportionate compensation under the above scheme for the interregnum from the date of their retirement till they resume the duty. In case no such job is available then they should be paid the compensatory amount as indicated in the scheme.
17. As far as Civil Appeal No. 1862 of 1990 is concerned, admittedly the workman was given employment as a helper from August 1985 since he developed weak eyesight on account of an accident in the course of his employment and he was working as such helper till he was retired from service on and from April 27, 1988. There is no dispute that he was not unsuitable to work as a helper. The termination of his services as a helper was, therefore, clearly unjustified and also illegal being in contravention of the provisions of Section 25-F of the Act. The High Court obviously erred in treating his case on par with those of the workmen involved in Civil Appeal Nos. 1859-61 of 1990. The appellant workman will, therefore, be entitled to his retirement benefits as a driver as if he had retired from service as a driver from the date of his employment as a helper. He would further be entitled to be reinstated in service as a helper with all arrears of back wages as a helper. In case he opts for receiving the compensatory amount under the scheme which we have framed above, he may do so for the period beginning from the date from which his services as a helper were terminated.”
23. Thus, the Court opined that any disorder in health which incapacitates an individual from discharging the duties entrusted to him or affects his work adversely or comes in the way of his normal and effective functioning can be covered by the above-mentioned phrase. The Court further added that if on account of a workman's disease or incapacity or debility in functioning, the resultant product or the service is likely to be affected in any way or to become a risk to the health, life or property of the consumer, the disease or incapacity has to be categorized as ill-health. The Court ruled that the termination of the Appellants in the above-mentioned case was not justified and that the terminated employees were entitled to alternative employment or compensation along with full retirement benefits. The ruling in this case, hence, has no relevance to the facts of the present case, as the Petitioner in the present case was terminated from service not due to her ill-health, but rather her prolonged absence from duty without any valid justification. Therefore, this decision also would not be applicable to the facts of the present case. Besides, the nature of illness of the Petitioner in the present case was not of such a serious nature which warranted her long absence from duty.
24. The decision in Union of India v. R.K. Sharma10 which upheld the Delhi High Court’s order will also be of no assistance to the Petitioner. In this case, 10 Civil Appeal No. 4059 of 2015 the Appellant employer had preferred an appeal against the order of the Delhi High Court, wherein the order of dismissal of the Respondent was set aside. The Respondent was served with a charge memorandum after having worked for nearly seven years, pursuant to which a departmental inquiry was conducted. The Inquiry Officer submitted a report concurring with the charges, which was accepted by the Disciplinary Authority, resulting in the Respondent’s dismissal from service. The Respondent assailed the order of dismissal before the Tribunal; however, the same was rejected. Aggrieved thereby, the Respondent approached the High Court of Delhi, which directed reinstatement of the Respondent without back wages. The Appellant Employer thereafter challenged the said order before the Supreme Court. The Supreme Court, invoking its jurisdiction under Article 142 of the Constitution of India and keeping in view the Doctrine of Proportionality particularly the long lapse of approximately 22 years held that remanding the matter to the disciplinary authority would not be appropriate and accordingly passed orders to meet the ends of justice. This decision, in our considered view, would not apply to the facts of the present case. In R.K. Sharma (supra), the Appellant employer has failed to establish that the employee was willfully absent from service, the Respondent having acted under the bona fide belief that his leave had been sanctioned. Further, in the facts of the present case, despite directions issued by the management requiring the Petitioner to resume duties, the Petitioner failed to do so. It is also pertinent to note that the Supreme Court, while deciding R.K. Sharma (supra), has expressly clarified that the order was passed in exercise of powers under Article 142 of the Constitution of India and shall not be treated as a precedent. Consequently, the ratio laid down in R.K. Sharma (supra) is inapplicable to the facts of the present case.
25. In The State of Uttar Pradesh & Ors. Vs. Prabhat Kumar(Civil Appeal No. 1567/2019), the Appellant State had filed an appeal against the order of the High Court of Judicature at Allahabad dismissing the Petition filed by the Appellant against order of the State Public Service Tribunal setting aside the termination of the Respondent. The Supreme Court upheld the decision of the High Court due to the fact that the inquiry proceedings against the Respondent were not properly conducted, and no evidence was led by the Appellants to prove misconduct on part of the Respondent. The Supreme Court, therefore, remitted the matter back to the disciplinary authority. The Court had further opined that where the court sets aside the order imposing the punishment, the proper relief would be to direct reinstatement of the employee and giving the management/ employer the liberty to proceed with the inquiry. This decision of the Supreme Court is however not apposite to the facts of the present case, in as much as in the present case the inquiry proceedings against the Petitioner were undertaken following all the prescribed norms. The Petitioner in the present case was provided with a copy of the inquiry report dated 24th August 2017 by the Inquiry Officer on 22nd September 2017, through which she was made aware of the charges against her. Therefore, this decision would not be applicable to the facts of the present case in as much as the Supreme Court remitted the mater back to Disciplinary Authority to complete inquiry from the stage prior to the order of punishment was passed against the Respondent.
26. The decision of the Supreme Court in Managing Director, ECIL, Hyderabad & Others Vs. B Karunakar and Others((1993) 4 SCC) would not apply to the facts of the present case as it dealt with a case wherein the inquiry report was not provided to the delinquent employee before the decision of the Disciplinary Authority. The Court had affirmed that it is essential that the delinquent employee be provided with a copy of the inquiry report, as the reply of the employee to the inquiry report forms an integral part of the proceedings. However, in the facts of the present case, the Petitioner was duly served with a copy of the inquiry report by the Inquiry Officer through which she was made aware of the charges against her. It was only after the Petitioner was allowed to make a representation that the Appointing Authority passed the order dated 10th January 2018. Therefore, the ratio of this decision would not apply to the facts of the present case.
27. The Respondents have also submitted a compilation of judgments to substantiate their claims. The following decisions cited by the Respondents are apposite to the facts of the case and support the contention of the Respondents that remaining absent for long time from duty cannot be a minor act of misconduct.
28. The Supreme Court in North-Eastern Karnatka Rt. Copr. Vs. Ashappa(2006(5) SCC 137) allowed the appeal filed by the Corporation. The Supreme Court, while upholding the order of dismissal, held that remaining absent for a long time cannot be said to be a minor misconduct. The Respondent-employee was found not only to have remained absent for a period of more than three years, but his leave records were also seen, and it was found that he had remained unauthorisedly absent on several occasions. It held that the misconduct committed by the Respondent could not be treated lightly.
29. In Chennai Metropolitan Water Supply & Sewerage Board Vs. T.T. Murali Babu(2014(4) SCC 108), the Supreme Court set aside the judgments of the Single Judge and the Division Bench of the High Court and upheld the order of dismissal. The Court had ruled that the doctrine of proportionality in the context of imposition of punishment in Service Law gets attracted when the court on the analysis of material brought on record comes to the conclusion that the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the court. In instant case the respondent had remained absent for a considerable length of time and had exhibited adamantine attitude in not responding to the communications from the employer while he was unauthorisedly absent. In such circumstances, it was held that the High Court erred in invoking doctrine of proportionality. The contention that the "habitual absenteeism" was not pleaded, is fatal to the employer's case is absolutely unacceptable and, under the obtaining circumstances, does not commend acceptation. The respondent was absent for almost one year and seven months without adequate reasons show only indiscipline. The doctrine of proportionality does not get remotely attracted to such a case. It was held that the punishment was not shockingly disproportionate. The Supreme Court also held that the High Court was wholly unjustified in entertaining the writ petition after a lapse of four years.
30. In Biecco Lawrie Ltd. v. State of West Bengal((2009) 10 SCC 32), the Supreme Court held that the principles of natural justice are attracted whenever a person suffers a civil consequence or prejudice is caused to him by an administrative action. In other words, principles of natural justice are attracted where there is some right which is likely to be affected by any act of the administration including a legitimate expectation. The procedure to be followed is not a matter of secondary importance, and in the broadest sense natural justice simply indicates sense of what is right and wrong, and even in its technical sense it is now often equated with fairness. As a well-defined concept, it comprises of two fundamental rules of fair procedure, that a man may not be a Judge in his own cause (nemo judex in re sua), and that a man's defence must always be fairly heard. The Court had further held that it is fundamental to fair procedure that both sides should be heard-audi alteram partem i.e. hear the other side and it is often considered that it is broad enough to include the rule against bias since a fair hearing must be an unbiased hearing. One of the essential ingredients of fair hearing is that a person should be served with a proper notice i.e. a person has a right to notice. Notice should be clear and precise so as to give the other party adequate information of the case he has to meet and make an effective defence. Denial of notice and opportunity to respond result in making the administrative decision as vitiated. The adequacy of notice is a relative term and must be decided with reference to each case. But generally, a notice to be adequate must contain the following: (a) time, place and nature of hearing; (b) legal authority under which the hearing is to be held; (c) statement of specific charges which a person has to meet.
31. In the light of the above legal position, it is our view that the Petitioner is now crying foul without any valid justification, and the medical ground on which the Petitioner seeks to repeatedly harp was not of such a serious nature as would have warranted the Petitioner’s absence from duty for more than three years without informing Respondent No. 1. The Petitioner cannot claim any sympathy and cannot claim relief for her own wrongs. Thus, we do not find this to be a fit case for interference under Article 226 of the Constitution of India. The Writ Petition accordingly stands dismissed. No costs.