Smt. Sushma Rani W/O Sh. Harbans Lal … vs The Divisional Engineer Phones … on 26 August 2006

Delhi High Court
Smt. Sushma Rani, W/O Sh. Harbans Lal … vs The Divisional Engineer, Phones … on 26 August, 2006
Author: Shiv Narayan Dhingra
Bench: Shiv Narayan Dhingra
JUDGMENT

Shiv Narayan Dhingra, J.

1. This writ petition has been filed assailing award dated 23.2.2004 holding that there was no illegality in dismissing the petitioner.

2. Briefly, the facts are that petitioner was appointed as a short duty telephone operator on 19.10.1982 in the office of Assistant Engineer (Phone), Kidwai Bhawan. It was mentioned in her appointment letter that she was appointed purely on temporary and casual basis. In case of lapse or misconduct during the course of service her name shall be removed from service. She absented herself from duty w.e.f. 17.7.1984 without an intimation and did not submit any leave application. She remained absent continuously till 27.9.1985 and joined on 28.9.1985. After working for half day on 28.9.1985 she again absented from duty on 28.9.1985 (AN) continuously. During her absent period, letters were written to her about her unauthorized absence but she failed to respond and thereafter an enquiry was conducted into her unauthorized absence. Charge-sheet was issued, she did not appear before the enquiry officer during the enquiry proceedings and did not respond to the charge-sheet. Her services were terminated after conducting enquiry, on 3.2.1986 on finding her guilty of misconduct of unauthorized absence for such a long period. Petitioner raised a dispute about her termination which was referred for adjudication in following terms:

whether the action of management of Divisional Engineer (Phone) MTNL, Kidwai Bhawan, New Delhi in dismissing Smt. Sushma Rani, Short Duty Telephone Operator w.e.f. 24.1.1986 was justified? If not, to what relief the workman is entitled to?
3. In her claim she stated that after her temporary appointment on 19.10.1982 Short Duty Telephone Operator she underwent three months training but she was not regularized. It has been further stated that she became pregnant during 1984 and had developed complications during that period and therefore, had to go on leave very often on account of her ill health. On 25.1.1985, a son was born to her by cesarean operation and she again developed complications and remained absent. She applied for leave along with medical certificate, which were sent through her colleagues. Her services were wrongfully terminated vide order dated 3.2.1986. Circumstances of her being absent were beyond her control. The departmental enquiry was instituted against her without placing her under suspension or taking her on duty, which was a pre-requisite for holding the enquiry. She had participated in the enquiry and cooperated with enquiry officers but her case was not considered sympathetically.

4. The department had taken the stand that her services were terminated legally after holding an enquiry into the misconduct of her unauthorized absence for a period of about two years. She was a temporary casual employee and department was running essential services. Her appointment was made for posting against leave vacancy and absenting telephone operators and since she herself absented for two years, department could not have retained her. The other ground taken was that she being a temporary employee had not put in service of 240 days as required either in the year 1985 or in the year 1984. Her services were terminated on 3.2.1986, so it was not a case of retrenchment. The Tribunal found force in the contentions of the department and held that the termination of the petitioner was valid.

5. The order of the Tribunal has been challenged on the ground that departmental enquiry has not been held as per rules, it was against the principles of natural justice, she was absent from duty due to circumstances beyond her control and was entitled to be reinstated in service. The enquiry should have been conducted after reinstating her and in fact she had been terminated before starting of enquiry, no witness was examined by the respondent, who proved the charges against her and enquiry officer had himself cross examined the witnesses of petitioner and he played the role of prosecuting officer.

6. Petitioner has relied upon Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta and Ors. 1999 SSC(L&S) 596 wherein it was held by the Supreme Court that if the findings are arrived at in an enquiry as to the misconduct, behind the back of the officer or without a regular departmental enquiry, simple order of termination is to be treated as ‘founded’ on the allegations and will be bad. The petitioner cannot drive any advantage from this judgment since the enquiry was not conducted at her back. She was given notice of the enquiry. Her allegations are that she deserved sympathy which was not shown to her. Her allegations that the enquiry was biased also does not stand the scrutiny. An enquiry officer is not barred from asking questions from the witness, if an enquiry officer asks questions to the witnesses he does not become a prosecutor. There is no rule of natural justice that an enquiry officer is supposed to be acting only as an umpire. An enquiry officer is supposed to find out the truth of the matter and has right to ask questions to the witnesses if necessary. Such an act of enquiry officer shall not vitiate the enquiry.

7. The other judgment relied upon by the petitioner is State Bank of India v. A.N. Gupta and Ors. , wherein Supreme Court held that proceeding in the garb of disciplinary proceedings cannot be permitted after employee has ceased to be in the service of the Bank as Service Rules do not provide for continuation of disciplinary proceedings after date of superannuation. This judgment also does not help petitioner because in case of petitioner, enquiry was not held after her retirement. Enquiry was held when she continuously absented from service for about two years. She had not been terminated from service, her termination was done only after holding of enquiry.

8. There is no dispute that she was working as a temporary and casual short duty telephone operator. Even if it is considered for argument sake that she was terminated without holding enquiry, still she has no case. In order to bring the case under Section 2(oo) and 25F of Industrial Disputes Act and in order to hold that she was retrenched, it is necessary that before her termination she should have worked for 240 days in preceding twelve months. It is undisputed that she had been absenting continuously from 17.7.1984 till 27.9.1985 she joined for short time on 28.9.1985 and after working for half day again absented from 28.9.1985 (AN) till 3.2.1986. Counting of 240 days has to be done during twelve preceding months from 5.2.1986. She had worked during this period only for half day and in earlier year also she had not worked for 240 days.

9. Sympathy and mercy cannot be claimed as a matter of right. Instead of showing sympathy with an absenting employee, who failed in her duty to even apply for leave and inform the department from time to time, if department showed sympathy to another unemployed person, no fault can be found with the department. After all every unemployed person has equal claim over sympathy and mercy. Those who are not sincere do not deserve even sympathy.

10. There is another aspect of the case which has been overlooked by the Tribunal. She was terminated on 3.2.1986 and she raised an industrial dispute in the year 1991 i.e. after about five years. Though no limitation period is prescribed in Industrial Disputes Act but highly belated and stale claims cannot be entertained. Had she been in need of employment she would have immediately approached Conciliation Officer and appropriate government. Her raising dispute after five years only shows that she was not in need of job and in fact there was no industrial dispute in existence. The claim of the petitioner was liable to be dismissed on this sole ground.

11. I find no merits in the writ petition and the same is hereby dismissed. No orders as to costs.