1984 PLP 983 (PLC(CS))

Date of hearing : 2nd March, 1982. The facts of the case giving rise to this appeal alleged by the appellant are that the respondent who was a machine operator made a fictitious entry of deposit of Rs. 20,000 in his son's account and then withdrew Rs. 15,000 from the said account. When the fraud was discovered he fled away. Charge‑sheet was sent by registered post at his home address but the same came back undelivered, with the report that he was not present at his residence and his whereabouts were not known. Since the respondent had absconded himself, a charge‑sheet of absence for more than ten days was sent to his home address. This, however, was delivered to him. He filed the reply which was found unsatisfactory and enquiry was held in which he participated. In the enquiry evidence was produced in respect of the fraud of Rs. 20,000 also although the charge‑sheet to that effect had not been served upon him. The enquiry officer found him guilty on both the charges and he was dismissed on both the allegations. The learned lower Court has reinstated the respondent without back benefits for the reason that he had been condemned unheard regarding the charge of fraud.

2. The learned counsel for the appellant has argued that in the reply to the charge of absence the respondent replied to the charge of fraud and embezzlement also before enquiry was held, therefore, the enquiry and dismissal on both the charges were correct. I have gone through the reply to the charge‑sheet which does not show that the charge‑sheet in respect of fraud had been delivered to him or in any manner he was in‑ the posses sion of copy of the original charge‑sheet. In his reply the respondent mentioned that the Manager of the Bank had gone to his father and told him about the fraud and that his father had given him this information. It is thus clear that before the enquiry was ordered and the enquiry officer was appointed there was no original or copy of the charge‑sheet with the respondent. According to sub‑paragraph (4) of paragraph 258 of the first Wage Commission Award of 1975, it is necessary for the competent authority to call upon the employees concerned to render a written explana tion of the charges made against him and to show cause by such a date as is specified in this behalf why disciplinary action should not be taken against him. No doubt it is not clearly mentioned in sub‑paragraph (4) that the employee is to be called upon in writing but the intention of the Wage Commission Award is quite clear that it should be in writing. The requirement is that a written explanation of the charges should be sub mitted by the employee concerned. Since written explanation is to be filed the intention is that the charges also should be brought to the notice of the employee concerned in writing. The employee concerned is also to be asked to show cause why disciplinary action should not be taken against him. In the reply of toe respondent it is not mentioned that the Manager had asked his father to convey the respondent to show cause why discip linary action should not be taken against him. Even if it be said for the sake of arguments that the written information is not necessary, since the respondent was not asked to show cause why disciplinary action should not be taken in respect of the charge of fraud, it cannot be said that requirement of sub‑paragraph (4) of paragraph 258 of the Wage Commission Award was fulfilled. So there is no force in the argument of learned counsel for the appellant that information had been given to the respondent about the fraud.

3. Learned counsel for the appellant has also argued that since the respondent was avoiding service, the sending of the charge‑sheet at his home address was sufficient compliance' of the rules and in this respect he relies upon p L D 1981 S C

225. The observations made are !as under :‑ Therefore, on this principle where the person against whom action is proposed to be taken by his own negligence impedes the actual service of notice, he cannot thereafter be heard to say that he wag not actually served and for that matter to challenge the decision taken in his absence. It applies on all fours to the case of respondent No. 1 as there was nothing further which the provision enjoined to give him an opportunity of being heard, the more so when the notices ; at his village address were accepted in which case also the want of knowledge could not be pleaded." It is shown in the present case that actually the respondent had been impeding service of notice, of course it may be said that he cannot complain of the action taken without hearing him. In the case from which the above observations were made the notices sent to the employee at his village address were actually accepted on his behalf. The presumption, therefore. could be taken that he had the knowledge, but in the present case the charge‑sheet sent at his home address was not accepted and it came back undelivered. It has been further observed :‑ "I would even go to the length of saying that if the provision casts a statutory duty to intimate, in writing to the workman about the action proposed to be taken against him, then corres pondingly the workman is also under an obligation to keep the Management informed of his whereabouts and in case of his failure to do so ,. he himself impedes the obligation on the part of the Management to afford him an opportunity of being heard and, therefore, he cannot complain of a decision having been taken in his absence". In the present case it does not appear that the respondent had shifted his residence from his previous address or that he was for longer time absent from his house address. Although the letter containing the charge of fraud could not be delivered to him as he was not found at his residence but the charge of absence was served upon him on the same address. This shows that neither he was absent from his home address permanently nor for a longer period. So no question arises here that he should have informed the Management of his where abouts. He being a male had to move about in search of his liveli hood or otherwise and only woman folk is expected to remain in the house. In these circumstances, the appellant should have made another attempt to send the charge‑sheet at the same address under registered cover. Even the charge‑sheet of fraud also should have been sent in the same letter in which charge‑sheet of absence was dispatched. SO ID in these circumstances of the present case P L D 1981 S C 225 is distinguishable.

4. The other point raised by the learned counsel for the appel lant is that Chan Pir Shah's case (1981 P L C 984) 1981 P L C 984 is not applicable to this case. He has cited 1980 P L C 828 and 1976 P L C

392. No doubt in 1980 P L C 828 f if Chan Pir Shah's case was dissented from but the facts of that case were a bit different. In that case three out of four charges had been established and they amounted to misconduct and one charge was not proved. Since two charges had been proved, no question could arise that the dismissing authority was prejudiced against the employee while prescribing punish ment. but in the present case enquiry was made properly on the charge of absence, but since no charge‑sheet had been served upon the respon dent in respect of fraud, he could not be punished on that charge. The charge of absence no doubt is a misconduct, but the offence is not so grievous as the fraud of Rs. 20,

000. If the Enquiry Officer had not mad the enquiry on the charge of fraud and had not returned the verdict of guilt, the posibility cannot be excluded that the dismissing authority E may have, in view of the ordinary nature of charge of absence, prescribed a lesser penalty short of dismissal. Since the grievous offence of fraud Rs. 20,000 was reported to have been proved, dismissing authority was obviously prejudiced and decided not to spare the respondent and thus passed the punishment of dismissal. So in these circumstances o the case 1980 P L C 828‑f is not helpful and Chan Pir Shah's case is applicable. 1976 P L C 392 also is distinguishable on account of the facts of that case. Rather the observations made in it may support the respondent's case. It has been observed :‑ "In determining the exact punishment to be inflicted the factors invari ably taken into consideration in the case of an employee are the length of his service, the quality of service rendered by him and the gravity of the default of dereliction of duty. Even if it is not said so in the order, these are the considerations which prevail and should prevail with an employer in determining the extent of punishment to be awarded." While prescribing punishment gravity of the offence is to be considered. In the present case conversely the employer was misled by the finding of the Enquiry Officer on the charge of fraud as it was a grievous offence. In the case from which the authority arose the bad record of the employee concerned was brought under consideration and it was observed :‑ "Therefore, if the employer referred to the past bad record with a view to determine the exact punishment to be awarded, it was within his competence and no legal defect on that score can be said to exist." But in the present case the offence of fraud for which no opportunity of proper hearing had been afforded to the respondent, was brought under consideration, rather on the basis of the said charge the punishment of dismissal was awarded. Needless to say that no employer would spare a person against whom the case of embezzlement of 15 or 20 thousand rupees has been established. So this was the main charge which affected the mind of the employer and thus the respondent was condemned un heard. The learned lower Court, in these circumstances, was justified in setting aside the order of dismissal and directing the re‑instatement of the respondent without back benefits.

5. As a result of the observations made above, I do not find any force in the appeal and dismiss it in limine. A. E. Appeal dismissed.