Research › Search › Judgment

Calcutta High Court · body

2002 DIGILAW 539 (CAL)

Madan Mohan Ghatak v. Agent/Manager Parasia 6 & 7 Incline Eastern Coalfields Ltd.

2002-08-13

MAHEMMAD HABEEB SHAMS ANSARI

body2002
JUDGMENT M.H.S. Ansari, J.: Petitioner's son Sri Madhusudan Ghatak was appointed in the respondent-organization under the category of Land Looser as General Mazdoor in 6 and 7 Incline. 2. The said Sri Madhusudan Ghatak, son of the petitioner did not return home on July 8, 1991 from his duty place and after a search by the petitioner at all possible places and houses of his relatives and friends petitioner lodged a diary on July 18, 1991 being G.D. Entry No.896 dated July 18, 1991 in P.S. Raniganj. The whereabouts of the aforesaid Madhusudan Ghatak, son of the petitioner are still not known and over 7 years have since elapsed and nothing has been heard off regarding the said Sri Madhusudan Ghatak. Petitioner has thereupon filed the instant writ application praying for cancellation of the charge-sheet dated September 1, 1992 which has been issued by the respondent-Coalfields for unauthorised absence. Petitioner has also prayed for settlement of statutory dues of the said Sri Madhusudan Ghatak to the petitioner as it must be presumed that he is dead. 3. Petitioner has relied upon the certificates, Annexures P-3 and P-4, issued by the P.S. Raniganj to the effect that no positive information from any corner would be received as yet with respect to the missing person Sri Madhusudan Ghatak. All efforts made by the police have yielded no result. The certificate issued by the Chairman, Raniganj Municipality is to the effect that the said Sri Madhusudan Ghatak was found missing from July 8, 1991 and a diary at Raniganj police station has been lodged on July 18, 1991. Annexure P-5 is the letter petitioner addressed to the Agent Parasea 6 & 7 No. Incline informing him that his son Sri Madhusudan Ghatak has not been traced and it must now be presumed that he is dead as he has been untraceable for a period of 7 years. 4. In substance petitioner is seeking a declaration that his son who is untraceable since July 8, 1991 that is to say over 7 years should be declared dead. 5. The question involves adjudication of a disputed question of fact which can appropriately be made by a Civil Court of competent jurisdiction. In my view, therefore, the petitioner has efficacious alternative remedy for seeking such relief and it is not appropriate for the petitioner to invoke the writ jurisdiction of this Court claiming such relief. 6. 5. The question involves adjudication of a disputed question of fact which can appropriately be made by a Civil Court of competent jurisdiction. In my view, therefore, the petitioner has efficacious alternative remedy for seeking such relief and it is not appropriate for the petitioner to invoke the writ jurisdiction of this Court claiming such relief. 6. Ld. Counsel for the petitioner, however, relying upon the judgment of the Bombay High Court in Sub hash Ramchandra Wadekar vs. Union of India, reported in AIR 1993 Bombay 64, contended that such declaration was granted by the aforesaid Court in its writ jurisdiction. The facts of that case depict that a petition was filed by the petitioner for issue of letters of administration in respect of the estate of his father who left home on January 9, 1984 and was not heard of by petitioner and other relatives since then Prothonotary and Senior Master had issued office requisition to the effect that petitioner be required to produce certificate under section 56 of the Estate Duty Act, 1953 and comply with other provisions of the Estates Act, 1953 before the petition would be proceeded further. It was in those circumstances that relying upon the provisions of section 108 of the Evidence Act, 1872 gave the declaration and directed the Prothonotary and Senior Master to proceed with the petition in accordance with law. 7. It is in those circumstances that orders came to be passed by the Bombay High Court and not in exercise of the jurisdiction under Article 226 of the Constitution. 8. No doubt, a relief has also been prayed for with respect to the quashing of the charge sheet dated September 1, 1992. In my view for that reason alone, writ application cannot be said to be maintainable where an efficacious alternative remedy is available to the petitioner with regard to the substantive relief. The relief with regard to the quashing of the charge-sheet is ancillary to the main relief. If it is declared that the son of the petitioner is to be presumed to be dead the charge-sheet would consequently lapse and stand recalled as no departmental enquiry can be conducted against a dead person. 9. The relief with regard to the quashing of the charge-sheet is ancillary to the main relief. If it is declared that the son of the petitioner is to be presumed to be dead the charge-sheet would consequently lapse and stand recalled as no departmental enquiry can be conducted against a dead person. 9. Accordingly without going into the merits of the contentions and keeping all questions open petitioner is relegated to availing of the efficacious alternative remedy of a suit and/or proceedings under the Indian Succession Act, 1972 for such reliefs as may be open to the petitioner at law and as he may be advised. 10. With the observations as above writ application is accordingly disposed of. 11. There shall, however, be no order as to costs. 12. Let urgent xerox certified copy of this judgment and order be furnished to the appearing parties, if applied for, on priority basis. Writ application disposed of.