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2007 DIGILAW 452 (CAL)

TRINATH SETHI v. COAL INDIA LTD.

2007-06-22

PRASENJIT MANDAL, PRATAP KUMAR RAY

body2007
PRATAP KUMAR RAY, J. ( 1 ) HEARD learned Counsel appearing for the parties. ( 2 ) THIS writ petition has been referred to us for considering the point of maintainability of the writ petition by administrative order of the Hon'ble the Chief Justice of the High Court, Calcutta, in view of reference of the matter for constitution of a larger Bench to decide the issue'as reflected in the judgment delivered on 12. 4. 2007 by Tapen Sen, J. in W. P. No. 2458 of 2003. The matter was referred to for constitution of a larger Bench to answer the maintainability issue of the writ petition by His Lordship Tapen Sen for the reason that with reference to the earlier writ petition by the present petitioner assailing the initiation of a departmental proceeding registered as W. P. No. 1708 of 1998, Barin Ghosh, J. as His Lordship then was, by the judgment and order dated 7. 3. 2003 passed the decision that writ petition was not maintainable as the cause of action arose namely, issuance of the charge-sheet of the departmental proceeding within the jurisdiction of the high Court, Jharkhand. ( 3 ) BEFORE dealing with the issue as referred to about maintainability of the present writ petition the factual matrix of the earlier writ petition as moved and of the present writ petition are required to be discussed. Earlier writ petition being W. P. No. 1708 of 1998 was moved assailing the initiation of departmental proceeding and the charge-sheet thereof with the pleading (hat the charge-sheet though was issued by the disciplinary authority whose office is situated within the State of Jharkhand but the writ petition is maintainable in the High Court at Calcutta on the ground that the Head office of Coal India Ltd. is situated within the jurisdiction of the Calcutta high Court, which is the mother organisation of Bharat Cooking Coal Ltd. under which the disciplinary authority was working. Barin Ghosh, J. as His lordship then was, considered the matter by holding that as the place of eause of action is the test to identify the territorial jurisdiction of the High coult and such cause of action of initiation of departmental proceeding happened within the State of Jharkhand as the disciplinary authority's office is situated within the State of Jharkhand, even if it is assumed that Coal indit Ltd. has a control over the Bharat Cooking Coal Ltd. as a sister organisation, still then writ petition is not maintainable as the cause of action arose outside the territorial jurisdiction of the High Court of Calcutta. On that finding the writ petition was dismissed and an appeal preferred stood dismissed for default. ( 4 ) THE present writ petition has been filed on the factual pleadings that after the departmental proceeding was concluded culminating to an order of dismissal, in terms of the service regulation a statutory appeal was preferred before the Appellate Authority unsuccessfully and the office of the Appellate Authority is within the jurisdiction of the High Court at Calcutta, the decision of the Appellate Authority is the subject matter of challenge in this writ petition whereby and whereunder the Appellate Authority confirmed the decision of disciplinary authority dismissing the writ petitioner from service. In the present writ petition the Appellate Authority has been made as a party in the proceeding as respondent No, 3 though inadvertently the designation of the Appellate Authority not properly mentioned by omitting the word 'chief from the designation "chief General Manger". In the present writ petition the writ petitioner has pleaded in paragraphs 32 to 34 the illegality of the Appellate Authority to pass such an order in details and in prayer [a] of the writ petition the writ petitioner has prayed for quashing of the said order of the Appellate Authority dated 27th October, 2003. Paragraphs 32 to 34 and the prayer [a] of the writ petition are set out hereinbelow. "32. Your petitioner states that during the pendency of the Appeal the Chief General Manager [hereinafter referred to as C. G. M. ] appellate authority sitting in the office of the C. B. Area at Barakar, burdwan, passed the final order against the appeal preferred by the petitioner on 27. 10. 2003. "32. Your petitioner states that during the pendency of the Appeal the Chief General Manager [hereinafter referred to as C. G. M. ] appellate authority sitting in the office of the C. B. Area at Barakar, burdwan, passed the final order against the appeal preferred by the petitioner on 27. 10. 2003. The CGM has rejected the appeal preferred by the petitioner in a creeptive manner and without touching the legal and factual points raised by the petitioner in his appeal. Practically, the CGM has developed the case of the respondent company by making a futile effort to justify as to how the thumb impression of the petitioner was examined by the Vigilance Officer. One more point the cgm has tried to develop and stated that the age recorded in the service record of Srinath Sethi was correct but the present petitioner have got oppc-rtunity of more benefit of service by medical examination. If the petitioner was actual Trinath Sethi in that case such a difference of age could have never been occurred. Unfortunately, the findings of the Appellate Authority is baseless and far from the factual aspect. Moreover, as per law, the Appellate authority did not reply some other points which are very much relevant and which has been raised by the petitioner in the appeal. This the order of the Appellate Authority is bad, baseless and have no nexus with the evidential and documentary values. A copy of the order of the Appellate Authority dated 27. 10. 2003 is being annexed hereto and marked with the letter P-12. 33. Your petitioner states that the order passed by the Appellate authority is bad, illegal and not tenable in the eye of law. Thus the order of the Appellate Authority is liable to be set aside and quashed. 34. Your petitioner states that the order of the Appellate Authority is bad on the following grounds : firstly, the Appellate Authority has not considered the evidence came before the Enquiry Officer but the law of the land is very mush assertive of considering the evidence and thereafter comes to the final conclusion. Secondly, in the appeal the petitioner has proved that the allegation is baseless and/or no corroborative evidence has come up in support of the allegation, contrary, the Appellate Authority has not made any whisper on that point. Secondly, in the appeal the petitioner has proved that the allegation is baseless and/or no corroborative evidence has come up in support of the allegation, contrary, the Appellate Authority has not made any whisper on that point. Thirdly, the Appellate Authority has considered the appeal of the petitioner on extraneous grounds. In the findings, there is no whisper regarding the process of examination of the thumb impression and no records were produced by the presenting officer regarding the examination of the thumb impression. There was also no whisper as to how the thumb impression given in the old B-Form and how the Enquiry Officer or Vigilance officer has come to the conclusion about the difference in between the two thumb impression. Fourthly, the Appellate Authority has not made any observation regarding the date of appointment of the petitioner. There is no dispute regarding the tenure of services of another with the petitioner. If there is any existence of another with the petitioner. If there is any existence of another Trinath Sethi, then question arose regarding the date on which he was appointed in the Colliery and who has nominated said Trinath Sethi but in the instant case your petitioner is working since the date as specified by the petitioner is the date of appointment of another Trinath Sethi, who is actually not in existence. Your petitioner was given appointment in place of his mother on disablement ground. In such cases, the retiring employee has to come and identify the person concerned being the dependent of the retiring employer, before the Appointing Authority and thereafter question of providing employment may arise and as such, the story of existence of so-called real Trinath Sethi is vague and have no legs to stand in the eye of law. Fifthly, the Appellate Authority failed to justify as to how the complainant was not produced before the Enquiry Officer to justify their claim but as per law of the land the withdrawal of material witness, particularly, the complainant from the enquiry is bad and enough to vitiate the departmental proceeding. Sixthly, after the nationalisation, a grave agitation cropped up amongst the workmen of entire Coal Industries regarding the service record and particularly, the recording of the date of birth of the employees. To resolve such dispute, 1. 1. 76 came up and on the basis of 1. 1. Sixthly, after the nationalisation, a grave agitation cropped up amongst the workmen of entire Coal Industries regarding the service record and particularly, the recording of the date of birth of the employees. To resolve such dispute, 1. 1. 76 came up and on the basis of 1. 1. 76 almost all the employees attached to Coal Industries were re-examined and their new date of birth was recorded. It does not mean that such assessment of age and new recording of date of birth was done to indicate that as there is a variation of age of the employees, the employee having the date of birth, newly recorded, is not the original employee but a new one. Such type of arrangement advanced by the Appellate Authority is biased, motivated and a futile effort to findings of the enquiry. Seventhly, the Appellate Authority did not made any observation on the point of non-serving the preliminary enquiry report upon the petitioner but the petitioner has taken this point very strongly. Eighthly, the Appellate Authority did not nullify the argument of the petitioner regarding the departmental proceeding that the same is bad and there was no evidence rather they had not made any whisper on that ground. Ninthly, the very vital point has been taken up by the petitioner regarding the police verification report. During the ossification test, the doctors observed and instructed the authority concerned for collecting the police verification report because the variation of age cannot be accepted as a conclusive evidence but the respondents did not make any serious effort to get the police verification report. Without police verification report, the entity of a person cannot be identified and ascertained. Tenthly, in the appeal the petitioner put stress on the point that neither the finger print expert was adduced as the witness nor the report and process and procedure of conducting finger print examined, was placed before the enquiry Officer. So far as the affairs of Thumb impression examination, the petitioner is in total dark. Tenthly, in the appeal the petitioner put stress on the point that neither the finger print expert was adduced as the witness nor the report and process and procedure of conducting finger print examined, was placed before the enquiry Officer. So far as the affairs of Thumb impression examination, the petitioner is in total dark. While neither the fingerprint expert nor the report was adduced before the Enquiry Officer and the petitioner was not given opportunity to cross-examine the Fingerprint Expert and failed to peruse the report, in that event the entire process of Fingerprint examination is bad and cannot be accepted as an evidence but the order of dismissal of the petitioner has been made solely on the point of dissimilarity of two thumb impressions. Eleventhly, the Appellate Authority has also failed to consider the photograph of the Trihath Sethi, One photograph was taken up at the time of initial appointment and the other was collected at the time of present enquiry proceeding. In case both the photographs are same and simitar, in that event the question of another Trlnath Sethi does not arise. Another striking point has been taken up by the petitioner that the order of dismissal was published by the Agent of the Colliery but he is not the competent authority to pass such type of order. The Appellate Authority with specific motive and design has not uttered a single word which expressly confirmed that the said point of law raised by the petitioner is genuine and as such, both the Appellate Order and the order of dismissal, Departmental proceeding and the charge-sheet are bad in law. There are severe infirmity appearing from the final order made by the Appellate Authority and for that reason a cryptic order has been passed by the Chief General Manager by avoiding his responsibility to adjudicate the proceeding conducted against him and thus deprived the petitioner of his life and livelihood and on the score aione, the impugned order passed by the Chief General Manager, the Appellate Authority, on 27. 10. 2003 is bad and liable to be set aside. Prayer [a] : A Rule Nisi upon the respondents to show cause as to why an order and/or direction and/or writ in the nature of mandamus should not be issued commanding the respondents to forthwith withdraw and/or cancel and/or quash the impugned order of Appellate Authority dated 27. 10. 10. 2003 is bad and liable to be set aside. Prayer [a] : A Rule Nisi upon the respondents to show cause as to why an order and/or direction and/or writ in the nature of mandamus should not be issued commanding the respondents to forthwith withdraw and/or cancel and/or quash the impugned order of Appellate Authority dated 27. 10. 2003, illegal dismissal order and/or departmental proceeding and/or not to give any further effect to the dismissal order/departmental proceeding and to reinstate the petitioner in his usual duties and not to act in any manner prejudicial or detrimental to the rights of the petitioner's livelihood. " ( 5 ) IN addition to that in paragraph 36 it is submitted that records of the case are lying with the respondent which is within the jurisdiction of the hon'ble High Court. Paragraph 36 reads as follows : "36. Your petitioner states that the records of the case are lying with the respondent which is within the jurisdiction of this Hon'ble Court. " ( 6 ) UNDER the service jurisprudence it is a settled legal position that the order of disciplinary authority is considered by the Appellate Authority and when a decision is passed, it merges to the order of the Appellate authority. Doctrine of merger principle has full applicability as the Appellate authority decides the entire factual and legal questions involved in the matter assailing the decision of the disciplinary authority. Hence, under the service jurisprudence when any decision is passed by the Appellate Authority with reference to a departmental proceeding by confirming the decision of the disciplinary authority, the employee concerned is required to challenge the order of the Appellate Authority as well as the decision of the disciplinary authority and without challenging the order of the Appellate Authority no relief could be granted as the decision of the disciplinary authority got merged with the decision of the Appellate Authority. In the instant case, the writ petitioner has made the Appellate Authority a party in the proceeding and prayed for a Writ of Mandamus for quashing the decision of the Appellate authority. He also pleaded in paragraphs 32 to 34 challenging legality of the decision as reached by the Appellate Authority by setting different points on that issue. In the instant case, the writ petitioner has made the Appellate Authority a party in the proceeding and prayed for a Writ of Mandamus for quashing the decision of the Appellate authority. He also pleaded in paragraphs 32 to 34 challenging legality of the decision as reached by the Appellate Authority by setting different points on that issue. Furthermore, the writ petitioner in paragraph 36 has contended that the High Court of Calcutta has the territorial jurisdiction as the records are tying within the jurisdiction of the respondent. It is true that writ petitioner categorically and explicitly has not mentioned in any paragraph that the part cause of action arose in a place which is situated within the jurisdiction of the High Court of Calcutta in the office of the Appellate Authority who passed the decision but by necessary implication in view of the pleading from paragraphs 32 to 34 as already quoted and in view of prayer [a] for writ of Mandamus praying quashing of the decision of the Appellate Authority and in view of the contention made in paragraph 36 that the records are lying within the jurisdiction of the High Court of Calcutta, this Court is of the view that the Court should not take a technical approach of non-mentioning in another paragraph expressing loudly the situation of part cause of action within the jurisdiction of the High Court of Calcutta as has been urged vehemently by the learned Advocate appearing for the respondent. ( 7 ) NOW the constitutional provision to be looked into to decide the issue. Article 226 (1) and (2) of the Constitution are the relevant provision in this field which read as under : "226. Power of High Courts to issue certain writs, - [1] Notwithstanding anything in Article 32 every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any government, within those territories direction, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by part lll and for any other purpose. [2] The power conferred by clause [1 ] to issue directions, orders or writs to any Government authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such government or authority or the residence of such person is not within those territories. " ( 8 ) ON a bare reading of Article 226 (2) of the Constitution of India it appears that even for a cause of action arose partly within the territorial jurisdiction of any High Court writ is maintainable in that High Court. Under the service law an identical question was considered by the Supreme Court as has been referred to by Tapen Sen, J. in the order under reference namely, M/s, Kusum Ingots and Alloys Ltd. v. Union of India and Anr. , reported in AIR 2004 SC 2321 wherein in paragraph 27 the Apex Court held to that effect as follows : "when an order, however, is passed by a Court or Tribunal or an executive authority whether under provisions of a statute or otherwise, a part of cause of action arises at that place. Even in a given case, when the original authority is constituted at one place and the appellate authority is constituted at another, a writ petition would be maintainable at both the places. In other words an order of the appellate authority constitutes a part of cause of action, a writ petition would be maintainable in the High Court within whose jurisdiction it is situate having regard to the fact that the order of the appellate authority is also required to be set aside and as the order of the original authority merges with that of the appellate authority. " ( 9 ) CONSIDERING that judgment of the Apex Court which is an appropriate judgment in this field dealing with the jurisdiction issue, where the jurisdiction of the different High Courts in view of different cause of action arose by the decision of the disciplinary authority as well as by the appellate Authority. " ( 9 ) CONSIDERING that judgment of the Apex Court which is an appropriate judgment in this field dealing with the jurisdiction issue, where the jurisdiction of the different High Courts in view of different cause of action arose by the decision of the disciplinary authority as well as by the appellate Authority. In the instant case it appears that the decision passed by the disciplinary authority being a part cause of action which arose wjthin the territorial jurisdiction of the High Court, Jharkhand, an admitted position and the part cause of action namely, the decision of the Appellate Authority which is under challenge in a writ petition at High Court, Calcutta arose admittedly within the territorial jurisdiction of the High Court at Calcutta. He. nce, the provision of Article 226 (2) is squarely applicable about maintainability of the writ petition at High Court, Calcutta whereby and whereunder the decision of the Appellate Authority is under challenge. We have no doubt in it. However, due to earlier Single Bench view namely of barin Ghosh, J. that the High Court of Calcutta had no jurisdiction as the cause of action arose within the territorial jurisdiction of the High Court, jharkhand, the present writ petition whether could be maintainable in view of the earlier findings of the High Court of Calcutta has created a prima facie conflict in the mind of Tapen Sen, J. so this matter has been referred to. However, on a screening of the factual matrix of the earlier writ petition and the present writ petition we are of the view that due to different cause of action of the earlier writ petition and the present writ petition as in the earlier writ petition admittedly the cause of action arose within the State of jharkhand as because the decision to initiate a disciplinary proceeding and the charge-sheet as issued by the disciplinary authority admittedly were taken in a place which is situated within the State of Jharkhand. Hence, barin Ghosh, J. held to that effect by rejecting the contention of the writ petitioner about maintainability of-the writ petition on the plea that the head office of Coal India Ltd. is situated in Calcutta City which is within the jurisdiction of Calcutta High Court relying upon the judgments of the Apex court to that field. Hence, barin Ghosh, J. held to that effect by rejecting the contention of the writ petitioner about maintainability of-the writ petition on the plea that the head office of Coal India Ltd. is situated in Calcutta City which is within the jurisdiction of Calcutta High Court relying upon the judgments of the Apex court to that field. But in the instant writ petition which is the present writ petition before us, the decision of the Appellate Authority since is under challenge, wherein the decision of the disciplinary authority got merged, the part cause of action definitely has arisen within the jurisdiction of the high Court of Calcutta as the office of the Appellate Authority admittedly is situated within the jurisdiction of the State of West Bengal. In that view of the matter, we are of the view that there is no conflict at all. ( 10 ) BEFORE parting with the matter we have to answer another point submitted by the learned Advocate appearing for the respondent that the division Bench of Calcutta High Court in a case Eastern Coalfields Ltd. v. Sudama Das and Ors. , reported in (2007)1 Cal HN 851 held that the High -Court of Calcutta got no jurisdiction to decide the writ petition wherein the judgment passed in the case of M/s, Kusum Ingots and Alloys Ltd. (supra)was referred to. On a bare reading of the judgment relied upon by the learned advocate for the respondent BCCL namely, the judgment of Sudama Das (supra), it appears that there was no such pleading or no such argument advanced that the office of the Appellate Authority was situated within the jurisdiction of the High Court of Calcutta. In that case the writ petitioner argued on issue of territorial jurisdiction of High Court of Calcutta by contending that the head office of Coal India Ltd. was situated within Calcutta city. That issue was negatived by the Division Bench aforesaid relying upon the judgment passed in the case of Oil and Natural Gas Commission v. Utpal kumar Basu, reported in 1994 SCC 711 . That issue was negatived by the Division Bench aforesaid relying upon the judgment passed in the case of Oil and Natural Gas Commission v. Utpal kumar Basu, reported in 1994 SCC 711 . The judgment passed in Sudma das (supra) practically a judgment on the ratio of the judgment in the Oil and natural Gas Commission case (supra) wherein it was held that mere situation of any head office in a particular territorial jurisdiction ipso facto would not confer any jurisdiction of the concerned High Court but for attracting the territorial jurisdiction of any particular High Court there must be a cause of action which in-depth connected with the subject matter of the lis and the issue in question. We have no doubt in the said legal proposition and that is a settled legal position. ( 11 ) IN the instant case, part cause of action arose admittedly within the territorial jurisdiction of the High Court of Calcutta since office of the appellate Authority whose decision is under challenge with positive pleadings and the prayer thereof, is situated within the State of West Bengal and, accordingly, within the territorial jurisdiction of the High Court of calcutta. Hence, the writ petition has satisfied the test of part cause of action and maintainability of the writ petition in terms of Article 226 (2) of the Constitution of India. ( 12 ) HAVING regard to the aforesaid findings and observations accordingly we are answering the point that the present writ petition is maintainable in the High Court at Calcutta assailing the decision passed by the Appellate Authority. The technicalities of the issue namely, the omission to prefix the word 'chief before the name of respondent No. 3 is allowed to be rectified by granting leave by us. Writ petitioner is now at liberty to correct the said cause title here and now. ( 13 ) LET a corrected copy of the writ petition be served to the respondent. The point is, accordingly, answered. Let the matter be remanded back for hearing on merits by the learned Trial Court.