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2007 DIGILAW 510 (CAL)

NAREN KORA v. COAL INDIA LTD

2007-07-11

BISWANATH SOMADDER

body2007
( 1 ) HEARD the learned Advocates appearing on behalf of the parties. ( 2 ) THE present writ petiltion is primarily directed against the respondents Eastern Coalfields Limited seeking direction from the Court to allow him to join service along with all consequential benefits with retrospective effect. The case of the writ petitioner, in short, is that he was an employee of khandra Colliery (N. K. J. Unit) under the Eastern Coalfields Limited. The petitioner in paragraph 4 of the writ petition stated that having fallen sick oh august 4,1980 he went to his native village and after recovery from his illness came back to the Colliery for attending his duty on August 11,1980 and noticed that one Sri Budhu Kole, son of Late Kali Kole, being the Private Respondent herein, was working in place and stead of the writ petitioner by declaring himself as Naren Kora, which happens to be the writ petitioner's name. ( 3 ) THE matter of controversy was with regard to the actual identity of the person who was working in the Colliery, in place and stead of the writ petitioner herein. In this regard, it may be pertinent to mention that the matter came up for consideration before this Court in an earlier writ petition, being W. P. No. 5339 (W) of 1997. The Court disposed of that writ application, which was filed by the person claiming to be Naren Kora (being the writ petitioner herein), by granting liberty to the respondent authorities to continue with the proceedings initiated by the said authorities strictly in accordance with the rules by giving adequate opportunity of hearing to that writ petitioner. The respondents authorities were further directed to give notice to the original person and the proceeding was directed to be held after giving an opportunity of hearing to the said original person. ( 4 ) IN the present writ proceeding, the writ petitioner happens to be that original person. ( 5 ) IN terms of the order dated 19th June, 2002 passed by this Court in w. P. No. 5339 (W) of 1997, the proceedings initiated by Eastern Coalfields ltd. continued. It appears from a copy of the Enquiry report, which is a document annexed by Eastern Coalfields Ltd. in their affidavit-in-opposition, that the management was in receipt of a complaint made by the writ petitioner. continued. It appears from a copy of the Enquiry report, which is a document annexed by Eastern Coalfields Ltd. in their affidavit-in-opposition, that the management was in receipt of a complaint made by the writ petitioner. The vigilance Department, after conducting a thorough enquiry, came to the conclusion that the private respondent No. 9 was not the real employee and that he had impersonated the writ petitioner and had been working at the colliery. In fact, from the said enquiry report it also appears that the writ petitioner was made a management witness in that very enquiry proceeding. After examination and cross-examination of witnesses, documents produced and after considering the facts and circumstances of the case, the enquiry officer came to a finding that the charged workman (being the private respondent No. 9 herein) had been fraudulently working in the name of the writ petitioner. This finding of the enquiry officer is dated 14th May, 2005. Consequent thereupon, by a letter dated 7th July, 2005, the respondent authorities terminated the service of the impersonator, being the private respondent No. 9 herein. A copy of this document is also annexed to the affidavit-in-opposition filed by Eastern coalfields Ltd. The present writ application was filed by the writ petitioner on or about 15th December, 2005. ( 6 ) THE learned Advocate appearing on behalf of Eastern Coalfields ltd. has raised a point of delay. He submits that the writ petition has been filed by the writ petitioner after a considerable period of time having elapsed. He submits that there has been a delay of 27 years in filing of the present writ application. He draws my attention to the averments made in paragraph 4 of the writ petition wherein it has been stated by the writ petitioner that he came back to the colliery after recovering from his illness for attending his duty on 11th August, 1980 and noticed that one, Sri Budhu Kole, was working in his place in the colliery by declaring himself as Naren Kora, which is the name of the writ petitioner herein. The learned Advocate for Eastern Coalfields Ltd. has also drawn my attention to the prayers of the writ petition and he submits that the prayer for allowing the petitioner to join service along with all consequential benefits with retrospective effect (that is from 11 th August, 1980), is also indicative of the delay of 27 years. In this regard he draws my attention to the following judgments : i) AIR 1980 Supreme Court 1894 (Gian Singh Mann v. The High court of Punjab and Haryana and Anr.); ii) AIR 1996 Supreme Court 2526 (Central Bank of India v. S. Satyam and Ors.); iii) (1998)6 Supreme Court Cases 549 (Scooters India and Ors. v. Vijai e. V. Eldred ). ( 7 ) RELYING on these judgments, the learned Advocate appearing on behalf of Eastern Coalfields Ltd. suijmits that the writ petition having been filed after 27 years, ought not to be entertained by this Court on ground of inordinate delay. ( 8 ) AFTER considering the submissions made on behalf of the parties I am unable to accept the submission made on behalf of Eastern Coalfields Ltd. that the writ petition ought to be dismissed on ground of inordinate delay in filing the same. The reasons for rejecting this contention are as follows : i) No averment has been made in the affidavit-in-opposition filed by Eastern coalfields Ltd. with regard to this aspect, that is to say that there has been a delay of 27 years in filing the writ petition. On the contrary, it has been stated by the said respondents in their affidavit-in-opposition at paragraph 12, page 10 as follows : ". . . Assuming but not admitting that writ petitioner was an employee of ecl but by virtue of his long period of absence from duties he lost his lien and he cannot claim employment after more than a decade. . . . . . " ii) The Eastern Coalfields Ltd. themselves used the writ petitioner as a management witness in the enquiry proceeding conducted by them, which appears from the copy of the document annexed to their affidavit-in-opposition. . . . . . " ii) The Eastern Coalfields Ltd. themselves used the writ petitioner as a management witness in the enquiry proceeding conducted by them, which appears from the copy of the document annexed to their affidavit-in-opposition. Further, in the said enquiry report dated 14th May, 2005, it has been stated that the High Court in 2002 had disposed of the matter [w. P. No. 5339 (W) of 1997] by directing the management to proceed with the enquiry giving adequate opportunity to the petitioner workman and further directed to give notice to Naren Kora (being the writ petitioner herein), who claimed to be the original one, to be present in course of enquiry. iii) It further appears from the said enquiry report dated 14th May, 2005 that the writ petitioner herein, being menagement witness No. 3, was cross-examined by the charged workman. The enquiry officer at page 8 of the in the 'b' Form Register tallies with the LTI of management witness No. 3, sri Naren Kora. . . . " (the writ petitioner herein), who was claiming to be the original Naren Kora. iv) It is obvious that the writ petitioner had no other option but to wait till eastern Coalfields Ltd. conductedl and concluded the said enquiry and came to a positive finding as to whether the writ petitioner. was the original employee, or it was the charged workman (being the private respondent herein ). That finding of fact was arrived at by the enquiry officer, only on 14th May, 2005. It was consequent thereto that the instant writ application was filed before this Court on or about 15th December, 2005. ( 9 ) FOR the above reasons, I am unable to accept the contention of the learned Advocate appearing on behalf of Eastern Coalfields Ltd. that there has been inordinate delay of 27 years in filing the writ application. ( 10 ) COPY of the document annexed at page 27 of the affidavit-in-opposition further goes to show that Eastern Coalfields Ltd. , after conclusion of the enquiry proceedings, terminated the service of the imposter (being the private respondent herein), who was all along since August 1980 impersonating the writ petitioner herein. The said document is dated 7th July, 2005 and was issued by the General Manager of Bankola Area of Eastern Coalfields Ltd. addressed to the impersonator. The said document is dated 7th July, 2005 and was issued by the General Manager of Bankola Area of Eastern Coalfields Ltd. addressed to the impersonator. ( 11 ) IT is thus clear from the facts available on record that the writ petitioner could not join his duty on 11th August, 1980, after he came back to the colliery from his native village upon recovery from illness, due to the reason of the impersonator having taken his place in the meanwhile. By no stretch of imagination can the writ petitioner be faulted, in any view of the matter. The facts having been conclusively proved, there is no shade of doubt that the writ petitioner is entitled to be reinstated in service. ( 12 ) IN the circumstances, the writ petition succeeds. The authorities of eastern Coalfields Ltd. are directed to allow the writ petitioner to join service along with all consequential benefits with retrospective effect, that is, from 11th August, 1980. ( 13 ) THERE shall, however, be no order as to costs. ( 14 ) AFTER the order is pronounced in Court, the learned Advocate appearing on behalf of Eastern Coalfields Ltd. prays for stay of operation of the order. ( 15 ) SUCH prayer is opposed by the learned Advocate appearing on behalf of the writ petitioner. ( 16 ) AFTER considering the submissions made, the prayer for stay of operation of this order is rejected.