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2008 DIGILAW 37 (CAL)

Eastern Coalfields Limited v. Naren Kora

2008-01-11

KALIDAS MUKHERJEE, PRANAB KUMAR CHATTOPADHYAY

body2008
Judgment PRANAB KUMAR CHATTOPADHYAY, J. This appeal has been preferred at the instance of the appellant-Eastern Coalfields Limited assailing the judgment and order passed by the learned Single Judge in the writ petition bearing W.P. No. 2272 of 2005 whereby and whereunder the said learned Single Judge allowed the writ petition and directed the appellant herein to allow the writ petitioner to join the service along with all consequential service benefits with retrospective effect i.e. from 11th August, 1980. It is the case of the writ petitioner that on 4th August, 1980 while working as an employee of Khandra Colliery under the appellant herein, he went to his native village having fallen sick and after recovery from the said illness wanted to join his duty on August 11, 1980 when the said writ petitioner noticed that one Budhu Koley was working in his place upon falsely declaring himself as Naren Kora namely, the writ petitioner herein. It has been submitted on behalf of the writ petitioner that immediate complaint was lodged before the authorities of the appellant herein inviting attention to the aforesaid incident of impersonation and for allowing the said writ petitioner to join the duties upon removing the impersonator. The writ petitioner, however, did not produce any receipt in order to establish that the aforesaid complaint was received by the appropriate authority of the appellant herein. The appellant, however, in Paragraph 4 of the Stay Application filed in connection with the present appeal has specifically mentioned that in the year 1983, writ petitioner made a complaint before the authority. The writ petitioner did not submit any further representation thereafter, claiming necessary relief from the authorities of the appellant herein till 4th March, 1993. From the writ petition we find that the respondent No. 1/writ petitioner made another complaint on 4th March, 1993 narrating the aforesaid incident of impersonation and for allowing him to resume the duties. It is not in dispute that the appellant authority immediately after receiving the aforesaid complaint referred the matter to the Vigilance for finding out the truth and the impersonator was ultimately dismissed from service on the charge of impersonation. Since no disciplinary proceeding was initiated by the respondent authority, the aforesaid order of dismissal was quashed by this court and the appellant herein was directed to reinstate the said impersonator in service. Since no disciplinary proceeding was initiated by the respondent authority, the aforesaid order of dismissal was quashed by this court and the appellant herein was directed to reinstate the said impersonator in service. The concerned authorities of the appellant herein thereafter, issued a charge-sheet to the said impersonator which was challenged before this court by the said impersonator by filing a writ petition bearing C.O. No. 15295 (W) of 1993. During the pendency of the said writ petition, certain steps were taken by the authorities of the appellant herein and challenging the said steps another writ petition was filed on behalf of the impersonator bearing W.P. No. 5339 (W) of 1997. The respondent No. 1/writ petitioner herein filed an application for addition of party in connection with the said writ petition filed on behalf of the impersonator being W.P. No. 5339 (W) of 1997. Both the writ petitions were disposed of by a learned Single Judge of this Hon’ble court on 19th June, 2002 when the authorities of the appellant herein were granted liberty to continue with the departmental proceedings initiated against the impersonator by giving adequate opportunity of hearing to the said impersonator and upon giving notice to the respondent No. 1/writ petitioner. Thereafter, the disciplinary proceedings were conducted and concluded and the impersonator was ultimately dismissed from service by the General Manager, Bankola area by the order dated 7th/9th July, 2005. Even after termination of the service of the aforesaid impersonator, appellant herein did not allow the original Naren Kora to resume his duties and, therefore, the said original Naren Kora filed a writ petition before this court which was finally disposed of by the judgment and order under appeal passed by the learned Single Judge whereby and whereunder the said learned Single Judge directed the authorities of the appellant herein to allow the writ petitioner to join the duties and pay all consequential service benefits with retrospective effect i.e. from 11th August, 1980. It has been urged on behalf of the appellant herein that the respondent No. 1/writ petitioner is not entitled to claim any benefit on the ground of delay alone. Mr. Alok Banerjee, learned Counsel representing the appellant herein submits that the learned Single Judge should have dismissed the writ petition on the ground of delay alone as the writ petitioner approached this Hon’ble court after long lapse of 27 years. Mr. Mr. Alok Banerjee, learned Counsel representing the appellant herein submits that the learned Single Judge should have dismissed the writ petition on the ground of delay alone as the writ petitioner approached this Hon’ble court after long lapse of 27 years. Mr. Banerjee in support of his argument referred to and relied on the decision of the Supreme Court in the case of New Delhi Municipal Council vs. Pan Singh & Ors. reported in A.I.R. 2007 SCW 1705. It is true that delay and laches are relevant factors for exercising the authority and jurisdiction under Article 226 of the Constitution of India. In the present case, however, the writ petitioner lodged a specific complaint before the concerned authority of the appellant in the year 1980 claiming himself as the original employee although no receipt was produced on behalf of the said writ petitioner as a proof of lodging of the said complaint. The appellant herein, in any event, did not dispute that a complaint was lodged by the said writ petitioner in the year 1983. It is also not in dispute that a written complaint was subsequently, made by the writ petitioner in the year 1993 and the authorities of the Eastern Coalfields Limited on the basis of the said complaint referred the entire matter to the Vigilance and ultimately punished the impersonator after conducting a disciplinary proceeding wherein the present writ petitioner adduced evidence in order to establish the allegation of impersonation. The appellant-Eastern Coalfields Limited never dismissed the writ petitioner from service. We do not find cessation of relationship between the employer and the employee in the present case as the respondent No. 1/writ petitioner was neither dismissed from service by the competent authority in accordance with law nor the said writ petitioner attained the age of super-annuation. The competent authority admittedly, did not initiate any disciplinary proceeding against the respondent No. 1/writ petitioner either on the ground of unauthorised absence or even on the ground of desertion. At least on and from 4th March, 1993, the incident of impersonation was well within the knowledge of the authorities of the appellant herein and the said authorities took necessary steps against the impersonator. At least on and from 4th March, 1993, the incident of impersonation was well within the knowledge of the authorities of the appellant herein and the said authorities took necessary steps against the impersonator. The respondent No. 1/writ petitioner herein reasonably expected that the authorities of the appellant would allow him to resume his duties and pay all the consequential service benefits immediately after completion of the disciplinary proceedings initiated against the impersonator and ultimately removal of the said impersonator from the service. The writ petitioner is admittedly, poor and illiterate person and, therefore, it is not expected that the said writ petitioner would approach this court at the very first instance. From the records we are, however, satisfied that the respondent No. 1/writ petitioner all through informed the authorities of the appellant herein about the impersonation and claimed for resumption of duties after removing the said impersonator which cannot be overlooked under any circumstances. In view of the aforesaid facts and for the reasons discussed hereinbefore, we are of the opinion that the principles enunciated by the Supreme Court in the case of New Delhi Municipal Council (Supra) cannot be made applicable in the facts of the present case and the relief claimed by the writ petitioner cannot be denied on the ground of delay alone. The appellant herein was undisputedly, prevented from removing the impersonator from service due to the orders passed earlier by this Hon’ble court in the previous writ petitions filed at the instance of the impersonator. Furthermore, it is also not expected that the appellant would allow the writ petitioner to resume his duties pending the enquiry relating to the charge of impersonation and without removing the impersonator from service. However, there can be no reasonable ground to deny the writ petitioner to resume his duties immediately after removing the impersonator from the employment by terminating his service after issuance of the termination order dated 7th/9th July, 2005 by the General Manager, Bankola area of the Eastern Coalfields Limited. In the aforesaid circumstances, we hold that the respondent No. 1/writ petitioner herein is entitled to receive all admissible service benefits at least on and from 10th July, 2005 i.e. the day following the date of termination of service of the impersonator. In the aforesaid circumstances, we hold that the respondent No. 1/writ petitioner herein is entitled to receive all admissible service benefits at least on and from 10th July, 2005 i.e. the day following the date of termination of service of the impersonator. Therefore, we direct the appellant and its authorities to allow the respondent No. 1/writ petitioner to join his duties immediately and pay all consequential service benefits including arrear salaries and allowances w.e.f. 10th July, 2005 as early as possible but positively within a period of six weeks from the date of communication of this order. With the aforesaid observations and directions, the judgment and order under appeal passed by the learned Single Judge stands modified and the present appeal stands disposed of without any order as to costs.