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2008 DIGILAW 730 (JHR)

Paresh Nath Gope v. BCCL

2008-07-16

N.N.TIWARI

body2008
Order In this writ petition, the petitioners have challenged the order dated 2.1.2007 passed by the Personnel Manager, Eastern Jharia Area, BCCL, Dhanbad. 2. The short point, which has been raised by the petitioners is that the impugned appellate order is perfunctory, cryptic and non-speaking. The appeal has been turned down simply on the ground that the same cannot be considered until the order of the petitioners' conviction is set aside by the appellate court. 3. The petitioners were the employees of the respondents. Criminal case was instituted against the petitioners being Chandankiyari P.S. Case No. 116 of 2007 dated 18.12.1997 . 4. According to the petitioners, they were falsely implicated by interested persons due to village politics. However, the said case ended into conviction of the petitioners under Sections 307 & 304 I.P.C. The petitioners preferred appeal in this Court against conviction and sentence under Section 307/304 I.P.C. The appeal was registered as Cr. Appeal No. 1758 of 2004. The appeal was admitted. The petitioners were granted bail. 5. On the basis of the said conviction, memorandum of charge was served on the petitioners initiating departmental enquiry. In the said departmental proceeding, the petitioners were awarded punishment of dismissal by Memo dated 18.7.2005. The petitioners had preferred writ petition against the said order, but the same was permitted to be withdrawn in order to allow the petitioners to file departmental appeal against the order of dismissal. The petitioners, thereafter, preferred departmental appeal before the appellate authority, taking several grounds. 6. Without hearing and considering the grounds taken in appeal petition, suddenly the impugned order dated 2.1.2007 was passed turning down the petitioners' appeal by the aforesaid mechanical order. 7. Mr. Shailesh, learned counsel, appearing on behalf of the petitioners, submitted that the departmental appeal is a quasi-judicial proceeding and the same is guided by the prescribed procedure and the principle of natural justice. The appellate court has violated the prescribed norms, procedure as also the rules of fair play and principle of natural justice. The said appeal has been rejected without discussing the grounds taken by the petitioners and without any application of mind as also without considering the facts and materials on record. Charge in departmental proceeding was framed on the basis of the conviction in the criminal case. The said appeal has been rejected without discussing the grounds taken by the petitioners and without any application of mind as also without considering the facts and materials on record. Charge in departmental proceeding was framed on the basis of the conviction in the criminal case. If the decision was dependant on the criminal case or appeal, there was no use of holding the departmental proceeding and awarding punishment of dismissal independently. When the petitioners filed appeal against the said order, the respondents have come with one line rejection order stating that the appeal shall not be considered until the order of conviction of the petitioners is set aside by the appellate court. Learned counsel submitted that the impugned order is wholly illegal and violative of principle of natural justice and is liable to be quashed. 8. Mr. A.K. Mehta, learned counsel appearing on behalf of the respondents, submitted that the petitioners have been convicted and sentenced under Section 307/304 I.P.C. and their conviction has not been set aside by the appellate court. There is no scope for making consideration and giving detail finding when the dismissal itself was based on the petitioners' conviction in criminal case. The conviction has not been set aside by the appellate court. The petitioners departmental appeal has been rightly dismissed on the ground that there was no scope .for consideration until the order of conviction is set aside. Learned counsel relied on a decision of the Supreme Court in Union of India & Ors. vs. Ramesh Kumar [ (1997)7 SCC 514 ]. 9. have heard learned counsel for the parties and considered the facts and materials on record. I have also perused the impugned order dated 1.2.2007, whereby the petitioners' appeal has been dismissed. 10. From the impugned order, it is evident that there had been consideration of the grounds taken by the petitioners in their appeal petition. On perusal of the memorandum of appeal (Annexure-5), it appears that the petitioners had taken number of grounds assailing the order of dismissal passed only on the basis of conviction of the petitioners. Learned counsel submitted that the said case has got no connection with the official discharge of duty and even charge framed against the petitioners does not come within the meaning of the act of misconduct enumerated in the Certified Standing Order of the respondents. Learned counsel submitted that the said case has got no connection with the official discharge of duty and even charge framed against the petitioners does not come within the meaning of the act of misconduct enumerated in the Certified Standing Order of the respondents. Clause 26.1.19 of the said Certified Standing Order under which the petitioners have been dismissed speaks about conviction of court of law for any criminal offence involving moral turpitude and not any kind of convocation. Similar view has also been taken in State of Madhya Pradesh & Ors. vs. Hazarilal [ (2008)3 SCC 273 }. In the case of State of Madhya Pradesh (supra), the Apex Court held that while considering the circumstances for imposing any penalty, all the charges irrespective of the nature of the case in which delinquent is' involved punishment of dismissal cannot be awarded. 11. However, in the instant case, I find that there is no consideration and application of mind at all. When the petitioners had taken several grounds in his appeal petition, the appellate authority should have considered and discussed those grounds before rejecting the same and upholding the order of dismissal. The order of the appellate court must be a speaking order supported by the reasons based on the relevant facts and materials on record and the legal provisions. The impugned order is a mechanical and non-speaking order and is not sustainable in law. The same is hereby quashed. 12. The matter is remitted to the appellate authority to consider the petitioners' appeal afresh and pass appropriate speaking order, in accordance with law, within a period of two months from the date of receipt/production of a copy of this order.