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Jharkhand High Court · body

2009 DIGILAW 276 (JHR)

Rafiq Mian v. Central Coalfields Ltd.

2009-02-19

AJIT KUMAR SINHA

body2009
Order In the instant writ petition the petitioner prays ~or issuance of an appropriate writ in the nature of certiorari or any other appropriate writ for quashing the order of dismissal from service contained in Order No. CWS/PD/Discpl.Action/2002/1708 dated 20.7.2002 of the General Manager, Central Workshop, Central Coalfield Ltd., Barkakana whereby and whereunder the said respondent while passing the dismissal order has failed to take into consideration the order dated 11.6.2001 passed by the Hon'ble Jharkhand High Court in CWJC No. 3102 of 1999 as also the order of acquittal as contained in judgment dated 8.7.2002 passed by Shri Krishna Kumar, Judicial Magistrate, 1st Class, Hazaribagh in G.R. No. 168 of 1999/T.R. No. 2080 of 2002 in relation to self same charges for which departmental proceedings had been initiated vide charge-sheet dated 15.7.1999. The petitioner further prays for quashing the appellate order contained in letter bearing Ref. No. CWS/PD/DiscpI. Action/02 dated 28.11.2002 whereby the Appellate Authority has been pleased to dismiss the appeal. 2. The facts, in brief, is stated as under:- The petitioner was 'appointed as category-1 mazdoor on 30.1.1990 and he discharged his duties satisfactorily. The petitioner was implicated in a criminal case for theft of unserviceable commutator segment consisting of 100 pieces of copper weighing approximately 10 kg. and he was caught while coming from Barkakana Central Workshop and the stolen articles were recovered from his possession. Accordingly a written report was made to the Officer-in-Charge, Barkakana Outpost and Patratu (Barkakana) P.S. Case No. 139 of 1999 was .registered under Sections 379 & 411 of the Indian Penal Code. Simultaneously a disciplinary proceeding was initiated by issuing a charge-sheet on 15.7.1999 and the petitioner was put under suspension. The petitioner thereafter filed a show cause. The petitioner preferred a writ petition bearing No. 3102 of 1999(R) with a prayer of stay of departmental proceeding during the pendency of criminal case and the aforesaid writ petition was disposed of vide order dated 11.6.2001. The Hon'ble High Court while refusing to stay the departmental proceeding directed that the same should be disposed of in accordance with law. It also gave the liberty that in case of acquittal in the criminal case, he may bring the same to the notice of the competent authority who is required to pass order taking into consideration such decision. The Hon'ble High Court while refusing to stay the departmental proceeding directed that the same should be disposed of in accordance with law. It also gave the liberty that in case of acquittal in the criminal case, he may bring the same to the notice of the competent authority who is required to pass order taking into consideration such decision. The learned Judicial Magistrate, 1st Class, Hazaribagh by reason of his Judgment dated 8.7.2002 in G.R. No. 1168 of 1999/ T.R. No. 2080 of 2002 was pleased to acquit the petitioner of all the charges. In the meanwhile the Enquiry Officer gave his enquiry report on 11.4.2002, vide memo dated 21.5.2002 the petitioner was asked to show cause against enquiry report which was submitted on 27.5.2002. The petitioner brought a copy of the judgment dated 8.7.2002 of acquittal in the criminal case and requested to drop the proceeding, but the disciplinary authority passed the order of dismissal from service on 20.7.2002. The petitioner thereafter preferred an appeal on 25.7.2002 bringing into notice the fact about the order and direction issued in CWJC No. 3102 of 2001. The appellate authority vide its impugned order dismissed the appeal which was corn municated to the petitioner vide letter dated 28.11.2002. 3. The main contention raised by the petitioner is that in view of the settled law as laid down time and again by the Hon'ble Supreme Court that once the charges and the evidences in criminal case and also in the disciplinary proceedings are identical then the departmental proceeding is liable to be set aside. It has also been contended that even the High Court observed so in its earlier order to take into consideration the order of acquittal in the criminal case but it was not even considered. 4. The respondents submit that the petitioner was found guilty by the disciplinary authority as well as the appellate authority and the disciplinary proceedings are separate from criminal proceeding and both can simultaneously be tried. It is also submitted that due compliance of the principles of natural justice has been followed. 5. In the instant case, the appellate order dated 28.11.2002 which is sought to be challenged has been annexed as Annexure-10 at page 76. It is also submitted that due compliance of the principles of natural justice has been followed. 5. In the instant case, the appellate order dated 28.11.2002 which is sought to be challenged has been annexed as Annexure-10 at page 76. However, on a bare reading of it, it will be evident that the same is not the appellate order which has been communicated by the Personal Manager, instead the appellate order has not seen the light of day till today. The impugned appellate order is only a communication by the Personal Manager informing about the decision taken on 22.11.2002 which has not been challenged and rather it could not have been challenged since it has not been supplied to the petitioner till date. On this ground alone this writ petition deserves to be allowed, but unfortunately neither any pleading is there nor any prayer to that effect is there. However, non-supply of appellate order is a legal infirmity and causes impediment in filing the writ petition without knowing the contents of the same and the grounds on which it was rejected. Even otherwise, I find that the charges in the criminal case as well as in the disciplinary proceedings arc same and identical and thus the order of acquittal in the criminal case will certainly have a bearing in the disciplinary proceeding as per the settled law and also in view of order passed in CWJC No. 3102 of 2001. 6. Considering the aforesaid facts and circumstances of the case, the impugned order dated 20.7.2002 and 28.11.2002 is accordingly set aside and this writ petition is allowed.