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2009 DIGILAW 731 (JHR)

Gopal Chandra Mondal v. Union of India

2009-05-08

D.G.R.PATNAIK

body2009
JUDGMENT D.G.R.Patnaik, J. Petitioners in these two writ applications have challenged the order dated 19.08.1994 issued by the Respondent No. 5 whereby their services under the respondent Eastern Coalfields Limited were terminated. Praying commonly for an order quashing the impugned order of termination, the petitioners have also prayed for a direction to the respondents to reinstate them in service with full back wages and to grant them all consequential reliefs for which they are entitled in accordance with law. 2. Case of the petitioners is that they were employed under the respondent Eastern Coalfields Limited. While the petitioner Gopal Chandra Mondal entered service under the respondent on 10.07.1992 and was eventually promoted to the post of Electrical Supervisor, Badjna Colliery under Mugma Area of ECL, the petitioner Punu Mudi joined service under the respondents on 31.03.1973 and he was eventually promoted and posted as Pump Khalasi in the Badjna Colliery under Mugma Area of ECL. While this was so, by letter dated 12.05.1994 they were called upon to appear before the Vigilance Officer and were informed that a disciplinary action would be taken against them for having executed an indemnity bond/surety bond in favour and support of an employee namely Mahesh Modi (son of petitioner Punu Mudi) who, by practicing fraud and misrepresentation and by impersonating himself as Mahesh Kora, had obtained employment under the Respondent Company. Later, by the impugned order of dismissal dated 19.08.1994, their services were terminated. The grievance of the petitioners is that the order of termination was made without any departmental enquiry and without even serving any charge sheet or any opportunity of being heard and such order was totally against the provisions of law under Section 25-F of the Industrial Disputes Act. 3. Aggrieved by the impugned order of termination, the petitioner Gopal Chandra Mondal had filed a writ application before the High Court at Kolkata vide C.O. No. 12704 (W) of 1994. A single Bench of the Kolkata High Court had allowed the writ application quashing the impugned order of termination, directing the respondent Eastern Coalfields Limited to pay to the petitioner the arrears of salary and allowances from the date of termination of his services, till the date of judgement. 4. The judgement of the Single Judge was however set aside in the appeal filed by the Respondent Management, by a Division Bench of the Kolkata High Court. 4. The judgement of the Single Judge was however set aside in the appeal filed by the Respondent Management, by a Division Bench of the Kolkata High Court. The petitioners were however given a liberty to seek their remedy before the appropriate forum under the Industrial Disputes Act. 5. Against the judgement of the Division Bench, the petitioner Gopal Chandra Mondal moved the Supreme Court. On considering the fact that the writ application was entertained and kept pending and later allowed on merits, the Apex Court had observed that it was not appropriate to ask the parties to work out their rights in an alternative proceeding. With such observations, the Supreme Court set aside the order of the Division Bench of the High Court and remitted the matter to High Court for fresh disposal on merits. 6. When the matter was taken up again by the Division Bench of the High Court of Kolkata after its remand by the Supreme Court, an objection was taken in respect of the territorial jurisdiction of the Court. Upholding the objection taken by the respondent Management, the Division Bench set aside the judgement of the Singh Judge on this ground alone with an observation that it is open for the parties to agitate the same before the appropriate forum. 7. Being aggrieved with the order of the Division Bench, the petitioner Gopal Chandra Mondal again moved the Supreme Court by filing a Special Leave Petition. The Apex Court dismissed the SLP with a liberty to the petitioner to approach the appropriate forum for relief in accordance with law. Thereafter, the petitioner has filed the present writ application challenging the impugned order of his termination from service. 8. The petitioner Punu Mudi had also challenged the order of his termination before the Kolkata High Court. A single Bench of the High Court had allowed his writ application and had directed the respondents to reinstate him in service. The judgement of the Single Judge was however dismissed by a Division Bench of the Kolkata High Court with the following observations – “The writ petitioner was dismissed from service along with one Gopal Chandra Mondal on an identical charge. He has come up against the order of dismissal, on the ground that such order was passed without having proper disciplinary proceedings. Sri Gopal Chandra Mondal also filed a similar writ petition. He has come up against the order of dismissal, on the ground that such order was passed without having proper disciplinary proceedings. Sri Gopal Chandra Mondal also filed a similar writ petition. That matter went up to the Apex Court. The Special Leave Petition of Sri Gopal Chandra Mondal was dismissed giving liberty to him to approach the appropriate court for relief in accordance with law. This Court is not appropriate forum herein because of involvement of disputed questions of facts as would appear from the pleading filed before me. Liberty is given to the petitioner to appear before the appropriate forum for redressal of his grievance”. Thereafter he has filed the present writ application before this Court. 9. Reiterating the grounds advanced by the petitioners, Sri U.S.Agarwal, learned counsel for the petitioners would first want to explain as to why the petitioners have chosen the forum of this Court for seeking relief under Article 226 of the Constitution of India though the alternative remedy was available initially to the petitioners. Learned counsel would explain that the impugned order of termination of the petitioners’ service was per-se illegal in as much as it was in total violation of the provisions of Section 25-F of the Industrial Disputes Act. No prior notice was served upon the petitioners as required under the law nor was any charge sheet served upon them and neither was any departmental proceeding initiated against either of them and furthermore, no copy of any vigilance enquiry report was even given to them and yet their services were terminated on the ground that they had practiced fraud upon the respondent Management amounting to an act of gross misconduct on their part. Learned counsel explains that such patent illegality in the impugned order being in violation of the fundamental rights of the petitioners under Article 21 of the Constitution of India, the petitioners have a right to seek remedy under Article 226 of the Constitution of India before this Court. Learned counsel argues further that the objection of availability of alternative remedy as raised by the respondents, cannot now be entertained in view of the fact that notwithstanding such objection, taken initially, these writ applications have been admitted for hearing and has been kept pending on record ever since after its filing in October, 2006. Learned counsel argues further that the objection of availability of alternative remedy as raised by the respondents, cannot now be entertained in view of the fact that notwithstanding such objection, taken initially, these writ applications have been admitted for hearing and has been kept pending on record ever since after its filing in October, 2006. To buttress his argument, learned counsel would seek support from the judgements of the Supreme Court in the case of State of U.P. and Anr. Vs. U.P. Rajya Khanij Vikas Nigam S.S. & Ors. 2008(8) Supreme 453 and also from the judgement in the case of Committee of Management and Anr. Vs. Vice Chancellor and Ors. 2009(1) Supreme 101 . 10. The respondent Eastern Coalfields Limited has filed its counter affidavit denying and disputing the entire claim of the petitioner. The objection relating to maintainability of this writ application on the ground of availability of the alternative remedy, has been reiterated by the respondents. 11. Learned J.C. to A.G. for the respondents would submit that the petitioners being admittedly “workmen”, a specific provision has been laid down in the Industrial Disputes Act for redressal of their grievances, if any. Since the legislation has provided a particular mode for redressal of the grievance, any other mode is forbidden. Against the impugned order of termination, the petitioners have the remedy of preferring appeal before the disciplinary authority and therefore this writ application is not maintainable. 12. Learned counsel adds further that even otherwise, the Supreme Court vide its order dated 16.12.2005 passed in the Special Leave Petition No. 14069 of 2003 filed by the petitioner Gopal Chandra Mondal, while dismissing the SLP, had made an observation that “If so advised, the petitioner may approach the appropriate court for relief in accordance with law”. Likewise, the Division Bench of the High Court of Kolkata while disposing of the writ application filed by the petitioner, had observed that the petitioner may move before the appropriate forum under the Industrial Disputes Act for redressal of his grievance. 13. Likewise, the Division Bench of the High Court of Kolkata while disposing of the writ application filed by the petitioner, had observed that the petitioner may move before the appropriate forum under the Industrial Disputes Act for redressal of his grievance. 13. It is further submitted that earlier, in the writ application filed by the petitioner Punu Mudi before the High Court of Kolkata vide W.P.(S) No. 12856 (W) of 2002, by order dated 15.02.2006, a Single Bench of the Court had dismissed the writ petition, without going into the merits of the case, with an observation that the writ Court is not appropriate forum because the dispute raised in the writ application is disputed question of fact as would appear from the pleadings filed. A liberty was however given to the petitioner Punu Mudi to approach the appropriate forum for redressal of his grievance. Learned counsel submits that it is in the light of the above facts and the several orders passed by the Supreme Court and the High Court of Kolkata, the petitioners ought to have approached the Labour Court/Tribunal for redressal of their grievance and for the aforesaid reasons this writ application is not maintainable. 14. Referring to the merits of the case, learned counsel would explain that one Smt. Dingle Kori was an employee of the Badjna Colliery under Mugma Area of ECL as a Wagon Loader. She died on 04.11.1987. After her death, one Mahesh Modi, son of the petitioner Punu Mudi, had approached the Management representing himself to be Mahesh Kora, brother of deceased Dingle Kori. The petitioners, knowing fully the actual identity of the said Mahesh Modi, had falsely identified him as Mahesh Kora, brother of the deceased Dingle Kori and had also executed indemnity bonds in favour of the said impersonator to facilitate his appointment in the name of Mahesh Kora on compassionate ground. The fraud was subsequently detected and a vigilance enquiry was conducted which had confirmed that the petitioners had practiced fraud upon the Management and had dishonestly facilitated the appointment of Mahesh Modi on compassionate ground. The fraud was subsequently detected and a vigilance enquiry was conducted which had confirmed that the petitioners had practiced fraud upon the Management and had dishonestly facilitated the appointment of Mahesh Modi on compassionate ground. Considering the aforesaid facts and also the declaration made by the petitioners in the letter of indemnity executed by them whereby each of them had acknowledged that in the event of the relationship between Late Dingle Kori and Mahesh Kora being found to be false and incorrect, the petitioners would be liable for dismissal/termination from service of the company, the impugned letters of termination were issued to the petitioners. The petitioners in their pleadings, have admitted the fact that they had executed the indemnity / surety bonds in favour of the aforesaid Mahesh Modi. 15. As it would appear from the facts stated above, the writ applications of the petitioners were ultimately dismissed by the Division Bench of the High Court of Kolkata with a direction to them to approach the appropriate forum for redressal of their grievance. In the light of the discussions and the observations recorded in the judgements, copies of which have been filed with the writ applications, it appears that reference to the appropriate forum was made in the context of the dispute raised by the petitioners on the ground that the impugned orders of their termination is in violation of the provisions of Section 25-F of the Industrial Disputes Act and in the context of the pleadings of the respondent Management that the writ applications were not maintainable in view of the alternative remedy available to the petitioners for redressal of their grievance under the Industrial Disputes Act. 16. As sought to be explained by the learned counsel for the petitioner, the Supreme Court in several judgements, has explained that the availability of alternative remedy in itself would not be a ground for rejecting the writ application under Article 226 of the Constitution of India. In the case of Committee of Management and Anr. Vs. Vice Chancellor and Ors. (Supra), the Supreme Court while referring to its observations in several earlier cases, has reiterated its observations as under :- “15…….. In the case of Committee of Management and Anr. Vs. Vice Chancellor and Ors. (Supra), the Supreme Court while referring to its observations in several earlier cases, has reiterated its observations as under :- “15…….. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged….”. 17. As submitted by the respondents in their counter affidavit, a vigilance enquiry was conducted in which the petitioners were called upon to participate but admittedly, they did not participate in the enquiry. Consequently, the enquiry was concluded ex-parte and on the basis of the findings in the vigilance enquiry, the impugned order of termination was passed against the petitioners. 18. On the other hand, the thrust of the arguments of the petitioners is that the impugned order of termination having been passed without affording any opportunity to the petitioners of being heard and without conducting any departmental proceeding by serving memorandum of charges on them and the impugned order having been passed in gross violation and contrary to the provisions of Section 25-F of the Industrial Disputes Act, is perverse, illegal and against the principles of natural justice and therefore even though an alternative remedy of appeal is provided under the Industrial Disputes Act, the petitioner have a right to seek redressal of their grievance by invoking the writ jurisdiction of this Court. 19. The fact that no show cause notice was served and neither was any departmental proceeding initiated against either of the petitioners on the basis of the purported findings of the vigilance enquiry and yet, the order of termination was passed against them, is sufficient to indicate that the principles of natural justice have not been adhered to by the respondents while passing the impugned order. It is on consideration of these aspects that initially the Single Bench of the Kolkata High Court had allowed the writ petitions of the petitioners. It is on consideration of these aspects that initially the Single Bench of the Kolkata High Court had allowed the writ petitions of the petitioners. The Division Bench of the Kolkata High Court had set aside the judgement of the Single Bench basically on the ground of lack of jurisdiction though referring the petitioners to approach the appropriate forum for redressal of their grievances. 20. As has been held by the Supreme Court in the case of Committee of Management and Anr. Vs. Vice Chancellor and Ors. (Supra), the availability of alternative remedy would not in all cases operate as a bar. In a case where it is pointed out that there has been violation of principles of natural justice, the Court, in appropriate cases, can exercise its writ jurisdiction under Article 226 of the Constitution of India. Furthermore, notwithstanding the objections regarding maintainability of these writ applications on the ground of availability of the alternative remedy, both these writ applications were admitted by this Court and posted for hearing and they have been kept pending for the past more than three years. In my opinion, it would not be appropriate, therefore, to refer the petitioners to avail the remedy under the Industrial Disputes Act after such a long period. 21. The grounds advanced by the petitioners eloquently declare that the principles of natural justice were not adhered to by the concerned authorities of the respondents in passing the impugned orders of termination of services of the petitioners. On this ground alone, both these writ applications succeed and they are therefore hereby allowed. The impugned orders of termination of service dated 19.08.1994 are hereby set aside. The respondents shall however be at liberty to take a fresh decision in the matter in accordance with the procedure laid down under the law after giving reasonable opportunity of hearing to both the petitioners and allowing them to submit their fair defence. With these observations, both these writ applications are disposed of.