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2010 DIGILAW 667 (JHR)

Deben Chandra Dutta @ Devendra Chandra Dutta v. Bharat Coking Coal Limited

2010-06-24

AMARESHSWAR SAHAY

body2010
JUDGMENT : Amareshwar Sahay, J. In this writ petition the petitioner has prayed for quashing the order dated 28/05/2005, contained in Annexure-7 to this writ petition, issued under the signature of the Project Officer, whereby he has been dismissed from service alter holding a departmental enquiry, as also the communication dated 11/05/2006, contained in Annexure-11 to this writ petition, whereby the petitioner has been informed that the competent authority has dismissed his appeal which was preferred in terms of the order passed by this Court in WPS No. 4383 of 2005. 2. The petitioner had moved this Court earlier challenging the order of his dismissal from service dated 28/05/2005 by filing a writ petition being WPS No. 4383 of 2005 but the said writ petition was disposed of with observation that the petitioner may avail the alternative remedy of appeal. 3. The petitioner thereafter preferred departmental appeal, which has been dismissed and has been communicated to (he petitioner vide Annexure-11. 4. The case of the petitioner is that he was initially appointed as Canteen Cook at Bastacola Colliery prior to nationalization of private collieries. According to the petitioner, for appointment as canteen cook no educational qualification was at all required. However, he was a student of Zila School, Dhanbad, where he had studied up to Class-IX and Zila School, Dhanbad had issued a. School Leaving Certificate accordingly and the same had been produced by him at the time of his appointment under the private, collieries in the year 1971. Subsequently, under the Coal Mines Nationalization Act, private collieries were nationalized and the services of the petitioner were also taken in under the respondent No. 1 and the petitioner continued to work as Canteen Cook. After nationalization the services of the petitioner were taken over and absorbed under the Respondent No. 1 where he continued to work as Munshi though his designation continued as Canteen Cook. Subsequently, in the year 1978 his services were regularized as Munshi in Grade-III with effect from 01/07/1978 and by office order dated 24/25.07.1978 and, accordingly, he was directed So join under Assistant Colliery Manager, Victory Section, Bastacola Colliery. By office order dated 02/05/1980, the petitioner was transferred to Chandmari Section for working as Attendance Clerk and, thereafter, by office order dated 16/20.04/1981. 5. The petitioner was served with a charge sheet dated 25/07/2003, contained in Annexure 4 to the writ petition. By office order dated 02/05/1980, the petitioner was transferred to Chandmari Section for working as Attendance Clerk and, thereafter, by office order dated 16/20.04/1981. 5. The petitioner was served with a charge sheet dated 25/07/2003, contained in Annexure 4 to the writ petition. Further, according to the petitioner, from the charge sheet dated 25/07/2003 (Annexure- 4) it will appear that the said charge was leveled against the petitioner on the basis that in the year 1987 he had furnished a. School leaving Certificate dated 22/07/1970 issued from the High School, Bhowra. An enquiry was made from (he school relating to the said certificate and the Head Master of the said school had given written information that (the Certificate No. 34/70 dated 22/07/1970 had not been issued from the High School, Bhowra. It was further alleged that the said certificate appears to have been submitted for the purpose of securing promotion in service. Further case of the petitioner is that he was appointed in the year 1971 as Canteen Cook at Bastacola Colliery. He had submitted School Leaving Certificate issued from Zila School, Dhahbad according to which the petitioner had left the school while he was a student of Class-IX. He had never studied in High School, Bhowra and, therefore, there was no occasion for him to submit any school leaving certificate from the High School, Bhowra. Further, in the year 1987 there was no occasion for the petitioner to submit any School Leaving Certificate. The alleged School Leaving Certificate was absolutely of no use or avail to him. He learnt that one Bishnu Dutta after successfully replacing the School leaving Certificate of the petitioner with a false certificate allegedly issued by High School, Bhowra, made some complaint and on the basis thereof some enquiry was made from the High School, Bhowra and, thereafter, the charge sheet was issued. The enquiry proceeding started on 28/01/2004 on the basis of the charge sheet, dated 25/07/2003. On 13/07/2004, the Enquiry Officer read over the charge leveled against the petitioner in the charge sheet dated 25/07/2003 and the petitioner denied the alleged charge. The petitioner had been served with another letter dated 13/02/2004, whereby the charge sheet was amended and it was alleged that the petitioner had committed misconduct in terms of Clause-26.1.11 and 26.1.29 of the standing orders. The petitioner had been served with another letter dated 13/02/2004, whereby the charge sheet was amended and it was alleged that the petitioner had committed misconduct in terms of Clause-26.1.11 and 26.1.29 of the standing orders. At the conclusion of the enquiry, the statement of the petitioner was taken by the Enquiry Officer on 09/11/2004 in which the petitioner specifically denied the allegation and stated that no evidence worth the name has been led to establish the charge contained in charge sheet dated 25/07/2003 and at any rate the said, charge had already been amended, but even in regard thereto no material had been brought in the enquiry for establishing the said charge. No enquiry was held in relation to the amended charge sheet dated 13/02/2004. He was never served with any enquiry report whatsoever. Only copy of the enquiry proceedings dated 28/01/2004 to 09/11/2004 were supplied to him where from it will be evident that the enquiry proceedings were held only in relation to charge sheet dated 25/07/2003. However, the said charge was itself withdrawn by charge sheet dated 13/02/2004 but no enquiry was ever held against the petitioner in relation to the amended charge relating to misconduct under Clause 26.1.11 and 26.1.29. The petitioner was shocked to receive a dismissal order dated 28/05/2005 issued by the Project Officer, Bastacola colliery, whereby he was dismissed from services without giving any reason whatsoever. 6. Further, according to the petitioner, in the order dated 28/05/2005, it was incorrectly stated that the petitioner was communicated with enquiry report under letter No. 980 dated 29/30.04.2005 and he had also submitted an explanation against the same. He was never served with any enquiry report or the petitioner had ever submitted any explanation on 02/05/2005. On 02/05/2005, he had submitted a letter stating that only enquiry proceedings had been given to him and copy of the enquiry report was never supplied and, therefore, a request was made for supplying copy of the enquiry report to enable the petitioner to submit a show cause/explanation against (the enquiry report. The petitioner preferred W.P. (S) No. 4383 of 2005 challenging the order of dismissal. The said writ application was permitted to be withdrawn by order dated 07/10/2005 to enable him to prefer an appeal and the appellate authority was directed to decide the appeal on merit. Thereafter, he preferred an appeal before Respondent No. 2. The petitioner preferred W.P. (S) No. 4383 of 2005 challenging the order of dismissal. The said writ application was permitted to be withdrawn by order dated 07/10/2005 to enable him to prefer an appeal and the appellate authority was directed to decide the appeal on merit. Thereafter, he preferred an appeal before Respondent No. 2. The petitioner has been served with a letter dated 11/05/2006 issued by the Project Officer whereby he has merely been informed that the competent authority has dismissed his appeal and, therefore, he was directed to vacate the quarter and to apply for the benefits relating to pension, gratuity, provident fund etc. The petitioner has not been served with any order of the appellate authority. 7. A counter affidavit has been filed on behalf of the respondents wherein it is stated that the petitioner was charge sheeted on 25/07/2003 for the charge under para 26.1.12 of the certified standing order, which was subsequently modified on 13/14.02.2004 for the charge under paras 26.1.11 and 26.1.29 of the certified standing order for furnishing false certificate/information to the respondent company. Me was charged for submitting false school leaving certificate No. 34/70 with the respondent company in the year 1987 issued by the High School, Bhowra, Dhanbad on 22/07/1970. The said school leaving certificate submitted by the petitioner had been found to be false on verification with the Headmaster of the school who gave in writing that the petitioner had never appeared in S.S. Examination from his school in the year 1970. Accordingly, the petitioner was charged for having submitted the false certificate with intent to exaggerate his qualification for getting the benefit of promotion in his service. 8. It has further been stated in the counter affidavit that the petitioner submitted his reply which was not found satisfactory and, accordingly, a departmental enquiry was initialed in which the petitioner fully participated. It is further stated in the counter affidavit that the petitioner admitted in course of departmental enquiry that he had submitted false school leaving certificate No. 34/70 with the respondent company in 1987 on the basis of which his education qualification was recorded incorrectly in his service record. In course of enquiry the evidences both documentary and oral were led before the Enquiry Officer, who, on conclusion thereof found the charges against the petitioner to be established and, accordingly, enquiry report was submitted to the Disciplinary Authority. 9. In course of enquiry the evidences both documentary and oral were led before the Enquiry Officer, who, on conclusion thereof found the charges against the petitioner to be established and, accordingly, enquiry report was submitted to the Disciplinary Authority. 9. It has specifically been stated in the counter affidavit that the copy of the enquiry report was served on the petitioner on 29/30.04.2005 to which the petitioner submitted his written reply on 02/05/2005, which was not found satisfactory and, thereafter, the petitioner was dismissed from service by the competent authority. 10. It is further stated in the counter affidavit that the appeal filed by the petitioner against the order of his dismissal from service passed by the Disciplinary Authority has also been dismissed. The copy of the order of the Appellate Authority has been annexed as Annexure-1 to the supplementary counter affidavit filed on behalf of the respondents. 11. In the supplementary counter affidavit it has been stated by the respondents that the Appellate Authority, i.e. the Director (Personnel) by his order dated 09/04/2006 held that adopting fraudulent means in appointment/promotion is a serious misconduct and major punishment as awarded to the petitioner was correct. 12. Mr. P.K. Prasad, learned senior counsel appearing for the petitioner gave much stress on the point that neither the copy of the enquiry report nor the order of the appellate authority dismissing his appeal was served on the petitioner. He submitted that no enquiry with regard to the amended charge was held against the petitioner rather the enquiry was held only with respect to the charge sheet dated 27/04/2003, which was already substituted by another charge sheet dated 13/02/2004. It is stated that only the copy of the enquiry proceeding dated 28/01/2004 to 09/11/2004 were supplied to the petitioner and in fact no enquiry report was served on him. 13. From the statements made in the counter affidavit, which have already been noticed in foregoing paragraphs, it appears that the respondents have specifically stated that the copy of the enquiry report was served on the petitioner on 29/30.04.2005 to which he also filed reply oh 02/05/2005, which was not found satisfactory and, thereafter, the petitioner was dismissed from service. The aforesaid fact stated in the counter affidavit also appears in the order of the Disciplinary Authority. 14. The aforesaid fact stated in the counter affidavit also appears in the order of the Disciplinary Authority. 14. From perusal of the enquiry report contained in Annexure-5 to the counter affidavit, it appears that the Enquiry Officer has mentioned in his report that the petitioner in his reply as well as in his statements before the Enquiry Officer admitted the fact that he had submitted the School Leaving Certificate in the year 1987. 15. The petitioner has not filed any reply/rejoinder to the counter affidavit filed by the respondents, controverting the statements made in the counter affidavit. Even the facts mentioned in the enquiry report (Annexure-5 to the counter affidavit) that the petitioner admitted his guilt in his reply regarding submission of fake school leaving certificate No. 34/70 has not been controverted and denied by the petitioner. From the enquiry report it further appeals that the enquiry was conducted with regard to the amended charge also and, therefore, the submission of the petitioner that the enquiry was not conducted for the amended charge cannot be accepted. In view of the nature of the order which I propose to pass in this case, I refrain myself from any observation and comments in the allegation and the counter allegation made by the parties since it may prejudice their case. 16. However, from perusal of the order passed by the appellate authority contained in Annexure 1 to the supplementary counter affidavit, I find that the appellate authority in a cryptic manner has dealt with the case. Without considering the point raised by the petitioner the appeal has been dismissed. The appellate authority while exercising the quasi judicial power, is required to go into the evidence and materials adduced during the departmental proceeding and he is required to apply his independent mind to see as to whether the findings of the enquiry officer are based on the materials on record and further as to whether the Disciplinary Authority did apply his mind before awarding the punishment of dismissal from service but in the present-case, I find that the appellate authority in his order, contained in Annexure-1 to the supplementary counter affidavit, in a very short and cryptic order has held that adopting fraudulent means in appointment/promotion is a serious misconduct and a major punishment as awarded is correct. No reason has been assigned by the appellate authority as to why he did not find any merit in the appeal. Therefore, in ray view, the appellate order suffers from total non-application of mind. 17. For the reasons stated herein above, this writ petition is allowed, the order passed by the appellate authority dismissing the departmental appeal of the petitioner vide Annexure-1 to the supplementary counter affidavit as well as the communication made to the petitioner vide Annexure-11 to the writ petition are hereby quashed and the matter is remitted back to the appellate authority for fresh consideration of the appeal of the petitioner on its merit in accordance with law and to pass a fresh reasoned order keeping in mind the observations made herein above. The appellate authority shall dispose of the appeal on its merit as early as possible preferably within a period of two months from the date of receipt/ production of a copy of this order. However, in the facts and circumstances of the case, there shall be no order as to cost. Petition allowed.