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2011 DIGILAW 171 (ORI)

Basant Kumar Patra v. Rourkela Steel Plant

2011-03-18

L.MOHAPATRA, S.K.MISHRA

body2011
JUDGMENT L. MOHAPATRA, J. — The petitioner in this Writ Petition assails the order of punishment in Annexure-7 directing deduction of basic pay by two stages in the existing pay as well as the order in Annexure-9 rejecting the appeal filed against the order of punishment. 2.The service dispute relating to employees of Steel Authority of India Ltd. have now come within the jurisdiction of Central Administrative Tribunal. Ordinarily we would have transferred this case to the Central Administrative Tribunal, Cuttack Bench, Cuttack for adjudication but it was contended by learned counsel for the Steel Authority of India that when there is allegation of violation of any provisions contained in the Industrial Disputes Act, 1947 the Central Administrative Tribunal cannot have jurisdiction and the same can be resolved either by way of raising a dispute under the Industrial Disputes Act, 1947 or by way of filing a Writ Petition. 3.On perusal of the provisions contained in the Administrative Tribunals Act, we find that the cases where the provisions of the Industrial Disputes Act, 1947 are attracted, the Tribunal shall not exercise jurisdiction under the said Act. In the present case though there is no allegation with regard to violation of any of the provisions contained in the Industrial Disputes Act, 1947, in the counter affidavit a specific stand has been taken that the dispute raised in the Writ Petition can be effectively adjudicated under the Industrial Disputes Act, 1947 and accordingly we entertained the Writ Petition on merit instead of asking the petitioner to raise a dispute under the Industrial Disputes Act, about five years having passed in the meantime from the date of filing of the Writ Petition. 4.The short facts leading to initiation of the Department Proceeding and the punishment imposed by the Disciplinary Authority are that while the petitioner was working as Senior Operator, Rotary Kiln, Lime Dolomite Bricks Plant (Operation), he was served with a show cause notice dated 05.12.2000 to submit a reply to the allegation that the petitioner is in unauthorized occupation of a land belonging to Steel Authority of India Ltd. i.e. Plot No.106 (P) under Khata No.1, Unit-20, Goal Ghar Area, Sector-5 in village Purnapani, where he is alleged to be running a private straw cutting machine. The petitioner submitted his reply on 16.12.2000 stating therein that one Mayadhar Patra is in occupation of the said land for, which P.P. Case No.8005 of 2000 had been initiated against him under the provisions of Public Premises (Eviction of Unauthorised Occupants) Act, 1971. However, such reply was not accepted by the Disciplinary Authority and charges were framed against him on the allegation of unauthorized occupation of the land of Rourkela Steel Plant to the extent mentioned in the charge sheet, which amounts to misconduct as per the standing order of the Company. The petitioner thereafter, faced the enquiry and ultimately enquiry report was submitted finding him guilty of the charge. On the basis of the finding of the Enquiry Officer the order of punishment under Annexure-7 was imposed by the Disciplinary Authority and the appeal filed by the petitioner against the order of punishment was also rejected. Both the orders under Annexures-7 and 9 are challenged on the ground that a P.P. Case has been initiated before the Estate Officer, Rourkela Steel Plant against the unauthorized occupant Mayadhar Patra and therefore, there is nothing on record to show that the petitioner is in possession of the said land. The said fact has not been taken note by the Enquiry Officer. The orders are also assailed on the ground that the evidence adduced before the Enquiry Officer in no way establishes that the petitioner is in unauthorized occupation of the said land. The appeal filed by the petitioner has also been rejected without assigning any reason. 5.As is evident from the grounds taken in the Writ Petition, the land in question is in occupation of one Mayadhar Patra against whom P.P. Case No.8005 of 2000 has been initiated for eviction and there is nothing on record to show that the petitioner is in possession of the said land. The second ground is that the appellate authority has rejected the appeal without assigning any reason there for. It is evident from the cause title of the Writ Petition that the petitioner is the son of Mayadhar Patra against whom the said P.P. Case has been initiated for eviction. The enquiry report has been annexed to the counter affidavit. As it appears two witnesses were examined on behalf of the Management and four documents were exhibited. It is evident from the cause title of the Writ Petition that the petitioner is the son of Mayadhar Patra against whom the said P.P. Case has been initiated for eviction. The enquiry report has been annexed to the counter affidavit. As it appears two witnesses were examined on behalf of the Management and four documents were exhibited. M.W.1-P.C. Mohanty is the Senior Surveyor and in his deposition he has stated that the petitioner is running straw cutting business on the above encroached land. On 30.1.2001 he had visited the spot and found a boy of 22 years of age at the spot. He again visited the place on 12.3.2001 and learnt from the labourers working in the straw cutting machine that it belongs to the petitioner. M.W.2-P.K. Mohakud, the Head Land Supervisor in his deposition stated that he found a straw cutting shop being run on the encroached land and two rooms are built for residential purpose of the labourers working in the straw cutting shop. In course of inspection a young boy was found who introduced himself as the son of the petitioner. Upon further enquiry it was found that the quarter allotted to the petitioner is occupied by one Panchanan Jena, a Contractor. On the basis of evidence of these two witnesses, the Enquiry Officer found that the petitioner was running the straw cutting shop in the encroached land though he had not been found physically present at the place at the time of visit of the said two witnesses. 6.Learned counsel appearing for the petitioner drew attention of this Court to the deposition of these two witnesses in order to substantiate his submission that there were some contradictions. But law is well settled that this Court while exercising jurisdiction under Articles 226 of the Constitution of India, cannot sit in appeal, reassess the evidence and come to a different conclusion. Only when the Court is satisfied that the finding of the Enquiry Officer is based on no evidence, it may be open for it to interfere with such finding. Such is not the case here. Both M.Ws.1 and 2 in their respective depositions have clearly stated that during their visit to the spot they found the son of the petitioner present at the spot. Such is not the case here. Both M.Ws.1 and 2 in their respective depositions have clearly stated that during their visit to the spot they found the son of the petitioner present at the spot. They also found a straw cutting machine in operation and two rooms existing on the encroached land to accommodate the labourers working in the straw cutting machine. Therefore, the finding of the Enquiry Officer is based on the evidence of these two witnesses. It is a fact that during their spot visit the petitioner was not found at the spot but at the same time this Court cannot ignore the fact that the son of the petitioner was present at the spot. The P.P. Case has been initiated for eviction against Mayadhar Patra who happens to be the father of the petitioner. It is not the case of the petitioner that he is staying in the quarter allotted to him and is not in occupation of the above land. As a matter of fact, M.W.2 has clearly stated that the quarter allotted to the petitioner is under occupation of a Contractor. The entire evidence placed before the Enquiry Officer establishes the fact to the extent that the father and son of the petitioner are in occupation of the said piece of land and a business is being run from the encroached land by the petitioner. The petitioner had earlier been given notices to vacate the premises but such notices were ignored by him. Under these circumstances, we do not find any substance in the first contention of learned counsel appearing for the petitioner. 7.So far as the second ground is concerned, the order under Annexure-9 does not indicate any reason. The concerned file has also not placed before us to show as to whether any reasons have been recorded in the file or not. Nothing is revealed in the counter affidavit as to whether the appellate authority recorded any reason for rejecting the appeal. We are therefore, of the view that the matter should be remitted to the appellate authority for reconsideration and passing of a reasoned order. 8.Accordingly we quash Annexure-9 and remit the matter back to the appellate authority for reconsideration of the appeal and disposal of the same by a reasoned order. We are therefore, of the view that the matter should be remitted to the appellate authority for reconsideration and passing of a reasoned order. 8.Accordingly we quash Annexure-9 and remit the matter back to the appellate authority for reconsideration of the appeal and disposal of the same by a reasoned order. 9.Before parting with the case, we find that under Annexure-12 another Departmental Proceeding has been initiated for the self same charge in September, 2009. The petitioner having been punished in a Departmental Proceeding on such charge, the second proceeding on the self same charge is not permissible under law. The charge under Annexure-12 appears to be defective. If the Disciplinary Authority intends to initiate a Departmental Proceeding again for unauthorized occupation, it must clearly indicate in the charge the period of unauthorized occupation. On a reading of the charge for which the petitioner had been found guilty and punished we find no difference. We therefore, quash Annexure-12. With the above observation and direction this Writ Petition is disposed of. S.K. MISHRA, J.I agree. Petition disposed of.