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2013 DIGILAW 238 (JHR)

Kinu Manjhi v. Central Coalfields Ltd.

2013-02-14

APARESH KUMAR SINGH

body2013
JUDGMENT By Court.- Heard learned counsel for the parties. 2. The order dated 29.07.1998 of dismissal from service issued by the Project Officer/Agent, Sayal 'D' Colliery, Central Coalfields Ltd., Sayal, Hazaribagh, respondent No. 2 is under challenge, apart from that Appellate Order dated 21.05.2002 rejecting his appeal is also under challenge. The petitioner is claiming reinstatement in service from the date of his termination with full backwages. 3. According to the petitioner, he was appointed on 16.11.1988 as Trammer in Sayal 'D' Colliery, Central Coalfields Ltd., Sayal, Hazaribagh. He was further implicated in a criminal case being Barkagaon P.S. Case No. 46 of 1995 under Sections 302/201 of the Indian Penal Code and in connection with the said case, he was arrested on 14.08.1995 and subsequently remanded to jail custody. 4. The contention of the petitioner is that he has made several intimations regarding his arrest to the concerned officer of the colliery through the Jail Authorities which were sent vide memo No. 1351 dated 30.05.1998 and vide memo No. 1479 dated 25.05.1999 as informed by the Jail Office. However, he was finally acquitted by the trial Court i.e. 5th Additional Sessions Judge, Hazaribagh vide judgment dated 07.06.2001 of the charges levelled against him, Immediately after his acquittal, he made a representation before the respondent No.2, the Project Officer/Agent. Sayal ‘D' Colliery, Central Coalfields Ltd., Sayal. Hazaribagh and requested him to allow him to resume his duty, Annexure-2. He was informed that he has been terminated from the service vide order dated 29.07.1998 w.e.f. 30.07.1998, Annexures-2/A and 4. Thereafter, he preferred an appeal before the Appellate Authority, but his appeal has also been rejected vide impugned order dated 21.05.2002, Annexure-3. 5. According to the petitioner, he has been dismissed from service without any notice and proper opportunity of hearing as he has been falsely implicated in criminal case for the reason of his absence for the said period. Learned counsel for the petitioner has relied upon the judgments in the case of Dilip Kumar Das v. Palamau Kshetriya Gramin Bank & Ors., reported in 2003 (3) JCR 698 and in the case of Abdul Kalam v. BSRTC Bihar, Patna & Ors., reported in 2003 (4) JCR 120 in support of his contention. 6. It is submitted that in that circumstances the impugned order which suffers from inherent flaws, is required to be set aside. 7. 6. It is submitted that in that circumstances the impugned order which suffers from inherent flaws, is required to be set aside. 7. The respondents have' appeared and filed their counter - affidavit. The respondents have taken a stand in their counter-affidavit that the petitioner suddenly started absenting from duty with effect from 14.08.1995 and therefore, Disciplinary Proceeding was initiated 'against him wherein several notices were issued and in departmental proceeding, charge-sheet was issued vide memo dated 29.04.1998. Thereafter, three notices dated 05.06.1998, 12.06.1998 and 22.06.1998 were issued asking him to file show cause by the Enquiry Officer, but, he did not respond to the same and therefore, the Enquiry Officer had proceeded ex parte based on the evidences collected by the Management. The Enquiry Officer found charges levelled against the petitioner as established which related to his absence from duty and accordingly based on the enquiry report the impugned order of dismissal has been passed considering the gravity of misconduct proved against him as also based on record. Even Appellate Authority did not find any reason to interfere in the Appeal preferred by the petitioner. 8. I have heard learned counsel for the parties at length and after having gone through the relevant materials on record the facts, which are revealed are that the petitioner admittedly was sent to jail custody in connection with criminal case i.e. Barkagaon P.S. Case No. 46 of 1995 registered under Sections 302/201 of the Indian Penal Code on 14.08.1995. According to the petitioner, he has remained in jail till his acquittal from the said charges vide judgment dated 07.06.2001, Annexure-1, passed by the Vth Additional Sessions Judge, Hazaribagh. The petitioner, thereafter, made a representation and also preferred an appeal before the Appellate Authority, who however also affirmed this dismissal order by rejecting his appeal. These facts, however, disclose that the petitioner was precluded from remaining present on duty in connection with the criminal case in which he was arrested in August, 1995 which ultimately ended in his acquittal. The absence of the petitioner therefore cannot be said to be deliberate act on his part. Proceedings, which were conducted against him were of course in his absence but in any case, since the petitioner remained in jail custody through out till his acquittal, he could not have participated in the inquiry. There is a well known maxim. The absence of the petitioner therefore cannot be said to be deliberate act on his part. Proceedings, which were conducted against him were of course in his absence but in any case, since the petitioner remained in jail custody through out till his acquittal, he could not have participated in the inquiry. There is a well known maxim. 'lex non cogit Ad Impossibilia' which means that the law does not compel a man to do that which he cannot possibly perform. In these circumstances, the order of dismissal of the petitioner passed on his ex parte enquiry cannot be said to be sustainable on facts as well as in law. The Appellate Authority has only affirmed the order of dismissal. 9. In these circumstances, the impugned order of dismissal and the appellate order is hereby quashed. 10. However, it will be open to the respondents to conduct a fresh enquiry in accordance with law after giving proper opportunity to the petitioner. 11. Petitioner, in the meantime, shall be reinstated in service pursuant to the quashing of the impugned order. However, he shall not be entitled to his back wages for the period he remained out of service. Petition allowed.