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2016 DIGILAW 140 (JHR)

Manoj Kumar v. Central Coal Field Limited

2016-01-20

PRASHANT KUMAR

body2016
JUDGMENT : Prashant Kumar, J. In this writ application, the petitioner has prayed for quashing the letter dated 26.03.2014 (Annexure-6) issued by General Manager (Min)/ Project Officer SDQ-1 (Kalyni Project), Central Coalfields Limited, whereby claim of the petitioner for compassionate appointment has been rejected and benefit of terminal dues admissible on the death of petitioner's father has also been refused. 2. The fact of the case in brief is that the petitioner's father, late Sailendra Kumar, was working in the Central Coalfields Limited as driver-cum- Mechanic Cat-IV at Filter Plat, Civil Section, SDQ-1 Kalyani Project. It is further stated that while working so, he died on 16.08.2013. It is further stated that petitioner's father performed his duty till 13.08.2013. However, he fell ill, therefore, admitted in the Central Coalfields Limited Hospital for treatment. In course of treatment he died on 16.08.2013. It is stated that during his life time, a departmental proceeding initiated against him. It was alleged that he obtained employment fraudulently by impersonation. It is stated that petitioner's father filed reply in the said departmental inquiry and requested to exonerate him from the charges as the allegation made against him is incorrect. It is stated that during pendency of the said departmental inquiry, petitioner's father died on 16.08.2013. It is specifically stated that till the death of petitioner's father, the aforesaid departmental proceeding could not be concluded , therefore, no punishment order passed against him. It is further stated that after the death of the petitioner's father, petitioner's mother filed an application for providing employment to the petitioner as per Clause 9.3.0 of the National Coal Wage Agreement ( N.C.W.A ). She also prayed for payment of death-cum- retiral dues of her late husband. It is stated that the aforesaid prayer for compassionate appointment of the petitioner, as well as payment of death-cum-retiral dues has been rejected by the respondents vide order dated 26.03.2014 on the ground that late Shailendra Kumar (petitioner's father) had obtained employment fraudulently by impersonating himself as son of late Ramdas Bhuiyan, who belongs to schedule caste community, whereas petitioner's father Shailendra Kumar belongs to upper caste, thus, employment of the petitioner's father is non-est in the eye of law. The aforesaid order has been challenged in this writ application. 3. The aforesaid order has been challenged in this writ application. 3. A counter-affidavit filed on behalf of the Central Coalfields Limited, in which it is stated that one Rameshwar Singh, Ex-Mukhia, Village-Balia, District- Aurangabad (Bihar) lodged a complaint with the respondents, wherein he alleged that petitioner's father namely, Shailendra Kumar was by caste Rajput and he was working in the company as son of Ramdas Bhuiyan, resident of Latehar, District- Palamau, though he was resident of Village-Balia, District- Aurangabad (Bihar). After receiving the aforesaid complaint, a preliminary inquiry conducted, wherein it was found that the petitioner is son of Nakul Deo Singh of Village-Balia, Aurangabad (Bihar). Therefore, he obtained employment in Central Coalfields Limited by playing fraud. It is then stated that thereafter, a departmental proceeding initiated against the petitioner. In the said departmental proceeding, petitioner filed his reply. It is stated that the said inquiry concluded on 01.05.2012 and thereafter, the Inquiry Officer submitted his report on 10.10.2013, wherein the Inquiry Officer stated that the charges levelled against the petitioner's father have been proved. It is further stated that on the basis of aforesaid Inquiry Report, the Competent Authority found that the appointment of petitioner's father is non-est in the eye of law, because he obtained employment by playing fraud. It is submitted that in view of the aforesaid findings, petitioner is not entitled for compassionate appointment nor the company is liable to pay death-cum-retiral benefit of the petitioner's father to the petitioner. 4. While assailing the impugned letter, Mrs. M.M.Pal, learned senior advocate appearing for the petitioner, submitted that it is admitted by the respondents that the Inquiry Officer submitted his report on 10.10.2013, whereas it is also an admitted position that petitioner's father died on 16.08.2013 i.e. before the date of submission of Inquiry Report. She further submitted that it is well settled principle of law that if a delinquent employee died during the pendency of departmental proceeding, the departmental proceeding will abate. Therefore, after the death of delinquent employment, no punishment can be awarded against him. It is submitted that it is an admitted position that petitioner's father worked till his death and he had been paid his salary for the said period. Thus, for all practical purpose, he would be treated as an employee, who died in harness. Therefore, the dependents of the deceased employee are entitled for all the benefits available under the Rule. It is submitted that it is an admitted position that petitioner's father worked till his death and he had been paid his salary for the said period. Thus, for all practical purpose, he would be treated as an employee, who died in harness. Therefore, the dependents of the deceased employee are entitled for all the benefits available under the Rule. It is submitted that from perusal of counter affidavit, it appears that the Inquiry Officer as well as the respondents hold the petitioner's father guilty of the charges levelled against him on the basis of findings given in the preliminary inquiry. It is submitted that it is well settled that any evidence recorded during the preliminary inquiry cannot be used in the regular departmental proceeding, unless the delinquent employee was given opportunity to cross-examine the witnesses. Accordingly, it is submitted that even on merit, it can be safely held that the charges levelled against the petitioner's father had not been proved. It is submitted that the complainant Rameshwar Singh hds not been examined, nor the officer, who conducted the preliminary inquiry was examined. Inspite of that the Inquiry Officer considered statement of Rameshwar Singh and the report submitted by the officer, who conducted preliminary inquiry. Therefore, the action of the Inquiry Officer was violative of the principles of natural justice. Accordingly, it is submitted that the impugned order cannot be sustained. 5. On the other hand, Sri Ananda Sen, learned counsel appearing for the respondents-Central Coalfields Limited submitted that petitioner's father admitted during the preliminary inquiry that his real name is Shailendra Singh and his father's name is Nakul Deo Singh and he entered in the employment of the company fraudulently as son of late Ramdas Bhuiyan. It is submitted that in view of the aforesaid admission made by the petitioner's father, the charges levelled against him has been proved. Therefore, in view of the judgment of the Hon'ble Supreme Court in "R Vishwanatha Pillai.Vs. State of Kerala and others, reported in (2004)2 SCC-105, the appointment of petitioner's father is non-est in the eye of law. Therefore, petitioner is not entitled for appointment on the compassionate ground, nor he is entitled for any other monetary benefit admissible to a dead employee of the company. 6. Having heard the submissions, I have gone through the records of the case. 7. Therefore, petitioner is not entitled for appointment on the compassionate ground, nor he is entitled for any other monetary benefit admissible to a dead employee of the company. 6. Having heard the submissions, I have gone through the records of the case. 7. It is an admitted position that till the death of petitioner's father, the departmental proceeding initiated against him could not be concluded. In the counter affidavit, it is admitted that the Inquiry Officer had submitted inquiry report on 10.10.2013, whereas petitioner's father died on 16.08.2013. Under the said circumstance, on the date of death of petitioner's father, no punishment awarded to him. It is also an admitted position that the company had paid salary to the petitioner's father till July/ August, 2013. There is no averments in the counter affidavit that during the pendency of the departmental proceeding, petitioner's father was suspended. 8. It has been held by a Division Bench of Bombay High Court in "Hirabai. Vs. State of Maharashtra, reported in 1986 Lab.I.C.-248 that if a civil servant under suspension died before conclusion of disciplinary proceedings then the proceeding would terminate and abate and the period between date of suspension and date of death will be treated as service for all purposes. 9. A similar view was taken by a Bench of this Court in Jayanti Devi Vs.State of Bihar and others, reported in (2001)2 J.C.R 165 : 2001 (1) JLJR 312 , wherein this court held that a departmental proceeding cannot continue against a dead employee. 10. In "Basudeo Tiwary Vs. Sido Kanhu University and others, reported in (1998) 8 SCC 194 : 1999 (1) PLJR (SC) 30, the Hon'ble Supreme Court was dealing with an appeal filed by a terminated employee. During pendency of the said appeal before the Hon'ble Supreme Court, the terminated employee died and in his place his legal representatives were substituted. After considering the case, the Hon'ble Supreme Court has come to the conclusion that the order of termination of the original appellant was violative of principles of natural justice, therefore, cannot be sustained. After holding so, the Hon'ble Supreme Court at paragraph 14 has held as follows : "The appellant has since demised during the pendency of these proceedings, no further direction either as to further inquiry or reinstatement can be given. After holding so, the Hon'ble Supreme Court at paragraph 14 has held as follows : "The appellant has since demised during the pendency of these proceedings, no further direction either as to further inquiry or reinstatement can be given. We declare that the termination of the appellant by the respondent as per the notification referred to by us is invalid. Consequently, it would be deemed that the appellant had died in harness. Needless to say that the appellant would become entitled to the payment of arrears of salary from the date of termination of his services up to the date of his death on the basis of the last pay drawn by him. Let the respondent take action within a period of three months from today to work out the arrears due to the appellant from the date of his termination till his death and pay the same to his legal representatives." 11. In view of the aforesaid legal position, I have no hesitation in holding that after the death of the petitioner's father on 16.08.2013, the departmental proceeding initiated against him has automatically terminated and/or abated, in that circumstance, any subsequent action of the Inquiry Officer or Disciplinary Officer in the said proceeding is illegal and non-est in the eye of law. I further hold that since on the date of the death of the petitioner's father no punishment awarded against him, therefore, it would be deemed that he died in harness. Consequently, his dependents including the petitioner are entitled to get all the benefit available under Rule of the company and the company is liable to give such benefit to the petitioner, including the appointment as per Clause 9.3.0 of the National Coal Wage Agreement ( N.C.W.A. ). 12. The contention of Sri Ananda Sen that petitioner's father had admitted during the preliminary inquiry that his real name is Sailendra Singh and he was son of Nakul Deo Singh. The aforesaid admission shows that he obtained employment in the company fraudulently as son of Ramdas Bhuiyan. Accordingly, he submitted that keeping in view of the aforesaid evidence collected during the preliminary inquiry, there is no illegality in the impugned order. The aforesaid admission shows that he obtained employment in the company fraudulently as son of Ramdas Bhuiyan. Accordingly, he submitted that keeping in view of the aforesaid evidence collected during the preliminary inquiry, there is no illegality in the impugned order. The aforesaid contention of Sri Ananda Sen cannot be accepted, because the aforesaid admission and/or confession made by the petitioner's father has not been proved during the departmental enquiry, as it appears from the inquiry report dated 10.10.2013 that the officer who conducted preliminary inquiry has not been examined. Thus, no opportunity given to the petitioner's father to cross-examine him. It further appears from the aforesaid inquiry report that petitioner's father had denied that he made such confession. The Hon'ble Supreme Court in Nirmals J.Jhala.Vs. State of Gujarat and Another, reported in 2013(4) SCC-301 after considering its previous decisions including constitutional Bench judgment in Amalendu Ghosh.Vs.District Traffic Superintendent, North Eastern Railway, Katihar reported in AIR 1960 SC-992 has held that the purpose of holding a preliminary inquiry in respect of a particular alleged misconduct is only for the purpose of finding a particular fact and prima facie , to know as to whether the alleged misconduct has been committed and on the basis of the findings recorded in preliminary inquiry, no order of punishment can be passed. It may be used only to take a view as to whether a regular disciplinary proceeding against the delinquent is required to be held. In view of the aforesaid legal position any evidence collected during the preliminary inquiry can not be used to punish petitioner's father. 13. So far the judgment of Hon'ble Supreme Court in R Vishwanatha Pillai.Vs. State of Kerala and others ( Supra ), it is stated that the same is not applicable in the facts of this case, because in that case, the Hon'ble Supreme Court has held that safeguard of affording an opportunity to defend as provided in Article 311 stood complied with. Instead of departmental inquiry, the inquiry was conducted by the Scrutiny Committee consisting of three officers, who were better equipped to examine the question regarding the validity or otherwise of the caste certificate. Due opportunity was given to the appellant to put forth his point of view and defend himself. In the instant case, on the basis of report of the officer who conducted preliminary inquiry, a fresh departmental proceeding initiated. Due opportunity was given to the appellant to put forth his point of view and defend himself. In the instant case, on the basis of report of the officer who conducted preliminary inquiry, a fresh departmental proceeding initiated. Under the said circumstance, in that departmental proceeding all the evidences are required to be adduced again and the delinquent employee ( petitioner's father ) ought to have been given opportunity to cross-examine the witnesses. 14. In view of the discussions made above, the impugned letter dated 26.03.2014 (Annexure-6) issued by General Manager ( Min)/ Project Officer SDQ-1(Kalyni Project), Central Coalfields Ltd. cannot be sustained. 15. In the result, this writ application is allowed and the impugned order dated 26.03.2014 ( Annexure-6) is hereby quashed. The respondents are directed to consider the case of the petitioner for appointment on compassionate ground. Respondents are further directed to pay the terminal dues admissible to late Shailendra Kumar, Ex-employee of Central Coalfields Ltd , to his dependents in accordance with law.