Research › Search › Judgment

Jharkhand High Court · body

2017 DIGILAW 63 (JHR)

Anguri Khatoon v. Central Coalfield Limited

2017-01-10

PRAMATH PATNAIK

body2017
JUDGMENT : Pramath Patnaik, J. 1. In the accompanied writ application, the petitioner has inter alia prayed for quashing the impugned order of dismissal dated 11.02.2009 and appellate order dated 15.10.2009 and to reinstate the petitioner in services with back wages with all consequential benefits. 2. The facts, as emanated from the writ application, in brief, is that the husband of the petitioner was appointed by the C.C.L Management under ‘Voluntary Retirement Scheme’ in place of his uncle Md. Yunus vide order dated 11/19.01.1980. While continuing as such, a charge-sheet dated 10.12.1998 was served upon him alleging that the husband of the petitioner fraudulently obtained employment, as he has no relation with his so-called uncle, Md. Yunus. Pursuant thereto, the husband of the petitioner replied to show-cause notice denying the charges levelled against him, but a regular enquiry was started against him, in which though, the enquiry officer gave a finding that Asgar Ali is nephew of Md. Yunus, but disagreeing with the finding recorded by the enquiry officer, the disciplinary authority issued 2nd show-cause notice and without considering the explanation of the husband of the petitioner imposed the impugned order of dismissal dated 11.02.2009 which was confirmed in appeal vide order dated 15.10.2009. 3. Learned senior counsel for the petitioner submitted that after rendering unblemished services for about two decades, memo of charge was served upon the petitioner but on what basis or basing on which document or piece of information charges were framed were not disclosed and departmental proceeding was initiated against the petitioner. In the departmental proceeding, enquiry officer recorded the finding to the effect that “…….. on the basis of the above Government documents as well as Muslim Society certificate, it is clear that Asgar Ali is nephew of Md. Yunus. The charges levelled against Asgar Ali dated 10.12.1998 is not proved.” But the disciplinary authority issued 2nd show-cause notice without supplementing the cogent reasons for disagreement of such finding recorded by the enquiry officer rather the contrary evidence was taken into consideration for disagreement of such finding. It has further been submitted that the disciplinary authority at no point of time disbelieved the family certificate furnished by the petitioner and only on extraneous ground came to the conclusion that the Asgar Ali is not nephew of Md. Yunus and thereby imposed the impugned order of dismissal dated 11.02.2009, which met the same fate in appeal. It has further been submitted that the disciplinary authority at no point of time disbelieved the family certificate furnished by the petitioner and only on extraneous ground came to the conclusion that the Asgar Ali is not nephew of Md. Yunus and thereby imposed the impugned order of dismissal dated 11.02.2009, which met the same fate in appeal. Learned senior counsel for the petitioner further questioned the competency and jurisdiction of disciplinary authority to pass the impugned order. In this regard, it is submitted that the impugned order of dismissal was passed by the Project Officer, who is much below the rank of Personnel Officer, who had issued the appointment letter, thus, it is violation of Article 311 (2) of the Constitution of India and Rule 28 (6) of the Standing Order of CCL. It has further been submitted that when this writ application was part heard and adjourned for further hearing, only to make an attempt to legalize their action, the respondents prepared a noting, which at Annexure C to the supplementary counter affidavit, to show that the project officer/disciplinary had taken approval of the competent authority in terms of 28.6 of the certified standing order before imposing punishment of dismissal on the ex-employee. 4. In support of her submission, learned senior counsel for the petitioner referred to the decision rendered in the case of State of Uttar Pradesh & Anr. Vs. Man Mohan Nath Sinha & Anr as reported in (2009) 8 SCC 310 ; in the case of High Court of Judicature at Bombay Vs. Shasikant S. Patil & Anr. as reported in (2000) 1 SCC 416 ; in the case of Punjab National Bank & Ors Vs. Kunj Behari Misra as reported in AIR 1998 SC 2713 and also in the case of Chairman-cum-Managing Director, Coal India Ltd & Anr. Vs. Mukul Kumar Choudhuri & Ors as reported in (2009) 15 SCC 620 . 5. As against this, learned counsel for the respondents submitted that initially the husband of the petitioner submitted application showing himself to be brother of ex-employee, Md. Yunus, but his application was rejected as the brother of ex-employee was not entitled to get employment under the said scheme of VRS and this fact was entered in note-sheet dated 22.08.1979 and which was taken as a piece of evidence in enquiry as Exhibit. Yunus, but his application was rejected as the brother of ex-employee was not entitled to get employment under the said scheme of VRS and this fact was entered in note-sheet dated 22.08.1979 and which was taken as a piece of evidence in enquiry as Exhibit. However, the husband of the petitioner later on submitted another application showing himself to be nephew of said Md. Yunus and secured employment fraudulently. It has further been submitted that in the enquiry, the management adduced two witnesses who proved that the husband of the petitioner is not the nephew of Md. Yunus and on the contrary witnesses examined on behalf of the delinquent could not explain the relationship of the husband of the petitioner with the ex-employee, Md. Yunus. It has further been submitted-that though the enquiry officer relied upon the certificate issued by Circle Officer, Gola and Muslim Society but they were not examined, hence, the disciplinary rightly taken into consideration the prosecution witness and differed with the findings recorded by the enquiry officer and issued 2nd show-cause notice, to which, the husband of the petitioner replied, which on being found unsatisfactory, impugned order was passed. So far as the competency of disciplinary authority is concerned, referring to supplementary affidavit it has been submitted that project officer was nominated as competent authority with vested powers including taking disciplinary action and project officer/disciplinary had taken approval of the competent authority in terms of 28.6 of the certified standing order before imposing punishment of dismissal on the ex-employee. In such view of the matter, it is amply clear that there is no procedural irregularity or illegality and since the said note-sheet (Annexure C) could not be traced out earlier, it could not be brought at the time of filing of main counter affidavit. 6. After bestowing my anxious consideration to submissions advanced by learned counsel for the parties and on close scrutiny of the materials available on record, it came to surface that after rendering about three decades of services the husband of the petitioner has been dismissed from services on the allegation that for securing employment under 'Voluntary Retirement Scheme’, he furnished wrong information to the effect that he is nephew of ex-employee, Md. Yunus, who has tendered Voluntary Retirement to provide employment to his nephew-Asgar Ali (the husband of the petitioner). Yunus, who has tendered Voluntary Retirement to provide employment to his nephew-Asgar Ali (the husband of the petitioner). However, in the enquiry, on the basis certificate/family tree issued by Circle Officer, Gola and Muslim Society that the husband of the petitioner is nephew of said Md. Yunus, the enquiry officer recorded its finding that the charges levelled against the petitioner are not proved. On the contrary, the disciplinary authority only on the count that the said Circle Officer was not examined in the enquiry disbelieved that clinching piece of documentary evidence and came to the contrary conclusion and imposed the major punishment of removal from services. It is well settled law that the disciplinary authority has power to disagree from the findings of the enquiry officer, but he can do so after giving cogent reasons for the same but in the case at hand, it does not appear to be so, hence, the same is liable to be quashed and set aside. But at this juncture, this Court cannot lose sight of the fact that management adduced two witnesses who proved that the husband of the petitioner is not the nephew of Md. Yunus. 7. Be that as it may be, another point, which has vehemently been placed by learned counsel for the petitioner that the impugned order of dismissal has been passed by the Project Officer, who is below the rank of appointing authority, hence, the impugned order is in violation of Article 311 (2) of the Constitution of India, however, placing the Note-sheet at Annexure C to the Supplementary counter affidavit, learned counsel for the respondents submitted that the project officer/disciplinary authoity had taken approval of the competent authority in terms of 28.6 of the certified standing order before imposing punishment of dismissal on the ex-employee. But, the genuinity of the said note-sheet has seriously been questioned by learned senior counsel for the petitioner. This Court under Article 226 of the Constitution of India cannot go into such disputed question of fact. However considering all aspects of the matter, no useful purpose would be served, even if any direction is issued to go into the genuinty of Annexure C. Hence, in the fitness of thing without doubting or accepting that piece of evidence, writ petition ought to be dispose of. 8. However considering all aspects of the matter, no useful purpose would be served, even if any direction is issued to go into the genuinty of Annexure C. Hence, in the fitness of thing without doubting or accepting that piece of evidence, writ petition ought to be dispose of. 8. In view of the discussions made herein above, concept of justice and fair play would be met if the impugned order of dismissal dated 11.02.2009 and also appellate order dated 15.10.2009 would be quashed and set aside. Since, during pendency of the writ application the original petitioner died and in his place his wife has been substituted, no order for reinstatement can be passed. However, considering the facts and circumstances of the case, interest of justice would be met if respondents are directed to deny the back wages for the interregnum period of dismissal from services. 9. Resultantly, the writ petition stands allowed in part and it is ordered that the petitioner shall be entitled to all consequential benefits, except the back wages for the interregnum period of dismissal from services. Petition partly allowed.