JUDGMENT : 1. Heard learned counsel for the parties. 2. Appellant, Bharat Coking Coal Limited (hereinafter referred to as ‘BCCL’) has challenged the impugned judgment dated 16.09.2009, passed by learned Single Judge, whereunder, respondents-BCCL was directed to assess and pay the entire retiral benefits accrued in the account of the petitioner, within a period of three months together with interest @ 6% per annum from the date it was payable to the petitioner till it was finally paid. Furthermore, the respondents were directed to consider the petitioner’s claim for grant of employment to his dependent son in the light of the petitioner’s eligibility under NCWA and also in the light of the appointment letter issued to the petitioner’s son earlier. 3. Writ petitioner approached this Court, inter alia, pleading that he was initially appointed as a Timber Mistry in Ghanudih Colliery under the BCCL on 12.01.1964. His service record was opened and statement of particulars of his service records containing his name, date of birth, post held, date of appointment, CMPF number and list of dependants were given to him on 10.09.1997, as referred in his service record. On being found medically unfit, he was separated from service and in the year 1993, he was asked by this employer-BCCL to collect his gratuity and CMPF dues. After his separation from service, he sought employment of his dependant son, namely, Vijay Kumar Singh, in terms of clause-10.4.3 of the National Coal Wage Agreement-II (NCWA-II). Respondents-BCCL offered appointment to his son as a Piece Rated Employee, vide letter dated 04.01.1995, but, he was refused joining. Petitioner was later on informed that his retiral benefits have been withheld on account of the detection of a difference in the name of his father on the ground of some dispute regarding his parentage and identity and the matter is pending enquiry. 4. Respondents had pleaded that after the petitioner had retired from service, a complaint was received by way of a legal notice from Md. Azarail Ansari, Advocate of Dhanbad Court, stating that his client Baijnath Singh, son of Late Tribhuban Singh, resident of English Dhakni, District-Bhojpur was a permanent employee in Ghanudih Colliery and that his provident fund number is C/340394. The said employee had gone to his native village, but, after he returned from his native village on expiry of his leave, he was not allowed to join his duty. The said employee had gone to his native village, but, after he returned from his native village on expiry of his leave, he was not allowed to join his duty. In his absence, another person representing himself to be Baijnath Singh, son of Ruplal Singh, Chouparan, Hazaribagh had impersonated his client and illegally substituted himself for the original employee. Respondents also pleaded that during enquiry, it was revealed that one Damodar Singh, own brother of the writ petitioner, had admitted before the Vigilance Officer that his brother had been working in the colliery by impersonating the original employee. There was discrepancy in the permanent address as referred to in Form-B Register vis-à-vis the service book and provident fund record. The address given in Form-A, as furnished by the employee at the time of entry in service, tallied with the address of the original Baijnath Singh as mentioned in the legal notice. The name and age of wife of Baijnath Singh, as disclosed in the Form-A prepared in 1964, did not tally with the service excerpts prepared in 1987. Respondents-BCCL defended their stand as according to them there was reasonable belief that the petitioner was not the original employee and he had continued to remain in employment by practicing fraud and deception upon the employer. 5. Learned Single Judge, upon consideration of the rival submissions of the learned counsel for the parties and material pleadings on record, observed that the purported vigilance enquiry was conducted entirely behind the back of the petitioner and that too, after his retirement from service. The petitioner was neither informed about such enquiry nor was called upon to explain the matter and affirm his identity. The decision taken by the respondents-BCCL to withhold the petitioner’s retiral benefits was based on their own assumption and without any definite basis. Prior to the date of separation of the employee, there was no dispute regarding his identity or validity of his appointment. Petitioner was allowed to serve for about 30 years as a permanent employee under the respondents. His name, parentage and status, as mentioned in the original service records, including Form-B, had remain undisputed all along till the date of his separation from service. Upon his separation, he was paid his entire CMPF dues. Petitioner was allowed to serve for about 30 years as a permanent employee under the respondents. His name, parentage and status, as mentioned in the original service records, including Form-B, had remain undisputed all along till the date of his separation from service. Upon his separation, he was paid his entire CMPF dues. Accordingly, the stand of the respondents-BCCL was rejected and they were directed to make payment of the post retiral benefits to the writ petitioner and also to consider the claim for grant of employment to his dependant son in the light of the petitioner’s eligibility in terms of the NCWA and earlier appointment letter issued to the petitioner’s son. 6. During the proceedings of present appeal, a co-ordinate Bench of this Court, vide order dated 08.09.2010, permitted the appellants-employer to hold a fresh enquiry. The appellants-employer were asked to give ample opportunity to the respondent-workman to represent his case. The enquiry was directed to be conducted on the point: “whether the respondent-workman is the person who was initially appointed.” Operation of the impugned order dated 16.09.2009 passed in the writ petition was stayed. Enquiry was directed to be completed within six months and all concerned were to co-operate in the enquiry. 7. Learned counsel for the appellants has placed the enquiry report, brought on record through the supplementary affidavit dated 16.03.2011 after service of the affidavit on the learned counsel representing the writ petitioner-respondent. Learned counsel for the appellants has taken us through the enquiry report. Inquiring Authority & Sr. Manager (Personnel) Mr. Arun Dubey informed the writ petitioner and other person of the same name of village: Dhakni English, PO: Lasari, PS: Sahar, Dist. Bhojpur to attend the enquiry fixed on 19.01.2011 at 11.30 a.m. in the Conference Hall of Vikash Bhawan, Bastacolla Area, PO- Jharia, Dhanbad. Mr. P.K. Mishra, Sr. Manager (P)/MR, was the Management Representative in the enquiry. On the scheduled date and time, Mr. P.K. Mishra and the writ petitioner were present. Statement of the management-representative was recorded. He disclosed that Baijnath Singh was appointed on 12.01.1964 as Timber Mazdoor. His date of birth in Form-A of CMPF is 01.07.1938 and was having identification mark as wound mark in left leg. His home address has been mentioned as village: Dhakni English, PO-Gadhani, Dist.- Arrah, State-Bihar. Statement of the management-representative was recorded. He disclosed that Baijnath Singh was appointed on 12.01.1964 as Timber Mazdoor. His date of birth in Form-A of CMPF is 01.07.1938 and was having identification mark as wound mark in left leg. His home address has been mentioned as village: Dhakni English, PO-Gadhani, Dist.- Arrah, State-Bihar. Further in the dependant column, he has nominated Smt. Fula as his wife of 22 years of age with 100% share. CMPF No. C/340394 was allotted to him, which was filled up on 01.08.1964. He acknowledged it through his Left Thumb Impression in the Form-A of CMPF. He had filled up Form-F for the purpose of payment of gratuity on 04.01.1982 where he has named Smt. Madhuri Devi as his wife having 25 years of age with 100% share in presence of two witnesses. In the same form, he had mentioned his home address as village: Kedli, PO-Brindaban, PO-Chouparan, Dist. Hazaribagh. In the service excerpt also, he had mentioned the same home address. He had mentioned his date of birth as 01.07.1938 as per Form-A of CMPF and 19.06.1938 as per Form-B and date of appointment as 12.01.1964. As per CMPF, Khata No. C/340394, he had nominated Smt. Madhuri Devi aged 25 years as wife. He had signed in Hindi in this form. The enquiry proceeding resumed on 21.01.2011 at 11.00 a.m. On the said date, following persons were present: (i) Sri P.K. Mishra, Sr. Manager(P) cum Management Representative; (ii) Sri Baijnath Singh, S/o Tribhuwan Singh, Vill.- Kedli, Dist.- Hazaribagh; (iii) Sri Baijnath Singh, S/o Tribhuwan Singh, Vill.: Dhakni English, PO: Lasari, Dist. Arra (Bhojpur). Management Representative in continuation to his statement has stated and narrated that following particulars of the employee were entered in the service book: Form-B Regd. No.1393, Name of Father- Tribhuwan Singh. Identity Card No. 80059, CMPF No.C/340394 Permanent Address: Vill.: Kedli, PO+ PS Chouparan, Dist.- Hazaribagh Present Address: Vill: Ganhoodih, PO +PS Jharia, Dist. Dhanbad. DOB: 19.06.1938 (As per Form-B) 01.07.1938 (As per CMPF) 01.07.1938 (As per Medical Board). Details of dependants showed Madhuri Devi as his wife, aged about 30 years and three sons, two daughters and mother, Bindu Devi. DOA- 12.01.1964 Desgn-Timber Mistry Grade-Cat.IV Name of Nominee: Madhu Devi. This service book was prepared in the year 1986 where the employee put his LTI in presence of Welfare Officer, Ganhoodih Colliery. As per Sl. Details of dependants showed Madhuri Devi as his wife, aged about 30 years and three sons, two daughters and mother, Bindu Devi. DOA- 12.01.1964 Desgn-Timber Mistry Grade-Cat.IV Name of Nominee: Madhu Devi. This service book was prepared in the year 1986 where the employee put his LTI in presence of Welfare Officer, Ganhoodih Colliery. As per Sl. No. 1393 of page 92 of old Form-B of Ganhoodih Colliery father’s name of Baijnath Singh had been entered as Tribhwan Singh, employee’s date of birth is 25.06.1938 with designation as Timber Mistry. In column No.13 of old Form-B brother’s name was mentioned as Damodar Singh to whom the Management may inform in event of any eventuality. In the particulars of new Form-B, father’s name was the same, date of birth- 01.07.1938, designation-Timber Mistry, date of appointment-12.01.1964, identification mark- wound mark in left leg. Permanent address was the same village: Kedli, and he had put his LTI in CMPF Khata No.340394 and Identity Card No. 80059 which has also been signed by the Welfare Officer. Further, the Management Representative, Shri Mishra stated that in course of vigilance enquiry Damodar Singh, son of Ruplal Singh, Winding Engine Operator of Simla Bahal Colliery was interrogated on 25.01.2001, who disclosed name of his four brothers, one of them being Shri Baijnath Singh. He further admitted that his brother Baijnath Singh was working in place of other Baijnath Singh, son of Tribhuwan Singh. All the documents adduced by the Management Representative were marked and exhibited as A, B, C, D, E, F & G and copies thereof were distributed to both the parties, who acknowledged it. 8. On the next date of enquiry i.e. 02.02.2011 both the Baijnath Singh were present. Baijnath Singh of village: Dhakni was present and was represented through his co-worker, Samser Singh. He has stated that he was working as contractor labour under Shri Biswanath Singh, Contractor from 1956 to 1958 at Ganhoodih Colliery No. 10. Thereafter, he was appointed in 1958 as Khoota Mistry. He was on authorized leave from 15.03.1965 to 09.04.1965. Copy of the leave application was exhibited as D.E-1. He worked till 1970. In the same year, he went to his native village to attend the funeral of his father and returned after two months, but, he was not allowed to resume his duty and was threatened by some leaders and influential people of the locality. Copy of the leave application was exhibited as D.E-1. He worked till 1970. In the same year, he went to his native village to attend the funeral of his father and returned after two months, but, he was not allowed to resume his duty and was threatened by some leaders and influential people of the locality. On threat of life, he left the place and returned to his village. In the year 1994, he received the letter dated 10.07.1994 from the Office of CMPF informing that his CMPF/family pension amounting to Rs.2120/- has been deposited with Bank of India, Chouparan. Thereafter, he lodged a complaint with the BCCL. He volunteered for verification of his LTI put on Form-A of CMPF. The Management Representative also cross-examined him. 9. The writ petitioner Baijnath Singh volunteered to be represented through his son, namely, Vijay Kumar Singh, during enquiry. According to him, he was appointed as Khoota Cooli in the year 1964 at S.B. Banerjee & Sons Co. which was taken over by K. Orah Co. The company was nationalized in the year 1971 under the provisions of Coal Mines Nationalization Act. He was declared medically unfit in the year 1993. He had signed in Hindi in identity card and nominee Form-F, but, gave thumb impression in service book. He said that Rupu Singh and Tribhuwan Singh are same and one person. He exhibited documents, which were marked as Ext. vi to xiv and DE-VA. He was also cross-examined by the Management Representative. Based upon detailed enquiry, conducted in presence of two Baijnath Singhs’, enquiry authority arrived at the following conclusions: “It is evident from the above enquiry that Sri Baij Nath Singh S/o Tribhuwan Singh, Vill. Dhakni English, P.O. Lasari Dist. Bhojpur got employment during 1964 as Khuta Cooli and was in employment till 1970. He went to native place to attend the funeral of his father. When he returned to Ganhoodih Colliery he was not allowed to resume his duty and forcibly compelled to leave the place by some influential people of the locality and he left the job. It is also seen that before 1970 the entries in Form A has been made in respect of Sri Baij Nath Singh resident of Dhakni English P.O. Lasari Dt. It is also seen that before 1970 the entries in Form A has been made in respect of Sri Baij Nath Singh resident of Dhakni English P.O. Lasari Dt. Bhojpur whereas after 1970 and after nationalization of Coal Industry i.e. formation of M/s BCCL all the entries in different records e.g. Form –B (old & new), Service Excerpts, Form F & service Book are made in respect of another Sri Baij Nath Singh resident of Vill: Kedli, P.O. Brindaban Dist. Hazaribagh in all the records. Further it is confirmed in the Vigilance enquiry through the statement given by Sri Damodar Singh who was an employee of Simlabahal Colliery of M/s BCCL that Baijnath Singh, resident of Vill. Kedli P.O. Brindaban P.S. Chouparan, Dist. Hazaribagh is his brother and in course of enquiry he (the respondent) has accepted that Damodar Singh is his brother. Sri Baij Nath Singh resident of Vill: Kedli, P.O. Brindaban, Dist. Hazaribagh, the respondent in the instant case No. L.P.A./585 of 2009 was given full opportunity to submit his stand towards his genuineness particularly regarding his initial appointment but he could not produce any such document concerning initial appointment on 12.1.64 except his statement without any substance or witness. It is also seen that his brother Sri Damodar Singh during the Vigilance enquiry had confirmed that his brother is working in place of some other Baijnath Singh S/o Tribhuwan Singh. Thus, I am of the opinion that Sri Baij Nath Singh S/o Tribhuwan Singh, Vill. Dhakni English P.O. Lasari Dist. Bhojpur, Arrah was initially appointed during 1964 and the another person (the respondent) namely Baij Nath Singh resident of vill: Kedli, P.O. Brindaban Dist. Hazaribagh was allowed to work from 1970 onwards in his place by the erstwhile owner and he continued to work till 1993 in M/S BCCL.” 10. Learned counsel for the appellants submits that the enquiry conducted on the clear terms of reference made by this Court fully established that the writ petitioner was not the original employee of the same name. The writ petitioner could not produce any document concerning his initial appointment on 12.01.1964. His brother Damodar Singh had confirmed that his brother is working in place of another Baijnath Singh. The writ petitioner could not produce any document concerning his initial appointment on 12.01.1964. His brother Damodar Singh had confirmed that his brother is working in place of another Baijnath Singh. There was clear difference in the name of the wife and her age in Form-A of CMPF filled by the original employee and that of the writ petitioner as contained in his service excerpts. Full opportunity was given to the writ petitioner to submit his stand but he could not substantiate it. The enquiry has not been challenged by the employee. 11. Learned counsel for the appellants further submits that in such circumstances the writ petitioner had not approached this Court with clean hands. The findings of the learned writ court are susceptible as the dispute about petitioner’s identity and parentage had been conclusively established after due opportunity to him. In such state of disputed facts, this Court would not exercise its discretionary power to grant relief to the writ petitioner. In such circumstances, the impugned judgment deserves to be set aside. 12. Learned counsel for the writ petitioner-respondent herein submits that the enquiry conducted during the proceedings of this appeal has not taken a final shape. The appellants-BCCL has not passed any final order relating to the status of the writ petitioner as an employee. The writ petitioner should be given an opportunity to challenge the final decision of the BCCL based on the instant enquiry report. The writ petitioner had no occasion to challenge the enquiry report during the present proceedings as no final decision thereupon has been taken till date by the employer-BCCL. 13. We have considered the submissions of the learned counsel for the parties and relevant materials facts and circumstances noted above. From the detailed narration of facts and the findings recorded in the enquiry conducted by the employer in presence of writ petitioner and the other rival person Baijnath Singh claiming himself to be the original employee in the light of the reference made vide order dated 08.09. 2010, it can be straightway inferred that there is a dispute about the identity of writ petitioner whether he was initially appointed in the year 1964. 2010, it can be straightway inferred that there is a dispute about the identity of writ petitioner whether he was initially appointed in the year 1964. In the wake of such disputed questions of facts, the findings recorded by the learned Single Judge and the directions issued thereupon in exercise of powers under Article 226 of the Constitution of India cannot be sustained in the eye of law. The impugned judgment is, accordingly, set aside. Appellants-BCCL are at liberty to take appropriate decision in accordance with law in the light of enquiry report. Writ petitioner is at liberty to raise his claim thereafter in an appropriate proceeding where disputed questions of fact can be adjudicated upon on the basis of oral and documentary evidence. 14. The appeal stands allowed.