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Jharkhand High Court · body

2019 DIGILAW 919 (JHR)

Kalidas Mallah v. Bharat Coking Coal Limited

2019-04-25

RAJESH KUMAR

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JUDGMENT : RAJESH KUMAR, J. 1. Heard counsels for the parties. 2. The Present writ petition has been filed for quashing the office order dated 10.11.2005 (Annexure-7) whereby the services of the petitioner has been terminated. The said date has been disputed by filing counter affidavit stating that the order of termination is of dated 18.11.2005. 3. Since the writ petition was sketchy, the respondent were directed to file a detail counter affidavit vide order dated 17.12.2018. In compliance of the said order a detailed counter affidavit has been filed. 4. Subsequently, the respondents were directed to produce original record that has also been produced and verified by the counsels for the parties as well as by the Court. 5. It appears that the petitioner is a regular employee of the respondents who has been charged vide charge-sheet dated 12.06.2003. The allegation has been absentee with effect from 31.01.2003 and also as a habitual absentee. 6. Thereafter, an enquiry officer has been appointed vide office order dated 26.08.2005. Enquiry officer has issued notice to the petitioner and petitioner has participated in the proceeding and after recording the evidence, the charge has been found proved by the enquiry officer. Enquiry officer has submitted its report on 01.10.2005. 7. It appears that from letter dated 07.10.2005 which has been annexed as Annexure-E to the Counter Affidavit dated 04.04.2019, that the matter has been placed before the Project Officer, Bhowra, after considering the enquiry report and material available on record has proposed the punishment of termination of service. The said proposal has been approved by General Manager as well as Project Officer, which reads as under:- “I have carefully gone through the Enquiry proceeding & Enquiry report submitted by the Enquiry Officer, it has been found that the charge-sheeted workman was absent from his duty from 31.1.2003 and was allowed for duty from 11/9/2004 by the then Manager without conducting the enquiry and without obtaining the approval of the Competent Authority. Enquiry has been ordered by the Competent Authority, Enquiry was held and the charge-sheeted workman was fully participated in the Enquiry. The charge levelled against the charge-sheeted workman is fully establish. From the record it appears that the last 3 years performance of the charge-sheeted workman was very poor. Several charge-sheet & Warning was issued to him. Enquiry has been ordered by the Competent Authority, Enquiry was held and the charge-sheeted workman was fully participated in the Enquiry. The charge levelled against the charge-sheeted workman is fully establish. From the record it appears that the last 3 years performance of the charge-sheeted workman was very poor. Several charge-sheet & Warning was issued to him. In view of the above I hereby recommended the termination of Sri Kali Das Mallah, Miner/Loader of Bhowra (N) U/g. Mines from the Service of the Company with immediate effect. Project Officer, Bhowra (N) Ug. Mines In view of its above recommendation and poor performance, for kind......be accorded as recommended and named ‘A’ Submitted to its Competent Authority for approval. The Termination from services as proposed is approved.” 8. Thus, the effective order of termination has been passed on 29.10.2005. It appears that after confirming the order of termination, the second show cause notice has been issued vide order dated 09.11.2005 and having impugned order of termination dated 18.11.2005. Thus, on the sequence of fact it is evident that after terminating the petitioner the second show cause notice has been issued which is not permissible in the eye of law. Thus, the procedure adopted by the respondent is defective and contrary to the principle of natural justice. Only after issuance of second show cause the order of termination could not have been passed. 9. It is settled principle of law that if Enquiry Officer and the Disciplinary Authority are the different persons then show cause is must as before Disciplinary Authority material collected by different authority is under consideration. If the Enquiry Officer and Disciplinary Authority are same person then second show cause notice is not required but if they are two different persons then second show cause notice is must. 10. Project Officer is also present before this Court with the original record and the original record is returned. Personal appearance of Mr. Dibyendu Kr. Majhi is dispensed with. 11. In view of above discussion, the impugned order dated 10.11.2005 is hereby, quashed. The authorities are at liberty to act in accordance with law. 12. With the above observation and direction, the present writ petition stands disposed of.