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2021 DIGILAW 140 (JHR)

Sarfuddin Ansari v. Bharat Cocking Coal Limited.

2021-02-02

DEEPAK ROSHAN

body2021
JUDGMENT : Heard learned counsel for the parties through V.C. 2. The instant writ application has been preferred by the petitioner praying therein for quashing and setting aside the order of dismissal issued under Office Order No.2299 dated 11.07.2009 (Annexure-10) and also for quashing the appellate order issued under Memo No.2664 dated 24.06.2014 (Annexure-15) whereby the appeal filed by the petitioner has been rejected. 3. The relevant facts necessary for disposal of the instant writ application are that an agreement was executed by and between one Rabul Ansari with respondent no.1 for sale of his land who was father-in-law of the petitioner. The said land owner Rabul Ansari also sworn an affidavit to the effect that he had no son; as such, the petitioner is being nominated for employment in lieu of lands acquired and possessed by the respondent no.1. Pursuant thereto, the documents were processed and finally an appointment letter was issued in favour of this petitioner on 11.02.1988 for the post of temporary minor/ loader. At this stage it is pertinent to mention here that in the appointment letter; instead of son-in-law, the petitioner has been shown as son of the land looser-namely Rabul Ansari. After looking to the aforesaid discrepancy; the petitioner immediately represented the authority vide his representation dated 30.12.1988 informing that the name of the his father has wrongly been recorded as Rabul Ansari; as he is not son but son-in-law of Rabul Ansari. In support of his representation he also annexed his driving license. Thereafter, the matter was set at rest for the time being. After about 10 years, petitioner was directed for registration of the sale deed in favour of the company. Thereafter, again the matter was kept in abeyance and all of sudden in the year 2008 i.e. after 20 years of appointment letter; the respondent had issued a show cause notice to the petitioner alleging therein that the petitioner had obtained his employment in the company by practicing fraud and misrepresentation by claiming himself as son of the land looser-Rabul Ansari. Thereafter, a charge sheet was issued and finally the petitioner has been removed from service. 4. Mr. Thereafter, a charge sheet was issued and finally the petitioner has been removed from service. 4. Mr. A. K. Sahani, learned counsel for the petitioner submits that by no stretch of imagination it can be said that the petitioner has committed any fraud, inasmuch as, prior to the appointment of this petitioner an agreement was signed by his father-in-law along with an affidavit wherein his father-in-law-Rabul Ansari has categorically stated that since he had no son, as such the petitioner has been nominated by him for employment as per R & R policy. Thereafter, the matter was enquired / processed and finally the appointment letter was issued in favour of the petitioner. Mr. Sahani further contended that it was a mistake of the respondent company to depict the petitioner as son of the Rabul Ansari instead of son-in-law; as all the documents were before them and there is no question of any fraud or misrepresentation. Mr. Sahani further contended that immediately after knowing the aforesaid discrepancy; the petitioner represented the respondent authority for correction but for the reason best known to them, the respondents slept over the matter for years. He further contended that though dismissal/removal is a major punishment; however, the respondent failed to issue any show cause notice along with copy of enquiry report and dismissed the petitioner from service by the impugned order. He concluded his argument by submitting that even the order of dismissal and order in appeal are completely non-speaking and non-reasoned order, inasmuch as, the reply of the petitioner has not been considered at all. He also referred Annexure12 and contended that in several other cases, the son-in-law has been given employment by the respondent authority. In support of his contention he relied upon a judgment in the case of Md. Zamil Ahmed Vs. The State of Bihar & Ors. reported in (2016) 3 Supreme 370 wherein at paragraph 22 and 25 Hon’ble Apex Court held as under: “22. In these circumstances, we are of the view that there was no justification on the part of the State to woke up after the lapse of 15 years and terminate the services of the appellant on such ground. reported in (2016) 3 Supreme 370 wherein at paragraph 22 and 25 Hon’ble Apex Court held as under: “22. In these circumstances, we are of the view that there was no justification on the part of the State to woke up after the lapse of 15 years and terminate the services of the appellant on such ground. In any case, we are of the view that whether it was a conscious decision of the State to give appointment to the appellant as we have held above or a case of mistake on the part of the State in giving appointment to the appellant which now as per the State was contrary to the policy as held by the learned Single Judge, the State by their own conduct having condoned their lapse due to passage of time of 15 years, it was too late on the part of the State to have raised such ground for cancelling the appellant’s appointment and terminating his services. It was more so because the appellant was not responsible for making any false declaration and nor he suppressed any material fact for securing the appointment. The State was, therefore, not entitled to take advantage of their own mistake if they felt it to be so. The position would have been different if the appellant had committed some kind of fraud or manipulation or suppression of material fact for securing the appointment. As mentioned above such was not the case of the State. 25. As a consequence thereof, the respondent-State is directed to reinstate the appellant in service with all consequential benefits such as payment of full back wages payable from the date of termination (23.06.2005) till the date of reinstatement in service. The appellant is also entitled to claim his seniority and notional promotions as per rules. It be fixed accordingly.” He further relied upon a judgment in the case of UCO Bank & Ors. Vs. Rajendra Shankar Shukla reported in 2018 (4) Supreme 257 and relevant paragraph 12 and 13 are as under:- “12. We do not find any reason to interfere with the judgment and order passed by the High Court. However, it is necessary for us to highlight a few facts which were brought to our notice during the course of submissions made by learned counsel. We do not find any reason to interfere with the judgment and order passed by the High Court. However, it is necessary for us to highlight a few facts which were brought to our notice during the course of submissions made by learned counsel. The first issue of concern is the enormous delay of about 7 years in issuing a charge sheet against Shukla. There is no explanation for this unexplained delay. It appears that some internal discussions were going on within the Bank but that it took the Bank 7 years to make up its mind is totally unreasonable and unacceptable. On this ground itself, the charge sheet against Shukla is liable to be set aside due to the inordinate and unexplained delay in its issuance. 13. What compounds the default on the part of the Bank is that Shukla was placed in a higher category as a Manager on 19th July, 1994 while all these discussions were going on in the Bank. He was also allowed to cross the efficiency bar on 12th August, 1996 again while the discussions were going on. Surely, if the Bank was serious about proceeding against Shukla for misconduct, they would not only have taken prompt action in issuing a charge sheet but would not have granted him the benefit of being placed in a higher category or crossing the efficiency bar.” Relying upon the aforesaid judgments and the facts of the case Mr. Sahani submits that the impugned orders deserve to be quashed and set aside and since the petitioner had already retired on 11.02.2020; as such, all consequential benefits should be extended to this petitioner. 5. Mr. Indrajit Sinha, learned counsel for the respondent-company opposed the prayer of the petitioner and submits that in an admitted case like this; no second show-cause notice is required. He further submits that the petitioner himself admitted that he is son-in-law of the Rabul Ansari; as such, in a sense, he has admitted the charge. As such, giving enquiry report or second show cause notice was mere formalities. However, learned counsel for the respondents could not demonstrate before this Court that all the documents were within the knowledge and custody of the respondents then what prevented them from taking note of all those documents which clearly transpires that the petitioner is not the son of land looser. However, learned counsel for the respondents could not demonstrate before this Court that all the documents were within the knowledge and custody of the respondents then what prevented them from taking note of all those documents which clearly transpires that the petitioner is not the son of land looser. He lastly contended that the son-in-law does not come under the definition of family as per R & R policy and further contended that both the impugned orders are well reasoned and speaking orders, as such no relief should be granted to the petitioner. 6. Having heard learned counsel for the parties and after going through the documents available on record it appears that the petitioner was appointed on 11.02.1988 and that too after an agreement signed by the land looser -Rabul Ansari who was father-in-law of the petitioner and the Respondent Company. It further transpires from Annexure-2 that an affidavit was sworn and submitted by the land looser-Rabul Ansari stating therein that since he is having no son and the petitioner, who is son of Md. Godan Mian, is his son-in-law and performing duty of a son and since last 10 years the said Rabul Ansari is totally dependent on him. In the said affidavit it was also stated that the job, if any, shall be given to this petitioner. The documents further transpires that after the said agreement and affidavit and before the appointment of this petitioner; the matter was taken up for consideration and the issue was well discussed which transpires from the note-sheet which has been annexed as annexure-3 to this writ application which clearly transpires that the respondents were having full knowledge about the parentage of this petitioner as such; it would be wrong and incorrect to say that the petitioner has committed any fraud or misrepresentation. It further transpires that the moment the petitioner came to know about the discrepancy in the appointment letter, he represented the department immediately and thereafter nothing was responded from the other side. All this goes to show that at no point of time the petitioner has tried to commit fraud or misrepresentation. Even otherwise, admittedly; no second show cause notice has been given to this petitioner along with the enquiry report. All this goes to show that at no point of time the petitioner has tried to commit fraud or misrepresentation. Even otherwise, admittedly; no second show cause notice has been given to this petitioner along with the enquiry report. This Court is not in agreement with the contention of the learned counsel for the respondent that the charge was admitted by this petitioner because obviously the charge was with respect to misrepresentation and committing fraud and petitioner’s admission was only with respect to the fact that he is son of Godan Mian and he never accepted that he has committed any fraud; as such the contention raised by the respondent that no second show cause notice was required is misconceived. 7. In this view of the matter the instant writ application is allowed and the order of dismissal as contained in Office Order No.2299 dated 11.07.2009 (Annexure-10) as well as the appellate order as contained in Memo No.2664 dated 24.06.2014 (Annexure-15) are hereby quashed and set aside. The respondents are at liberty to proceed with the case from the stage of serving the second show cause notice along with enquiry report, if the law so permits. 8. It is made clear that since the matter is very old as such if the respondents choose to proceed against this petitioner, then the entire exercise must be completed within a period of four months from the date of receipt/production of copy of this order; failing which the petitioner shall be entitled for all consequential benefits within a further period of six weeks. 9. With the aforesaid terms, the instant writ application stands allowed.