Calcutta High Court
Bharat Coking Coal Ltd. And Anr. vs Surendra Pratap Narayan Singh And Ors. on 5 September, 2003
Equivalent citations: (2004)ILLJ498CAL
Author: Ashok Kumar Mathur
Bench: Ashok Kumar Mathur, Ashim Kumar Banerjee
JUDGMENT Ashok Kumar Mathur, J.
1. This is an appeal directed against order dated September 4, 1998 passed by a learned single Judge whereby the learned single Judge allowed the writ petition and set aside the order of punishment imposed upon the petitioner by the disciplinary authority as well as by the appellate authority. However, the Learned single Judge directed the Chairman-cum-Managing Director of Coal India Limited to initite an appropriate departmental proceedings against the petitioner from the stage of appointing an enquiry officer and a presenting officer and such proceedings would be held de novo. Aggrieved against this order the present appeal has been filed by the Management.
2. Brief facts which are necessary for disposal of this appeal are that the petitioner at the relevant time was a Chief Mining Engineer/Project Manager in Kooridih Colliery belonging to Bharat Coking Coal Ltd. He was charge-sheeted on September 15, 1992 for failure to maintain devotion to duty and for acting in a manner prejudicial to the interest and image of the company. That he was negligent in the performance of duty. On the basis of this charge-sheet an enquiry was initiated against the petitioner. But strangely enough no witness was examined by the department excepting the presenting officer and that too by submitting a statement in writing whereafter the petitioner was asked to cross-examine the presenting officer as a witness. The enquiry was conducted on that; basis despite the protest of the petitioner and ultimately the petitioner was dismissed from service. The petitioner filed a writ petition in the Ranchi Bench of Patna High Court bearing No. C.W.J.C. 2625/1993 (R) and that writ petition was allowed by the order dated December 20, 1994 on the ground that no copy of the enquiry report was served on the petitioner. Therefore it was directed that the copy of such report be served on him and he be given an opportunity to file representation. Thereafter the copy of the enquiry report was served on the writ petitioner and he filed a representation. Thereafter the Chairman-cum-Managing Director of the Bharat Coking Coal Ltd. by the order dated June 17, 1995 removed the petitioner from the service of the company with immediate effect. It is alleged that during the pendency of the writ petition an appeal was preferred by the petitioner before the Board of Directors and the Board of Directors also dismissed the said appeal. Aggrieved against the order of removal present writ petition was filed.
3. One of the submissions made before the Learned single Judge was that the Chairman-cum-Managing Director of Bharat Coking Coal Limited could not have issued the charge-sheet nor could have appointed the presenting officer and the enquiry officer and it was further submitted that no witness was examined nor any document had been proved. It was also submitted that the list of witnesses and list of documents were not annexed to the charge sheet, therefore the petitioner could not file proper written statement. It was contended that the list of documents and list of witnesses along with the charge-sheet were not given nor any opportunity was given to him to inspect the documents, therefore the whole enquiry was conducted in serious violation of the principles of natural justice. In that connection the Learned Judge relied on the decisions of this Court in the case of Sri Swapan Ray v. Indian Airlines Ltd. and Ors. reported in 1996-I-LLJ-1211 (Cal) and Indian A irlines Ltd. v. Amamath Holder reported in 75 F. L. R. 279. The appeal was contested by the respondent and the respondent pointed out that it was not necessary for the Chairman-cum-Managing Director of Coal India Ltd. to issue charge-sheet for imposing a major penalty and the charge-sheet could be issued by the Managing Director of the Bharat Coking Coal Ltd. being a subsidiary to the Coal India Ltd. and he was competent to issue charge-sheet. However, the Learned single Judge did not decide this matter as to whether the Chairman-cum-Managing Director of the Bharat Coking Coal Ltd. was competent to issue charge-sheet or appoint the presenting officer or enquiry officer.
4. Be that as it may, so far as this question is concerned the Division Bench of this Court have already decided the issue in the case of Bharat Coking Coal Limited v. Kamal Prasad Singh and Ors. reported in 2001 (3) Cal LT 4 (HC) that the Chairman-cum-Managing Director of the subsidiary company is competent to issue charge-sheet but major penalty can be imposed by the Chairman, Coal India Ltd. Therefore, serving of charge-sheet by the Chairman-cum-Managing Director of a subsidiary company can be said to be legal. But so far as the major penalty is concerned the competent authority is Chairman-cum-Managing Director of Coal India Limited. But the main question which weighed with the learned single Judge was that the entire conduct of inquiry was in utter violation of Rules and breach of principle of natural justice. The Learned single Judge found that the officer liable to be served with a charge-sheet should be supplied with statement of allegation, list of documents and list of witnesses to be examined and thereafter the delinquent should be called upon to file written statement admitting or denying the charges, but in the present case no list of witnesses or list of documents was appended to the charge-sheet. The learned single Judge also observed that in the present case it was admitted by the management that the list of documents and list of witnesses were not supplied to the petitioner at the commencement or during the enquiry by the enquiry officer despite that large number of documents had been produced by the presenting officer during the enquiry without disclosing the contents thereof prior to the commencement of the enquiry against the delinquent and particularly in the present case the presenting officer acted as a witness in the whole enquiry which is an abnormal feature in the conduct of the enquiry. Normally the presenting officer has to present the case of a management and he cannot appear as a witness, but peculiarly in this case the presenting officer appeared as a witness and whatever submission made by him was taken as examination-in-chief and the delinquent was asked to cross-examine him. This is a very peculiar method adopted by the authorities in conducting the enquiry which is unknown in law. The learned single Judge further found that the letter written by Mr. J. P. Ghosh was taken into consideration without J.P. Ghosh being produced in the witness box. He was a very important witness and he was to produce the monthly survey measurement at Kooridih and Block-IV but Sri J.P. Ghosh was not examined and the Enquiry Officer took all those facts into consideration without Mr. Ghosh being produced in the witness box and his letter with regard to the survey measurement at the Kooridih and Block IV being not properly tendered into the enquiry proceedings was taken into consideration. Therefore after examining the matter in detail the learned single Judge found that the whole enquiry stood vitiated and thereby he set aside the order of the disciplinary committee as well as the appellate authority and directed the authorities to proceed in the matter afresh.
5. Meanwhile we have been informed that the petitioner had already superannuated and part of his post retirement benefit had also been released to him. This impugned Judgment was delivered by the learned single Judge way back in 1998 but before that the petitioner had already been superannuated. We asked the learned Counsel for the appellant specifically that why the enquiry had not been initiated afresh as directed by the learned single Judge as no stay order was granted by the Division Bench in this case. He was unable to answer " this question and he tried to contend that the management had a right to continue with the enquiry. We do not dispute the right of the management to continue with the disciplinary proceedings, which had been initiated by the authority prior to his retirement, which could have been continued 'despite his retirement as it was initiated prior to his retirement, but that enquiry was not proceeded further by the management inspite of the liberty given by the Learned single Judge.
6. So far as the merit of the matter is concerned, as pointed out above the whole conduct of the enquiry appears to us to be absolutely illegal being in serious violation of the principles of natural justice. The law on the conduct of the departmental enquiry has been well-settled and it has been observed repeatedly by the Apex Court as well as by the High Courts of the country from time to time that principles of natural justice should be followed consistent with the rules of conducting of enquiry. The peculiar feature of this case is that the presenting officer who had to act independently and produce all the records in support of charges against the delinquent, himself came as a witness in the enquiry and made submission in writing and presented himself before the enquiry officer, to be cross- examined as the witness by the delinquent. This manner of conducting the enquiry appears to us to be in violation of the basic tenets of the principles of natural justice as the presenting officer cannot substitute himself as a witness, as that would lose the objectivity in the conduct of the enquiry. More so, he had not produced any document by appearing in the witness box and proving those documents which would substantiate the allegation against the petitioner. Secondly, the delinquent officer was supposed to have been served with the list of witnesses as well as the documents along with the charge-sheet so as to give a correct picture that what was the allegation against him and how it was sought to be substantiated by oral as well as documentary evidence so as to facilitate him to file his written statement. This was not done. Normally, if anyone has to be charged then he/she has to be given a fair trial. In the present case it is unfortunate that the delinquent has been dismissed from service without giving him a fair, proper and reasonable opportunity to defend himself.
7. Therefore, in this view of the matter the view taken by the learned single Judge appears to be justified and there is no ground to interfere in this appeal. Hence the appeal is dismissed. No order as to costs.