Calcutta High Court
Trinath Sethi No.3 vs Coal India Limited & Ors on 19 June, 2009
Author: Dipankar Datta
Bench: Dipankar Datta
W.P. No. 2458 of 2003
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE
Present : The Hon'ble Justice Dipankar Datta
Trinath Sethi No.3
...Petitioner
Versus
Coal India Limited & ors.
...Respondents
For the petitioner : Mr. Subrata Ganguly For the respondents : Mr. Kalimuddin Mondal Heard on : 15.5.2009 Judgment on : 19.6.2009 The petitioner claims to have been employed by Bharat Coking Coal Limited (hereafter the BCCL), a subsidiary of Coal India Limited (hereafter CIL), on 2.1.1973 as Khalasi. He was subsequently promoted. While he was posted at Basanti Mata Colliery of BCCL (hereafter the said Colliery), a charge-sheet dated 16.7.1998 was issued by the Agent of the said Colliery. It reads as follows :
"We have reasons to believe that you are no Trinath Sethi S/o Ananda Sethi, of Village-Madhusand, Pur, PO Belga, PS. Kodula Dist : Ganjam, State Orissa who was an employee of Basantimata Colly. having B. Form No.302 R as the left thum impression appears in the B. Form and that of your speciman LTI differs from each other which has been confirmed by the Dy. Chief Vigilence Officer (Finger print) CIL, Calcutta. Thus you have surrepteously entered into employment in Basantimata Colliery in place of the original Sri Trinath Sethi S/o Ananda Sethi.
The above act of your in a gross Misconduct under clause 26.1.12, 26.1.20, and 26.1.29 of the certified standing orders for BCCL which reads as under
:-
26.1.12--- Giving false information regarding one's particular for the purpose of employment or concealing any facts about previous employment or any other particulars required by the company. 26.1.20 :... Any breach of the Mines Act 1952 or any other Act or Rules, regulations or by laws thereunder or of any standing orders. 26.1.29... Wilful falsification, defacement or destruction of personal records or any other record of the Company.
Hence you are charge sheeted under the above clause of the certified standing order for BCCL.
You are directed to explain in writting within seven days of the receipt of this charge sheet as to why disciplinary action should not be taken against you.
If you fail to submitt the same within the above stipulated period it will be presumed that you have no explanation to offer in your defence and Management will take necessary action as deemed fit.
Mean while seeing the gravity of your Misconduct you are hereby placed under suspension."
Questioning the propriety of the charge-sheet, the petitioner instituted proceedings before this Court under Article 226 of the Constitution. On 24.9.1998, an interim order was passed granting liberty to the respondents to continue the departmental proceeding but they were restrained from giving any effect to the final order that might be passed without obtaining leave of Court. During the pendency of the writ petition, the departmental proceeding instituted against the petitioner was completed. The Enquiry Officer submitted his report dated 27.3.1999 holding the petitioner guilty of the charges. The enquiry report was furnished to the petitioner inviting his comments thereon. However, the petitioner did not submit any written explanation.
By an order dated 22.10.2001, the disciplinary authority of the petitioner i.e. the Agent of the said colliery upon consideration of the enquiry report and the materials placed on record before him passed an order dismissing him from service. However, the penal order was not given effect in view of the order of this Court dated 24.9.2001 referred to above.
An application was filed by the BCCL before this Court praying for leave to give effect to the final order. The writ petition, however, was dismissed on 27.3.2003 by a learned Judge of this Court on the ground of lack of territorial jurisdiction. The Court noted that petitioner had not made any statement in the petition to the effect that part cause of action had arisen within the territorial jurisdiction of this Court. The petitioner was, however, granted liberty to approach the appropriate forum for redress of his grievance within 30 days. At the same time, the BCCL was directed not to give effect to the final order before expiry of 30 days.
The petitioner did not institute proceedings before the appropriate forum within the time granted by order dated 27.3.2003. After expiry of 30 days from 27.3.2003, the order of dismissal from service dated 22.10.2001 was served upon the petitioner and given effect to.
The petitioner filed an intra-court appeal against the order dated 27.3.2003. Due to non-filing of requisites, the appeal has been ultimately dismissed. However, it is noted that while hearing the application for stay filed in connection with the aforesaid appeal, a Division Bench of this Court by order dated 11.6.2003 directed that pendency of the appeal would not prevent the petitioner from challenging the final order passed in the departmental proceeding before the appropriate forum.
The petitioner had preferred a departmental appeal before the Chief General Manager of BCCL, being the appellate authority. The appeal was ultimately rejected by the appellate authority on 27.10.2003.
The present petition has been filed by the petitioner in December, 2003 wherein he prayed for quashing of the entire departmental proceeding initiated against him including the order of dismissal, since merged in the order of the appellate authority.
The respondents have contested the petition by filing counter affidavit. The point raised by them in the counter is that once the point of territorial jurisdiction has been decided by this Court while dismissing the petitioner's earlier petition, and the petitioner was granted liberty to move the appropriate forum both by the learned Single Judge as well as by the Division Bench, the writ petition is barred by res judicata.
For the purpose of invoking the writ jurisdiction of this Court once again, the petitioner has averred in paragraph 20 of the petition that enquiry was conducted by the Enquiry Officer appointed by the disciplinary authority in his office at Barakar in the district of Burdwan. The respondents have dealt with paragraph 20 of the writ petition in paragraph 8 of the counter affidavit. Apart from a bare denial that the enquiry was not conducted in Burdwan, there is nothing to show that the enquiry was conducted beyond the territorial jurisdiction of this Court.
In paragraph 32 of the petition, the petitioner has averred that the appellate authority passed the appellate order from Barakar within the district of Burdwan on 27.10.2003. The respondents have dealt with contents of paragraph 32 of the petition in paragraph 9 of their counter affidavit. The respondents have not denied that the appellate authority did pass the appellate order from his office at Barakar, Burdwan as alleged by the petitioner.
The appellate order was not in existence when the earlier writ petition of the petitioner was decided. With the passing of the appellate order with which the petitioner is aggrieved, a fresh cause of action accrued in his favour to sue the respondents. Question of the present petition being barred by res judicata does not and cannot arise.
The order of the appellate authority having been passed within the territorial jurisdiction of this Court, this Court is clothed with the jurisdiction to try the writ petition.
As would be evident from the charge sheet extracted (supra), the petitioner was charged with impersonation. His left thumb impression did not tally with the thumb impression of Trinath Sethi, son of Ananda Sethi and such fact was confirmed by the Deputy Chief Vigilance Officer (Fingerprint), CIL. Thus he was alleged to have surreptitiously entered service in the said colliery in place of the original Trinath Sethi.
The Enquiry Officer found the petitioner guilty of the charge. The enquiry report submitted by him in connection with the departmental proceeding initiated against the petitioner was in Hindi.
On being directed, Mr. Mondal, learned Counsel appearing for the respondents, has placed before this Court a duly translated English version thereof. It appears from a reading of the report that no witness was produced from the side of the prosecution while the petitioner produced several witnesses in defence. The Enquiry Officer noted the submissions advanced by the management representative that in 1987 when the service record was being prepared, the petitioner had remarked that his recorded age was not tallying with his actual age. He had requested for correction of his age and also the name of the village to which he belonged. The petitioner was, accordingly, sent to the Special Medical Committee for determination of his age. The age of the petitioner determined by the Committee was 38 years on 24.8.1988, which was at variance with the age mentioned in Form B and the service record. In view thereof, the Personnel Manager called for police verification in respect of the petitioner. Police verification did not yield any result. The head office had then forwarded the date of birth to the Committee, which directed the fingerprint expert of the Vigilance Department of CIL to examine the fingerprint of the petitioner. The impression of the left thumb of the petitioner was taken and was examined along with the impression in Form B, which was prepared in 1973. The expert gave a report to the management on 8.3.1988 wherein it was observed that the thumb impression appearing in Form B prepared in 1973 and the thumb impression of the petitioner did not tally. Surprisingly, the fingerprint expert was not produced as a witness in the enquiry. It does not appear from the materials on record as to whether the petitioner had sought for his production as a witness or not but it is clear from the report that behind the back of the petitioner, the Enquiry Officer had met the fingerprint expert and had "discussed with him regarding the report on personal level" and that "he made me acquainted with the report". The fingerprint expert not having been produced as a witness in the enquiry, the Enquiry Officer had no business to interact and obtain opinion from him without putting the petitioner on notice. This is one of several serious flaws in the report of enquiry that renders it totally unacceptable.
On further perusal of the report of enquiry, this Court does not find that the report of the fingerprint expert was proved. It is settled law that a document does not prove itself; the contents thereof have to be proved by examining a witness [see Roop Singh Negi vs. Union of India, reported in (2009) 2 SCC 570 and Shri Swapan Ray vs. Indian Airlines Limited & ors, reported in 1996 (1) CHN 147]. In the absence of the report being proved, the Enquiry Officer erred in placing reliance on it.
It also appears from the report of enquiry that several defence witnesses deposed in support of the claim of the petitioner that he was the original employee and that he was not an imposter. The Enquiry Officer has not taken care to reject the evidence of the defence witness by assigning a single reason. Non-consideration of the evidence adduced by the defence witnesses is a serious lapse committed by the Enquiry Officer, which has vitiated the report of enquiry. The report of enquiry is indefensible on the authority of the decision reported in AIR 1985 SC 1121 (Anil Kumar vs. Presiding Officer).
This Court is constrained to hold that the departmental proceeding conducted against the petitioner is in clear breach of settled principles of law. The disciplinary authority as well as the appellate authority failed to take note of the serious infirmities that crept in the proceeding, which makes their respective orders vulnerable and not sustainable in law. The impugned orders are set aside including the order of dismissal from service.
Since the prosecution had chosen not to produce any witness in the enquiry initiated against the petitioner and there is sufficient evidence on record suggesting that the petitioner is not an imposter and further having regard to the fact that the petitioner is on the verge of retirement, this Court considers it inappropriate to grant liberty to the respondents to proceed afresh against him. The petitioner shall be reinstated in service immediately. However, he shall be entitled to 50 % of the back wages for the period spent under dismissal and shall be treated to be in continuous duty for the purpose of determination of his retirement benefits. Payment in terms of this order shall be effected within 8 weeks from date of communication of this order.
The writ petition stands allowed with costs assessed at Rs.10,000/-. Urgent photostat certified copy of this judgment and order shall be furnished to the applicant as early as possible but positively within four days from putting in requisites therefor.
(DIPANKAR DATTA, J.)