Bombay High Court
Shri Sheopurari Singh vs Coal India Limited Through on 5 March, 2010
Author: P.D. Kode
Bench: A.P. Lavande, P.D. Kode
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Writ Petition No.4475 of 2007
Shri Sheopurari Singh
s/o Late Kishun Singh,
aged about 60 years,
Occ. Nil,
R/o 80, Lokseva Nagar,
(Bhamti), Nagpur 440 022. .. PETITIONER
.. Versus ..
1. Coal India Limited through
its Chairman cum Managing Director,
Coal India Ltd. 10, Netaji Subhash
Road, Kolkata - 700 001.
2. Western Coalfields Ltd.
Through its Chairman cum
Managing Director, Coal Estate,
Civil Lines, Nagpur 440 006.
3. Shri B. N. Mishra,
Dy. General Manager (V),
Coal India Ltd.,
Vigilance Division, 6th Floor,
15 Park Street, Appejay House,
Kolkatta - 700 016.
OR
Rohini Housing Complex,
Coal India Limited,
Ulta-danga, Kolkata. .. RESPONDENTS
...
Mr. Mohan Sudame Advocate for Petitioner.
Mr. Samarditya Pal, Senior Advocate with
Mr. S.C. Mehadia, Advocate for Respondents.
...
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2
CORAM : A.P. LAVANDE AND P.D. KODE, JJ.
DATE OF RESERVING THE JUDGMENT : AUGUST 27, 2009
DATE OF PRONOUNCING THE JUDGMENT : MARCH 05, 2010
JUDGMENT ( per P.D. Kode, J. )
1. By present petition under Article 226 and 227 of the Constitution of India, petitioner has prayed for quashing and setting aside:
i) communication dated 8-9th August, 2007 issued by respondent no.1 removing him from service as Deputy General Manager (Vigilance) in M-1 Grade at Vigilance Department of respondent no.2 and
ii) order dated 24th November, 2007 passed by appellate authority ( Board of Directors of respondent no.1) rejecting appeal preferred by the petitioner against his such a removal from service and so also
iii) communication dated 14th December, 2007 intimating same to petitioner,
iv) granting any other reliefs deemed fit in the facts and circumstances of the case.
2. The learned counsel for the petitioner with regard to the factual aspects of the matter urged that :
a) without holding any inquiry and on the basis of alleged self declaration of the petitioner under the provisions of Rule 34 (1) (ii) of Coal India Executives Conduct, Discipline and Appeal ::: Downloaded on - 09/06/2013 15:40:46 ::: 3 Rules, 1978, respondents charging the petitioner of impersonation, manipulation of CMPF record for fraudulently getting induced into service in place of one Shri Sheo Purari Singh s/o Keshari Singh; had served notice dated 4.5.2007 of 15 days upon the petitioner for showing cause as to why he should not be removed from the service.
b) In the said notice the respondents had observed their satisfaction of :
i) petitioner having fraudulently managed to indulge himself in service in place of one Shri Sheo Purari Singh s/o Keshari Singh,
ii) having kept on manoeuvring service record in pursuance of his interest by changing name of his father's firstly as "S.K. Singh" and then as "Kishun Singh" by managing to revise Form A submitted to CMPF office Nagpur to regularise his said fraudulent act;
iii) petitioner having no locus standi to be an employee and it being not reasonably practicable to hold inquiry against the petitioner in the manner as provided in the CDA Rules.
c) Petitioner by reply dated 18.5.2007 requested respondents to hold inquiry into the charges levelled against him and without prejudice to his right to defend himself had also submitted his explanation for each of the charge even though respondent had not asked him to submit cause or justification to ::: Downloaded on - 09/06/2013 15:40:46 ::: 4 the charges levelled. He also produced 14 documents for demonstrating his innocence.
d) Petitioner requested for 23 documents under the Right to Information Act. On 24.5.2007 petitioner received a communication from the Public Information Officer of the respondents that one Shri B.N. Mishra and Chinmay Goswami were deputed to visit Nagpur on 31.5.2007 in connection with CVC referred complaint. The petitioner decided to get the documents supplied along with show cause notice, examined by the expert as said Mr. Mishra and petitioner were in inimical terms on the point of seniority,
e) Petitioner got examined from handwriting expert copies of the documents supplied along with show cause notice as he had not received original of the same as requested. The expert had found that the documents showing name of father of petitioner as "Keshari Singh" being altered one and that name of reading "Keshari" in documents being not the original script and same being altered.
f) Petitioner by rejoinder dated 18.6.2007 pointed about the conspiracy of alteration of documents by Shri B. N. Mishra who was inimical with him and also requested for conducting an inquiry against the petitioner before asking him on the point of punishment by show cause notice dated 4.5.2007. Thus the petitioner still claimed of being son of Kishun Singh being wrongly charged with manipulating the record by changing the ::: Downloaded on - 09/06/2013 15:40:46 ::: 5 name of his father from Kishun to Keshari .
g) Chairman of the respondents by order dated 22.6.2007 communicated petitioner that the documents sought by him had no relevance with the case and only copy of personal file can be allowed to be inspected by him and he may note down the extracts and may be supplied the copies of the record of service to the extent found relevant.
h) Petitioner by final reply dated 6.7.2007 to notice amongst other contended that :
i) at the time of appointment he has submitted his bio-data for the purposes of taking entries on Form B register and consequently on the service register;
ii) at the time of joining service, he had given correct particulars regarding date of birth, name of the father, qualification etc.;
iii) for the first time after receipt of show cause notice, it was revealed that office is maintaining wrong entry in respect of name of his father;
iv) for having knowledge of truth regarding genuineness of documents at Sr. No.3 supplied with show cause notice, he thought it necessary to get the same checked from the expert of disputed documents Shri Ulhas S. Athale;
v) on going through opinion of expert dated 9.6.2007,he got knowledge of fact that entries in service register have been ::: Downloaded on - 09/06/2013 15:40:47 ::: 6 forged/altered at instance of Shri B.N. Mishra, Deputy General Manager, Vigilance Cell, Calcutta with a view to initiate enquiry against the petitioner;
vi) after receipt of communication of Shri B.N. Mishra and Shri Chinmoy Goswami being deputed with CVC referred complaint, he had no hesitation to say that Shri B.N. Mishra having a grudge against the petitioner was the person behind the conspiracy to remove the petitioner from service;
vii) Shri B.N. Mishra had occasion to have possession of service register of the petitioner when the petitioner was posted at Pench area in the year 1978;
viii) since petitioner has challenged global seniority of Shri B.N. Mishra, he was keeping inimical terms with petitioner;
ix) Shri B.N. Mishra had also an occasion to inspect and have possession of the record;
x) it was surprising that complainant Shri B.N. Mishra was deputed along with Chinmoy Goswami to visit Nagpur to have possession of the original records;
xi) the way of conducting secrete inquiry by authorizing the complainant to handle the original service record of delinquent was not only illegal but also prejudicial to interest of delinquent when he had no knowledge of enquiry against him;
xii) name of father of petitioner was subsequently forged with a view to initiate inquiry against him by levelling the ::: Downloaded on - 09/06/2013 15:40:47 ::: 7 false charge of impersonation;
xiii) he challenged show cause notice issued by relying on forged document for humiliating and removing him from service without conducting a proper departmental inquiry warranted by rules/regulations and the principles of natural justice;
xiv) he requested for getting service register verified from handwriting expert before taking any action against the petitioner and particularly in light of opinion of handwriting expert Shri Ulhas Athale.
i) On 16th July, 2007 petitioner had requested respondents for revoking order of suspension and constituting enquiry committee by submitting representation dated 16.7.2007 contending that Shri B.N. Mishra complainant himself being deputed for investigation of the case and given particulars to deal with original records of the service of petitioner, he could not expect any justice from investigator Shri B.N. Mishra and hence requested appointing authority to personally examine his case.
j) Petitioner on 7th July, 2007 had asked information under Right of Information Act from General Manager of respondent no.1. As the CMPF, Nagpur authority did not accept pay order of Rs.10/- for providing the information to the petitioner which was asked vide his earlier representation dated ::: Downloaded on - 09/06/2013 15:40:47 ::: 8 6.7.2007, the petitioner, on 17.7.2007 again sent letter to the Regional Commissioner, CMPF, Nagpur along with the Demand Draft of Rs.10/- for providing the information as per representation dated 6.7.2007. On 17.7.2007 under the right of information act, the petitioner has addressed a letter to the Regional Commissioner, CMPF, Jabalpur and asked for the documents. The Regional Commissioner, CMPF, Nagpur denied to provide the information on the advice of Shri B.N. Mishra, Dy.
General Manager (V) C. I Ltd.
ig On 10.8.2007 the General
manager (Welfare), C.I Ltd. Kolkata issued a letter to the
General Manager (Vigilance), C.I. Ltd. Kolkata and directed them that the matter may kindly be treated on top priority as it relates to request for information under Right to Information Act, 2005.
the information may be made available to enable them to reply the petitioner within the time prescribed under the act.
k) Thereafter, respondent no.1 on 8.9.2007 passed order of removal of the petitioner, inter alia, stating that the petitioner was served the show cause notice dated 4.5.2007 for the alleged act of entering in employment by fraudulent means by impersonating in place of one Shri Sheopurari Singh s/o Keshari Sing, Category-I worker at Bijuri Colliery and the petitioner manoeuvred records time to time in his favour so that the fact may remain concealed and so that he may pursue his factious interest to continue in employment which depicted from various entries in the service records in the manner elucidated.
::: Downloaded on - 09/06/2013 15:40:47 ::: 9l) On 30.8.2008 against the order of removal from service, the petitioner preferred an appeal to Appellate Authority i.e. Board of Directors of respondent no.1, amongst other contending that the Chairman CIL had brutally removed him from the service without giving an opportunity to defend himself when only two and half months had remained for the superannuation, against a charge that petitioner had inserted a word "Shri"
before his father's name "Kishun Singh" and had taken same as fraudulent act of forging ig name of father from Kishun Singh to Keshari Singh in his service register in spite of other information given by petitioner at the time of appointment at Bijuri colliery on 13.8.1963 in the service register still remain the same, like date of birth, permanent address etc. Petitioner had also contended that statutory documents like form "B" register, quarterly bonus register from C, E & D (Attendance register) were neither provided to petitioner nor he was allowed to refer the same in his defence as Chairman was knowing that charge will fail if these records were provided to the petitioner.
m) Petitioner on 12.9.2007 again submitted a letter to Chief General Manager and Appellate Authority (S & R), C.I. Ltd, Kolkata and earnestly requested to provide information as explained in his application dated 7.8.2008. The appellate authority also did not provide the information sought by petitioner. Board of Directors of C.I. Ltd in 237th meeting of Board of Directions held at New Delhi, rejected the appeal ::: Downloaded on - 09/06/2013 15:40:47 ::: 10 observing that there was no substance in the appeal and board agreed with the decision taken by the appointing authority i.e. CMD, C.I. Ltd.
3. The learned counsel for the petitioner further urged that all the aforesaid happenings reveal that without holding any inquiry the petitioner has been removed from the services in utter violation of principles of natural justice. He urged that rule 34.1 (ii) of Chapter IV of Coal India Executives Conduct Discipline and Appeal Rules to which recourse was taken by the respondents for terminating the services of the petitioner requires that for following special procedure in cases falling under the said rule the disciplinary authority has to record the reason in writing for satisfaction reached that "it is not reasonably practicable to hold an enquiry in the matter provided under the rules.".
4. The learned counsel for the petitioner further urged that the provisions of the said Rule 34 are in pari-materia with the Article 311 of the Constitution of India. He urged that under the said rule recording of reason for achieving a satisfaction of dispensing an enquiry is sine qua non-requirement. He urged that in event of the purported reasons recorded being not reasonable then the case would never be covered under the said rule and as such dispensing inquiry would be violative of the said rule and any action taken thereon will be wholly illegal and liable to be set aside.
::: Downloaded on - 09/06/2013 15:40:47 ::: 115. The learned counsel for the petitioner urged that the matters pointed out by him earlier clearly reveals such a thing having happened in the case of the petitioner. He urged that having regard to the fact that petitioner vide his rejoinder dated 6.7.2007 having clearly pointed out that the letters KESHARI SINGH from the forged documents being altered letters as established from the opinion of handwriting expert ULHAS S. ATHALE enclosed with the final reply to show cause notice forwarded by them, and furthermore the respondents having failed to take any steps for establishing or at-least ascertaining whether the thumb impressions taken as an marks of identification in service register were that of petitioner clearly reveals that it was necessary for them to hold an inquiry and/or to give an opportunity to the petitioner to defend himself as all the matters relied were from the documents which were with the respondents and the one to which the complainant B.N. Mishra, who was inimical with the petitioner, had earlier access and/or he was in possession. The learned counsel urged that having regard to the said aspect the satisfaction of the charges being established and/or satisfaction reached by the authority of no inquiry being necessary for ascertaining truthfulness of the same cannot be said to be a reasonable one nor the same can be said to be a case for arriving at satisfaction of it being not reasonably practical to hold an enquiry in the manner provided under the rule. In view of the same action taken by the respondents under the Rule 34 would be wholly illegal ::: Downloaded on - 09/06/2013 15:40:47 ::: 12 and deserves to be quashed and set aside.
6. The learned counsel further urged that even as per the contentions of the respondents it being undisputed fact of the petitioner having continued in the service of the respondents since 2.5.1965 in Jamuna Colliery and thereafter having worked for/with the respondents, it was not open for the respondents to contend after about 42 years, of petitioner being not their employee and that too without holding any enquiry.
ig The learned counsel urged that considering the provisions of Rule 34 and the other rules it is crystal clear that holding an enquiry before taking an action being a rule and not holding an enquiry being an exception. The respondents having failed to make out such an exceptional case covered under the said rule and on the contrary the allegations itself denoting necessity of inquiry for ascertaining truthfulness in a complaint, if any, the action taken by the respondents is wholly illegal, arbitrary, contrary to the rules and principles of natural justice and as such is liable to be set aside. The learned counsel however stated that the petitioner having passed age of superannuation the question of his reinstatement will not presently survive and he would be entitled for monetary and retiral benefits. The learned counsel for the petitioner in support of his submissions also placed reliance upon following decisions :
(i) Union of India and another .vrs. Tulshiram Patel, reported in AIR 1985 SC page 1416.::: Downloaded on - 09/06/2013 15:40:47 ::: 13
(ii) Satyavir Singh and others .vrs. Union of India and others, reported in (1985) 4 SCC page 252.
7. The learned senior counsel for the respondents with regard to the factual aspects of the matter urged that :
(i) A person by name of Sheoporari Singh, son of Keshari Singh had joined Bijuri Colliery (then owned by National Coal Development Corporation (NCSC), a 100 % Central Government Company), on 13th August 1963 as a Lamp Issuer in Bijuri Colliery.
(ii) He was transferred to Sudamdih Colliery on 4.1.1965 and joined the same on 5.1.1965. On 1.5.1965 he was transferred back to Bijuri Colliery but in stead of going to Bijuri Colliery he is said to have gone to Jamuna Colliery (i.e. not a case of joining on a transfer). On 2.5.1965 a person has joined Jamuna Colliery showing name of father as S.K. Singh and not Keshari Singh and, thereafter, having worked at the said colliery with name of father as S.K. Singh.
(iii) The age of superannuation/retirement in Coal India Limited -
CIL being prescribed to be 60 years as per paragraph 15.2 of Common Coal Cadre i.e. Service rules of CIL read with O.M. Dated 27th May, 1998 and birth date of said Sheoporari Singh s/o Keshari Singh being 3.10.1947, under normal circumstances he was due to retire on 2.10.2007. However, under the provisions of Mines Act, no person could enter the service as a "lamp issuer" in a category unless he was an adult i.e. 18 years of age, the maximum permissible period of service becomes of 42 years for such a person.
::: Downloaded on - 09/06/2013 15:40:47 ::: 14Sheoporari having joined on 13.8.1963 was accordingly required to retire on 12.8.2005.
(iv) on 25.7.2006 Central Vigilance Commissioner, Government of India, addressed an Office Memorandum to Ministry of Coal (MOC) enclosing a complaint under Public Interest Disclosure and Protection of Informer Resolution.
(v) on 8/9.8.2006 Under Secretary, Government of India, Ministry of Coal, forwarded said complaint under Public Interest Disclosure Resolution to Coal India Limited (CIL) for investigation.
(vi) on 12.3.2007 Sr. Finance Officer (Vigilance), CIL, investigating officer, submitted the report with his findings and steps to be taken in relation to the investigation,
(vii) During the investigation, from service record it was revealed different name of father being mentioned therein i.e. :
Name of father Record
Keshari Singh Service record opened at Bijuri Colliery
Kishun Singh Matriculation certificate (Page 122 of WP)
S.K. Singh CMPF statement, VV statement and
medical certificates issued by village
doctor for the petitioner (Pages 141- 144)
Late S.K. Singh Bio-data of Writ Petitioner written by
himself (Page 117 WP)
Keshari Singh V.V. Statement of CMPF (Page 203 WP)
and Last Pay Certificate issued by Pench
Area (Page 147-149 WP)
Late Kishun Singh Self declaration of CMPF (Page 120 WP)
(viii) on 4.5.2007 a report was prepared regarding recovery of ::: Downloaded on - 09/06/2013 15:40:47 ::: 15 service file (non-executive period) of the petitioner and the findings based on such file, with recommendation of issuing suspension order and show cause notice and CVO, CIL, had personally explained to the Chairman and considering the gravity of the case, Chairman had approved the issuance of a show cause notice and accordingly the same was issued.
(ix) investigation effected upon the complaint received from CVC/Govt. Of India (MOC) had revealed the case of impersonation.
(x) on 18.5.2007 first interim reply to show cause notice was received from the petitioner while second reply/rejoinder to interim reply was received on 18.6.2007,
(xi) on 31.5.2007 MOC communicates CVC's advice dated 25.5.2007 that Commission has considered the case and advised to fix up the responsibilities on the officials concerned in the case of Shri S.P. Singh (Petitioner),
(xii) on 22.6.2007 petitioner was given inspection of management's records and so also copies of relevant records,
(xiii) on 6.7.2007 petitioner had submitted final reply,
(xiv)on 8/9.8.2007 after considering all the representations of the petitioner, order of removal from service was issued with reasons and same was informed on 14.12.2007 to petitioner by Chief Personal Manager (EE), CIL
(xv) Board of Directors, C.I. Ltd considered the representations/appeal of the petitioner dated 30.8.2007 in their 237th meeting held on 24th November, 2007 and passed reasoned ::: Downloaded on - 09/06/2013 15:40:47 ::: 16 order upholding the removal order dated 8/9.8.2007 of the petitioner. Copy of Board's decision was supplied to the petitioner.
8. The learned senior counsel for the respondents further urged that the reference to the writ petition reveals the petitioner having admitted as place of his appointment being Bijuri Colliery as a category I Mazdoor in paragraph no.3 para 3 and page 151 and then having submitted matriculation certificate at Bijuri Colliery which shows name of his father being "Kishun Singh".
ig He has contended that he has written name of his father as "S.K. Singh"
with 'S' - stands for "Shri" and 'K' stands for Kishun, hence, S.K. Singh. He urged that such a contention cannot be accepted as Kishun Singh cannot be written as S.K. Singh.
9. The learned senior counsel for the respondents further urged that the petitioner in his interim reply has contended that Clerk of office has wrongly recorded name of his father as "Keshari Singh". The learned counsel further urged that the petitioner had admitted in the same interim reply that he had authenticated the details furnished in the service sheet at Bijuri Colliery and accordingly he had put his left thumb impression thereon but contended that name of his father as a "Keshari Singh" came to be recorded as a clerical mistake of a person. But lateron petitioner changed his stand that name of his father was correctly written as "Kishun Singh" but was forged to the effect as "Keshari Singh".(Page ::: Downloaded on - 09/06/2013 15:40:47 ::: 17 15 para 17, page 260 paras 2, 3 and 4 of WP and page Nos.
291-292 of WP). The learned counsel thus urged that the petitioner has contradicted his own statement of clerk of the office having wrongly recorded name of his father as 'Keshari Singh".
10. The learned senior counsel further urged that petitioner in reply to show cause notice has admitted that while joining at Pench area in the capacity of Senior Vigilance Inspector, he had submitted his Bio-data showing the name of his father as late S.K. Singh and in spite of his said declaration, clerk of the office has recorded same as "Keshari Singh" incorrectly in VV statement, ignoring the declaration; which was not known to the petitioner earlier before receipt of show cause notice. He further urged that thus petitioner has admitted that records of the office of CGM/GM , Pench Area is maintaining incorrect entry against the name of his father, i.e. name of his father being recorded as "Keshari Singh". He further urged that petitioner in interim reply has further admitted that normally any mistake in the record is required to be rectified within five years. It is urged that petitioner having not applied for any such rectification clearly denotes name of his father being Keshari Singh.
11. The learned senior counsel further urged that even in the final reply to the show cause notice, petitioner has not disputed that in the records regarding time of his appointment at Bijuri Colliery reveals name of his father being mentioned as "Keshari Singh".
::: Downloaded on - 09/06/2013 15:40:47 ::: 18The petitioner in the said respect has alleged of the same being subsequently forged to such effect for levelling false charges of impersonation. Though petitioner has alleged that he had joined Bijuri Colliery on transfer from Sudamdih in month of May,1965, he has not given any date about the same and had alleged of having been joined as per verbal order of Shri M.P. Narayanan, Dy. SOC, Jamuna & Bijuri Colliery, having joined at Jamuna Colliery on 13.8.1965. The learned senior counsel urged that service record of the petitioner does not mention of petitioner joining Bijuri Colliery on retransfer from Sudamdih and so also there being no mention of himself joining Jamuna Colliery on 13.8.1965 on transfer from Bijuri Colliery against the verbal order of any authority of Colliery.
12. The learned counsel urged that in paragraph no. 7 of an affidavit of Shri B.L. Prasad , Engineer of Jamuna Colliery reveals the said person having affirmed that nobody named as Sheopurari Singh son of Keshari Singh worked at Jamuna Colliery since 1963, rather a person Shri Sheopurari Singh s/o Kishun Singh worked as an employee at Bijuri Colliery since 1963. The learned counsel urged that the same also confirms that the real worker who was son Keshari Singh did not join at Jamuna Colliery as he had been transferred from Sudamdih to Bijury Colliery and not to Jamuna Colliery. Hence the case of management is supported against the petitioner who had joined Jamuna Colliery. The learned counsel urged that later part of statement in the said affidavit "rather a ::: Downloaded on - 09/06/2013 15:40:47 ::: 19 person Shri Sheopurari Singh s/o Kishun Singh worked as an employee at Bijuri Colliery since 1963" is without any credibility as deponent had never worked at Bijuri Colliery and the said statement is not based on record i.e. as revealed from the verification made for said affidavit.
13. The learned counsel thus contended that the aforesaid material and particularly variation in the name of father in the records clearly leads to the conclusion that petitioner was never an employee of CIL. Thus there was no jural relationship between the petitioner and CIL or any of the subsidiaries of the CIL. He further urged that since petitioner was not an employee of CIL ever and his service was void since ab initio , the question of any inquiry or dispensation of inquiry is not at all relevant as the same would have been relevant only in the event of petitioner being the employee, in view of the provisions of the service rules are applicable only for employees.
14. The learned counsel urged that Rule 29 of Conduct Discipline and Appeal Rules of CIL only records one of the principles of natural justice. In the present case the petitioner having fully taken the opportunity of making three representation and put forward his defence and was given inspection of all relevant documents as per his request , himself having appealed before Board of Directors of CIL and Board of Directors having considering ::: Downloaded on - 09/06/2013 15:40:47 ::: 20 his representation and the case in full and finding of no merit being arrived in his appeal consequently upholding order of his removal , the question of dispensation of inquiry was academic and not of any relevance.
15. The learned senior counsel for the respondents urged that there were no merits in the petition preferred as petitioner has failed to establish that either show cause notice or removal was made mala fide and the respondents, in facts and circumstances, were entitled to order removal of the petitioner without any inquiry. He further urged that satisfaction as required under Rule 34.1 of Conduct Discipline and Appeal Rules being recorded by CMD on the basis of relevant material , the Court will not go into the question of sufficiency of the material as ruled in the decisions reported in :
I) (2003) 4 SCC 579, 588 para 12 - Indian Railway Construction Co. Ltd. .vs. Ajay Kumar, II) AIR 1991 SC 909, 911 (Para 5) - U.P. Junior Doctors' Action Committee .vs. Dr. B. Sheetal Nandwani and ors.
III) (2004) 2 SCC 105- R. Vishwanatha Pillai .vs. State of Kerala and others.
He further urged that CMD after such a satisfaction and dispensing with inquiry could have straightway removed the petitioner from the service as observed in a decision reported in (1996) 1 SCC 536, 538 (Paras 5, 6). However, he had acted in more generous manner than what the rules empowered him.
::: Downloaded on - 09/06/2013 15:40:47 ::: 2116. The learned senior counsel further urged that the same is apparent as petitioner was given a show cause , he had filed three replies and after considering the same only, the order of removal was passed. The decisions reported in:
I) (2007) 4 SCC 54 ( para 26)- Ashok Kumar Sonkar .vs. Union of India and others II) (2004) 8 SCC 653- J.A. Naikstam .vs. Prothonotary & Senior Master, High Court of Bombay and others III)(1996) 4 SCC 69 (para 5)- Union of India and another .vs. Jesus Sales Corporation IV) (2006) 2 SCC 315- Mohd. Sartaj and another .vs. State of U.P. And others, reveal representation in writing is enough, it cannot be said that petitioner was removed from serving without giving any opportunity to him, or without being heard.
17. He further urged that since replies given by petitioner and/or representation given by him reveals that he had not disputed basic facts but only tried to explain the same and the explanation being to the effect that somebody tampered with the name of his father in a record kept regarding initial entry in the service at Bijuri Colliery and the same being unacceptable, there was no question of holding any inquiry as the appointment was tainted with fraud. In ::: Downloaded on - 09/06/2013 15:40:47 ::: 22 support of his submission, the learned senior counsel relied upon the following judgments :
I) (2006) 11 SCC 356 (para 40 pg. 383)- Inderpreet Singh .vs. State of Punjab and ors.
II) (1988) 3 SLR 130- Rita Mishra .vs. Director, Primary Education, Bihar and others III) (2004) 2 SCC 105- R. Vishwanatha Pillai .vs. State of Kerala and others.
IV) (2003) 4 SCC 579- Indian Railway Construction Co. Ltd. .vs. Ajay Kumar.
18. The withdrawal of the earlier petition filed by the petitioner without leave to raise the issue of dispensation under Rule 34.1 (ii) debars petitioner from raising the issue again in the present petition upon the principles of Order 23 Rule 1 of Code of Civil Procedure as observed in the decisions:
I) (1987) 1 SCC 5 - Sarguja Transport Service .vs. State Transport Appellate Tribunal.
II) (1999) 1 Supreme Court Cases 81 - Upadhyay and Co. .vs. State of U.P. And others.
19. Considering the sequence in which the events had occurred i.e. Complaint of CVC to Ministry of Coal on 25.7.2006;
said Ministry referring it to CVO, CIL on 9.8.2006; CVO, CIL referring to CVO, WCL on 28.8.2006; report given by CVO, WCL on 8.2.2007 ::: Downloaded on - 09/06/2013 15:40:47 ::: 23 G.M., Vig. (CIL) deputing Goswami Sr. Vig. Officer of Vig. Department Calcutta to investigate in detail, and during the said investigation of Goswami, the misconduct unearthened and on 5.4.2007 Misra deputed to assist Goswami to locate the files and files being located in Nagpur on 10.4.2007 clearly reveals that it will be absurd to suggest that merely because B.N. Misra had assisted Mr. Goswami in locating files, he can be said to be responsible for alleged mala fides.
20. Thus learned senior counsel urged that there being no fault in the action taken by the respondents as petitioner had fraudulently entered in the service and had remained in the service by unfair means as stated in show cause notice and after such a matter was unearthened the respondents were bound to take such an action against him. Since the said matters did not warrant holding of an inquiry and/or holding such inquiry would have been unreasonable and practical , such a satisfaction was rightly arrived by the respondents. However, as stated earlier respondents had generously heard the petitioner in the matter and served him with show cause and further having given him an opportunity to make representation, by no stretch of imagination it can be said that principles of natural justice were violated by the respondents.
Hence there was no merit in the petition and hence the same deserved to be dismissed.
::: Downloaded on - 09/06/2013 15:40:47 ::: 2421. We have carefully considered the submissions advanced by both the learned counsel and perused the record and the decisions relied.
22. Having considered the Rule 29.2 and Rule 34.1 (ii) of Coal India Executives' Conduct Discipline and Appeal Rules, 1978 and upon which submissions of parties were centered, we deem it appropriate to reproduce the same for ready reference. The same are as under:
"29.2. Whether the Disciplinary Authority is of the opinion that there are grounds for inquiry into the truth of any imputation of misconduct or misbehaviour against an employee, it may itself inquire into, or appoint any person or a committee (hereinafter called the Inquiring Authority) to inquire into the truth thereof."
"34.1 (ii) Whether the Disciplinary Authority is satisfied for reasons to be recorded by it in writing that it is not reasonably practicable to hold an inquiry in the manner provided in these rules".
23. After considering the provisions of above stated Rule 34.1 and the provisions of Article 311 of the Constitution, we find the substance in the submissions of the learned counsel for the petitioner of the said provision being in pari materia with the provisions of Article 311 of the Constitution which also provides for ::: Downloaded on - 09/06/2013 15:40:47 ::: 25 dismissal of an employee by dispensing the inquiry by the appointing authority in certain contingencies. The learned senior counsel for the respondents has also not disputed the said proposition. Having regard to the same, we also find further substance in the submissions canvassed by the learned counsel for the petitioner of the true import and extent of the provisions of Section 311 being explained by the Hon'ble Apex Court in a landmark decision in the case of Tulshiram Patel (supra) relied upon by him. Now restricting to the aspect involved in the present case, it will be necessary to state that in the said decision Hon'ble Apex Court after explaining the purpose of the various facets of the provisions contained in Article 311 of the Constitution in paragraph 44 and 45 of the said judgment with regard to dispensation of inquiry has observed in paragraph no. 130, 132,133 and 134 as follows :
"130. The condition precedent for the application of clause (b) is the satisfaction of the disciplinary authority that "it is not reasonably practicable to hold" the inquiry contemplated by clause (2) of Article 311. What is pertinent to note is that the words used are "not reasonably practicable" and not "impracticable". According to the Oxford English Dictionary "practicable" means "Capable of being put into practice , carried out inaction, effected, accomplished, or done feasible". Webser's Third New International Dictionary defines the word "practicable" inter alia as meaning "possible to practice or perform: capable of being put into practice , done or accomplished" feasible".
Further, the words used are not "not practicable" but "not reasonably practicable". Webster's Third New International Dictionary defines the word "reasonably" as "in a reasonable manner: to a fairly sufficient extent". Thus, whether it was practicable to hold the inquiry or not must be judged in the context of whether it was reasonably practicable to do so. It is not a total or absolute impracticability which is required ::: Downloaded on - 09/06/2013 15:40:47 ::: 26 by Clause (b). What is requisite is that the holding of the inquiry is not practicable in the opinion of reasonable man taking a reasonable view of the prevailing situation. It is not possible to enumerate the cases in which it would not be reasonably practicable to hold the inquiry, but some instances by way of illustration may, however, be given. It would not be reasonably practicable to hold an inquiry where the government servant, particularly through or together with his associates, so terrorizes, threatens or intimidate witnesses who are going to give evidence against him with a fear of reprisal as to prevent them from doing so or where the government servant by himself or together with or through others threatens, intimidates, or terrorizes the officer who is the disciplinary authority or members of his family so that he is afraid to hold the inquiry or direct it be held. It would also not be reasonably practicable to hold the inquiry where an atmosphere of violence or of general indiscipline and insubordination prevails, and it is material whether the concerned government servant is or it not a party to bringing about such an atmosphere. In this connection , we must bear in mind that numbers, coerce and terrify while an individual may not. The reasonable practicability of holding an inquiry is a matter of assessment to be made by the disciplinary authority. Such authority is generally on the spot and knows what is happening. It is because the disciplinary authority is the best judge of this that Clause (3) of Article 311 makes the decision of disciplinary authority on this question final. A disciplinary authority is not expected to dispense with a disciplinary inquiry lightly or arbitrarily or out of ulterior motives or merely in order to avoid holding of an inquiry or because the Department's case against the government servant is weak and must fail. The finality given to the decision of the disciplinary authority by Article 311 (3) is not binding upon the court so far as its power of judicial review is concerned and in such a case the court will strike down the order dispensing with the inquiry as also the order imposing penalty.............................................................
132. It is not necessary that a situation which makes the holding of an inquiry not reasonably practicable should exist before the disciplinary inquiry is initiated against a government servant. Such a situation can also come into existence subsequently during the course of an inquiry, for instance , after the service of a charge-sheet upon the government servant or after he has filed his written statement thereto or even after evidence has been led in part. In such a case also the disciplinary authority would be ::: Downloaded on - 09/06/2013 15:40:47 ::: 27 entitled to apply clause (b) of the second proviso because the word "inquiry" in that clause includes part of an inquiry.
It would also not be reasonably practicable to afford to the government servant an opportunity of hearing or further hearing, as the case may be , when at the commencement of the inquiry or pending it the government servant absconds and cannot be served or will not participate in the inquiry. In such cases, the matter must proceed ex parte and on the materials before the disciplinary authority. Therefore, even where a part of an inquiry has been held and the rest is dispensed with under clause (b) or a provision in the service rules analogous thereto, the exclusionary words of the second proviso operate in their full vigour and the government servant cannot complain that he has been dismissed, removed or reduced in rank in violation of the safeguards provided by Article 311 (2).
133. The second condition necessary for the valid application of clause (b) of the second proviso is that the disciplinary authority should record in writing its reason for its satisfaction that it was not reasonably practicable to hold the inquiry contemplated by Article 311 (2). This is a Constitutional obligation and if such reason is not recorded in writing, the order dispensing with the inquiry and the order of penalty following thereupon would both be void and unconstitutional.
134. It is obvious that the recording in writing of the reason for dispensing with the inquiry must precede the order imposing the penalty. The reason for dispensing with the inquiry need not, therefore, find a place in the final order. It would be usual to record the reason separately and then consider the question of the penalty to be imposed and pass the order imposing the penalty. It would, however, be better to record the reason in the final order in order to avoid the allegation that the reason was not recorded in writing before passing the final order but was subsequently fabricated. The reason for dispensing with the inquiry need not contain detailed particulars, but the reason must not be vague or just a repetition of the language of clause (b) of the second proviso. For instance, it would be no compliance with the requirement of clause (b) for the disciplinary authority simply to state that he was satisfied that it was not reasonably practicable to hold any inquiry. Sometimes a situation may be such that it is not reasonably practicable to give detailed reasons for dispensing with the inquiry. This would not, however, per se invalidate the order. Each case must be judged on its own merits and in the light of its own facts and circumstances."
::: Downloaded on - 09/06/2013 15:40:47 ::: 2824. On the aforesaid backdrop of law regarding dispensation of an inquiry explained by the Apex Court about the provisions contained Article 311 of the Constitution to which the provisions under which respondent had taken recourse being undisputedly pari materia, the aforesaid law would be squarely applicable for considering the substance in the submissions advanced by both the parties. Similarly it can be also said that same also supports the submission of learned Counsel of the petitioner that even under Rule34.1(ii) inquiry is normal rule and dispensation of same is an exception.
25. Now without unnecessarily detailing each of the aspect upon which reliance was placed by the respondents for coming to the conclusion of the petitioner was not the employee of the respondent, it can be said that the same is mainly based upon the record which is said to be of the time of entry in service of employee at Bijury Colliery in the year 1963 and the same according to respondent is containing name of father of the employee appointed by them being "Keshari Singh" while according to the petitioner said part from the record pointed out being forged as per the opinion given by his handwriting expert after examining copy of the said document/record furnished to him. The respondent had further relied upon the service record kept at various places as per information allegedly furnished by petitioner time to time during ::: Downloaded on - 09/06/2013 15:40:47 ::: 29 course of service and the same not showing the name of his father as being "Keshari Singh" and thus such admission given on his part fortifies the conclusion drawn by them of the petitioner being not the original employee employed by the respondent. Needless to add that in short respondents had treated the same as amounting to the admissions of the petitioner. The respondents has also relied upon certain facets for canvassing that the original employee upon the transfer back to Bijouri Colliery from Sudamdih Colliery on 1.5.1965 having not joined at the said place but instead of him petitioner having joined under name of said original employee on 2.5.1965 at Jamuna Colliery and that too without orders of anybody from respondents for such a transfer.
26. Thus considering the aforesaid , it can be firstly said that all the conclusions are drawn by the respondents on the basis of the investigation made by them upon the complaint, of the record, which was admittedly in possession of the respondents and not in the possession of the petitioner. The petitioner since the receipt of show cause notice has disputed about the record which is mainly made basis by the respondents for coming to the conclusion of the petitioner being not the person employed by them as the name of father of the said employee was "Keshari Singh". The petitioner has taken a stand that said part of record was tampered and in support of the same along with the reply to show cause he has submitted the report of his expert. It is not disputed that the respondents had ::: Downloaded on - 09/06/2013 15:40:47 ::: 30 not furnished the original of the said documents to the petitioner for getting the same examined from his expert. Hence it was difficult for them to bypass the report of expert submitted by petitioner on the count of the same being prepared on the basis of copy of document and not the original. Furthermore the stand taken by the respondents in the petition also do not reveal that they have got examined the said documents from expert for bypassing and/or discarding contention taken by the petitioner. Needless to add that the stand taken by the respondents nowhere reveals that they have any other evidence, other than alleged admission of the petitioner in the further record, leading to the conclusion of there being no tampering as claimed by petitioner, of record said to have been maintained at the inception of an employment apart from any investigation made thereto for coming to such conclusion and that too in spite of specific contention to contrary effect taken by the petitioner and so also the name of father of employee said to have been originally employed being "Keshari Singh". The said aspect is apparently vital as the conclusion drawn by the respondents of the petitioner being not original employee is mainly based upon the same. In view of the same it is difficult to appreciate non furnishing an opportunity the petitioner for getting same examined from his expert and/or themselves investigating regarding the same or at least placing material regarding such investigation,if any made, in this petition to substantiate stand taken by them. It can be further added the same makes it difficult to accept that the ::: Downloaded on - 09/06/2013 15:40:47 ::: 31 conclusion/inference as reached by respondents could have been reached without an inquiry regarding the relevant aspect being held.
The same is obvious as apparently the action has been taken by the respondents on the basis of name of father of the person employed by them being "Keshari Singh" on the basis of the record prepared while employing said person at Bijuri Colliery and stand of the petitioner being the said part of record relating to the name of father of person employed in record being forged to the effect of "Keshari Singh".
27. In the aforesaid context it can be further added that having regard to the claim of the petitioner that he is the original employee and that the alleged record being not the record made at the inception of his service and the same being tampered, it is difficult to accept that the same could have been relied as being such a record either without inquiry regarding the relevant aspect being held or at least the petitioner being given an opportunity to contest the said stand of the respondent. Needless to add that the petitioner is not even given an opportunity to get the said document examined through the expert.
28. Now coming to the other matters upon which reliance is placed on behalf of the respondents i.e. the alleged admissions on part of petitioner showing name of his father shown therein being different, it will be necessary to observe that in order to make an ::: Downloaded on - 09/06/2013 15:40:47 ::: 32 admission as basis of conclusion firstly the same is required to be duly established and secondly the same being in nature of statement contrary to the interest of maker before using same against him, he is required to be given an opportunity to explain the circumstances, if any, in which he had made such statement contrary to his own interest. The same is absolutely necessary as law regarding the admissions reveals that admissions are never considered to be conclusive proof of the matters stated therein de hors the said aspect i.e. the circumstances, if any, in which the same were made by the maker. Now considering the stand of petitioner regarding record sought to be relied against him, of the same being made by the clerk at the relevant places erroneously and contrary to the declaration form/statements given by him, it is difficult to accept that even the first aspect of duly establishing the admissions sought to be relied was fulfilled by the respondents before relying upon the same against the petitioner. Needless to add that even qua the second aspect the respondents had not given any opportunity to the petitioner to explain the circumstances, if any, in which he had made the same. Needless to add that without fulfillment of the the first part and/or establishing the relevant admissions sought to be relied, merely treating same as being admissions made by petitioner and permitting the petitioner to show cause against the same and/or representation regarding the same, cannot be said to be sufficient to come to conclusion of due opportunity being given to the petitioner.
::: Downloaded on - 09/06/2013 15:40:47 ::: 3329. Thus having regard to the aforesaid facets and the law regarding dispensation of an inquiry explained by the Apex Court in a decision of Tulshiram Patil recited herein above , it is difficult to accept that the respondents could have dispensed with holding of an inquiry on the count as contended by them. Needless to add that the aforesaid facets considered upon the said law, does not reveal that in the case of the petitioner, with his such a stand ,only on the basis of such a material relied, without inquiry, the satisfaction could have been reached for dispensing of an inquiry.
Having regard to such a facet emerging from the aspects pointed out, we do not deem it necessary to make detailed discussion about other aspects canvassed by both the parties, involving an danger of observations being required to be made in said process, about aspects closely connected with inquiry required to be held in connection with allegations against petitioner. For the same reason we also do not deem it necessary to make dilation upon the aspect canvassed by both the parties and inherently related with the facet of petitioner being the said original employee or otherwise which is required to be decided after holding an inquiry. For the same reasons we also do not deem it necessary to enter into dilation regarding the decisions relied by the learned senior counsel for the respondents regarding the Court not going into the question of sufficiency of material relied for arriving the satisfaction and/or giving an opportunity to make representation amounting to giving of ::: Downloaded on - 09/06/2013 15:40:47 ::: 34 hearing the petitioner and in event of appointment being tainted with fraud same not requiring to hold an inquiry ( an aspect not establishing in the instant case) and so also the submissions pertaining to facets pointed out by learned senior counsel repelling the allegations of mala fide levelled by the petitioner against B.N. Misra.
30. Now with regard to the submissions canvassed by the learned senior counsel for the respondents that withdrawal of the earlier petition filed by the petitioner without leave to raise issue of dispensation under Rule 34.1 (ii) debars the petitioner from raising the issue again in the present petition upon the principles of Order 23 Rule 1 of CPC, the matters stated in paragraph no.36 of the petition reveals that the said earlier Writ Petition No. 2781 of 2007 was filed by him on 26.6.2007 for quashing and setting aside the show cause notice i.e. much before coming into existence of the order of termination of his service passed on 8/9th August, 2007 and communicated to him challenged by him in the present petition along with further order dated 24th November, 2007 passed by the appellate authority. In addition to the aforesaid, the reference to order of withdrawal of earlier writ petition also supports further contention taken by the petitioner in paragraph no. 36 that the same was withdrawn with a view of challenging the final order in the matter, if any, by seeking the liberty for the same from the Court. The same is apparent as the order passed permitting ::: Downloaded on - 09/06/2013 15:40:47 ::: 35 withdrawal reveals the petition being allowed to be withdrawn with liberty to have recourse to appropriate remedy, if occasion arises.
Having regard to the aforesaid it is extremely difficult to find any substance in the above stated submission canvassed by learned senior counsel that withdrawal of the earlier petition debars the petitioner to file the present petition.
31. As a net result of the aforesaid discussion , we quash and set aside the communication dated 8/9th August, 2007 issued by respondent no.1 removing the petitioner from the service without holding an inquiry and so also the order dated 24th November, 2007 passed by the Appellate Authority rejecting the appeal preferred by the petitioner against removal from his service and communication dated 14th December, 2007 intimating the same to the petitioner. As a consequent to the same, it will be necessary to hold of the petitioner being entitled for monetary benefits which were deprived to him due to the action taken by the respondents against him which is quashed and set aside by us. Needless to add that in view of the said benefits being deprived to the petitioner due to such action taken, he would be entitled to have an interest at the reasonable rate of 6 % P.A. upon the same. However, having regard to the fact brought to our notice by the learned counsel for the petitioner that meanwhile the petitioner has already passed the age of superannuation, it will be necessary to direct the respondents to pay the petitioner the subsistence allowance/salary as per the ::: Downloaded on - 09/06/2013 15:40:47 ::: 36 Service Rules from the date of his termination up-till date of his superannuation along with interest at the rate of 6 % P.A. thereon and the retiral benefits also with 6 % interest thereon from the date of superannuation and making both the said payments within 12 weeks from the date of this order for serving the ends of justice.
32. Rule made absolute in the aforesaid terms.
JUDGE
ig JUDGE
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