Jharkhand High Court
Janki vs Central Coalfields Ltd on 15 September, 2020
Equivalent citations: AIRONLINE 2020 JHA 1174, 2021 (1) AJR 477
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 4315 of 2018
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Janki, aged about 60 years, son of late Bindeshwar, resident of village & P.O. Chalkari, P.S. Petarwar, District-Bokaro ...... Petitioner Versus
1. Central Coalfields Ltd., through its Chairman-cum-Managing Director, having its office at Darbhanga House, Ranchi, P.O.-G.P.O., P.S.-Kotwali, District - Ranchi
2. The Director,(Personnel), Central Coalfields Ltd, having its office at Darbhanga House, Ranchi, P.O.-G.P.O., P.S.-Kotwali, District -Ranchi
3. The General Manager (P&IR), having its office at Darbhanga House, Ranchi, P.O.-G.P.O., P.S.-Kotwali, District -Ranchi
4. The Project Officer, Central Coalfields Ltd., Office of the Project officer, SDOCM(S)-Dhori, P.S.-Bermo, District-Bokaro.
...... Respondents
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner : Mr. Kumar Harsh, Advocate
For the Respondent-CCL: Mr. A.K. Das, Advocate
Ms. Swati Shalini, Advocate
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C.A.V. on 31/08/2020 Pronounced on:15/09/2020
1. Heard, Mr. Kumar Harsh, learned counsel for the petitioner and Mr. A.K. Das, assisted by Ms. Swati Shalini, learned counsel for the respondent- CCL.
2. This writ petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been heard.
3. The petitioner has preferred this writ petition for quashing the order dated 22.06.2018 whereby the petitioner has been dismissed from service w.e.f. 10.03.2018. Further, prayer has been made for direction upon the respondents that the disciplinary proceeding initiated vide chargesheet 2 contained in memo no. 2162 dated 13.12.2017 stands abated in view of the status that the petitioner has superannuated from service w.e.f. 31.03.2018. Further prayer has been made for making payment of retiral benefits and consequential and terminal benefits.
4. It was the case of the petitioner that he was appointed on the post of Dumper Operator, Category-I on 02.04.1979 and the petitioner has been discharging his duty satisfactorily. The petitioner was served with a notice for retirement under superannuation from the management vide notice dated 16.10.2017, whereby it was decided that the petitioner will retire from the service of the respondent company w.e.f. 31.03.2018. A chargesheet dated 13.12.2017 was drawn against the petitioner vide Memo No. 2162 dated 13.12.2017 whereby the petitioner has been asked to show cause as to why the petitioner should not be dismissed from his service on the allegation that the petitioner has impersonated to be the son-in-law of one Dinu, Ex-employee, Kargil Washery, CCL, Bokaro. The petitioner submitted his reply to the said show-cause denying the allegation. The enquiry was initiated against the petitioner and charge has been framed against the petitioner. Enquiry was concluded. Second-show cause along with enquiry report was handed over to the petitioner vide show-cause notice dated 16.03.2018. In the enquiry report the petitioner was found guilty. The petitioner replied to the second show-cause denying all the charges levelled against him. The petitioner has earlier filed W.P.(S) No. 381 of 2018 for quashing the chargesheet issued against the petitioner on the ground that punishment of dismissal was indicated in the charge-sheet itself. Finally, the petitioner withdrew the said writ petition. The petitioner was superannuated w.e.f. 31.03.2018. Against the dismissal order dated 22.06.2018, the petitioner has preferred this writ petition. 3
5. The case of the respondent-CCL is that the finding recorded by the enquiry officer and the appellate authority are correct and there is no infirmity. The petitioner has been found guilty in the departmental proceeding. The petitioner was appointed as Dumper Operator in the respondent-CCL on 02.04.1979 and his date of birth recorded in his service was recorded as 05.03.1958. On completion of 60 years of his age on 04.03.2018, the petitioner retired on 31.03.2018 for which a superannuation notice dated 16/20.10.2017 has been issued to him. A complaint has been received from one Sri Ajay Ghasi, social worker alleging therein that the petitioner along with other has secured employment in C.C.L. fraudulently placing himself as forged son-in- law, son, brother of Harizan Adiwasi whereas they are of upper caste. The complaint was also forwarded by the Coal India Limited by a letter dated 12.09.2016. A preliminary enquiry has been conducted in which report was submitted on 11.11.2017 whereby it was found that in consistence in declaration in the native address by the petitioner gives rise to serious doubt and the identity of petitioner is serious. Accordingly, charge-sheet was issued to the effect that the petitioner obtained employment at CCL fraudulently becoming forged son-in-law of Sri Dinu, Ex-employee, Kargali Washery, B & K Area. As per service book and other documents i.e. L.T.C option form and CCEBFS Nomination Form the permanent address recorded as village - Chalkari, District-Giridih, whereas permanent address recorded in Gratuity Nomination Form was village-Maniamdih, P.O. and P.S. Navinagar, District- Aurangabad, State-Bihar. During preliminary enquiry the petitioner has stated his permanent address as village-Maniamdih, P.O. and P.S. Navinagar, District- Aurangabad, State-Bihar and his in-laws address village- Chalkari Basti, P.O. Petarwar, District-Bokaro. The petitioner was not the son-in-law of the said ex- 4 employee. On being found that the reply of chargesheet is not satisfactory, a departmental enquiry has been ordered to be proceeded against the petitioner. It was further case of the respondent-CCL that the petitioner all along participated in the enquiry without any demur. During course of enquiry proceeding dated 08.01.2018, a question was raised to the petitioner about his schooling at question no. 38, in turn the petitioner replied that he had got education from Dhori Middle School which was enquired from the Principal, Dhori Middle School whereby the Principal, Middle School, Dhori School vide letter dated 01.02.2018 informed that the name of the petitioner has not been entered in the register. The petitioner got stay order in the W.P.(S) No. 381 of 2018 whereby the Court directed the respondents that final order in the departmental proceeding shall not be passed. The Enquiry Officer submitted his report on 10.03.2018 holding the charges proved levelled against the petitioner. A second show-cause was issued against the petitioner. The respondent-CCL filed an interlocutory application in W.P.(S). No. 381 of 2018 for vacating the stay order dated 14.02.2018 annexing therein the enquiry report, second show-cause notice and reply of the petitioner to the second show-cause notice and also bringing the fact that the petitioner is going to retire w.e.f. 31.03.2018. The petitioner withdrew the said writ petition. In view of the fact that as the petitioner has obtained stay order for passing no order in the departmental proceeding and that is why the impugned order has been passed after superannuation of the petitioner.
6. At the outset, the Court asked the learned counsel for the petitioner to avail alternative remedy by way of raising industrial dispute under the Industrial Disputes Act but the learned counsel for the petitioner submitted that the writ petition may kindly be decided on merit. Thus, the arguments of the 5 learned counsel for the parties have been advanced.
7. Mr. Kumar Harsh, learned counsel appearing for the petitioner assailed the impugned order on the ground that the service of the petitioner has been terminated retrospectively by order dated 22.06.2018 w.e.f. 10.03.2018. He submitted that the charge-sheet dated 13.12.2017 has been issued pre-determined. The charge drawn against the petitioner is false and frivolous. The petitioner was not supplied document in the enquiry proceeding. The dismissal order is pre-determined. The enquiry report is based on surmises and conjectures. He referred Annexure-5 and submitted that by way of this document, it appears that service record is not available. He further referred Annexure-6 which is letter of the B.D.O., Petarwar and submitted that the B.D.O. has sought the full name and father's name for completing enquiry. He submitted that the petitioner has been terminated retrospectively. To substantiate his argument he relied upon judgment in the case of "Bhagirathi Jena Vs. Board of Directors, O.S.F.C. & Ors", reported in (1999) 3 SCC 666. The relevant para of the said judgment is quoted here-in-below:-
"6.It will be noticed from the abovesaid regulations that no specific provision was made for deducting any amount from the provident fund consequent to any misconduct determined in the departmental enquiry nor was any provision made for continuance of the departmental enquiry after superannuation.
7. In view of the absence of such a provision in the abovesaid regulations, it must be held that the Corporation had no legal authority to make any reduction in the retiral benefits of the appellant. There is also no provision for conducting a disciplinary enquiry after retirement of the appellant and nor any provision stating that in case misconduct is established, a deduction could be made from retiral benefits. Once the 6 appellant had retired from service on 30.06.1995, there was no authority vested in the Corporation for continuing the departmental enquiry even for the purpose of imposing any reduction in the retiral benefits payable to the appellant. In the absence of such an authority, it must be held that the enquiry had lapsed and the appellant was entitled to full retiral benefits on retirement."
8. Learned counsel for the petitioner further relied on judgment in the case of "Chairman-cum-Managing Director, Mahanadi Coalfields Limited"
reported in (2020) SCC Online SC 470 and submitted that the Hon'ble Supreme Court held that retrospective termination is not allowed.
9. Per contra, Mr. A.K. Das, learned counsel for the respondent-C.C.L. submitted that the petitioner has fraudulently obtained employment which has been found on through enquiry. The petitioner has been given full opportunity to defend himself in the departmental proceeding. The second show-cause has been issued along with enquiry report. Pursuant to reply, which has not been found to be satisfactory, the impugned order has been passed. He submitted that in view of W.P.(S) No. 381 of 2018, wherein charge-sheet was challenged by the petitioner, it appears that respondent-CCL was restrained from passing any order and in that view of the matter the respondents have not been able to pass any order. He further submitted that finally the petitioner simply withdrew the said writ petition thereafter, the impugned order has been passed. He submitted that due to act of the petitioner, the impugned order has not been passed before his termination. On the one hand at his instance, final order was not passed in the departmental proceeding and on the other hand he withdrew the writ petition.
10. He submitted that the petitioner has fraudulently obtained 7 employment which cannot be said to be a person holding a post. He submitted that the appointment of the petitioner was void and non est. To substantiate his argument, he relied on judgment in the case of "R. Vishwanatha Pillai Vs. State of Kerala & Others" reported in (2004) 2 SCC 105. The relevant para of the said judgment is quoted here-in-below:-
"15. This apart, the appellant obtained the appointment in the service on the basis that he belonged to a Scheduled Caste community. When it was found by the Scrutiny Committee that he did not belong to the Scheduled Caste community, then the very basis of his appointment was taken away. His appointment was no appointment in the eye of the law. He cannot claim a right to the post as he had usurped the post meant for a reserved candidate by playing a fraud and producing a false caste certificate. Unless the appellant can lay a claim to the post on the basis of his appointment he cannot claim the constitutional guarantee given under Article 311 of the Constitution. As he had obtained the appointment on the basis of a false caste certificate he cannot be considered to be a person who holds a post within the meaning of Article 311 of the Constitution of India. Finding recorded by the Scrutiny Committee that the appellant got the appointment on the basis of a false caste certificate has become final. The position, therefore, is that the appellant has usurped the post which should have gone to a member of the Scheduled Castes. In view of the finding recorded by the Scrutiny Committee and upheld up to this Court, he has disqualified himself to hold the post. The appointment was void from its inception. It cannot be said that the said void appointment would enable the appellant to claim that he was holding a civil post within the meaning of Article 311 of the 8 Constitution of India. As the appellant had obtained the appointment by playing a fraud, he cannot be allowed to take advantage of his own fraud in entering the service and claim that he was holder of the post entitled to be dealt with in terms of Article 311 of the Constitution of India or the Rules framed thereunder. Where an appointment in a service has been acquired by practising fraud or deceit, such an appointment is no appointment in law, in service and in such a situation Article 311 of the Constitution is not attracted at all.
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19. It was then contended by Shri Ranjit Kumar, learned Senior Counsel for the appellant that since the appellant has rendered about 27 years of service, the order of dismissal be substituted by an order of compulsory retirement or removal from service to protect the pensionary benefits of the appellant. We do not find any substance in this submission as well. The rights to salary, pension and other service benefits are entirely statutory in nature in public service. The appellant obtained the appointment against a post meant for a reserved candidate by producing a false caste certificate and by playing a fraud. His appointment to the post was void and non est in the eye of the law. The right to salary or pension after retirement flows from a valid and legal appointment. The consequential right of pension and monetary benefits can be given only if the appointment was valid and legal. Such benefits cannot be given in a case where the appointment was found to have been obtained fraudulently and rested on a false caste certificate. A person who entered the service by producing a false caste certificate and obtained 9 appointment for the post meant for a Scheduled Caste, thus depriving a genuine Scheduled Caste candidate of appointment to that post, does not deserve any sympathy or indulgence of this Court. A person who seeks equity must come with clean hands. He, who comes to the court with false claims, cannot plead equity nor would the court be justified to exercise equity jurisdiction in his favour. A person who seeks equity must act in a fair and equitable manner. Equity jurisdiction cannot be exercised in the case of a person who got the appointment on the basis of a false caste certificate by playing a fraud. No sympathy and equitable consideration can come to his rescue. We are of the view that equity or compassion cannot be allowed to bend the arms of law in a case where an individual acquired a status by practising fraud.
11. Learned counsel for the respondent-CCL further submitted that equity or compassion cannot be allowed to bend the arms in a case where an individual acquired status by practicing fraud and to substantiate this argument, he relied on judgment in the case of "Bank of India & Another Vs. Avinash D. Mandivikar and Others" reported in (2005) 7 SCC 690. The relevant para of the said judgment is quoted here-in-below:
"8. Notice contemplated in para 6 should be issued to the parents/guardian also in case candidate is minor to appear before the Committee with all evidence in his or their support of the claim for the social status certificates.
9. The inquiry should be completed as expeditiously as possible preferably by day-to-day proceedings within such period not exceeding two months. If after inquiry, the Caste Scrutiny Committee finds the claim to be false or spurious, they should pass an order cancelling 10 the certificate issued and confiscate the same. It should communicate within one month from the date of the conclusion of the proceedings the result of enquiry to the parent/guardian and the applicant."
12. Learned counsel for the respondent-CCL further relied on judgment in the case of "Abdul Rajjak VS. Central Coalfields Ltd. & Ors" passed in W.P.(S) No. 3064 of 2013 and submitted that in the case of fraudulent appointment that writ petition has been dismissed. He submitted that in that case the issue was same out of same respondent.
13. The Court has proceeded to examine the contention of the learned counsel for the parties. It is an admitted fact that departmental proceeding was initiated before the superannuation of the petitioner. At the instance of the petitioner, the respondents were restrained to pass any order after conclusion of departmental proceeding. The respondent-CCL filed an interlocutory application in W.P.(S) No. 381 of 2018 for vacating the stay thereafter, the petitioner simply withdrew the said writ petition. Thereafter, impugned order has been passed. Thus, at the instance of the petitioner the respondent-CCL was restrained to pass any order. Moreover, the petitioner has not contended his case in W.P.(S) No. 381 of 2018 and not contended the said writ petition to its logical end. Thus, the respondents were restrained by the Court to pass final order. Pursuant to departmental proceeding, the petitioner has been allowed to participate in the departmental proceeding wherein he has been provided full opportunity of hearing. The petitioner has also been served show-cause notice and second show-cause notice in the enquiry and has been found guilty. The degree of departmental proceeding is pre-ponderance of probabilities and not the proof beyond reasonable doubt. The petitioner has obtained the appointment by way of playing fraud.
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14. The question herein is that as to whether the High Court under Article 226 of the Constitution of India can interfere with the impugned order of imposition of penalty by the disciplinary authority or not. The said issue has been elaborately dealt with by the Hon'ble Supreme Court in the case of "Management of State Bank of India Vs. Smita Sharad Deshmukh and Another." reported in (2017) 4 SCC 75. The relevant para of the said judgment is quoted here-in-below:-
"5. It is a well-settled principle that the High Court will not reappreciate the evidence but will only see whether there is evidence in support of the impugned conclusion. The court has to take the evidence as it stands and its only limited jurisdiction is to examine, whether on the evidence, the conclusion could have been arrived at. (See Union of India v. H.C. Goel.)
6. In Bank of India v. Degala Suryanarayana, after referring to H.C. Goel case, this Court held at para 11: (Degala case, SCC pp. 768-69) "11. Strict rules of evidence are not applicable to departmental enquiry proceedings. The only requirement of law is that the allegation against the delinquent officer must be established by such evidence acting upon which a reasonable person acting reasonably and with objectivity may arrive at a finding upholding the gravamen of the charge against the delinquent officer. Mere conjecture or surmises cannot sustain the finding of guilt even in departmental enquiry proceedings. The court exercising the jurisdiction of judicial review would not interfere with the findings of fact arrived at in the departmental enquiry proceedings excepting in a case of mala fides or perversity i.e. where there is no 12 evidence to support a finding or where a finding is such that no man acting reasonably and with objectivity could have arrived at that finding. The court cannot embark upon reappreciating the evidence or weighing the same like an appellate authority. So long as there is some evidence to support the conclusion arrived at by the departmental authority, the same has to be sustained."
15. The judgment relied by the learned counsel for the petitioner in "Chairman-cum-Managing Director, Mahanadi Coalfields Limited" (supra), in that case the Hon'ble Supreme Court considered Rule 34 of the Conduct, Discipline & Appeal Rules, 1978 and came to the finding that Rule 34 of the CDA Rules provides for special procedure in certain cases which permits continuation of disciplinary proceeding even after final retirement of any employee and disciplinary proceedings are instituted while the employee was in service whether before his retirement or during his re-employment. The Court found that Rule 34 of C.D.A. Rules provides continuation of departmental proceeding even after retirement of any employee. This was subject matter before the Hon'ble Supreme Court in the case of "Chairman- cum-Managing Director, Mahanadi Coalfields Limited" (supra) and fraud aspect was not subject matter in that case. In that case the Hon'ble Supreme Court directed the disciplinary authority to proceed and conclude the disciplinary proceeding pending expeditiously and take final decision in accordance with scheme's 1978 read with sub-section (6) of the Payment of Gratuity Act, 1972. The Hon'ble Supreme Court in this case directed to conclude the departmental proceedings. Thus, the said judgment relied by the learned counsel for the petitioner is not helping the petitioner.
16. The case of "Bhagirathi Jena" (supra) relied by the learned counsel 13 for the petitioner was considered on the basis of provision of exigency in the Orissa Financial State Corporation Staff Regulation, 1975. In that case the Hon'ble Supreme Court considered the regulation of Orissa Financial State Corporation Staff Regulation, 1975 and found that there is no provision of reduction in the retiral benefits and there is no provision of conducting disciplinary enquiry after retirement. In that case fraud aspect for obtaining employment was also not the subject matter before the Hon'ble Supreme Court. Thus, the said judgment is not helping the petitioner.
17. The judgment relied by Mr. A.K. Das, learned counsel for the respondent-CCL in 'R. Viswanatha Pillai Vs. State of Kerala & Others', 'Bank of India & Another Vs. Avinash D. Mandivikar & Others' and 'Abdul Rajak' (supra) are applicable in the facts and circumstances the present case. No sympathy and equitable consideration can come to rescue to the petitioner. Equity or Compassion cannot be allowed to bend arms of law in a case where an individual acquired status by practicing fraud.
18. As a cumulative effect of the discussions made above and the law laid-down by the Hon'ble Supreme Court, no relief can be extended to the petitioner. Accordingly, the writ petition is dismissed. Pending I.A., if any, stands disposed of.
(Sanjay Kumar Dwivedi, J.) High Court of Jharkhand at Ranchi Dated: 15thth of September, 2020 Satyarthi/N.A.F..R