Calcutta High Court (Appellete Side)
Sri Narayan Mishra vs Coal India Ltd. & Ors on 1 August, 2017
Author: Tapabrata Chakraborty
Bench: Nishita Mhatre, Tapabrata Chakraborty
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
APPELLATE SIDE
Present:
The Hon'ble Acting Chief Justice Nishita Mhatre
&
The Hon'ble Justice Tapabrata Chakraborty
MAT 3031 of 2006
Sri Narayan Mishra
versus
Coal India Ltd. & Ors.
For the Appellant : Mr. S. K. Dutta,
Mr. Swapan Banerjee.
For the Respondents : Mr. Alok Kumar Banerjee,
Mr. Pradyot Kumar Das.
Hearing is concluded on : 12.07.2017. Judgment On : 1st August, 2017. Tapabrata Chakraborty J. :
1. On 21st January, 1995, the appellant, who was working as a security guard/gun retainer at Parbelia Colliery in the district of Purulia within the Sodepur area of Eastern Coalfields Limited (hereinafter referred to as ECL), was allotted duty in the third shift, i.e., from 12 midnight to 8 a.m. at the cash office, Parbelia Colliery. Alleging that on the said date the appellant, being aware of the fact that a truck no.BHG-4243 (hereinafter referred to as the said truck) loaded with companies materials, which were lifted from Ranipur Colliery for Parbelia Colliery, had allowed the same to leave the premises of Parbelia Colliery at night hours during his duty period with no valid reason or permission of the competent authority, a charge sheet was issued on 23rd January, 1995 after lodging a similar complaint before the police authorities on 22nd January, 1995. An enquiry officer was appointed and the appellant participated in the enquiry. After the enquiry report was filed, the appellant replied to the same and thereafter by an order dated 31st May, 1995 the appellant was dismissed from service. Aggrieved thereby, the appellant preferred a statutory appeal and as the same was kept pending, he preferred a writ petition being CO 14154 (W) of 1995 which was ultimately dismissed by an order dated 15th June, 2006. Challenging the said order the appellant has preferred the present appeal.
2. Mr. Dutta, learned advocate appearing for the appellant submits that the enquiry officer arrived at a finding that the concerned truck was allowed to leave the premises between 10.30 p.m. of 21st January, 1995 to 12.10 a.m. (midnight) of 22nd January, 1995. It would be explicit from the charge sheet that the appellant's duty period was from 12 midnight to 8 a.m. According to the enquiry officer the appellant connived with one "Sitaram Singh and contractor or others" but no such charge of connivance was levelled against the appellant in the charge sheet. Such contradictions have maligned the entire proceeding. In support of such contention, he has placed reliance upon the judgments delivered in the case of M.V. Bijlani -vs- Union of India & Ors., reported in (2006)5 SCC 88 and in the case of Moni Shankar -vs- Union of India and another, reported in (2008)3 SCC
484.
3. Drawing the attention of this Court to the order of punishment dated 31st May, 1995, he argues that the same had been passed by the Manager of Parbelia Colliery in consultation with and placing reliance upon an order passed by the General Manager. No such purported order of the General Manager was disclosed by the respondents. Such an order of punishment passed by two officers in consultation with each other is alien to service jurisprudence and is not sustainable in law.
4. One Sitaram Singh was allotted duty on 21st January, 1995 in the second shift, i.e., from 4.00 p.m. to 12 midnight at the place where the appellant was allotted the next shift. The charge against Sitaram Singh was that during his shift, at about 10 p.m. he went to a hotel leaving his duty without any permission of the competent authority and called one Bindeswari Shaw, who was supposed to join duty at 12 midnight in the third shift. The said charge was found to have been proved and the authorities dismissed him from service on the basis of an order passed by the Manager in consultation with the General Manager. Sitaram Singh challenged the said order by a writ petition being WP 18504 of 1995 which was allowed by an order dated 24th January, 2003. In the backdrop of the said facts, Mr. Dutta submits that as the concerned truck was allowed to leave the premises without permission in between 10.30 p.m. of 21st January, 1995 to 12.10 a.m. (midnight) of 22nd January, 1995 and as the said period was substantially within the shift in which Sitaram was allotted duties and as the proceeding against Sitaram was ultimately set aside, the petitioner could not have been saddled with the punishment attributable to an incident pertaining to the said period.
5. Per contra, Mr. Banerjee, learned advocate appearing for the respondents submits that there was no illegality in the views expressed by the learned Single Judge calling for any interference. A disciplinary proceeding is decided upon preponderance of probabilities and the scope of judicial review in respect of such proceedings is very limited.
6. He further submits that there was no employee by the name of Narayan Mishra in the Parbelia Colliery. The employee against whom the proceeding was initiated was Seonarayan Mishra and in support of such contention he has placed reliance upon an extract of Form 'B' maintained in terms of Rule 48(3) of the Rules framed under the Mines Act.
7. The next contention of Mr. Banerjee is that the writ petition itself was not maintainable as the appellant was a workman as defined under the Industrial Disputes Act and he ought to have approached the Industrial Tribunal/Labour Court. In support of such contention, he has placed reliance upon a judgment delivered in the case of A.P. Foods -vs- S. Samuel & Ors., reported in AIR 2006 SCW 3504 and an unreported judgment delivered in the case of Some Majhi -vs- Coal India Ltd. & Ors.
8. Heard the learned advocates appearing for the respective parties and considered the materials on record. The finding of the enquiry officer to the effect that the truck no.BHG-4243 was allowed to leave the premises between 10.30 p.m. of 21.1.95 to 12.10 a.m. (midnight) of 22.1.95 does not establish the charge against the appellant. As the appellant's shift commenced from 12 midnight, he could not have been made responsible for an incident which occurred prior to his shift.
9. In the writ petition the primary ground of challenge against the order of dismissal was that the Manager, Parbelia Colliery while issuing the said order did not record his independent findings in respect of the charge against the appellant but mechanically expressed his concurrence with the findings of the enquiry officer. The said issue was, however, not considered by the learned Single Judge while issuing the impugned order.
10. It is perspicuous that the scope and ambit of a disciplinary proceeding as contoured in the charge sheet cannot be enhanced through the enquiry. In the present case a new allegation of connivance was imposed upon the appellant which was absent in the charge sheet. It is well settled that the principles of natural justice mandate that the authority who considers, must also decide. However, in the instant case in the order of dismissal the Manager, Parbelia Colliery has referred to an order passed by the General Manager, Sodepur but no copy of such alleged order passed by the General Manager, Sodepur was served upon the appellant and he did not avail any opportunity to deal with the same and as such the appellant suffered extreme prejudice and in the backdrop of such facts the learned Judge ought to have interfered with the proceedings.
11. Mr. Banerjee has argued that the breach of service conditions is within the contractual field and that as such the writ petition is not maintainable since the writ petitioner comes within the definition of workman under the Industrial Disputes Act, 1947. The said issue was neither agitated by the respondents at the inception when the writ petition was first heard nor such objection as regards maintainability of the writ petition was pleaded in the affidavit in opposition. Even at the stage of admission of the appeal the respondents did not agitate such issue and as such we do not propose to relegate the appellant to the alternative remedy. The order passed in the case of Some Majhi (Supra) is distinguishable inasmuch as in the said matter, the point of maintainability was raised at the time of admission of the appeal. The judgment delivered in the case of A. P. Foods (Supra) is also distinguishable on facts inasmuch as the same was delivered while deciding a dispute involving disputed questions of fact as regards entitlement of the employees to bonus.
12. The argument of Mr. Banerjee to the effect that there was no employee by the name of Narayan Mishra in the Parbelia Colliery is also not acceptable to this Court. In the charge sheet the appellant's name has been recorded by the respondents as 'Sri Sewnarayan Mishra' whereas in the Form-'B' it has been recorded as 'Seonarayan Mishra'. The name of the appellant is Narayan Mishra and not Seonarayan Mishra. The dispute as regards such name has been raised by the respondents since the signature of the appellant is pre-fixed by 'Sri'. The signatures of the appellant appearing in the Form-'B', in the affidavit portion of the writ petition and in the Vakalatnama are identical. In the bank passbook also the appellant's name features as Narayan Mishra.
13. The charge levelled against Sitaram Singh and the charge levelled against the appellant are relating to the same truck which was allegedly allowed to leave the premises without permission of the competent authority. The time during which the said truck left the premises was in between 10.30 p.m. of 21st January, 1995 to 12.10 a.m. (midnight) of 22nd January, 1995. The said period was substantially within the shift in which Sitaram was allotted duties. But the final order passed in the proceeding against Sitaram and in fact the entire disciplinary proceeding initiated against Sitaram was ultimately set aside by the writ Court in an earlier writ petition. Thus as the charge against Sitaram did not survive, the very incident of the truck no. BHG-4243 having been allowed to leave the premises without the permission of the competent authority loses its authenticity and as such the appellant could not have been saddled with the punishment attributable to such an incident. The doctrine of equality applies to all who are equally placed; even among persons who are found guilty. Parity among co-delinquents is also required to be maintained [See the judgment delivered in the case of Rajendra Yadav -vs- State of M.P., reported in 2013(3) CHN (SC) 164].
14. It goes without saying that when a person is discharged from service, he loses his job and also loses the means of earning his livelihood. So when a person loses his livelihood, Courts are entitled to insist to ensure that such loss of livelihood can be based only on a procedure which is just, fair and reasonable without even a tinge of malafide motive. Such reasonable and fair procedure would demand that the guilt of the delinquent employee should be judged on the basis of charges levelled against him and not on the basis of materials which are not a part of the charges. Unfortunately, this has not been done in the instant case. Therefore, the action of the disciplinary authority is not based on a fair procedure.
15. There can be no precise formula nor any "cast iron rule"
for grant of back wages. In the instant case, the appellant was not allowed to resume his duties for no fault of his own and since the status of being idle was actually imposed upon the appellant, the principle "no work no pay" shall not apply in the facts and circumstances of this case. In the absence of any allegation to the effect that the appellant was gainfully employed during the period in question, the respondents are liable to pay full back wages to the appellant.
16. Accordingly, the entire disciplinary proceeding initiated against the appellant is set aside. As the appellant has already attained the age of superannuation question of reinstatement in service does not occasion. However, the respondents are directed to treat the appellant in service on and from the date of dismissal till the date of his retirement and to grant all consequential benefits including full back wages within a period of 10 weeks from the date of communication of this order.
17. The appeal is accordingly allowed.
18. There shall, however, be no order as to costs. Urgent Photostat certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.
(Tapabrata Chakraborty, J.) (Nishita Mhatre, A.C.J.)