Jharkhand High Court
Pankaj Giri Alias Pankaj Kumar Giri vs The Bharat Coking Coal Ltd Through Its ... on 4 July, 2017
Author: D. N. Patel
Bench: Amitav K. Gupta, D. N. Patel
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 57 of 2017
With
I.A. No. 1925 of 2017
Pankaj Giri @ Pankaj Kumar Giri, Son of late Jamuna Gosai,
resident of Jangdih Colliery, P.O. & P.S. Dumri, District- Giridih
...........Appellant
Versus
1. The Bharat Coking Coal Ltd. through its Chairman-cum-
Managing Director, Koyla Bhavan, At Koyla Nagar, P.O. & P.S.
Koyla Nagar, District Dhanbad
2. The Director (Personnel), Bharat Coking Coal Limited, At Koyla
Nagar, P.O. & P.S. Koyla Nagar, District Dhanbad
3. The General Manager, Personnel, Bharat Coking Coal Ltd.,
Koyla Bhavan, At Koyla Nagar, P.O. & P.S. Koyla Nagar,
District Dhanbad
4. The Project Officer, Jogidih Colliery, Bharat Coking Coal Ltd.,
P.O. & P.S. Tundoo, District Dhanbad
5. The General Manager, Govindpur Area, P.O. & P.S. Govindpur,
District Dhanbad ....... Respondents
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CORAM: HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE AMITAV K. GUPTA
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For the Appellant : Mr. Rahul Kumar, Advocate For the Respondents : Mr. Anoop Kr. Mehta, Advocate
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th 04/Dated:4 July, 2017 Per D. N. Patel, A.C.J.:
I.A. No. 1925 of 2017(1) This interlocutory application has been preferred under Section 5 of the Limitation Act for condonation of delay of 10 days in preferring this Letters Patent Appeal.
(2) Having heard counsels for both the sides and looking to the reasons stated in this interlocutory application, especially para 5 thereof, there are reasonable grounds for condonation of delay.
(3) We therefore, condone the delay of 10 days in preferring this Letters Patent Appeal.
(4) I.A. no. 1925 of 2017 is allowed and disposed of.L.P.A. No. 57 of 2017
(5) This Letters Patent Appeal has been preferred against the judgment and order delivered by learned Single Judge in 2 W.P(S) No.3053 of 2016 dated 28th October, 2016 whereby the petition preferred by this appellant for getting compassionate appointment on the ground that he is adopted son of deceased employee has been rejected and hence the so-called son has preferred the present appeal.
(6) Factual Matrix:
One employee Mr. Jamuna Gosai who was serving with the respondents expired in the year 1989 and hence his widow viz. namely, Kishori Devi was appointed as Class-IV employee on compassionate basis on 10th June, 1989. Kishori Devi expired on 2nd June, 2014 and hence this appellant (original petitioner) applied for compassionate appointment alleging that his date of birth is 9th October, 1991 and as he was adopted by Kishori Devi in the year 1995 and hence there is a registration of adoption deed dated 13th June, 2002, this appellant (original petitioner) ought to have been appointed by the respondents on compassionate basis as Class-IV employee. The claim of this appellant has been brushed aside by the respondents vide order dated 26th April, 2016 (Annexure-17). Being aggrieved and dis-satisfied by Annexure-17 dated 26th April, 2016, this appellant preferred writ petition being W.P.(S) No.3053 of 2016 for getting compassionate appointment because of death of Kishori Devi on 2nd June, 2014. This writ petition has been dismissed by the learned Single Judge vide judgment and order dated 28th October, 2016 mainly on the ground that the adoption is in dispute and the date of birth and the adoption etc. has lot of discrepancies and hence, the writ petition was dismissed and therefore, the present appeal has been preferred by the original petitioner.
(7) Arguments advanced by the counsel for the appellant (original petitioner):
Learned counsel appearing for the appellant submitted that the birth date of this appellant is 9th October, 1991. He was adopted by Kishori Devi in the year 1995 and the adoption deed was registered on 13th June, 2002 and mother of this appellant Kishori Devi expired on 2nd June, 2014 and hence, this appellant is 3 entitled to get the compassionate appointment for which a writ petition was preferred in the year 2016.
Learned counsel appearing for the appellant has submitted that once there is a matriculation certificate in which birth date of this appellant has been given, the other documents should not have been much relied upon by the respondents. It is further submitted by the counsel for the appellant (original petitioner) that in every type of nomination papers Kishori Devi has mentioned the name of this appellant. This aspect of the matter has also not been properly appreciated by the learned Single Judge while dismissing the writ petition preferred by this appellant.
Learned counsel appearing for the appellant further submitted that there is no need for this appellant to get the succession certificate because there are no other claimants who is also claiming the compassionate appointment because of death of Kishori Devi.
It is further submitted by the counsel for the appellant that even amount of gratuity has also been paid to this appellant which is Rs.9,82,746/- and this order has been passed by the controlling authority as well as the appellate authority under the Payment of Gratuity Act, 1972. This aspect of the matter has also not been properly appreciated by the learned Single Judge. Learned counsel appearing for the appellant has placed reliance upon Section 16 of the Hindu Adoption and Maintenance Act, 1956 and has submitted that once an adoption deed is registered the legality and validity of the same ought to have been presumed unless otherwise disproved before any competent court and hence, the judgment and order delivered by the learned Single Judge in W.P.(S) No.3053 of 2016 dated 28th October, 2016 deserves to be quashed and set aside. (8) Arguments canvassed by the counsel for the respondents:
Learned counsel for the respondents submitted that there are several discrepancies so far as date of birth of this appellant is concerned and so far as adoption in the year 1995 is 4 concerned looking to the service excerpts maintained by the respondents which are perused and signed by Kishori Devi. Learned counsel for the respondents has pointed out from Annexure-3 which is a nomination form for pension under Coal Mines Pension Scheme, 1998 enacted under Coal Mines Provident Fund Act, 1948 thus, in statutory format late Smt. Kishori Devi has mentioned that her son is of 2 years in the year 1998 who is Pankaj Giri. This document is dated 1st May, 1990 as per the typed copy supplied which is mentioned as certified to be true. There are few discrepancies looking to Annexure-3 :-
(i) The first one is to the effect that if this Pankaj Giri is aged about two years in 1998 his birth year cannot be in the year 1991 as claimed by this appellant.
(ii) It is further submitted by the counsel for the respondents that if this appellant is aged about 2 years in 1998 as per Annexure-3, he could not have been adopted in the year 1995.
(iii) It is further submitted by the counsel for the respondents that similarly looking to Annexure-2 and 2/1 to the memo of this Letters Patent Appeal it has been mentioned that this appellant is aged about 2 years in 1992 and hence also the birth date as alleged by the appellant cannot be 9th October, 1991. Annexure-2 is Health Card maintained by Bharat Coking Coal Limited.
Learned counsel appearing for the respondents has further submitted that on the basis of Annexure-4 which is a nomination form for payment of gratuity under the Payment of Gratuity Act, 1972 this form reveals that this appellant was aged about 4 years because Annexure-4 is dated 17th February, 1994. As per this Annexure-4 also the birth date given by this appellant which is 9th October, 1991, is not tallying. Learned counsel for the respondents further submitted that as stated in paragraph No.5(f) of the judgment delivered by the learned Single Judge in W.P.(S) No.3053 of 2016 dated 28th October, 2016 as per service excerpts of Smt. Kishori Devi dated 5 25th May, 1992 the name of Pankaj Kumar Giri is mentioned as dependent. If the adoption has taken place in the year 1995 then how his name has been mentioned as on 25th May, 1992. On the basis of the aforesaid documents specially which are at Annexure-2 and 2/1, looking to Annexure-3 and looking to Annexure-4 and looking to all documents which have been referred in paragraph-5(f) of the impugned judgment and order a highly doubtful situation has arisen about the correctness, genuineness and validity of the adoption of this appellant by Kishori Devi and hence it is rightly pointed out by the learned Single Judge while disposing of the writ petition that remedy available to this appellant is before the lowest available court as per Section 15 of the Code of Civil Procedure by way of filing of the suit and this anomaly can be resolved by taking cogent and convincing evidence. These aspects of the matter have been properly appreciated by the learned Single Judge and hence this Letters Patent Appeal may not be entertained by this Court.
(9) Reasons:
Having heard learned counsels for both the sides and looking to the facts and circumstances of the case, we see no reason to entertain this Letters Patent Appeal mainly for the following facts and reasons:-
(i) This appellant (original petitioner) is claiming himself as adopted son of Kishori Devi and on this basis this appellant is claiming compassionate appointment because Kishori Devi has expired on 2nd June, 2014 when she was serving with the respondents.
(ii) Learned counsel appearing for the appellant has relied heavily upon matriculation certificate which is at Annexure-6 to the memo of this petition which reveals his date of birth as 9th October, 1991 and has also placed heavy reliance upon the deed of adoption which is at Annexure-5 alleging that he was adopted in the year 1995 by Kishori Devi and the adoption deed was registered on 13th June, 2002.
(iii) Looking to several documents which are annexed with the memo of this Letters Patent Appeal and which 6 were also part and parcel of the writ petition, it appears that there are lots of discrepancies about the date of birth and the year of adoption and the details mentioned by Kishori Devi in the service excerpts maintained by the respondents. We will analyze one by one:
(a) Looking to Annexure-2 and 2/1 which is a Health Card maintained by the respondents. This Health Card reveals that the present appellant is of 2 years of age in the year 1992. If this is the fact then the date of birth given by this appellant is wrong, it cannot be 9th October, 1991.
(b) Looking to Annexure-3 to the memo of this Letters Patent Appeal which is a nomination form for pension, it reveals that this appellant was two years of age in the year 1998. If this is a fact as per the nomination form for pension, the birth year of this appellant is 1996 and hence, there cannot be a birth date as mentioned by this appellant as 9th October, 1991 nor there adoption in the year 1995 because as per Annexure-3 the birth year of this appellant is 1996.
(c) Looking to Annexure-4 to the memo of this Letters Patent Appeal which is nomination form so far as gratuity is concerned which is dated 17th February, 1994 the age of this appellant is mentioned as 4 years and hence his birth year cannot be 1991 as alleged by this appellant.
(d) Moreover, looking to Annexure-A to the counter affidavit filed by the respondents in writ petition being W.P.(S) no. 3053 of 2016 which is service excerpts maintained by Bharat Coking Coal Limited this Annexure-(A) annexed with the counter affidavit filed by the respondents is dated 15th May, 1992 which is signed on 25th May 1992 reveals that this appellant is 2 years of age in the year 1992 this reveals that the birth date of this 7 appellant can be in the year 1990 and it cannot be 9th October, 1991 as alleged by this appellant.
Moreover, Annexure-(A) to the counter affidavit filed by the respondents in W.P.(S) no. 3053 of 2016 reveals that if the said document Annexure-A is of the year 1992 and name of this appellant is mentioned therein, there cannot be adoption in the year 1995 as alleged by this appellant
(e) In view of the aforesaid documents it appears that there are lots of discrepancies in the date of birth of this appellant and there are lots of discrepancies of the year of adoption and hence no error has been committed by the learned Single Judge not to exercise prerogative power vested in this court under Article 226 of the Constitution of India. The appellant is not remediless. Ubi jus ibi remidum (where there is a wrong, there is a remedy). The appellant can approach lowest competent civil court as per Section 15 of the Code of Civil Procedure and can establish the facts as alleged by this appellant by giving cogent and convincing evidence, as alleged by this appellant.
(iv) It has been held by the Hon'ble Supreme Court in the case of Babubhai Muljibhai Patel v. Nandlal Khodidas Barot, as reported in (1974) 2 SCC 706, at paragraph no.10 as under:
"10. It is not necessary for this case to express an opinion on the point as to whether the various provisions of the Code of Civil Procedure apply to petitions under Article 226 of the Constitution. Section 141 of the Code, to which reference has been made, makes it clear that the provisions of the Code in regard to suits shall be followed in all proceedings in any court of civil jurisdiction as far as it can be made applicable. The words "as far as it can be made applicable" make it clear that, in applying the various provisions of the Code to proceedings other than 8 those of a suit, the court must take into account the nature of those proceedings and the relief sought. The object of Article 226 is to provide a quick and inexpensive remedy to aggrieved parties. Power has consequently been vested in the High Courts to issue to any person or authority, including in appropriate cases any government, within the jurisdiction of the High Court, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari. It is plain that if the procedure of a suit had also to be adhered to in the case of writ petitions, the entire purpose of having a quick and inexpensive remedy would be defeated. A writ petition under Article 226, it needs to be emphasised, is essentially different from a suit and it would be incorrect to assimilate and incorporate the procedure of a suit into the proceedings of a petition under Article 226. The High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the petitioner's right of relief, questions of fact may fall to be determined. In a petition under Article 226 the High Court has jurisdiction to try issues both of fact and law. Exercise of the jurisdiction is no doubt discretionary, but the discretion must be exercised on sound judicial principles. When the petition raises complex questions of fact, which may for their determination require oral evidence to be taken, and on that account the High Court is of the view that the dispute should not appropriately be tried in a writ petition, the High Court may decline to try a petition (see Gunwant Kaur v. Bhatinda Municipality). If, however, on consideration of the nature of the controversy, the High Court decides, as in the present case, that it should go into a disputed question of fact and the discretion exercised by the High Court appears to be sound and in conformity with judicial principles, this Court would not interfere in appeal with the order made by the High Court in this respect."
(Emphasis supplied)
(v) It has been held by the Hon'ble Supreme Court in the case of GM, Bharat Coking Coal Ltd. v. Shib Kumar Dushad, as reported in (2000) 8 SCC 696, at paragraph no.15 as under:
"15. Before entering into the question of validity and sustainability of the judgment passed by the Single Judge and the Division Bench of the High Court in this case we would like to make the observation that in a case where the controversy over the date of birth of an employee has been raised long after joining the service and the matter has engaged the attention of 9 the authority concerned and has been determined by following the procedure prescribed under the service rules or general instructions issued by the employer and it is not the case of the employee that there has been any arithmetical mistake or typographical error patent on the face of the record, the High Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution should not interfere with the decision of the employer."
(Emphasis supplied)
(vi) It has been held by the Hon'ble Supreme Court in the case of State of Karnataka v. KGSD Canteen Employees' Welfare Assn., as reported in (2006) 1 SCC 567, at paragraph no.35 & 38 as under:
"35. In a case of this nature, where serious disputed questions of fact were raised, in our opinion, it was not proper for the High Court to embark thereupon an exercise under Article 226 of the Constitution. The High Court in its judgment relied upon a large number of decisions of this Court, inter alia, in Reserve Bank of India and State Bank of India v. State Bank of India Canteen Employees' Union (Bengal Circle) ignoring the fact that all such disputes were adjudicated in an industrial adjudication.
38. It was, furthermore, reiterated that a disputed question of fact normally would not be entertained in a writ proceeding."
(Emphasis supplied)
(vii) It has been held by the Hon'ble Supreme Court in the case of Himmat Singh v. State of Haryana, as reported in (2006) 9 SCC 256, at paragraph no.18 as under:
"18. The said contention again has no force. Such a contention has been raised only in "the grounds" and the contents thereof have not been verified. In the grounds of a writ petition only a question of law can be raised and not a statement of fact. No statement has been made in the body of the writ petition. The statement made in the said grounds was also not verified in accordance with the writ rules. Despite the same, as we have noticed hereinbefore, the fifth respondent in his affidavit denied or disputed the contents thereof. Whether the statement of the appellant or the fifth respondent was correct or not could not ordinarily be decided in a writ proceeding. It is well known that in a writ petition ordinarily such a disputed question of fact should not be entertained.10
The High Court arrived at a finding of fact on the basis of affidavit evidence."
(Emphasis supplied) (10) As a cumulative effect of the aforesaid facts, reasons and judicial pronouncements, no error has been committed by the learned Single Judge, while disposing W.P.(S) no. 3053 of 2016 by judgment and order dated 28th October, 2016. We see no reason to take any other view than what is taken by the learned Single Judge. Hence there is no substance in this Letters Patent Appeal and the same is hereby dismissed. If the gratuity has been wrongly paid to the appellant it can be recovered by this appellant because fraud vitiates everything.
(11) Accordingly, this Letters Patent Appeal is hereby, dismissed.
(D.N. Patel, A.C.J.) (Amitav K. Gupta, J.) NKC/Tarun