Jitu Mahto vs M/S. B.C.C.L. & Ors on 19 September, 2014

[Cites 8, Cited by 0]

Jharkhand High Court

Jitu Mahto vs M/S. B.C.C.L. & Ors on 19 September, 2014

W.P.(S). No. 3813 of 2005
with
W.P.(S) No. 3812 of2005
with
W.P.(S) No. 3815 of 2005
with
W.P.(S) No. 3816 of2005
with
W.P.(S) No. 3820 of 2005
with
W.P.(S) No. 3831 of2005
with
W.P.(S) No. 3881 of 2005
with
W.P.(S) No. 4196 of 2005
with
W.P.(S) No. 4197 of 2005
with
W.P.(S) No. 4198 of 2005
---
In the matter of an application under Article 226 of the Constitution of India
---
Shambhu Mahto No. 2 ...... ....... ...... Petitioner in WPS 3813/05
Jagdish Sao .... .... .... Petitioner in WPS 3812/05
Arti Devi ..... .... ... Petitioner in WPS 3815/05
Jyoti Lal Mahto .... .... ... Petitioner in WPS 3816/05
Jitu Mahto ... ... ... Petitioner in WPS 3820/05

1. Karmi Devi
2. Smt. Patheni Devi
3. Basudeo Mahto
4. Ramdeo Mahto
5. Shuba Kumari
6. Kunti Kumari
7. Puspa Kumari .... .... .... Petitioners in WPS 3831/05

Govind Napit .... .... ... Petitioner in WPS 3881/05
Chinta Devi .... .... ... Petitioner in WPS 4196/05
Binod Mahto ... .... .... Petitioner in WPS 4197/05
Raju Mahto ... ... ... Petitioner in WPS 4198/05
Versus
1. M/s B.C.C.L. through its Chairman-cum-
Managing Director, Dhanbad
2. The Project Officer, Sendra Basjora Colliery,
M/s B.C.C.L., Sijua Area, Dhanbad
3. The Project Officer, Nischitpur Colliery of
M/s B.C.C.L., Dhanbad
4. State of Jharkhand through Land & Revenue
Department, Ranchi
5. District Land Acquisition Officer, Dhanbad...... Respondents in all cases.
---
For the Petitioner: M/s. M.M. Pal, Sr. Advocate,
For the BCCL: Mr. Anoop Kr. Mehta, Amit Kr. Sinha, Advocates
For the State: Mr. Prabhat Singh, JC to A.A.G. Mr. Ajit Kumar
---
2

PRESENT
HON'BLE MR. JUSTICE APARESH KUMAR SINGH

C.A.V. on 08/08/2014 Pronounced on: 19/09/2014

Aparesh Kumar Singh, J: All these writ petitions have been argued and contested on

the common grounds between the parties, they have been heard analogous. Since

the grievances of the petitioners are common and have been contested on

common grounds, for the convenience sake, facts as are pleaded in respect of the

writ petition No. 3813/2005, are being noticed herein for the purpose of deciding

the controversy raised herein.

2. The case of the petitioners are that after their appointment under the

respondent BCCL in the year 1981, they continued in service till the respondents

terminated their services in the year 2003 by letter dated 22nd December 2003, on

the ground that they had procured employment in lieu of their lands with the

specific condition that they will hand over their lands for the use of the company

for mining purposes, they have failed to fulfill their commitment and vacant

possession of the lands were not handed over to the company which frustrated the

very purpose of extending the benefit of employment to these petitioners against

the said lands. Therefore, their services were terminated as the very foundation of

employment and handing over dispute free workable physical possession of the

land remained unfulfilled. As per the petitioners, the Management of the BCCL

took a decision on 01st October 1980 for purchasing 51.93 acres of land required

for Sendra Basjora Colliery for the purposes of quarrying, De-pillaring, sand

stowing bunker, etc. The Management acquired the entire land of village Gareri

and started mining operation over the land in question without any proper

requisition and registration order. The Management thereafter gave employment

to 32 persons in a package deal against 61.40 acres of land of the said village and

provided one job each to the family whose land was acquired. Thus, these

petitioners along with others were appointed in the year 1981 and by letter dated
3

27th May 1981, they were directed to report for mining training at vocational

training centre which they successfully completed. Pursuant thereto, they were

appointed and directed to report for duty under the respondents.

3. Petitioners' services were confirmed by the respondent BCCL and Service

Books were opened in the year 1987 and service excerpts were also supplied to

the individual petitioners which indicated that their initial appointment was made

on 20th May 1981 and CMPF accounts were also opened. Petitioners had been

working since 1981 without any complaint till issuance of the order dated 22nd

December 2003 which terminated the services of the petitioners on the aforesaid

grounds. As it appears, while the services of 32 persons were terminated, only 19

persons moved before this Court challenging the order dated 22nd December 2003

in WPS No. 6145/2004 and WPS No. 6483/2004. The learned Single Judge on

the said occasion, by judgment dated 4th February 2005, disposed of the writ

petitions holding that the action taken by the company is fully justified and needs

no interference. However, on the other hand, on the submissions made by the

counsel for the petitioners that they will give specific details of their lands against

which they / their father claimed and secured employment in the year 1981 and

also gave workable physical possession of their lands to the satisfaction of the

company, the company was directed to take a decision in the matter within a

period of two months from the date of compliance of the order.

4. According to the petitioners, each of these petitioners furnished the details

of the land acquired through their representation, one of which is annexure-7 to

the WPS No. 3813/2005. Petitioners took the plea that appointment was given

against the lands acquired by the Land Acquisition Department vide L.A. Case

No. 30/85-86 and the Management had started mining work over the said land in

the year 1981. Petitioner further stated in his representation that he did not have

any concern with the land already acquired and nobody claimed any service

before the Management against the said land, nor they have sold the land to
4

anyone else. The Management has started the work upon the said land which is a

matter of inquiry and inspection will make it clear that the land has been worked

out and the Management has already raised coal from the petitioners' land.

Petitioner enclosed a photocopy of the Award in L.A. Case No. 30/85-86.

The respondent employer thereafter rejected the representation of the

petitioner by an order dated 20th May 2005 (Annexure-8) on the ground that it did

not reveal the share of the petitioner on total area of the land indicated therein and

that since all the awardees have not given consent in its favour, appointment was

erroneously and illegally procured by Gima Mahto, father of the applicant against

the land and houses and after his death, his wife Gangia Devi was in employment

and after her death, applicant came into service. Petitioner's representation was

rejected as he had not given workable physical possession of the land due to want

of consent of other awardees of the land and existing houses. The withdrawal of

the employment of the petitioner was therefore fully justified and legal. Similar

such representations made by the individual petitioners herein in the respective

writ petitions were also rejected by the respondents on more or less similar

grounds. Petitioners therefore approached this Court against the individual orders

of rejection of their representation, such as order dated 20th May 2005 in the case

of the petitioner of WPS No. 3813/2005.

5. Learned Senior counsel for the petitioners in support of their challenge to

the impugned order, has made the following submissions:

That the order of rejection of their representation in effect terminating their

employment after 22 years of confirmed services without any disciplinary

proceeding and finding of guilt, is bad in law. Even if, such an allegation of

failing to provide workable physical possession of the land to the employer is

made, the same could be in the nature of misconduct which ought to have been

inquired through a departmental proceeding after giving due opportunity to the

petitioners' in compliance of the principles of natural justice before their services
5

were terminated. Allegations that workable physical possession of the land has

not been provided by the individual petitioners in lieu whereof, they were given

employment, is not factually correct as would be revealed from the inquiry

conducted by the Deputy Commissioner, Dhanbad upon orders of this Court

passed on 22nd July 2011 in the present writ application itself. In respect of the

petitioner in WPS No. 3813/2005, spot verification report has indicated that the

land are in the possession of the BCCL. The said petitioner is not in possession of

the land measuring 3.57 acres. In respect of petitioner of WPS No. 3812/2005,

Deputy Commissioner's report dated 10th October 2011 evidences that the said

petitioner is not in possession of the land in question. In respect of WPS No.

3815/2005, the said report evidences that out of the entire land i.e. 1.05 and ½

acres, only .05 decimal of land is in possession of the wife of late Sitaram

Pramanik and the petitioner is the daughter-in-law of the awardee. So far as the

petitioner of WPS No. 3816/2005 is concerned, spot verification report has

revealed that the petitioner, son of the awardee, is not in possession of the land. In

respect of petitioner of WPS No. 3820/2005, the spot verification has shown that

only 0.6 decimal of land is in the possession of this petitioner and the entire land

is in the possession of the BCCL. The said petitioner is the son of the awardee.

The petitioner of WPS No. 3831/2005 who is the daughter-in-law of the awardee,

is not in possession of the land in question, as per the said report. In respect of

petitioner in WPS No. 3881/2005 also, the report shows that he is not in

possession of the land and he is the nephew of the awardee. So far as the

petitioner in WPS No. 4196/2005 is concerned, she is the daughter-in-law of the

awardee and is not in the possession of the land in question, rather the same is in

the possession of the BCCL. The petitioner in WPS 4197/2005 is the son of the

awardee and the spot verification report indicates that the land in question is not

in possession of the said petitioner but under the BCCL. In respect of petitioner in

WPS No. 4198/2005, said report also shows that the said petitioner is not in
6

possession of the plots in question; rather they are under the possession of the

BCCL.

6. Therefore, according to the petitioners, grounds of rejection are contrary to

the records and plea taken by the respondents. It is further submitted that in the

original order dated 22nd December 2003 which was challenged in the previous

writ petition, a ground was taken that the workable physical possession of the

land has not been given while in the order of rejection, impugned in the present

writ petitions, a new ground has been added that consent of the awardees have not

been given in favour of the petitioners which was not even a pre-condition for

their appointment. It is submitted that the major portion of the land in question

has been worked out for mining purposes by the BCCL and on some land,

construction of quarters of employees of the company has also been made while

some of the lands have remained parti or padhu lands. At the same time, on some

of the lands, there are debris / quarry Khadan / pond. The entire land of Mouza

Garari Thana 6 of circle Dhanbad, Khata No. 37, 8 and 9 and 1 was acquired

under L.A. No. 30/85-86 and they are under workable physical possession of the

BCCL and in record of rights, name of the BCCL have been recorded. BCCL has

also filed suits under the CNT Act for creation of the record of rights in its

favour. It is further submitted that the counter affidavit filed by the respondents

have also confirmed that the service book of the petitioner and Form-B Register

were also prepared which are statutory documents under the Mines Act and have

a legal and evidentiary value, so far as the question of appointment is concerned.

It is submitted that a perusal of Form-B Register which has been enclosed to the

supplementary counter affidavit of the respondent dated 6th March 2014 shows

that they have been verified from the original records. Petitioners' have further

challenged the plea of the respondents that there are no appointment letters of any

of these petitioners or any contemporaneous document of 1981-82 to show that

their appointments were validly made and that these petitioners have entered into
7

service through legal method. It is submitted that adverse inference has to be

drawn if relevant records relating to the decision making process of appointment

have not been produced by the respondents in spite of direction of this Court. In

support of the aforesaid submissions, a judgment in the case of H.D. Singh vs.

Reserve Bank of India and others [AIR 1986 SC 132} has been relied upon.

Further reliance has been placed upon judgment rendered by the Patna High

Court in the case of Raghu Hajra vs. M/s Bharat Coking Coal Ltd. and ors.

[2013 (3) JBCJ 97 (HC)] to submit that the statutory Form B Register cannot be

unilaterally changed in respect of the entries made thereunder, specifically in

connection with the date of birth. Learned Senior counsel has relied upon a

judgment rendered by the Patna High Court in the case of Ram Krishna Dubey

vs. The State of Bihar & others [2008(1) PLJR 841] in support of her

contention that the termination of the services of the petitioners without following

the procedure, as required under Article 311 (2) of the Constitution of India, is

bad in law. Further judgment rendered in the case of Karu Nonia vs. Bharat

Coking Coal Ltd. & Ors. [2002 (1) J C R 418 (Jhr)] have also been relied.

Learned Senior counsel for the petitioners has submitted that matters under

challenge before this Court, specifically in relation to the rejection of the

petitioners' representation on the grounds of non-furnishing of consent of co-

awardees, cannot be enlarged as the same are not the subject matter of the

adjudication. In support of the same, judgment rendered in the case of M.

Purandara and others vs. Mahadesha S. and others [(2005) 6 SCC 791] have

also been relied by the learned Senior counsel.

7. Respondents are represented through learned counsel Mr. Anoop Kumar

Mehta. He prefaced his argument by drawing attention of this Court to the prayer

made in the writ petitions where only a challenge has been made to the order

dated 20th May 2005 rejecting the petitioners' representation and asking them to

allow joining of the petitioners; petitioners have asked for stay of the order dated
8

22nd December 2003 (Annexure-5). However, the original order of termination of

the services of the petitioners has not been challenged in this round of litigation.

8. All these petitioners were the writ petitioners in the earlier case i.e. WPS

No. 6145/2005 and WPS No. 6483/2004. Some of the present petitioners are legal

representatives of the original petitioners in the aforesaid two cases. Learned

counsel has placed the judgment rendered by the learned Single Bench of this

Court in the earlier writ petition (Annexure-6) dated 4th February 2005 and

submitted that the Hon'ble Court categorically held that the action of the company

is fully justified and needs no interference. By the said judgment, the issue

relating to the challenge of the order of termination dated 22 nd December 2003

has attained finality as no appeal was preferred thereafter by the petitioners. The

said order being final, petitioners are precluded from raising any ground to

challenge the original order of their termination as it would be barred by res-

judicata or constructive res-judicata. On the aforesaid issue, learned counsel for

the respondents has relied upon the following judgment:

i. AIR 1961 SC 1457 para-19 [Daryao and others vs. State of U.P. and
others]
ii. 1977 (2) SCC 806 [State of U.P. vs. Nawab Hussain]
iii. 1998 (4) SCC 361 para-11 to 14 (Ashok Kumar Srivastav vs. National
Insurance Company Ltd. and others)
iv. 2004(1) SCC 68 para-10 and 11 (Pondicherry Khadi & Village Industries
Board vs. P. Kulothangan and another)

9. Learned counsel for the respondents submitted that the petitioners'

representation such as Annexure-7 to the WPS No. 3813/2005 shows that only a

notice under section 12(2) of the Land Acquisition Act, has been annexed and no

copy of the sale deed, Khatiyan or rent receipts have been annexed thereto. On

the representation, a simple chart has only been enclosed giving certain plot

numbers having an area of 3.57 acres with remarks that they have been acquired.

Learned counsel for the respondents pointed out that upon examination of the

representation of the petitioners, it reveals that there was no disclosure of the

share of the petitioners on the total area of the land indicated in the body of the
9

representation. Land details and possessional status of the land were carefully

scrutinized by the committee constituted for the said purpose. Petitioners in their

representation, neither mentioned about acquisition of the said land, nor indicated

the number of the Award or name of the awardees in L.A. Case No. 30/85-86. On

plot wise examination of the land, it was noticed that the land measuring 3.57

acres were the land acquired in L.A. No. 30/85-86 in Award Nos. 1, 79, 85 and 86

to 91, 9 and 10. The Award No. 1 was in the name of Harku Mahto but objection

was filed by Khiru Mahto and Kashi Mahto before L.A. Judge. Therefore,

payment was not released. Award No. 9 was declared in favour of Md. Sadik who

was not even belonging to the community of the petitioners. Award No. 10 was

declared in the name of Safruddin Ansari who was also not even belonging to the

community of the petitioners. Rest of the Awards was declared in respect of the

houses upon plot nos. 28, 29 and 30 in favour of Ashu Mahto and different

persons. He submitted that the scrutiny revealed that no consent by all the

awardees were given in his favour and therefore, the appointment procured by the

petitioner's father Gima Mahto was illegal and erroneous and therefore,

petitioners' appointment were also illegal. Therefore, the Management conveyed

its decision that the petitioner is not in a position to give workable physical

possession of the land due to want of consent of other awardees of the land and

existing houses. Therefore, withdrawal of the petitioner's appointment

erroneously procured, was fully justified and legal. Learned counsel for the

respondents submitted that after this Court rejected the challenge to the order of

termination in earlier writ petition, petitioners are precluded from raising any plea

such as compliance of principles of natural justice, requirement of a disciplinary

proceeding, etc. now by laying the challenge to the impugned order of rejection of

their representation and the same is barred by the principles of re-judicata or

constructive res-judicata. Earlier issue having attained finality, this Court should

not allow the petitioners to agitate such question relating to the legality of the
10

order of termination on any such grounds.

10. The case of all the petitioners has been contested by the learned counsel for

the BCCL on common grounds that the issues raised herein, are based upon the

disputed questions of fact which cannot be determined in a proceeding under the

writ jurisdiction. It is submitted that while the case of the petitioners is that they

have delivered the workable physical possession of the land to the respondents,

respondents have categorically denied the aforesaid statements which is supported

by the findings of the committee which considered the petitioners' representation

as per direction passed by this Court on 04th February 2005 in the earlier writ

petitions.

11. Counsel for the respondents has placed the report of the Deputy

Commissioner, Dhanbad filed through the counter affidavit dated 18th October

2011 by the respondent State counsel. He has further placed the report annexed to

the supplementary counter affidavit dated 26th March 2014 filed on behalf of the

respondent State on the basis of the documents contained in the land acquisition

proceeding of 1985-86 under which such lands were acquired. It has been pointed

out on his behalf that in respect of petitioner in WPS No. 3813/2005, both report

says that he is not the son of the awardee, rather he is friend of the awardee. In

respect of the petitioner in WPS No. 3812/2005, remarks have been made that he

has no relation with the awardee. Similar remarks have been made in respect of

the petitioner in WPS No. 4198/2005 that he has no relation with the awardee. At

the same time, it is submitted that in the new report of Deputy Commissioner,

Dhanbad which was prepared on the basis of a enquiry and inspection pursuant to

the order passed earlier by this Court, there are no details except a single line

statement in the case of individual petitioners that either the petitioners are not

living on the plot or they are living in some of the cases. The instant report being

thoroughly cryptic, has been seriously objected to by the respondent through their

rejoinder filed on 6th January 2011 wherein they have also annexed the report
11

prepared by the respondent BCCL on 31st December 2011 upon physical

verification of the report prepared by the committee of the respondent BCCL. It

raises serious dispute with regard to the possession of the land of the individual

petitioners. The said report itself reveals that though, some of the lands are in the

possession of the BCCL, but most of the lands are not in the possession of the

BCCL. Therefore, the very issue relating to the legality and validity of the

appointments procured by the individual petitioners in lieu of handing over of the

workable physical possession of their lands, is based upon the disputed questions

of fact which cannot be determined in a proceeding under writ jurisdiction. In

support of the aforesaid submissions, reliance has been placed upon the judgment

rendered by the Hon'ble Supreme Court in the case of The Union of India and

others vs. Ghaus Mohammad [AIR 1961 SC 1526 para-7 thereof] and in the

case of Chairman, Grid Corporation of Orissa Ltd. (GRIDCO) and others

vs. Sukamni Das (SMT) and another [1999 (7) SCC 298 para 6 to 8 thereof].

Learned counsel for the respondents submits that apart from the above, this Court

vide orders passed earlier in the present writ applications, made specific

endeavours to inquire into the genuineness of the appointment of the petitioner by

directing the respondents also to produce the appointment letters of the individual

petitioners, records relating to the decision making process, if any, scheme and

the record, if any, which contains the consent or no objection by the individual

co-sharers sponsoring the cases of the appointees. It is submitted that in deference

to the orders passed by this Court, respondent BCCL made serious efforts by

constituting a committee to locate the documents relating to the original

appointment of the petitioners. However, no such appointment letter has been

found, neither any records are available in respect of the decision making process

of appointment of petitioners who claim to have entered into service in the year

1981. However, if there are records like service excerpts, Form-B Register, etc,

they are subsequent documents prepared in the year 1986-87 which in the absence
12

of original documents, raises doubt about the genuineness of these appointment.

In such circumstances, respondents have directed for institution of vigilance

inquiry in the whole affair which is being inquired into at the present. Such

vigilance inquiry may reveal the acts and omission of the concerned officers and

employees of the respondent BCCL as also connivance of these petitioners in

procuring appointment at the relevant point of time and continuing in service

thereafter on the strength of that. Vigilance Department headed by the Chief

Vigilance Officer appointed under the CVC Act of 2002 has been asked to

inquire into the matter which has been referred to it on 24th June 2013. It is

pointed out that some of the present petitioners like Raju Mahto and Karni Devi

are legal heirs of the original employees / petitioners who had procured their

appointment in similar manner. Learned counsel for the respondents points out

that there were 32 persons who were appointed in similar and same manner and

whose services were terminated in December 2003, out of which, only 10 persons

have come forward in the present batch of writ applications to challenge the

orders of rejection of their representation. It is submitted that strangely, individual

petitioners claimed to have got employment as land looser in the year 1981, but

lands in question itself have been acquired under the proceeding initiated in the

year 1985-86 by the office of the Special Land Acquisition Officer, Dhanbad for

the respondent company under special provisions of Part-VII of the Land

Acquisition Act of 1894. In these circumstances, respondents counsel has

forcefully submitted that no writ or mandamus should be issued when the entire

edifice of the petitioners' case is based upon the disputed questions of fact.

Learned counsel for the respondent BCCL submits that even if the appointment

letters of individual petitioners may not be there with the respondents, but at least,

petitioners could have produced their own appointment letters under which they

claimed to have been appointed in the year 1981 on the ground that they had lost

their lands. None of these petitioners have produced any such appointment letters
13

which creates doubt about the genuineness of their whole appointment itself

which rightly has been referred for vigilance inquiry.

13. Learned counsel for the respondent State has made the submission that

upon the orders passed by this Court earlier, the Deputy Commissioner, Dhanbad

has conducted an inquiry with the help of the Land Acquisition Officer, Dhanbad

relating to the actual state of affairs in respect of the land acquired and submitted

the report which has been filed through affidavit dated 18th October 2011. In

further affidavit filed on 11th December 2013, it has also been indicated that the

ownership certificate in respect of 46.55 acres of land in village Gararia, Jharia

were handed over to the BCCL in the year 1993. It has been submitted that the

land was acquired through L.A. Case No. 30/85-86 on behalf of the respondent

State on 15th May 1993 and the same was handed over to the respondent BCCL

through ownership certificate. Counsel for the respondent State submits that the

details of the individual petitioners in the record of the land acquisition

proceeding have also been furnished by way of a chart as Annexure-S-I-A to the

affidavit dated 26th March 2014 which is self evident.

14. Learned Senior counsel for the petitioners, in rejoinder, has reiterated the

submission that the statutory records such as Form-B Register and also service

excerpts of 1987 have been prepared on the basis of the original as indicated

therein, confirming the services of the petitioners under the employment of the

respondent BCCL for the period of 22 years since 1981. Respondents have

chosen to terminate their employment on wholly unsustainable grounds that they

procured their employment without handing over the actual workable physical

possession of the land. She has relied upon Annexure-A to the counter affidavit

dated 26th June 2014 filed by the respondent BCCL, as per which, the General

Manager, BCCL, during course of the inquiry undertaken after the orders passed

by this Court earlier, have taken note of the fact that employment to 30-40

persons as land looser would be given prospectively. That indicates that though,
14

actual land acquisition may have taken place later on, the land looser whose lands

were being used by the BCCL from 1980-81 onwards, were being given

employment in lieu thereof. It is submitted that reference has been made of a

faded copy of the documents of 1981, however, such document has not been

produced by the respondents which would create adverse inference against them.

It is further submitted that the grounds of re-judicata are not made out in the

present writ applications as the judgment of the learned Single Judge passed in

the earlier writ petition did not finally determine the issue. Learned Single Judge

after giving opinion that the action of the respondents was fully justified,

permitted the petitioners to place the details of the lands which were handed over

to the respondents in lieu of their employment and thereupon the respondents

were directed to take a decision on the petitioners' claim. Therefore, the earlier

writ petition cannot be said to have finally determined the issue and neither the

said writ petition was dismissed, rather disposed of. Petitioners have relied upon

the judgment of the Hon'ble Supreme Court in the case of Baij Nath Sharma vs.

Hon'ble Rajasthan High Court at Jodhpur and another [1998 (7) SCC 44

para-5 thereof] in support of their aforesaid contention that when the

representation has been directed to be disposed of, its rejection cannot be said to

have acted as a bar on the grounds of re-judicata for the petitioners in filing a

fresh writ petition. Reliance has also been made upon a judgment in the case of

Mathura Prasad Bajoo Jaiswal and others vs. Dossibai N. B. Jeejeebhoy

[(1970) 1 SCC 613] that on pure question of law which is being raised by the

petitioners in respect of illegal termination of their appointment, the same cannot

be said to be barred on the principles of res-judicata. The order impugned raises a

different cause of action to the petitioners which cannot be hit by re-judicata.

14. Learned Senior counsel for the petitioners reiterated her submissions made

on the point of assailing the new ground of rejecting their representation that the

petitioners had not submitted the consent of the co-awardees while procuring
15

employment, though in the original order of termination, the only ground was

taken that the actual workable physical possession of the lands were not handed

over to the respondent BCCL by the concerned petitioners. It is up to the

respondent BCCL to take steps in accordance with law to remove any such

encroachment upon such lands which have been acquired and in respect of which,

ownership certificate has also been handed over to them by the Land Acquisition

Officer in 1993 itself. Learned Senior Counsel for the petitioners has referred to

earlier orders dated 11th February 2009 that would indicate that the opinion

expressed by the learned Single Judge in the earlier writ petition did not amount

to final adjudication on the issue. Thereafter, several orders have been passed in

the present writ applications including order no. 8 dated 27 th July 2011 by which

the Deputy Commissioner, Dhanbad was directed to conduct and hold inquiry.

Therefore, the matter cannot be said to have attained finality in view of the earlier

judgment and not barred by res-judicata or constructive res-judicata. Learned

Senior counsel for the petitioners further submits that the question herein is

confined to the grounds on which services of the petitioners has been terminated

by the respondents and the issue which are not before this Court, cannot be

enlarged in the scope of the writ proceeding. Reliance was also placed upon the

judgment of the Hon'ble Supreme Court in the case of M. Purandara and others

vs. Mahadesha S. and others [(2005) 6 SCC 791]. Lastly, it has been submitted

on their behalf that there is no justification for the respondents to terminate the

petitioners' services after 22 years without any disciplinary inquiry leading to

proof of charge of misconduct. It has been submitted that Respondent employer

may be entitled to undertake the vigilance inquiry for finding out acts or

omission, if documents relating to the appointment of the petitioners have been

destroyed or not found in their office. However, legality and validity of the

petitioners' appointment cannot be questioned on the part of the respondents.

These writ petitioners being out of service since 2003 have therefore sought for a
16

direction to quash the impugned order and direct the respondents to allow them to

join their services.

15. Having heard learned counsel for the parties at length and gone through the

relevant materials on record, the first question which needs to be dealt with is in

relation to the maintainability of the writ petition on the grounds of res-judicata

and constructive res-judicata. In WPS Nos. 6145/2004 and 6483/2004, the

learned Single Judge of this Court vide judgment dated 04th February 2005

(Annexure-6), upon consideration of the rival submissions of the parties, came to

the definite conclusion that the action taken by the company is fully justified and

needs no interference, as in the opinion of the Court, petitioners were bound by

the commitment made with the company by their fathers under which they got

employment. The appointment of the petitioners was terminated on the ground

that they had procured employment in lieu of their lands with specific conditions

that they will hand over the land for use of the company for mining purposes, but

they failed to fulfill their commitment. However, the learned Single Judge

thereafter allowed the petitioners to give specific details of their lands against

which they / their fathers got employment in the year 1981 and hand over the

workable physical possession of the lands within two months from the date of the

judgment (if not already given to the satisfaction of the company). Upon

compliance of the aforesaid conditions, company was directed to take a decision

on the recommendation of the committee thereafter without any delay. On the

face of it therefore, it appears that while the learned Court did not find any reason

to interfere with the orders of termination, but it left the issue relating to the

handing over possession of the lands to the petitioners to be once again

established by giving specific details, whereupon, the respondent company was

also directed to take a decision upon the recommendation of the committee.

16. The petitioners though did not prefer any appeal against the said

judgment, but they preferred representation giving details of their lands said to
17

have been acquired and which they claim to have handed over the workable

possession thereof. On the earlier occasion, though the petitioners had also raised

the plea that the orders of termination were passed without issuing notices and

without a departmental proceeding, the learned Court, upon consideration of the

rival submissions of the parties, had clearly observed that the action taken by the

company was justified and needed no interference. It is therefore clear that the

learned Single Judge left the only issue to be further examined in relation to the

specific details of the lands under which petitioners got employment and also

handed over workable possession of their lands. Upon petitioners representation,

the issue was examined by the committee upon whose recommendation, orders of

rejection (impugned) have been passed on the grounds that the awardees had not

given consent in favour of the individual petitioners or their fathers and therefore,

appointment was erroneously and illegally procured. The plea of res-judicata was

also raised earlier on behalf of the respondents in the present writ application as

reflected in the order dated 11th December 2009. Pursuant to the said order, the

matter was placed before the learned Single Judge who had delivered the

judgment dated 04th February 2005 in the petitioners' case earlier. From perusal

of the order passed thereafter on 22nd July 2011, it appears that on the question of

handing over the possession of the lands by the awardees to the BCCL, the

Deputy Commissioner, Dhanbad was requested to hold an inquiry with the help

of Land Acquisition Officer, Dhanbad, Circle Officer of the concerned area and

the Estate Officer, Sijua Area, BCCL, Dhanbad in presence of the petitioners or

their representative regarding the actual state of affairs with respect to the said

land measuring 61.04 acres including 46.55 acres of land acquired by the BCCL

by private negotiation regarding L.A. Case No. 30/85-86 in Mouza Gareria.

Thereafter, the matter was inquired into by the Deputy Commissioner, Dhanbad

and a report has also been submitted, as has been referred to by the rival parties

earlier. It is therefore evident that though, the learned Single Judge on the
18

previous occasion had held that the action of the company was fully justified and

needed no interference, but the controversy did not die thereafter, in view of the

specific observations made in the same judgment. Subsequent orders passed in

the present case earlier also indicated that the question relating to the termination

of the petitioners' service have been further inquired into. On a cumulative

appreciation of the aforesaid background of fact, this Court would be loath to

accept the plea of the respondents that the issue of termination of the petitioners'

services has attained finality and is hit by the grounds of res-judicata or

constructive res-judicata. The plea of res-judicata or constructive res-judicata as

culled out by the judgment relied upon by the rival parties, is based upon the

principle of two legal maxims i.e. (i) Interest rei publicae ut sit finis litium - it is

in the interest of the public that there should be finality to the litigation and (ii)

'Nemo debet bis vexari pro una et eadem causa' - no man should be vexed twice

over for the same cause of action. This principle based upon the aforesaid maxims

should be understood and applied to a case when the same question which had

already been judicially decided, have once again been raised between the same

parties. In such a case, if the matter in dispute decided by the former judgment is

conclusive between the same parties, attempts to reopen that matter has to be

repelled. The principle of law as laid down by the Hon'ble Supreme Court in the

judgments relied upon by the counsel for the respondents in the case of Daryao

and others vs. State of U.P. and others [AIR 1961 SC 1457 para-19], State of

U.P. vs. Nawab Hussain [1977 (2) SCC 806], Ashok Kumar Srivastav vs.

National Insurance Company Ltd. and others 1998 (4) SCC 361 para-11 to

14 and Pondicherry Khadi & Village Industries Board vs. P. Kulothangan

and another 2004(1) SCC 68 para-10 and 11 thereof] on the question of res-

judicata and constructive res-judicata when applied in the aforesaid state of facts

of the present case, does not persuade the Court to reach to the conclusion that the

issue has attained finality by the earlier judgment. This Court therefore instead of
19

shutting out the petitioners on the ground of res-judicata or constructive re-

judicata, would prefer to adopt a safer course of deciding the issue on merits.

17. During the proceedings of the instant writ petitions, this Court was

confronted with two distinct aspect of the matters which required to be examined

to come to a conclusion as to whether the petitioners were entitled to relief prayed

for or not? The first issue which emerges out of the foundational facts arising out

of the termination of the petitioners' services and the litigations in the two round

of writ petitions is on the question as to whether these petitioners had really

procured employment in lieu of the lands lost by them or their fathers in the year

1980-81? The second aspect which emerges out as a natural corollary upon

examination of the first issue is as to whether petitioners had been validly and

legally appointed at the relevant point of time in the year 1981 by the respondents

or their original appointment itself lacks sanctity. If the entire substratum of their

claim for having continued in employment since 1981 was not based upon any

legal and valid appointment, the entire structure built upon it on the basis that

they had continued for twenty two years in service thereafter, would crumble.

18. Addressing oneself to the first aspect of the matter, the attendant material

facts are to be examined to come to a conclusion as to whether petitioners had

handed over the workable possession of the lands to the company in lieu of which

they got their employment. This was the issue which was left to be examined

after the learned Single Judge of this Court in the previous round of litigation, did

not find any reason to interfere in the action of the respondents terminating the

services of the petitioners. Representations of each of the petitioners were

supported by document which was in the nature of notice under the Land

Acquisition Act, as in the case of WPS No. 3818/2005 under section 12(2) of the

said Act. The committee constituted by the respondent examined the

representations of each of these petitioners and came to a definite finding which

has been reflected in the impugned orders. In WPS No. 3813/2005, the
20

Committee found that the petitioners in their representation neither mentioned

about the details of their land acquired, nor indicated the number of the award or

name of the awardees in L.A. Case No. 30/85-86. On plot wise examination of

the land, it was noticed that the land measuring 3.57 acres land were the land

acquired in L.A. Case No. 30/85-86, in Award Nos. 1, 79, 85,86 to 91, 9 and 10;

Award no. 1 was in the name of Harku Mahto, but objection was filed by one

Khiru Mahto before the L.A. Judge and their payments were not released; Award

no. 9 was declared in favour of Md. Sadik who was not even belonging to the

community of the petitioners; Award No. 10 was declared in favour of Md.

Safruuddin Ansari who was also not belonging to the community of the

petitioners; rest of the Awards were declared in respect of houses upon plot nos.

28, 29 and 30 in favour of Ashu Mahto and different persons. The inquiry report

revealed that though, awards were in respect of different persons, but no consent

by all the awardees were given in the favour of the petitioners and therefore,

appointment procured by the petitioners' fathers was illegal and erroneous and

obtained through dubious means on the pretext of handing over possession of the

lands and houses. Similar findings of the committee in respect of each of the

petitioners' representations as contained in the impugned order of rejection are

being furnished herein-below in the form of chart:

Case No. Findings of the Committee Relevant
Annexure
WPS 3813/05 Sri Mahato, in respect of the land in his representation Annexure-8
neither projected about acquisition of the said land in L.A.
Case No. 30/85-86, nor indicated the number of award or
name of the awardees.
On plowise examination of the land it is noticed that land
measuring are 3.57 acre land acquired in LA case No.
30/85-86

in award No. 1,79,85,86 to 91, 9 & 10. Award No. 1 awarded in the name of Harku Mahto but objection filed by Khiru Mahato and Kashi Mahato before L.A. Judge. Payment not released. Award no. 9 declared in favour of Md. Sadik. Award No. 10 also declared in the name of Sarfuddin Ansari. Rest award are declared in respect of houses upon plot No. 28, 29 & 30 in favour of Sri Ashu Mahato & different persons.

Since all Awardees have not given consent in his favour. Therefore, it is proved that appointment was erroneously 21 and illegally procured by Sri Gima Mahato, the Father of the applicant against the related land and house, after the death of Gima Mahato his wife Gangia Mahatain was in employment, after her death the applicant in service.

WPS 3812/05 On plotwise examination of the land it is noticed that in Annexure-8 Plot No. 238, 27 and others measuring area 0.715 acre land acquired in LA case No. 30/85-86 in award No. 41 previously awarded in the names of Sri Jadu Mahato and others later on awarded in the name of Srimoti Janki Devi in a L.A. Reference case no. 23/99, there are houses upon plot No. 671 and 672 awarded in the names of Pir Mohammad, Mahadeo Singh & others in award no. 189 & 190 respectively. Besides award No. 59 and 60 in respect of plot No. 671 measuring area 0.26 acres has been awarded in the names of Ismail Ansari & others, Khaitoon Bibi.

Since all Awardees have not given consent in his favour. Therefore, it is proved that appointment was erroneously and illegally procured by Sri Saw against the related land and house.

WPS 3815/05 Sri Paramanik in respect of the land in his representation Annexure-8 neither project about acquisition of the said land in L.A. Case No. 30/85-86 nor indicated the number of award or name of the awardees.

On plotwise examination of the land it is noticed that in Plot No. 614, 647, 648 land acquired in LA case No. 30/85-86 in award No. 52 and plot no. 615 acquired under award No. 42 & 52, plot No. 228 acquired No. 38. Award No. 52 is awarded in the names of Manshu napit, Mahabir Napit and Panchu Napit. There is houses upon plot No. 648 awarded in award no. 155 to 157. Other plots have been in use and occupation of ex-colliery owner and vested to M/s BCCL by virtue of coal mines Nationalization Act. The applicant's father Manshu Napit is a co-Awardee in respect of award no. 52 only prepared in L.A. Case No. 30/85-86.

Since other co-Awardees have not given consent in his favour. Therefore, it is proved that appointment was erroneously and illegally procured by Sri Sita Ram Paramanik against the related land and house.

WPS 3816/05 Sri Mahato in respect of the land under item No. 1, 3 and Annexure-8 4 projected about acquisition of the said land in L.A. Case No. 30/85-86 but not indicated the number of award or name of the awardees.

On plotwise examination of the land it is noticed that Plot no. 202 out of Serial No. 1 and Plots under serial No. 2 and 3 are in respect of award no. 6 prepared in L.A. Case No. 30/85-86 and the said award has been prepared in the name of a good number of persons like Jugal Mahato, Fakir Mahto, Thakur Mahato, and they have withdrew the awarded amount.

Plot No. 204 is under award no. 35 prepared in the name of Lilu Mahato & others.

Concerned Jyoti Lal Mahato is neither an awardee of the acquired land nor nominated by the awardees of the land oustees for giving of employment to him in respect of land against award No. 6 & 31. And Ram Kishun Mahato, 22 father of the petitioner is only a co-Awardee in award No. 35 & 49. Other co-Awardees have not given consent in his favour. Therefore, it is proved that appointment has erroneously and illegally procured by Sri Mahato against the related land.

Further on spot verification by the constituted committee, it is noticed that there are construction upon the related land under plot no. 650 and 661. The houses in award no. 158 to 167 and 173 are yet to be vacated.

WPS 3820/05 Sri Mahato, in respect of the land in his representation Annexure-8 neither projected about acquisition of the said land in L.A. Case No. 30/85-86 nor indicated the number of award or name of the awardees.

On plotwise examination of the land it is noticed that in Plot no. 36 to 39, 61 to 63, 65 to 69, 71, 72, 74, 94, 95, 265, 660 measuring area 1.84 acre acquired in L.A. Case No. 30/85-86 in award no. 11, 12, 13, 21, 22 and 24 in the names of Sri Ram Prasad Mahato and fifteen other, Tilak Prasad Mahato and mother of Jitu Mahato. There is houses upon plot No. 37, 38, 39, 71 and 72 awarded in the names of Megha Mahato and others persons. Some other plots have been in use and occupation of ex-colliery owenr and vested to M/s BCCL by virtue of coal mines Nationalization Act. The applicant's mother is a co=Awardee in respect of award no. 22 & 24 only prepared in L.A. Case No. 30/85-86.

Since other Awardees have not given consent in his favour. Therefore, it is proved that appointment was erroneously and illegally procured by Sri Jitu against the related land and house.

WPS 3831/05 Sri Mahato in respect of the land under item No. 1, 3 and Annexure-8 4 projected about acquisition of the said land in L.A. Case No. 30/85-86 but not indicated the number of award or name of the awardees.

On plotwise examination of the land it is noticed that Plot No. 202 out of Serial No. 1 and Plots under serial No. 2 and 3 are in respect of award no. 6 prepared in L.A. Case No. 30/85-86 and the said award has been prepared in the name of a good numbers of persons like Jugal Mahato, Fakir Mahato, Tahkur Mahato and they have withdrew the awarded amount.

Plot No. 204 is under award no. 35 prepared in the name of Lilu Mahato & others.

Concerned Bhola Mahato is neither an awardee of the acquired land nor nominated by the awardees or the land oustee for giving employment to him in respect of land against award No. 6 & 49. Therefore it is proved that appointment was erroneously and illegally procured by Sri Bhola Mahato against the related land.

Further on spot verification by the constituted committee, it is noticed that there are construction of others upon the related land under Plot No. 656 and 661.

WPS 4196/05 Sri Mahto, in respect of the land under item no. 1, 3 and 4 Annexure-8 projected about acquisition of the said land in L.A. Case No. 30/85-86 but not indicated the number of award or name of the awardees.

On plotwise examination of the land it is noticed that Plot No. 202 out of Serial no. 1 and Plots under serial No. 2 23 and 3 are in respect of award no. 6 prepared in L.A. Case No. 30/85-86 and the said award has been prepared in the name of a good number of persons like Jugal Mahto, Fakir Mahto, Thakur Mahto and they have withdrew the award amount.

Plot No. 204 is under award no. 35 prepared in the name of Lilu Mahto & others.

Concerned Deo Kumar Mahto is neither an awardee of the acquired land nor nominated by the awardees of the land oustees for giving of employment to him in respect of land against award No. 6 & 31. And Teju Mahto, father of the petitioner is only co-Awardee in award no. 35 & 49. Other co-Awardees have not given consent in his favour.

Therefore, it is proved that appointment was erroneously and illegally procured by Sri Deo Kumar Mahto against the related land.

Further on spot verification by the constituted committee, it is noticed that there are construction of others upon the related land under plot no. 656 and 661. The houses in award no. 158 to 167 and 173 to 176 are yet to be vacated.

WPS 4197/05 Sri Mahto, in respect of the land under item no. 1, 3 and 4 Annexure-8 neither projected about acquisition of the said land in L.A. Case No. 30/85-86 nor indicated the number of award or name of the awardees.

On plotwise examination of the land it is noticed that in Plot No. 20 and eleven others area 1.36 acre in land acquired in L.A. Case No. 30/85-86 in award No. 07 declared in the names of Hira Mahato, Kishun Mahato, Parmeshwar Mahato and Bira Mahato. Some other plots have been in use and occupation of ex-colliery owner and vested to M/s BCCL by virtue of coal mines Nationalization Act. The applicant's father Hira Mahato is a co-Awardee in respect of award no. 07 only prepared in L.A. Case No. 30/85-86.

Since other co-Awardees have not given consent in his favour. Therefore, it is proved that appointment was erroneously and illegally procured by Sri Binod Mahato against the related land and house.

WPS 4198/05 Sri Mahato, in respect of the land under item No. 1, 3 and Annexure-8 4 projected about acquisition of said land in L.A. Case No. 30/85-86 but not indicated the number of award or name of the awadees.

On plotwise examination of the land it is noticed that Plot No. 202 out of Serial No. 1 and Plots under serial No. 2 and 3 are in respect of award no. 6 prepared in L.A. Case no. 30/85-86 and the said award has been prepared in the name of a good numbers of persons like Jugal Mahato, Fakir Mahato, Thakur Mahato, and they have withdrew the awarded amount.

Plot No. 204 is under award no. 35 prepared in the name of Lilu Mahato.

Concerned Raju Mahato is neither an awardee of the acquired land nor nominated by the awardees on the land oustees for giving of employment to him in respect of land against award No. 6 & 31. Ad Madhusudan Mahato, father of the petitioner is only a co-Awardee in award No. 35 & 49. Other co-Awardees have not given consent in his 24 favour. Therefore, it is proved that appointment was erroneously and illegally procured by Sri Madhusudan Mahato against the related land. After his death, Raju Mahato got employment as a dependent.

Further on spot verification by the constituted committee, it is noticed that there are construction upon the related land under Plot No. 656 and 661. The houses in award no. 158 to 167 and 173 to 176 are yet to be vacated.

WPS 3881/05 Sri Napit, in respect of the land neither projected about Annexure-8 acquisition of the said land in L.A. Case No. 30/85-86 nor indicated the number of award or name of the awardees. On plot wise examination of the land it is noticed that Plot No. 107 & 108 measuring 0.17 acres have been in use and occupation of ex-colliery owner and vested to M/s BCCL by virtue of coal mines Nationalization Act. And plot no. 614, 647 and 615 acquired in L.A. Case No. 30/85-86 under award no. 52 in the names of Sri Mansu Napit, Sri Mahabir Napit and Sri Govind Napit. Besides 50% share in plot No. 615, area 0.055 acre awarded in the name of Lakhi Napitain under award no. 42. The applicant is a co- Awardee in respect of award no. 52 prepared in L.A. Case No. 30/85-86 and award Nos. 155 to 157 have been declared in respect of houses standing over plot no. 648 in the names of different persons.

Since other co-Awardees have not given consent in his favour. Therefore, it is proved that appointment was erroneously and illegally procured by Sri Napit against the related land.

Accordingly, it is established that Sri Govind Napit had procured employment against the related land by dubious means on the pretext of handing over of possession of the land and house. Hence, his representation is devoid of any merit.

A perusal of these findings recorded by the Committee indicates that (i) the acquired land did not entirely belong to the petitioners or their fathers and and in many cases, awards were also in the name of persons of different community; (ii) the consent of the co-awardees was also not furnished to show that the rest of the awardees did not have any objection to the employment of the concerned petitioners. It is relevant to state here that the employment in lieu of loss of lands are given under the respondent coal company as per the prevalent rehabilitation scheme or agreement entered into with the land loosers against a particular area of lands i.e. two acres in some cases and / or in some cases, even more than that.

In any case, during the proceedings of the case, the Deputy Commissioner, Dhanbad on being directed, submitted his report at Annexure-A to the counter 25 affidavit of the respondent Deputy Commissioner, Dhanbad filed on 18th October 2011 in WPS No. 3813/05. Perusal of the report indicates that against the name of individual petitioner, several plot numbers have been indicated having different area and totalling different acreage recording in the remarks column as follows: in WPS No. 3813/05, 'does not reside; the petitioner is the son of the friend of the awardee; in WPS No. 3812/05, same remarks, he does not reside and that the awardee is related to the purchaser; in WPS No. 3815/05, petitioner is the daughter-in-law of the awardee and existence of certain houses on plot no. 646, 647 and 648 have been found; in respect of another plot, it appears that it is not in the name of the awardee and there are houses over the same; WPS No. 3816/05, award is shown in the name of several persons with the remarks that the petitioner is the son of the awardee and does not reside there; in WPS No. 3820/05, again, award is shown in the name of different person with remark that the petitioner is living there; in respect of plot no. 37, similar remarks have been made against the name of other petitioners, though in each of the individual cases, there are number of plots shown as also number of awardees in respect of each of the plots.

19. The instant inspection report has been seriously disputed by the respondent who have filed rejoinder to the affidavit of the Deputy Commissioner, Dhanbad on 6th January 2012 which is annexure-R/A. It contains the report on spot verification of the land made by the official of the respondent company which again shows several plot numbers against each name of the individual petitioners having different areas and names of different occupants. Some of the plots are shown in the possession of the BCCL while many of such plots are not in the possession of the BCCL. During course of the proceedings of the case, the District Land Acquisition Officer, Dhanbad was also directed to file an affidavit on the verification of the records relating to the land acquisition proceeding of Mouza Gareri, District Dhanbad. The report filed thereafter which is at annexure-

SCA-1 to the supplementary counter affidavit dated 8th July 2013 filed by the 26 District Land Acquisition Officer, Dhanbad is also in the same manner as report of the Deputy Commissioner, Dhanbad with similar description. Proceedings in the L.A. Case No. 30/85-86 have also been annexed which again show the details of the land of several persons who were also not the petitioners in the total area of land acquired. A comparison of the findings contained in the report of the Deputy Commissioner, Dhanbad, the BCCL and the Land Acquisition Officer, Dhanbad shows that there are disputed question of facts involved relating to the claim of individual petitioners. While appointments have been shown to be procured against a particular area of land, but the acquired land under the awards, neither belong to the petitioners nor their fathers alone, nor any consent of other co-

awardees were produced and there are also serious dispute about the actual physical possession of the land by the BCCL which were acquired. A comparative analysis of the findings in different reports on being compared with the findings of the committee which forms the basis of rejection of individual representation of the petitioners shows that there are serious dispute relating to the claim of the petitioners of having handed over the actual workable physical possession of the land to the respondent company in lieu of which employment was obtained. Counsel for the respondent BCCL is therefore right in his submission that determination of such issues, based upon disputed questions of fact, cannot be arrived at in the writ proceedings before this Court.

20. This Court during the proceedings of the instant case, found that there are no appointment letter of the original appointees who claim to have been appointed sometime in the year 1981. There are one or two appointment letter in respect of compassionate appointment of one or the other petitioners which were obtained after the death of the original appointee or his wife, such as in the case of Chinta Devi (WPS No. 4196/05) and Raju Mahto (WPS 4198/05) which are Annexures-C & D respectively to the second supplementary counter affidavit dated 26.03.2014. In such circumstances, this Court therefore on 23rd January 27 2014 observed that the original appointment letter, the relevant records which related to the sanction or decision making process of appointment of the individual petitioners, the scheme and records, if any, which contained the consent or no objection by the individual co-sharer sponsoring the cases of the petitioners / appointee appear to be necessary and material for examining the issues raised herein. The respondent BCCL was directed to make available the relevant records to the learned counsel Mr. Anoop Kumar Mehta for furnishing the details in respect of individual petitioners / appointees. The respondent BCCL constituted a committee to inquire into the matter.

21. The respondent thereafter through its supplementary counter affidavit filed on 26th March 2014 stated that no appointment letter of original appointees could be traced, though two appointment letters of subsequent appointment made on compassionate ground upon the death of the original employees were found with the Director (Pesonnel), BCCL. He has thereafter filed an affidavit on 26th June 2014 stating that he has minutely examined the entire matter and has found prima facie illegality / irregularity committed at different stages in the matter related to employment in lieu of lands of Mouza Garerai under Sendra Basjora Colliery of BCCL. Therefore, he has recommended for taking necessary action against the erring officers and employees who had fradulently entered into employment of Sendra Bansjora Colliery. The Chairman-cum-Managing Director has also passed necessary orders referring the matter to the Vigilance Department for inquiry. The Vigilance Department of BCCL is headed by the Chief Vigilance Officer appointed under the Central Vigilance Commission Act, 2003. The matter has been referred to the C.V.O., Dhanbad for necessary action through reference no.

181/F(IR/L) dated 24/24.06.2014 which is annexure-B to the said affidavit.

Respondents have sought time to place the findings of the vigilance inquiry before this Court. In these circumstances, respondent BCCL is directed to conclude the vigilance inquiry initiated as expeditiously as possible and 28 preferably within a period of two months from the date of receipt of copy of this judgment. Dependent upon the findings in the vigilance enquiry, further action be taken in accordance with law.

22. The entire gamut of facts as found in relation to the aforesaid case therefore also gives serious doubt relating to the legality and validity of the appointment of these petitioners or their fathers in the year 1981. The aforesaid observations therefore answers the second question framed by the Court relating to the very question of legality and validity of original appointment, claimed to have been procured in lieu of handing over the workable physical possession of the land acquired. Another very interesting aspect which needs to be indicated herein is that while the petitioners' claim to have been appointed in lieu of their lands lost for mining purposes to the respondent company in the year 1981, but the land acquisition proceeding in respect of the said village Gareri for the purposes of Sendra Basjora Colliery were initiated under the L.A. Case No. 30/85-86. It was for this reason, this Court made endeavours to find out as to what transpired at that time in the year 1981 when the petitioners claimed to have been appointed under the respondents; what was the scheme prevalent at the relevant point of time; the decision making process relating to their appointment and whether there was any proof of any consent or no objection by the individual co-sharers sponsoring the cases of the petitioners / appointees. Surprisingly, no such records are available with the respondent BCCL. The matter has therefore been referred to the Chief Vigilance Officer, Dhanbad by the respondent BCCL as it raises grave suspicion in the whole affairs of appointments made at the relevant point of time. In this regard, it is to be observed that if the entire substratum of the case of the petitioners based upon their original appointment in the year 1981 crumbles, then no lawful consequence would flow even though, petitioners may have continued in service for twenty two years thereafter and even if their services were confirmed and service records were prepared 29 thereafter. Reference may be made to the judgement of the Hon'ble Supreme Court in the case of Devendra Kumar v. State of Uttaranchal, (2013) 9 SCC 363] para-25 thereof is quoted here-under:

"25. More so, if the initial action is not in consonance with law, the subsequent conduct of a party cannot sanctify the same. Sublato fundamento cadit opus -- a foundation being removed, the superstructure falls. A person having done wrong cannot take advantage of his own wrong and plead bar of any law to frustrate the lawful trial by a competent court. In such a case the legal maxim nullus commodum capere potest de injuria sua propria applies. The persons violating the law cannot be permitted to urge that their offence cannot be subjected to inquiry, trial or investigation."

23. In the aforesaid state of disputed questions of fact, in respect of both the issues examined by this Court, on merits, after repelling the plea of res-judicata or constructive res-judicata raised by the respondents, the only conclusion that can be drawn is that in a proceeding under the writ jurisdiction, it would not be proper to make any determination thereupon and / or issue any writ in the nature of certiorari quashing the orders of rejection impugned in the individual cases and / or to reinstate them in service. Petitioners however may have the liberty to raise their grievances before the appropriate forum including the Industrial Tribunal where such disputed questions of fact can be determined. It is also made clear that if the petitioners do so, the concerned Court or the Forum would arrive at adjudication without being influenced by the observations made in the present case. The plea of the learned Senior Counsel for the petitioners that adverse inference may be drawn against respondents for failure to produce the appointment letter of the petitioners and other relevant records, will not improve the case of the petitioners in the aforesaid state of facts when this Court has found that the petitioners themselves have failed to produce even the original appointment letter under which they claimed to have been appointed in the year 1981. Moreover, there are disputed questions of fact involved on the very issue relating to the handing over of the workable physical possession of the lands in 30 favour of the respondents in lieu of which, such employment was obtained by individual petitioners in the year 1981.

24. The ratio of the judgment rendered in the case of M. Purandara and others (supra) that the issue in the subject matter of challenge, cannot be enlarged in a proceeding before this Court, do not apply to the facts of the present case. In the said case, as has been found, the writ petitioner had not questioned the selection of the persons who were affected by the High Court's impugned order. They were not applicants before the Tribunal. In such a factual scenario, it was held that the subject matter of adjudication before the High Court could not have been enlarged by the High Court at the instance of the writ petitioner. The elaborate recital of the facts of the present case show that the petitioners had assailed their termination from service on the grounds that after 22 years of engagement since 1981, the same was not proper in the absence of finding of misconduct in a duly constituted departmental proceedings against them. On consideration of the entire gamut of facts involved, it has been found that not only the claim of the petitioners that they had got employment in lieu of handing over the workable physical possession of the land lost by them, are based upon the disputed questions of fact, but the very genesis of the appointment has been found to be questionable as neither the petitioners have been able to show any appointment letter or documents which form the basis of their appointment in the year 1981, nor there are any contemporaneous record in relation to the appointment of the petitioners in the office of the respondents. Therefore, the grounds of challenge raised by the petitioners in respect of their termination, have been found to be based upon the disputed questions of fact upon which, no writ or direction can be issued in exercise of powers of judicial review under Article 226 of the Constitution of India.

25. In the case of Ram Krishna Dubey (Supra), the learned Division Bench of the Patna High Court held that the termination of an employee who had been 31 appointed on temporary basis and had been permanently absorbed, could not have been done without following the procedure laid down under the rules for removal of permanent employees and in accordance with the procedure conceived under Article 311(2) of the Constitution. In the said case, the learned Division Bench had found that no misconduct or fraud was alleged to have been committed on the part of the incumbent anywhere. Facts of the present case are therefore distinguishable. As already observed herein, not only the question relating to their employment based upon handing over the workable physical possession of the land in the year 1981 is based upon the disputed questions of fact, but neither is there any appointment letters produced by the petitioners or any official record pertaining to the same. In fact, the whole issue of original appointment of the petitioners has been referred to the vigilance inquiry by the respondents as taken note of in the earlier part of the judgment. Reliance of the petitioners upon the aforesaid judgment as also other judgments on the same issue, is therefore misconceived.

26. In view of the cumulative effect of the facts, reasons and principles of law, referred to herein-above, writ petitions therefore have to fail and are accordingly dismissed. There shall be no order, however as to cost.

(Aparesh Kumar Singh, J) Jharkhand High Court, Ranchi Dated 19th September 2014 Ranjeet/

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Jharkhand High Court