Jharkhand High Court
Ms Damodar Valley Corporation Through ... vs Smt Zulu Mondal on 24 November, 2014
Author: D.N. Patel
Bench: Virender Singh, D.N. Patel
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 422 of 2013
M/s Damodar Valley Corporation & others ... Appellants
Versus
Smt. Zulu Mondal ..... ... Respondent
CORAM: HON'BLE MR. JUSTICE VIRENDER SINGH, CHIEF JUSTICE
HON'BLE MR. JUSTICE D.N. PATEL
For the Appellants : M/s Raj Nandan Sahay, Debolina Sen, Advocates
For the Respondent : M/s Sudarshan Srivastava, Sunil Singh, Advocate
Order No. 05 th
Dated: 24 November, 2014
Per D.N. Patel, J.
1.This Letters Patent Appeal has been preferred against the judgment and order delivered by the learned Single Judge in W.P.(S) No. 3378 of 2013 dated 12th November, 2013 whereby, the petition preferred by the original petitioner has been allowed and the order of removal of the original petitioner from the services of this appellant has been quashed and set aside. Being aggrieved and feeling dissatisfied by the aforesaid judgment and order passed in the writ petition, the present appeal has been preferred by the original respondent.
2. Factual Matrix Date : Description • 08.02.1989 : Respondent is an original petitioner who was appointed as Female Mazdoor.
• 25.06.2008 : Chargesheet was issued upon the respondent (original petitioner) with an allegation that she had produced forged certificate and procured appointment with the help of the said forged document.
• 31.07.2008 : Reply of the charges filed by the respondent (original petitioner) in which charges levelled against her is denied by her.
• 26.10.2010 : Inquiry report given by the Inquiry Officer and charges have been held as proved.
• 31.12.2010 Second show cause notice was given to the 2 respondent (original petitioner) for quantum of punishment of removal from services.
• 28.02.2011 Penalty of removal from the services was inflicted upon the respondent (original petitioner).
• 06.01.2012 Departmental appellate authority dismissed the departmental appeal preferred by the delinquent.
• Writ petition was preferred challenging the order of dismissal on several grounds, inter alia, that there was no forged documents presented by the respondent (original petitioner) on the contrary, the so called complainants who lodged the complaint against the respondentpetitioner and who were presenting themselves before the Management as brothers of the original petitioner are infact not examined during inquiry nor they were offered for crossexamination by the original petitioner nor the complaint filed by them was proved and such a bogus complaint was filed against the original petitioner after lapse of more than 19 years. Nothing is proved before the Inquiry Officer and bare allegation against the original petitioner have been presumed to have been true and correct by the Inquiry Officer.
• On these grounds and also on other grounds the order of removal from the services was challenged by the original petitioner. • This petition was allowed by the learned Single Judge in a writ petition being W.P.(S) No. 3378 of 2013 vide order dated 12th November, 2013 and hence, the present Letters Patent Appeal has been preferred by the original respondent.
3. A rguments canvassed by the counsel for the appellant .
• It is submitted by the counsel for the appellant that the original petitioner has narrated wrongly as daughterinlaw of one Tilok Mondal, who is resident of village Ayodhaya, districtPurulia. This Tilok Mondal is a land looser and he was displaced person because his land was acquired for Damodar Valley Corporation for its Panchet Project and on the basis of the scheme floated at the relevant time the original petitioner has wrongly narrated that son of Tilok Mondal i.e. 3 Dhiren Mondal has expired and the original petitioner is wife of Dhiren Mondal or she is a daughterinlaw of Tilok Mondal. • It is submitted by the counsel for the appellant that there are two sons of Tilok Mondal, who preferred an application in the year 2007 and thereafter chargesheet was issued upon the original petitioner. Inquiry was conducted fullfledgedly and inquiry report was given by the Inquiry Officer wherein charges levelled against her were proved, second show cause notice was also given to her and ultimately, the original petitioner was removed from the services of the Damodar Valley Corporation. This aspect of the mater has not been properly appreciated by the learned Single Judge and hence, the present Letters Patent Appeal has been preferred.
• It has also also been submitted by the learned counsel for the appellant that at one place the respondent (original petitioner) has stated that Tilok Mondal is her father and at another place it has been stated that Tilok Mondal is her fatherinlaw.
• Counsel for the appellant has relied upon the certificate given by some government officer that Tilok Mondal is having two sons namely Tarapada Mondal and Shyamapada Mondal and seven sisters. All these names have been mentioned in paragraph no. 8 of the counter affidavit filed in the writ petition by this appellant. In fact, the original petitioner is not a daughterinlaw of Tilok Mondal, but, she is daughter of Tilok Mondal and in presence of two sons of Tilok Mondal the original petitioner could not have obtained the job. By presenting fraudulent document by her she had obtained the job with the Damodar Valley Corporation and therefore, the show cause notice was issued and after following the principles of natural justice her services have been terminated. This aspect of the matter has not been properly appreciated by the learned Single Judge and hence, the judgment and order passed by the learned Single Judge deserves to be quashed and set aside.
• Alternatively learned counsel appearing for the appellant submitted that if this Court comes to the conclusion that there was a defective inquiry or the charges levelled against her are not proved fresh inquiry may be allowed to be conducted by the appellant which will be 4 completed within the stipulated time in accordance with law and after following the principles of natural justice.
4. Arguments canvassed by the counsel for the respondent (original petitioner) • The learned counsel for the original petitioner submitted that no fraud has been played by the original petitioner to get job of the present appellant.
• The original petitioner is daughterinlaw of Tilok Mondal. He has married with the son of Tilok Mondal namely, Dhiren Mondal, and Dhiren Mondal expired and she being a daughterinlaw of Tilok Mondal, who is a displaced person and the land looser, therefore, she was given a job in the year 1989. The so called two brothersinlaw of the original petitioner are infact concocted persons and these two so called brothersinlaw, who have filed complaint against the original petitioner they are awakening from the slumber in the year 2007 whereas, the original petitioner is serving with the Damodar Valley Corporation since 1989 i.e. there is after approximately 19 years. • During the departmental inquiry, neither of the complainants was examined by the Inquiry Officer nor their statement has been recorded nor the so called two complainants, who are presenting themselves as brothersinlaw of the original petitioner, were offered for cross examination.
• Facts stated in the complaint by those two so called brothersinlaw have not been proved even at the touch stone of preponderance of probabilities. The certificate given by the government officer for those two complainants is also not proved during departmental inquiry. The said certificate is not a gospel truth nor the conclusive piece of evidence.
• The government officer cannot give "certificate of brotherhood". There can be a marriage certificate, there can be a birth certificate, there can be a death certificate, but, there is nothing like a "brotherhood certificate" under any law therefore, whenever this type of certificate is given by any one the same has to be proved or the author of the said certificate should have been offered for crossexamination.
5• Inquiry officer has presumed the complaint as a true one without any evidence and has also presumed that the fraud has been played by the original petitioner. Bare assertion is one thing and proof is another thing. Bare allegation are bound to be proved whereas during the process of departmental inquiry in absence of any evidence and in absence of any person's crossexamination nothing is proved against this petitioner. This aspect of the matter has been properly appreciated by the learned Single Judge in paragraph nos.8 and 10 of the judgment delivered in W.P.(S) No. 3378 of 2013 dated 12 th November, 2013 and hence, this Letters Patent Appeal may not be entertained by this Court.
• It is further submitted by the counsel for the original petitioner that even if fresh inquiry is allowed by this Court, the same may not be at the cost of reinstatement and payment of full back wages. Only upon reinstatement of the original petitioner and only after the payment of full back wages fresh inquiry may be permitted if at all this Court is giving this liberty to the Management. The original petitioner is a widow and is having three small children and they are literally starving despite the order passed by the learned Single Judge as she has not been reinstated into the services.
5. R easons:
6. Having heard counsel for the both the sides and looking to the facts and circumstances of the case, it appears that the original petitioner was given an employment as a Female Mazdoor in February, 1989 by this appellant mainly for the reason that she was widowdaughterinlaw of Tilok Mondal, who is land looser and displaced person. His land was acquired for Damodar Valley Corporation for Panchet project. She served peacefully upto 2007 and after approximately 19 years the Management received one application from two persons, who are Tarapada Mondal and Shyamapada Mondal and they are alleging to be the sons of Tilok Mondal, who is land looser in the said complaint. It is alleged that the original petitioner has forged certain documents and has obtained the job infact the petitioner is their sister or she is daughter of Tilok Mondal and not the daughterinlaw. It appears that the said compliant is epicenter and because of this application, the petitioner was given a chargesheet thereafter she has given 6 a reply that the allegations are false and so called two complainants are not the brothersinlaw of the petitioner nor they are the brothers of the original petitioner.
7. It further appears that during the departmental inquiry neither of the complainant was examined nor their statements were recorded by the Inquiry Officer nor the so called two complainants were offered for there crossexamination by the delinquent. Thus, the facts stated in the complaint are mere allegation. Hundred possibilities cannot be equated with one truth. The bare allegation levelled in the compliant are bound to be proved at least on the touch stone of preponderance of probabilities.
8. It is further appears from the facts of the case that some governmental officer has issued a certificate that Tarapada Mondal and Shyamapada Mondal are the two sons of Tilok Mondal. This Tilok Mondal has also have two sons and seven daughters and one of them is the original petitioner. This certificate has also not been proved during the departmental inquiry process. The officer who has issued such certificate his statement was never recorded during the inquiry process nor he was offered for his cross examination by the delinquent. Thus, "brotherhood certificate" among several persons and the so called sister is not proved at all at the touch stone of preponderance of probabilities. These aspects of the matter have been properly appreciated by the learned Single Judge in paragraph nos. 8 and 10 of the decision rendered in the writ petition.
9. Paragraph nos.8 and 10 of the impugned judgment reads as under: "8. During the enquiry, in which notices were issued to the complainants on 01.02.2010 and 23.02.2010 and on 20.03.2010, the complainants appeared before the enquiry officer however, their statements have not been recorded during the enquiry proceeding. No explanation has been offered by the department for not recording the statements of the complainants, at whose instance the domestic enquiry against the petitioner was initiated. I further find that after a lapse of more than 19 years, an enquiry has been initiated at the instance of the complainants, whose statements were not even recorded by the enquiry officer and thus, the petitioner had no opportunity to crossexamine them.
10. I find that initiation of the departmental enquiry after a lapse of 19 years was not proper particularly, in view of the fact that no legal evidence was brought on record by the department during the departmental enquiry to establish that the petitioner was not the daughterinlaw of the said Tilok Mondal. Only on the basis of complaint made by the complainants namely, Tarapada Mondal and Shyamapada Mondal, a departmental enquiry was initiated against the petitioner and a finding has been recorded that the petitioner had obtained appointment by misleading the department. The enquiry report does not deal with any 7 issue and the manner in which the enquiry officer has recorded his conclusion, does not indicate any application of mind by the enquiry officer. I am of the opinion that no reasonable person would have reached a conclusion that the charge against the petitioner is proved. The procedure adopted by the enquiry officer for reaching at the conclusion that the charge against the petitioner was proved, was erroneous."
10. We are in complete agreement with the aforesaid reasons given by the learned Single Judge. No error has been committed by the learned Single Judge in arriving at a conclusion that there is not an iota of evidence to prove the charges levelled against this petitioner. In fact, there is no evidence before the Inquiry Officer, which proves the charges levelled against the petitioner with a minimum standard of proof viz. the preponderance of probability. Fraud cannot be proved without evidence. Neither the complainant is proved nor "brotherhood certificate" given by some government officer is proved. Thus, the observation made by the learned Single Judge in para8 and 10 are absolutely in consonance with the facts of the case.
11. We see no reason to take any deviation from the conclusion arrived at by the learned Single Judge. Nonetheless, we permit the Management/appellant to hold fresh inquiry if they are so choosing, but, it will be done only after the reinstatement of the respondent (original petitioner) and only after the payment of full back wages.
12. This Letters Patent Appeal is disposed of in view of the aforesaid observations.
(Virender Singh, C.J.) (D.N. Patel, J.) VK