Orissa High Court
Ramakanta Parija vs Deputy Chief Mining Engineer Sub-Area ... on 9 October, 2015
Author: C.R. Dash
Bench: C.R. Dash
ORISSA HIGH COURT, CUTTACK.
W.P. (C) No. 22316 of 2010
In the matter of an application under Articles 226 and 227 of the Constitution of India.
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Ramakanta Parija ... Petitioner
Versus
Deputy Chief Mining Engineer,
Sub-Area Manager, Belpahar ... Opp. Party
For Petitioner : M/s. Usha Rani Padhi and S.B. Das.
For Opp. Party : M/s. R. Sikdar and A. Sikdar.
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PRESENT:
THE HONOURABLE MR. JUSTICE C.R. DASH
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Date of Judgment : 09.10.2015
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C.R. Dash, J.The petitioner, a workman, who has retired from service on superannuation in the meantime, has preferred this writ application challenging inaction of the opposite party in not granting him his consequential service benefits, i.e. notional promotion after reinstatement in his previous job pursuant to the award passed by the learned P.O., Industrial Tribunal, Rourkela in I.D. Case No.26/97 (C) on 26.10.1999, which was confirmed by this Court in O.J.C. No.4054 of 2001, vide order dated 19.02.2009.
2. The petitioner was appointed as a Dumper Operator on 30/31.12.1983. He along with 18 others were promoted as Dumper Operator, 2 Grade-D with effect from 01.11.1985. While matter stood thus, the petitioner was issued with a charge-sheet on the allegation that, on 05.05.1986 some tyres were stolen from the store of the company when the key of the store was with the petitioner workman. The petitioner workman pleaded that he was never handed over with the keys of the store during the relevant period and he never remained in-charge of the store at any point of time. It was further pleaded that the nature of duty as a Dumper Operator and the allegation regarding theft of tyres has no connection at all. On the basis of the charge-sheet, a Disciplinary Proceeding was initiated against the petitioner and F.I.R. was also lodged against him at the P.S. In the G.R. Case initiated on the basis of the F.I.R., the petitioner was acquitted. But in the Disciplinary Proceeding he was found guilty and he was dismissed from service. The petitioner moved for conciliation. The conciliation having failed, the matter was referred to the Industrial Tribunal. The Industrial Tribunal passed award for reinstatement of the petitioner with full back wages. The back wages, as calculated according to the rules was paid to the petitioner. By the time the petitioner was reinstated in his service in 2009 after dismissal of O.J.C. No.4054 of 2001 preferred by the Management, his co- workers working with him in the same grade had already been promoted to Special Grade. Though the petitioner should have been promoted to such Grade on reinstatement notionally, no action was taken by the opposite party for giving promotional benefits to the petitioner on the basis of the award and the petitioner has preferred this writ petition for this limited benefit.
3. Counter affidavit has been filed by the opposite party. In the counter affidavit it is averred that the petitioner was paid back wages for the period from 07.01.1990 to 31.03.2009. The back wages, as calculated by the concerned project, came to Rs.14,90,020.34 p.(fourteen lakhs ninety thousand 3 twenty and paisa thirty-four only) and after necessary deductions in accordance with rules, full back wages have been paid to the petitioner. It is further averred that the petitioner having not worked as a Driver in Special Grade, he could not be treated as a Special Grade Driver / Operator after reinstatement till his retirement, as claimed by him. He can only be treated as Grade-D Operator, as he was at the time of his entry into service and at the time of his dismissal. The Pay Slip of his co-worker Naba Kumar Mohapatra, who is working in the Special Grade, has no relevance to the claim of the petitioner, as Sri Naba Kumar Mohapatra had got promotion on due consideration of his case. The petitioner is not entitled to the promotional benefit, as he has not worked during the period from his dismissal till his reinstatement.
4. On the basis of evidence on record, learned Industrial Tribunal in I.D. Case No.26 of 1997(C) came to hold as under :-
"Thus, I find that there is no evidence to believe that the 2nd party, who was Dumper Operator, was ever in charge of the store room. The Management has not explained as to how he could remove the tyres in spite of the presence of the security guards. F.I.R. was lodged after framing of the charge-sheet in the domestic enquiry and there was no mention of theft of tyres by the 2nd party. Even there was no mention of theft of so many tyres. As regards 2nd F.I.R., there was no evidence of internal audit and submission of audit report to Police to take action against the culprit. In the domestic enquiry, Rabindra Chakraverty, who was prime suspect in this loss of tyres, was appointed as Marshalling Officer. List of management witnesses and documents was not supplied to the 2nd party before starting of the enquiry. The proceedings of the enquiry & the findings were not given to the 2nd party. So, I find there was no prima facie case against the 2nd 4 party & the domestic enquiry was not conducted properly adhering to the principles of natural justice. So, his dismissal basing on this domestic enquiry is not legal and justified."
From the above finding of the learned Tribunal, it is clear that the charge against the petitioner has been disbelieved on two grounds, i.e. absence of prima facie case against the petitioner and defect in the domestic enquiry. On the basis of such finding, award has been passed for reinstatement of the petitioner with full back wages. From the award therefore it is clear that the petitioner was deprived of his service for a long period for no fault on his part. Had he been in the service, he would have been promoted to higher posts on consideration of his seniority and merit.
5. Learned counsel for the opposite party submits that, the petitioner having not worked at all with the opposite party for a long period, it was not possible on the part of the opposite party to consider his merit and now also the merit of the petitioner cannot be considered, he having not worked along with his co-workers in the grade. Therefore, the petitioner has rightly been reinstated in Grade-D, in which grade he was dismissed from service.
6. The petitioner was made to suffer for no reason by the action of the Management, which has been nullified fully by the Industrial Tribunal. The award of the Industrial Tribunal has been confirmed by this Court in O.J.C. No.4054 of 2001. Had the petitioner worked, he would have reasonably expected to get promotion. Though not a right, promotion is an incidence of service. If a person is entitled to be brought under the zone of consideration, he has a right to be considered for promotion. In the present case, it is alleged by the petitioner that persons similarly circumstanced with him have been promoted 5 up to the Special Grade and they are getting higher scale of pay. Had the petitioner been in service throughout the period, he would have also got promotion keeping in view his service record, merit and demeanour, etc. There is nothing in the counter affidavit by the opposite party to show that except the alleged misdeed which has been erased by the award of the Industrial Tribunal, the petitioner had any other misdeed disentitling him to promotion. In view of such fact and in view of the nature of award passed by the Industrial Tribunal as confirmed by this Court, the petitioner should have been reinstated in service with full back wages along with all the consequential service benefits including promotion.
7. Taking into consideration the aforesaid fact, the writ petition is disposed of with a direction to the opposite party to consider the case of the petitioner for promotion notionally, as he has already retired from service in the meantime, and to fix his pay in the grade equal to the co-workers similarly circumstanced with him have been serving. The entire exercise be completed within a period of four months from the date of receipt of a certified copy of this order, and the retiral benefits to the petitioner be given in accordance with the promotional post he is entitled to be fitted in according to the consideration of the opposite party.
8. The writ petition is accordingly disposed of.
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C.R. Dash, J.
Orissa High Court, Cuttack.
The 09th day of October, 2015.
S.K. Parida, Secretary.