1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (S) No. 3694 of 2011 ------- Girish Dueby, S/o Late Ramashray Dubey, R/o Sinidih Excavation Workshop Colony, P.O-Tundu, P.S. Madhuban, District-Dhanbad. ... Petitioner Vs. 1.The Appellate Authority under Certified Standing Orders and Chairman-cum-Managing Director, Bharat Coking Coal Limited, At Koyla Nagar, P.O & P.S. Koyla Nagar, District: Dhanbad. 2.The Director (Personnel), Bharat Coking Coal Limited, At Koyla Nagar, P.O & P.S. Koyla Nagar, District: Dhanbad. 3.The Disciplinary Authority under the Certified Standing Orders and General Manager (Excavation), In-charge Sinidih Excavation Workshop, BCCL, P.O Tundu, P.S. Madhuban, District: Dhanbad. 4.The Addition Chief Engineer (Excavation), Sinidih Excavation Workshop, BCCL, P.O Tundu, P.S. Madhuban, District: Dhanbad. 5.The Depot Officer, Sinidih Excavation Workshop, BCCL, P.O Tundu, P.S. Madhuban, District: Dhanbad. 6.The Store In-charge, Sinidih Excavation Workshop, BCCL, P.O Tundu, P.S. Madhuban, District: Dhanbad. … … … … … … … Respondents ------ CORAM: HON’BLE MR. JUSTICE PRAMATH PATNAIK ------ For the Petitioner : Mr. Ajit Kumar, Sr. Advocate Mr. Vikash Kumar, Advocate For the Respondents : Mr. Indrajit Sinha, Advocate Mr. Kaustav Panda, Advocate. ------ 16/ Dated:
08. h September, 2016 Per Pramath Patnaik, J.: In the accompanied writ application, the petitioner has inter alia prayed for quashing order dated 07.04.2011 whereby the petitioner has been dismissed from services.
2. The facts, as disclosed in the writ application, in a nutshell is that the petitioner was appointed as In-charge of Issue Section and one B.S. Singha as Receipt Section of Excavation Workshop Stores, Sinidh. While working as such, the petitioner found certain discrepancies in the store, to which, he immediately informed his superior authority vide letter dated 09.01.1993 and further informed that work-charge of the post has not been given by his predecessor. Upon which, a two member committee was constituted for physical verification of the store and petitioner was directed to assist the 2 committee vide officer order dated 04.02.1993. Thereafter, Sri B.B. Singha, was made In-charge of Receipt as well as of Issue Section and the petitioner was made his assistant vide office order dated 04.02.1993. But to the utter surprise, the petitioner was suspended vide order dated 21.07.1994 for missing 13 wheel shafts from the store as he had received the same on 21.04.1994 and F.I.R to this effect was also lodged in Madhuban Police Station on 21.07.1994. In reply, the petitioner submitted his explanation on 23.07.1994. Pursuant thereto, the respondents vide his letter dated 28.11.1994 and 02.09.1997 directed the petitioner to resume his duty stating that the enquiry into charges has been completed but no specific decision arrived so far. Thereafter, the petitioner vide letter dated 01.04.1997 requested the respondents for due payment of suspension period i.e. 21.07.1994 to 28.11.1994. However, finding no heed to his prayer, the petitioner raised an industrial dispute vide Ref. No. 35 of 2000. Meanwhile, the matter was pending before the Tribunal, a fresh departmental enquiry was initiated against the petitioner, in which, the petitioner appeared and submitted his written objection. Thereafter, the management submitted its 'Management Brief' before the enquiry officer, to which, the petitioner replied. The enquiry officer finally submitted his report to the disciplinary authority on 01.12.2007 holding the petitioner guilty on the ground that he had received the materials in question ignoring all relevant facts submitted by the petitioner. The petitioner thereafter repeatedly requested the authorities concerned for supply of enquiry report. But the petitioner was served a show cause notice dated 24.12.2010 to submit the extra facts related to the issue, to which the petitioner replied questioning the maintainability of the second enquiry as the matter is subjudice before learned Tribunal in 3 Ref. No. 35 of 2000 and further stating therein that the said reference has been decided in his favour. But ignoring all these facts, the disciplinary authority dismissed the petitioner from services vide order dated 07.04.2011. Being aggrieved, the petitioner preferred a mercy appeal, on which, no decision has been taken as yet.
3. Learned senior counsel for the petitioner submitted that though the petitioner has shown discrepancies in the store but he has been made responsible for missing goods, and he was put under suspension. However, later on his suspension was revoked and enquiry report was submitted. But, when no decision was taken, the petitioner approached Tribunal by filing Ref No. 35 of 2000, which was decided in his favour observing therein that the action of the management-BCCL in denying final decision on enquiry by the disciplinary authority even after four years and no paying wages for the period of suspension to the petitioner is not just proper and accordingly directed to pay full wages. But, to utter surprise, in a very mechanical manner, the petitioner was dismissed from services and his gratuity amount was also forfeited and even the observations and directions given by the Tribunal has been ignored. Learned senior counsel for the petitioner further submitted that the disciplinary authority and enquiry officer have failed to consider the suspicious action of Sri M. Mishra, the Depot Officer, Sri A.N. Jha, Sr. E.E and Sri B.S. Singha, I/c of Receipt & Issue Section and the petitioner has been made scape-goat to save the skin of others. Learned senior counsel further submitted that impugned order is a result of denove/second enquiry, which has been conducted after 12 years from the date of cause of action. Learned senior counsel for the petitioner further submitted that there is not only procedural irregularity but also violation of natural justice in passing the 4 impugned order of dismissal from services, which is highly disproportionate to the charges and on this ground also, the impugned order is vulnerable. In support of his submission, learned senior counsel for the petitioner relied upon the case of Union of India & Ors Vs. P. Gunasekaran as reported in (2015) 2 SCC610. Lastly, it has been submitted that the appeals preferred by the petitioner have been given any heed considering the same as representations.
4. Controverting the averments made in the writ application, learned counsel for the respondents, at the very outset raised objection with regard to maintainability of the writ petition on the ground that there is an efficacious alternative statutory remedy of departmental appeal available to the petitioner and further submitted that the petitioner, being a workman, may also approach appropriate Tribunal for redressal of his grievances by raising Industrial Disputes. On the merit of the case, learned counsel for the respondents submitted that there is no malafide while passing the impugned order dated 07.04.2011 and alleged misconduct has been proved in the enquiry. It has further been submitted that copy of enquiry report along with enquiry proceeding were supplied to the petitioner and petitioner was afforded sufficient opportunity to defend his case, thereby there is no violation of principles of natural justice in passing the impugned order.
5. After hearing learned counsel for the parties at length and on perusal of the record, I am of the considered view that the petitioner succeeds in making out a case for interference for the following facts, reasons and judicial pronouncements: (I).Admittedly, the petitioner received 14 number of Wheel Shaft Part and brought to Sinidih Workshop and the same was entered 5 in Daily Record Book and was inspected by Amarnath Jha, SE and Madhav Mishra, SE (Exvn.). However, when the materials were requisitioned, they were found missing, for which, the petitioner was found responsible and was placed under suspension and charge-sheeted vide order dated 31.07.1994. But, later on the respondents-authorities allowed the petitioner to resume the duty as no specific decision could be arrived even after completion of enquiry. However, when no final decision was taken on the enquiry by the disciplinary authority even after four years and petitioner was not paid wages for the suspension period, he approached C.G.I.T No. 1, Dhanbad by filing Ref. No. 35 of 2000, in which, the Tribunal found the action of the management- respondent not just and proper and directed to pay full wages of the period concerned. In the meantime, presenting officer was appointed, who in his Management Brief, on the basis of evidences and on preponderance of probability of the charges levelled against the petitioner fully substantiated the charges levelled against the petitioner. Furthermore, a denove/second enquiry was conducted by appointing enquiry officer vide letter dated 4.5.2006, after 12 years from the date of cause of action. Thereafter, basing on the enquiry report, the petitioner was dismissed from services vide letter dated 07.04.2011. (ii).From perusal of the documents available on record, it appears that the after holding the post of Incharge, Issue Section, the petitioner brought to the knowledge of the authorities concerned regarding discrepancies in the store vide letter dated 09.01.1993 much before alleged theft in the store. Furthermore, the so-called second enquiry has been conducted after a decade and the enquiry officer, while arriving at a finding did neither considered 6 the view taken by the Tribunal nor has taken into consideration the fact that materials received by the petitioner was entered in Daily Record Book by another person and even the material was inspected by Inspection team and for the alleged misconduct only the petitioner was made responsible. For the reasons aforesaid, the impugned order is liable to set aside. (iii).It further appears that against the impugned order though the petitioner preferred appeal but that has not been dealt with treating it to be a representations, as alleged by the respondents. Hence, in the fitness of thing, it would be apposite to quash the impugned order and direct the appellate authority to do well to dispose of the appeal preferred by the petitioner.
6. In view of the aforesaid facts and reasons, as discussed in the foregoing paragraphs, the impugned order dated 07.04.2011 is hereby quashed and set aside and the appellate authority is directed to dispose of the appeal/representation of the petitioner taking into account the observations made by this Court and the plea taken by the petitioner within a period of four months of the receipt/production of copy of this order.
7. With the aforesaid observations and directions, the writ petition stands disposed of. (Pramath Patnaik, J.) Alankar/-