Allowed

Kundan Jha v. South Eastern Coal Fields Limited

Chhattisgarh HC24 Jan 2024WPS/6367/2017

Case brief

AI extract

What is this about?

Coal company employee terminated after departmental enquiry into misconduct with a senior manager; he was later acquitted in the criminal case. The Court held he was denied a reasonable opportunity to defend himself and a co-delinquent got lighter punishment. Termination and appellate orders were set aside with reinstatement and 30% back wages.

What the court decided

AI extract

Kundan Jha Vs South Eastern Coal Fields… — Pension and Retirement Benefits | Chhattisgarh HC (2024)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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WP(S) No. 6367 of 2017 Order Reserved on : 13/10/2023

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Order Delivered on : 25/01/2024

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Kundan Jha son of late Vivekanand Jha, aged about 32 years, Labour General Category-I, ¾ Incline, Bhatgaon Colliery, Police Station Bhatgaon, Sub Area Bhatgaon, District Surajpur (C.G.)

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---- Petitioner

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Versus

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South Eastern Coal Field Limited, Through The Chairmancum-Managing Director, Seepat Road, Bilaspur, District Bilaspur (C.G.)

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The General Manager, (Personnel/Administration), SECL, Bilaspur, District Bilaspur (C.G.)

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The Sub Area manager, Sub Area SECL, Bhatgaon Area, District Surajpur (C.G.)

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The Mines Superintendent/Manager, Bhatgaon Colliery, Sub Area SECL Bhatgaon, District Surajpur (C.G.)

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---- Respondents

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For Petitioner : Mr. Keshav Prasad Gupta, Advocate For Respondents : Mr. Pankaj Agrawal, Advocate.

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Hon'ble Smt Justice Rajani Dubey

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(C A V Order)

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1 . The petitioner has filed the instant petition under Article 226

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of the Constitution of India being aggrieved by order dated 21/24-07-2015, 21-05-2010/01-06-2010 (Annexure P/1) and 16.03.2009 (Annexure P/6), whereby the appeal, first appeal filed by the petitioner has been dismissed and

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terminated the services of the petitioner respectively.

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2 . Brief facts of the case, as projected by the petitioner, are that the petitioner was appointed as Labour under the General Category in the employment of the respondents and was working under the Respondent No.4. According to the petitioner, due to some false allegations, by order dated 11.01.2009 (Annexure P/2), the services of the petitioner was suspended/terminated and charge sheet was issued to the petitioner that on 10-01-2009 at about 11.00 PM, the petitioner along with one Santosh Kumar Mishra misbehaved with his Senior Additional Manager namely Aditya Kumar Sinha, which was against the terms of standing order of the company. Thereafter, said Aditya Kumar Sinha (Senior Additional Manager) also lodged an FIR against the petitioner and Santosh Kumar for the offences under Sections 294, 506-II, 333/34 and 354/34 of IPC. Subsequently, the petitioner was arrested and show cause notice was also issued and thereafter, second show cause notice was issued on 10- 03-2009, which was not replied by the petitioner being in custody. The younger brother of petitioner namely Nandan Jha requested to stay the departmental proceeding vide his application dated 1303-2009 (Annexure P/3), but the same was denied. The petitioner thereafter on 11.01.2009 (Annexure P/4) made

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application before the Station House Officer, P.S. Bhatgaon and Sub Area Manager Bhatgaon to the effect that the complainant Aditya Kumar Sinha abused him and assaulted him. S ubsequently, the departmental enquiry was initiated and enquiry officer was appointed vide order dated 15-012009 (Annexure P-5) & the petitioner, vide order dated 16.03.2009 (Annexure P/6), was dismissed/terminated from services.

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3 . Thereafter, on 27.04.2009, the petitioner assailed the dismissal/termination order by filing an appeal before the Respondent No.2, which was dismissed vide order dated 21-06-2010/01- 06-2010 (part of Annexure P-1). According to the petitioner, criminal proceeding with the similar charge (Annexure P/7), was initiated against the petitioner, which was registered as S.T.No. 501/2011, in which the charges were similar to that of departmental proceeding. In criminal proceeding bearing S.T. No.501/2011, the petitioner along with co-accused got acquittal vide order dated 13.03.2012 (Annexure P/9) by the Additional Sessions Judge, Surajpur. On the ground of acquittal, the petitioner filed a writ petition being W.P.(S) No.5385/2012 assailing the rejection of departmental enquiry, which was dismissed as withdrawn vide order dated 12.12.2012 (Annexure P/10) to avail the remedy before the alternate forum. Thereafter, the

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petitioner preferred an appeal before the respondent authorities assailing the termination order, which was rejected vide impugned order dated 21/24-07-2005 (which forms part of Annexure P/1), leading to filing of the instant writ petition seeking following relief (s) :

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“10.1 That, this Hon’ble Court may kindly be pleased to set-aside the impugned orders dated 21/24-07-2015, 21-05-2010/01-06-2010 and 16-03-2009 (Annexure P/1).

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10.2 That, this Hon’ble Court may kindly be pleased to direct the respondent authorities to reinstate the petitioner in service along with back wages and other consequential benefits.

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10.3. That, this Hon’ble Court may kindly be set-aside the impugned termination order as the charges in the departmental proceedings is similar to that of charges in criminal proceedings in which the petitioner has been acquitted beyond reasonable doubt by the Trial Judge.

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10.4 That, the Hon’ble Court be further pleased to grant such other relief(s) as may be deemed fit and proper in the interest of justice and fair play.”

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4 . Learned counsel for the petitioner assailing the impugned orders dated 21/24.07.2015, 21.05.2010/01.06.2010 and 16.03.2009 submits that the petitioner was subjected to departmental enquiry without affording proper opportunity of

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hearing. The impugned order of termination was passed unitarily against the petitioner dismissing him from the service. Learned counsel further submits that on the same incident, the departmental enquiry was initiated against the petitioner and also a criminal proceeding was initiated on the basis of FIR registered by the complainant namely Aditya Kumar Sinha, Sr. Additional Manager. The charges framed in the departmental proceeding was similar to that of the charges of criminal trial and the petitioner got acquittal by the learned Court below, as such, the petitioner is entitled to be re-instated in service. Learned counsel also submits that no proper opportunity of hearing was given to the petitioner at the time of dismissal of the concurrent appeals. The respondent authorities while dismissing the appeal of the petitioner did not appreciated the legal grounds raised by him. Therefore, the impugned orders are liable to be set-aside.

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5 . Learned counsel for respondents strongly opposed the prayer of the petitioner and submits that the petitioner was working as Majdoor General Category No. 1 in 3/4 Bhatgaon colliery. On 10.01.2009 at night while Shri Aditya Kumar Sinha, the Senior Mines Manager of 30/4, Bhatgaon Colliery, was distributing the work, the petitioner not only interrupted his work but also used obscene language,

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dashed him and also committed maarpeet resulting injuries in left eye with bleeding, injuries in hand at ring finger, therefore, under Clause 26.4, 26.18, 26.22 & 26.27, charge sheet was issued to the petitioner and on finding guilty in enquiry, vide Office Order No. 2808 dated 16.03.2009, the services of petitioner was terminated, as such, neither the termination order nor order in appeal can be termed to be bad and illegal.

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6 . Learned counsel also submits that the Sessions Judge, Surajpur has acquitted the petitioner for want of evidence, therefore, it cannot be said to be Hon'ble acquittal and it is not applicable to the case of departmental enquiry for the reason that in departmental enquiry every charges have been proved by the evidence and termination order was passed which is neither illegal nor bad in law. Sufficient opportunity was given to the petitioner to defend his case.

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7 . Learned counsel also submits that before passing the penalty proper departmental enquiry was initiated, charge sheet was issued to the petitioner and a Committee was constituted for impartial enquiry & on getting the charges proved, the punishment order was passed after giving full opportunity to the petitioner. The appellate authority also considered all grounds of the appeal and dismissed the appeal. Hence, this petition has no merit and liable to be

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dismissed. In support of his submission, learned counsel placed reliance on the decision of Hon’ble Apex Court in the matter of Noida Entrepreneurs Association Vs. Noida and Others reported in (2007) 10 SCC 385.

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8 . I have heard learned counsel for the parties and perused the material available on record.

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9 . It is an admitted position in the case that the petitioner was working as Majdoor General Category No.1, an FIR was lodged by against the petitioner for misconduct with his superior, Departmental Enquiry was initiated thereto against the petitioner and he was terminated by the respondent authorities.

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10. It is the submission of learned counsel for the petitioner that after filing of FIR by complainant Aditya Kumar Sinha (Senior Additional Manager), the petitioner and one Santosh Kumar were arrested for the same offence, show cause notice was issued, thereafter, again second show cause notice was issued on 10.03.2009, which was not replied by the petitioner for the reason that he was in custody. The younger brother of the petitioner requested respondent authorities to stay the departmental proceeding vide application dated 13.03.2009 but the same was rejected, as such, proper opportunity of hearing was denied to the petitioner. Further grievance of the petitioner is that

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unnatural departmental enquiry was initiated/conducted by the department without providing opportunity to the petitioner to produce defence witness and further to crossexamine the witnesses & arbitrary order of removal from service was passed on 16.03.2009 by the respondent authorities. Further, after acquittal of the petitioner in a criminal case by the learned Court below, the petitioner filed a writ petition being W.P.(S) No.5385/2012, which was dismissed as withdrawn vide order dated 12.12.2012 to avail remedy before the alternative forum but the respondent authorities did not consider his appeal properly and dismissed the same in mechanical manner.

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11. It transpires from the material on record that the petitioner filed a copy of letter dated 13.03.2009 (Annexure P/3) written by his younger brother to the respondent authorities praying for extension of time to reply the show cause notice as the petitioner was in custody. The relevant contents of said letter are extracted herein as under :-

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“ mijksDr lanfHkZr i= dzekad 797 fnukad 10@03@09 tks vkids dk;kZy; ls Mkd ds ek/;e ls esjs cM+s HkkbZ Jh dqUnu >k ds vokl iqjkuk ekbZul ds irs ij Hkstk x;k Fkk tks lacaf/kr Mkd okgd ds }kjk eq>s iznku fd;k x;k gS ,oe~ ikorh jftLVj esa esjk gLrk{kj fy;k x;k gSA mDr frfFk dks esjk HkkbZ ?kj ij ugha Fkk tks fnukad 12@03@2009 dks iqfyl }kjk fxj¶rkj dj Fkkus esa j[kk x;k Fkk ftldh lwpuk Fkkuk izHkkjh HkVxkao ds }kjk eq>s fnukad 12@03@2009 ds 2 cts

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nh xbZ] ftldh izfr layXu gSA

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fxj¶rkjh dh lwpuk izkfIr iwoZ dks fnukad 10@03@2009 ls 12@03@2009 rd esjk lEidZ esjs HkkbZ dqUnu >k ls ugh Fkk blfy, vkids }kjk izsf"kr f}rh; dkj.k crkvks uksfVl fnukad 10@03@2009 dh tkudkjh vFkok izfrfyfi eSa dqUnu >k dks ugh ns ldk] ,oe~ fxj¶rkjh ds ckn ls og mitsy lwjtiqj esa fu:) gSA ftl dkj.k eSa mDr tkudkjh ,oa dkj.k crkvks uksfVl o lyXu nLrkostks dh dka¡ih ugh fn;k gwaA ,slh fLFkrh esa dqUnu >k ds tsy ls fjgkbZ rd mldh vksj ls vkids mijksDr f}rh; dkj.k crkvks uksfVl ds tokc esa izLrfr dk volj nsrs gq, mlds fo:) tkap dk;Zokgh LFkfxr dh tkosAß

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12. Thereafter, the impugned order 16.03.2009 (Annexure P/6) was passed terminating the services of the petitioner. Further, the petitioner has also filed copy of order dated 23.06.2009, which is penalty order of other employee namely Santosh Kumar Mishra, who was also involved with the petitioner at the time of incident upon whom similar charges were levelled. The operative portion of the order dated 23.06.2009 is extracted herein as under :-

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कारारलरआदेश

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" आपका पत कमांक सहकेत प्रबंधक / दुग्ा / आरोप /09/3647 ददनांक 13-1-2009 केद्वारा श्रीसंतोष कुमार दमश्रा केदविरूदआरोप ल्ारा था दक ददनांक 10-01-2009 की राती पाली मेल्भ् 11.30 बजेपाली मेपदस्त अविर प्रबंधक श्री आददत्र कुमार ससन्हा जब अपनी पाली मे कार र त काम्ारोकाड्यूटीबटविारा कररहेथेतोउससमरश्रीदमश्रा नेउनकेसाथ अभद व्रविहारदकरा्ाली्लौजकरतेहुएउन्हेमारा।

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चूंदक श्रीदमश्रा पर ल्ारे्रेआरोप बहुत ही्ंभीर प्रकृ्रत त र केथेसजनकी दनष्पक दविभा्ीर जांच करविाना रुदक सं्त समझा्रा था सजसमे जांच अततरधकारी की दनरुदक करके दनष्पक दविभा्ीर जांच करविाई्ई। जांच अततरधकारी के द्वारा जांच प्रदकरा पूरी करके अपना प्रत त रविेदन प्रस्तुत दकरा् राहैसजसमेश्रीदमश्राकोदोषीपारा्राहै।

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अतः दंड केरूप मेश्री दमश्रा कोई०पी० हेल्फर एक्सविेशन कटे . ई से ई०पी० मजदूर कटे . ॥ के पद पर संग्रदहत ( क्रूमूलेदटवि इफेक्ट ) से पद अविनथदकरा जाता हैऔर चेताविनीदीजातीहैदक भदविष्र मेश्रीदमश्राइस प्रकारकेआचरणकीपुनराविृ्रततनकरे।

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रहआदेशसकमअततरधकारीद्वाराअनुमोददतहै। "

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13. It is apparent that the respondent authorities did not produce

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any document whatsoever which shows that after issuance of second show cause notice dated 13.03.2009, any opportunity was given to the petitioner or not. It is clear from letter dated 13.03.2009 (Annexure P/3) that the petitioner was arrested on 12.03.2009 and the notice was sent to the petitioner on 10.03.2009 and therefore was not in a position to reply the same. His brother had filed an application for extension of time to reply the said show cause notice but no opportunity of hearing was given to the petitioner and the impugned order dated 16.03.2009 (Annexure P/6) was passed.

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14. Hon’ble Apex Court in the matter of State of Uttaranchal & Others Vs. Kharak Singh reported in (2008) 8 SCC 236, held in para 15, which reads thus :-

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“15. From the above decisions, the following principles would emerge : (i) The enquiries must be conducted bona fide and care must be taken to see that the enquiries do not become empty formalities.

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(ii) If an officer is a witness to any of

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the incidents which is the subject-matter of the enquiry or if the enquiry was initiated on a report of an officer, then in all fairness he should not be the enquiry officer. If the said position becomes known after the appointment of the enquiry officer, during the enquiry, steps should be taken to see that the task of holding an enquiry is assigned to some other officer.

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(iii) In an enquiry, the employer/department should take steps first to lead evidence against the workman/delinquent charges and given an opportunity to him to cross-examine the witnesses of the employer. Only thereafter, the workman/delinquent be asked whether he wants to lead any evidence and asked to give any explanation about the evidence led against him.

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(v) On receipt of the enquiry report, before proceeding further, it is incumbent on the part of the disciplinary/punishing authority to supply a copy of the enquiry report and all connected materials relied on by the enquiry officer to enable him to offer his views, if any.”

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15. Again Hon’ble Apex Court in the matter of State of Uttar Pradesh & Others Vs. Saroj Kumar Sinha reported in (2010) 9 SCC 772 , held in paras 35, 36 and 39 as under :-

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“35. In considering the importance of access to

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documents in statements of witnesses to meet the charges in an effective manner this Court observed as follows: (Kashinath Dikshita case2, SCC pp. 234-35, para 10)

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"10. ... When a government servant is facing a disciplinary proceeding, he is entitled to be afforded a reasonable opportunity to meet the charges against him in an effective manner. And no one facing a departmental enquiry can effectively meet the charges unless the copies of the relevant statements and documents to be used against him are made available to him. In the absence of such copies, how can the employee concerned prepare his defence, crossexamine the witnesses, and point out the inconsistencies with a view to show that the allegations are incredible? It is difficult to comprehend why the disciplinary authority assumed an intransigent posture and refused to furnish the copies notwithstanding the specific request made by the appellant in this behalf. Perhaps the disciplinary authority made it a prestige issue. If only the disciplinary authority had asked itself the question: "What is the harm in making available the material?' and weighed the pros and cons, the disciplinary authority could not reasonably have adopted such a rigid and adamant attitude. On the one hand there was the risk of the time and effort invested in the departmental enquiry being wasted if the courts came to the conclusion that failure to supply these materials would be tantamount to denial of reasonable opportunity to the appellant to defend himself. On the other hand by making available the copies of the documents and statements the disciplinary authority was not running any risk. There was nothing confidential or privileged in it."

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36. On an examination of the facts in that case, the submission on behalf of the authority that no prejudice had been caused to the appellant, was rejected, with the following observations: (Kashinath Dikshita case, SCC p. 236, para 12)

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"12. Be that as it may, even without going into minute details it is evident that the appellant was entitled to have an access to the documents and statements throughout the course of the inquiry. He would have needed these documents and statements in order to cross-examine the 38 witnesses who were produced at the inquiry to establish the charges against him. So also at the time of arguments, he would have needed the copies of the documents. So also he would have needed the copies of the documents to enable him to effectively cross-examine the witnesses with reference to the contents of the documents. It is obvious that he could not have done so if copies had not been made available to him. Taking an overall view of the matter we have no doubt in our mind that the appellant has been denied a reasonable opportunity of exonerating himself."

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39. The proposition of law that a government employee facing a departmental enquiry is entitled to all the relevant statements, documents and other materials to enable him to have a reasonable opportunity to defend himself in the departmental enquiry against the charges is too well established to need any further reiteration. Nevertheless given the facts of this case we may re-emphasise the law as stated by this Court in State of Punjab v. Bhagat Ram: (SCC p. 156, paras 6-8)

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"6. The State contended that the respondent was not entitled to get copies of statements. The reasoning of the State was that the respondent was given the opportunity to crossexamine the witnesses and during the crossexamination the respondent would have the opportunity of confronting the witnesses with the statements. It is contended that the synopsis was adequate to acquaint the respondent with the gist of the evidence.

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7. The meaning of a reasonable opportunity of showing cause against the action proposed to be taken is that the government servant is afforded a reasonable opportunity to defend himself against charges on which inquiry is held. The government servant should be given an opportunity to deny his guilt and establish his innocence. He can do so when he is told what the charges against him are. He can do so by cross-examining the witnesses produced against him. The object of supplying statements is that the government servant will be able to refer to the previous statements of the witnesses proposed to be examined against the government servant. Unless the statements are given to the government servant he will not be able to have an effective and useful crossexamination.

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8. It is unjust and unfair to deny the government servant copies of statements of witnesses examined during investigation and produced at the inquiry in support of the charges levelled against the government servant. A synopsis does not satisfy the requirements of giving the government servant a reasonable opportunity of showing cause against the action proposed to be taken."

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16. To conclude, this Court is of the view that no sufficient, reasonable and proper opportunity was given to the

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petitioner to put his stand. The respondent authorities did not even wait for the reply of the petitioner to the 2^nd show cause notice, which was at all not possible for the petitioner being in custody. Further, for the same offence and for the same act another employee namely Santosh Kumar Mishra, who was present at the place of incident was given lesser punishment. The petitioner was acquitted by the criminal Court and taking the ground of his acquittal, he filed appeal before the Appellate Authority but this ground that another employee was given lesser punishment for the same act was not considered by the Appellate Authority, which shows arbitrariness of the respondent authorities.

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17. The Doctrine of Equality enshrined in the Constitution of India states that equals should be treated equally and hence all those who are placed equally should be treated alike. The principle equally applies to all those persons who were found guilty in a crime. The Doctrine of Equality applies to not just all those persons who are equally placed but also to all those persons who have been found guilty in a crime/incident. Parity among the co-delinquents has to be maintained when the punishment is being imposed and harsher punishment cannot be imposed to one person in comparison to other person. The punishment should not be disproportionate while comparing the involvement of co-

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delinquents who were parties to the same transaction or incident. The Disciplinary Authority cannot impose punishment which is disproportionate that is punishment which is less for serious offences and stringent punishment for lesser offences.

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18. Accordingly, the petition is allowed and the impugned order dated 21/24-07-2015, 21-05-2010/01-06-2010 (Annexure P/ 1) and order dated 16.03.2009 (Annexure P/6) are set aside. This Court direct the petitioner be re-instated with all consequential benefits, in accordance with law, but entitled to be paid only 30% back wages, which may be paid within a period of three months from today. However, the respondent authorities are at liberty to initiate departmental enquiry against the petitioner, afford all reasonable and proper opportunity of hearing to the petitioner and then pass/award proper punishment, if they so desire.

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19. The petition is thus allowed.

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Sd/-

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(Rajani Dubey) Judge

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pkd

Kundan Jha v. South Eastern Coal Fields Limited

Case brief

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Kundan Jha v. South Eastern Coal Fields Limited

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