Coal India Limited vs Arun Kumar

Heard Mr. Vivek Ranjan Tiwari, learned Senior Advocate assisted by Mr. Vaibhav Shukla, learned counsel appearing for the appellants/SECL.

This is an intra Court appeal presented against an order dated 03.01.2024 passed by the learned Single Judge in WPS No. 2237 of 2023 (Mr. Arun Kumar vs. The Chairman, Coal India Ltd. and others), whereby, the writ petition filed by the writ petitioner / respondent herein was disposed of by the learned Single Judge.

Brief facts of the case are that the respondent was appointed as Dumper Operator in Gevra Project, SECL, in the year 1983. He was transferred from Gevra to Sohagpur, Amlayi, Open Cast Mine vide order dated 20.01.1993. He joined there on 13.02.1993 and thereafter he made an appeal before the Managing Director of the company regarding his safety at Sohagpur area as he has suffered the incident at the work place on 14.01.1992. Thereafter, he was again transferred from Sohagpur to Chirmiri. The respondent has made various representations regarding his safety at the work place. It was alleged that the respondent did not join at Chirmiri and he remained unauthorized absent from duty from 16.03.1993. Therefore, he was served with charge sheet dated 22.09.1994 wherein charges were levelled for committing serious misconduct as provided in Clause 26.30 of the Standing Orders of the Company. The respondent was served with following charges:-

"26.30 Absence from duty without sanctioned leave or sufficient cause or overstaying beyond sanctioned leave."

Charge sheet was issued for service on following address "Arun Kumar s/o. Manshalchand, Senior Dumper Operator, -B/184, Urja Nagar, P.O. Gevra Project, District Bilaspur (MP) 4954452. The appellants appointed Senior Manager Amalayai Open Cast Mines as Enquiry Officer and Engineer (excavation) as Management representative vide its order dated 21-12- 1994. The Inquiry Officer issued notice to the respondent for his appearance in the enquiry proceedings on 30.12.1994 vide notice dated 26.12.1994 and thereafter issued notice for  appearance  on  06.01.1995.  No  notice  was  served  upon  the respondent as the notice was returned with endorsement "not found returned to sender". Thereafter, notice was published in daily newspaper "Samay" which was published from Shahdol wherein the address of the respondent was mentioned as B/184 Urja Nagar, Gevra Project, Bilaspur (M.P.). By the said notice, the petitioner was directed to appear for inquiry on 20.01.1995.

It has been further contended by the respondent that he was not served with the notice for appearance in the inquiry, therefore, he could not defend himself and the appellants vide order dated 15.12.1995 had removed the respondent from services. The removal order reads as under:-

"You were charge sheeted vide charge-sheet No. SECL/SOM/AOCM/..94/645 dated 22-9-1994 issued by the Suodt(M)/ Manager, Amlai, O.C.M., an Enquiry Officer was appointed vide officer order No. SECL/SOM/MGR/AOCM/94/1129 dated 21/24-1- 1994 to conduct the fail and impartial enquiry into the charges levelled against you. Accordingly, the enquiry was conducted by the enquiry officer.

You have been given full opportunity/chance to present and participate in the Enquiry proceedings to defend your case as per the law of NATURAL JUSTIFE but in spite of repeated advises, you did not turn up before the enquiry proceedings. As such, the enquiry was conducted ex parte by the Enquiry Officer.

As per the findings of the enquiry officer, the charges levelled against you has been proved beyond any doubt and I fully agree with the findings of the Enquiry Officer. The Enquiry Officer has rightly held you guilty of the misconduct under Clause 26.30 of Certified standing orders, applicable to you.

As the misconduct on your part is very grave and serious in nature, you are hereby removed/terminated from the services of the Company (South Eastern Coalfields Limited), with immediate effect. You are advised to collect all your legal dues, on any working day during the working hours, after submission of NO DUES CERTIFICATES from the concerned sections/departments of Almai OCM."

The removal order was served through registered post to the respondent thereafter respondent preferred an appeal against the dismissal order, which was dismissed on 08.05.2011, against which the respondent has preferred writ petition before this Court which was registered as WPS No. 40/2012, wherein this Court has passed the following order on 02.03.2022 which reads as under:-

"Reverting to the facts of the present casein light of the aforesaid legal position, it is quite vivid that the Appellate Authority has failed to consider and decide the appeal in accordance with the observations made herein-above and did not assign any cogent reason as to whether the findings of the Disciplinary Authority are justified or not and whether the punishment is appropriate or excessive and it requires interference, Authority has failed as such, the Appellate to perform its duty. Moreover, the appellate order, duly passed, has not been duly communicated to the petitioner the appellate authority and only the result of the appeal has been communicated to the petitioner, which is ex-facie illegal/improper. Accordingly, the impugned order dated 08/05/2011 (Annexure P/6), deserve to be and is hereby quashed. The Director (Personnel) is directed to to hear and decide the appeal after hearing the petitioner in accordance with law within 30 days from the date of receipt of a copy of this order."

In pursuance of the direction given by this Court, the appellants have again examined the case of the respondent and dismissed the appeal on 02.04.2022. The Appellate Authority has recorded its findings that the address mentioned in the memo of appeal is Quarter No. B/184, Gevra Colony, PO Urja Nagar, District- Bilaspur, whereas the notice for appearance of the respondent in the inquiry proceeding was returned with endorsement "not found to the sender". The Appellate Authority has also recorded its finding that in the inquiry proceeding sufficient opportunity of hearing was granted to the respondent and even second show cause notice was issued to the respondent on 18.02.1995 which was not replied by him. The Appellate Authority has also given opportunity of hearing and while hearing the appeal the respondent reiterated the stand that the transfer order was passed with mala fide reasons and he was deprived to discharge his duties and submitted that punishment is disproportionate to the misconduct, therefore, his appeal may kindly be allowed. The Appellate Authority after reiterating the factual matrix has affirmed the order of Disciplinary Authority.

Being aggrieved with said order the respondent has preferred the WPS No.2237 of 2023, which was disposed of by the learned Single Judge vide order 03.01.2024, wherein the writ petition of the writ petitioner / respondent herein was allowed to the extent that the respondent will be reinstated in service without back wages but his pay will be fixed notionally, he will be entitled to get gratuity and all other service benefits permissible under Rules of Company as he has attained the age of superannuation during pendency of the writ petition, his services will be counted for grant of pensionary benefits under the Coal Mines Provident Fund Act applicable to the respondent herein / writ petitioner. Being aggrieved by the said order, the appellants have preferred this present writ appeal.

Learned Senior Advocate for the appellants submits that the writ petition was not maintainable on the ground that the writ petitioner/ respondent herein has not challenged the basic order i.e. termination order dated 03.04.1995 and only challenged the consequential order dated 02.04.2022 passed by the appellate authority. It is a well settled legal proposition that challenge to consequential order without challenging the basic order/statutory provision on the basis of which the order has been passed cannot be entertained. Therefore, it is a legal obligation on the part of the party to challenge the basic order and only if the same is found to be wrong, consequential order may be examined and the learned Single Judge has failed to appreciate the fact that the petition is liable to be dismissed on the ground of delay and laches. That, the order of the appellate authority against the order of termination dated 03.04.1995 under challenged was passed on 02.04.2022 but the instant writ petition has been filed after lapse of one year and no explanation whatsoever has been given by the writ petitioner in this regard.

He further submits that the learned Single Judge failed to appreciate the fact that the petition is not maintainable on the ground that the writ petitioner/ respondent herein is seeking parallel remedy simultaneously before two forums which is not permissible in the eyes of law. The writ petitioner/respondent herein has challenged the same enquiry proceedings and order of termination before the Industrial Tribunal, Jabalpur. The Central Government vide order dated 26.04.2016 referred the dispute with respect to enquiry and termination of the petitioner to the CGIT which is pending for adjudication. The petitioner without exhausting the alternative remedy has approached this Hon'ble Coury and therefore, the petition was liable to be dismissed and the scope of interference against the findings of the disciplinary authority under Article 226 of the Constitution of India is very limited. Despite that the learned Single Judge has very much entertained the writ petition and set as an Appellate Authority over the findings of the disciplinary authority by re-appreciating the evidence and as such the impugned judgment and findings is contrary to the judgment of Hon'ble Supreme Court reported in State of Karnataka and Another Vs. N. Gangaraj, reported in (2020) 3 SCC 423.

He later submits that the respondent /writ petitioner used to remain unauthorized absent from his duties without any sanction and information after joining the Sohagpur Area. That the said misconduct of the writ petitioner / respondent is charged under clause 26.30 of the certified standing order and after giving several show cause notices and opportunity of being heard the answering respondent has issued the termination order dated 03.04.1995 and the same is evident from the finding of the enquiry proceeding and the learned Single Judge has also erred by ignoring the existing rules and orders applicable upon this case. The Applicants issued the show cause notice to the writ petitioner on 24.06.1993, 05.07.1993 and 29.08.1994 for joining of his duty and explanation was also sought regarding his absenteeism without sanction leave from his official duties. The above show cause notices return to the answering respondent by the department of post with a comment "Not found" /out of station on several dates which shows that the writ petitioner / respondent from beginning avoided giving reply to the notices. Since no reply was received by the authorities, and inquiry was instituted against the writ petitioner a charge sheet was issued to the petitioner on 22.09.1994 and he was directed to give appropriate reply to the charges leveled against him however the writ petitioner choose to remain silent and did not respond to any of the notices.

He also submits that the findings of the learned Single Judge in Para-17 is perverse that it cannot be held that the writ petitioner was served with notice on proper address and he was avoiding notice. It is submitted that the petitioner was deliberately trying to avoid all the notices because the address in which all the notices has been posted is the same address from where the appeal and the instant petition has been filed by the petitioner, i.e. Qr. No. B-184, Urja Nagar, Gevra Project, Also, the officers of the Applicant at the Gevra Area has found him loitering around the same address. It is well settled principle of law that if a delinquent employee has knowingly or deliberately avoided the inquiry proceedings he cannot challenge the inquiry by taking a U-turn alleging violation of principle of natural of natural justice or ex-parte proceedings and when the employee who is unauthorized absent does not report back to duty without offering any satisfactory explanation, or where the explanation offered by the employee is not satisfactory, the employer will take recourse to disciplinary action in regard to the unauthorized absence. Such disciplinary proceedings may lead to imposition of punishment ranging from a major penalty like dismissal or removal from service. Also the section 27 of the certified standing order of the CIL provides for the provision of termination of services as a measure of penalty if the misconduct of delinquent employee is proved. In the disciplinary proceeding it was found by the enquiry officer that the petitioner was remain unauthorized absent from his duty since March 1993, which is a grave misconduct under Section 26.30 of the standing order.

We have heard learned counsel for the appellants and perused the impugned order and other documents appended with writ appeal.

From perusal of the impugned order, it transpires that the learned Single Judge while disposing of the writ petition has observed that since the alleged misconduct is of the year 1994 and more than 28 years have already been lapsed, as such no fruitful purpose would be served by remanding back the matter and therefore, was examining whether removal of the writ petitioner from service is disproportionate to misconduct or not. It has been further observed that the writ petitioner/ respondent was terminated on 15.03.1995 and was charge-sheeted for absentism from 16.03.1993 to 21.09.1994, as such though the misconduct may be grievous in nature, but it does not involve moral turpitude or assault or abusing the Senior Officer and record of the case would demonstrate that the petitioner has shown reasons for his absence as he has life threat which was not rebutted by the respondents therein in their return filed before the writ Court, thus, the termination order dated 15/22.03.1995 (Annexure - P/2) deserves to be quashed and accordingly it is quashed.

It further transpires that since the petitioner in the writ petition nowhere pleaded that he was not in gainful employment which is required to be proved by the petitioner to claim back wages, the learned Single Judge has allowed the writ petition to the extent that the writ petitioner / respondent will be reinstated in service without back wages but his pay will be fixed notionally, he will be entitled to get gratuity and all other services benefits permissible under Rules of Company as he has attained the age of superannuation during pendency of the writ petition, his services will be counted for grant of pensionary benefits under the Coal Mines Provident Fund Act applicable to the writ petitioner /respondent herein.

Considering the submissions advanced by the learned counsel for the appellants and the finding recorded by the learned Single Judge while disposing of the writ petition filed by the writ petitioner / respondent herein, we are of the considered opinion that the learned Single Judge has not committed any illegality, irregularity or jurisdictional error in the impugned order warranting interference by this Court.

Accordingly, the writ appeal being devoid of merit is liable to be and is hereby dismissed. No cost(s).