W.P.(S) No. 5913 of 2006
With
W.P.(S) No. 5923 of 2006
...
In the mater of an application under Article 226 of the Constitution of India
Gopal Chandra Mondal ... Petitioner (in 5913/2006)
Punu Mudi ... Petitioner (in 5923/2006)
-V e r s u s-
The Union of India & Others .... Respondents (in 5913/06)
The Coal India Limited & Others .... Respondents (in 5923/06)
...
For the Petitioner: - M/s. U.S. Agarwal & Kalyan Banerjee, Advocates.
For the Respondent (ECL) : - Mr. Rajesh Lala, Advocate
...
PRESENT
The Hon'ble Mr. Justice D.G.R. Patnaik
Reserved On: 16.04.2009 Pronounced On: 08.05.2009
D.G.R.Patnaik, J. Petitioners in these two writ applications have
challenged the order dated 19.08.1994 issued by the Respondent No.
5 whereby their services under the respondent Eastern Coalfields
Limited were terminated. Praying commonly for an order quashing
the impugned order of termination, the petitioners have also prayed
for a direction to the respondents to reinstate them in service with
full back wages and to grant them all consequential reliefs for which
they are entitled in accordance with law.
2. Case of the petitioners is that they were employed under the
respondent Eastern Coalfields Limited. While the petitioner Gopal
Chandra Mondal entered service under the respondent on 10.07.1992
and was eventually promoted to the post of Electrical Supervisor,
Badjna Colliery under Mugma Area of ECL, the petitioner Punu
Mudi joined service under the respondents on 31.03.1973 and he was
eventually promoted and posted as Pump Khalasi in the Badjna
Colliery under Mugma Area of ECL.
While this was so, by letter dated 12.05.1994 they were called
upon to appear before the Vigilance Officer and were informed that
a disciplinary action would be taken against them for having
executed an indemnity bond/surety bond in favour and support of
an employee namely Mahesh Modi (son of petitioner Punu Mudi)
who, by practicing fraud and misrepresentation and by
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impersonating himself as Mahesh Kora, had obtained employment
under the Respondent Company.
Later, by the impugned order of dismissal dated 19.08.1994,
their services were terminated.
The grievance of the petitioners is that the order of termination
was made without any departmental enquiry and without even
serving any charge sheet or any opportunity of being heard and such
order was totally against the provisions of law under Section 25-F of
the Industrial Disputes Act.
3. Aggrieved by the impugned order of termination, the
petitioner Gopal Chandra Mondal had filed a writ application before
the High Court at Kolkata vide C.O. No. 12704 (W) of 1994. A single
Bench of the Kolkata High Court had allowed the writ application
quashing the impugned order of termination, directing the
respondent Eastern Coalfields Limited to pay to the petitioner the
arrears of salary and allowances from the date of termination of his
services, till the date of judgement.
4. The judgement of the Single Judge was however set aside in
the appeal filed by the Respondent Management, by a Division
Bench of the Kolkata High Court. The petitioners were however
given a liberty to seek their remedy before the appropriate forum
under the Industrial Disputes Act.
5. Against the judgement of the Division Bench, the petitioner
Gopal Chandra Mondal moved the Supreme Court. On considering
the fact that the writ application was entertained and kept pending
and later allowed on merits, the Apex Court had observed that it
was not appropriate to ask the parties to work out their rights in an
alternative proceeding. With such observations, the Supreme Court
set aside the order of the Division Bench of the High Court and
remitted the matter to High Court for fresh disposal on merits.
6. When the matter was taken up again by the Division Bench of
the High Court of Kolkata after its remand by the Supreme Court, an
objection was taken in respect of the territorial jurisdiction of the
Court. Upholding the objection taken by the respondent
Management, the Division Bench set aside the judgement of the
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Singh Judge on this ground alone with an observation that it is open
for the parties to agitate the same before the appropriate forum.
7. Being aggrieved with the order of the Division Bench, the
petitioner Gopal Chandra Mondal again moved the Supreme Court
by filing a Special Leave Petition. The Apex Court dismissed the SLP
with a liberty to the petitioner to approach the appropriate forum for
relief in accordance with law. Thereafter, the petitioner has filed the
present writ application challenging the impugned order of his
termination from service.
8. The petitioner Punu Mudi had also challenged the order of his
termination before the Kolkata High Court. A single Bench of the
High Court had allowed his writ application and had directed the
respondents to reinstate him in service. The judgement of the Single
Judge was however dismissed by a Division Bench of the Kolkata
High Court with the following observations -
"The writ petitioner was dismissed from service
along with one Gopal Chandra Mondal on an identical
charge. He has come up against the order of dismissal,
on the ground that such order was passed without
having proper disciplinary proceedings. Sri Gopal
Chandra Mondal also filed a similar writ petition. That
matter went up to the Apex Court. The Special Leave
Petition of Sri Gopal Chandra Mondal was dismissed
giving liberty to him to approach the appropriate court
for relief in accordance with law.
This Court is not appropriate forum herein
because of involvement of disputed questions of facts as
would appear from the pleading filed before me. Liberty
is given to the petitioner to appear before the
appropriate forum for redressal of his grievance".
Thereafter he has filed the present writ application before this
Court.
9. Reiterating the grounds advanced by the petitioners, Sri
U.S.Agarwal, learned counsel for the petitioners would first want to
explain as to why the petitioners have chosen the forum of this Court
for seeking relief under Article 226 of the Constitution of India
though the alternative remedy was available initially to the
petitioners.
Learned counsel would explain that the impugned order of
termination of the petitioners' service was per-se illegal in as much
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as it was in total violation of the provisions of Section 25-F of the
Industrial Disputes Act. No prior notice was served upon the
petitioners as required under the law nor was any charge sheet
served upon them and neither was any departmental proceeding
initiated against either of them and furthermore, no copy of any
vigilance enquiry report was even given to them and yet their
services were terminated on the ground that they had practiced
fraud upon the respondent Management amounting to an act of
gross misconduct on their part. Learned counsel explains that such
patent illegality in the impugned order being in violation of the
fundamental rights of the petitioners under Article 21 of the
Constitution of India, the petitioners have a right to seek remedy
under Article 226 of the Constitution of India before this Court.
Learned counsel argues further that the objection of
availability of alternative remedy as raised by the respondents,
cannot now be entertained in view of the fact that notwithstanding
such objection, taken initially, these writ applications have been
admitted for hearing and has been kept pending on record ever since
after its filing in October, 2006. To buttress his argument, learned
counsel would seek support from the judgements of the Supreme
Court in the case of State of U.P. and Anr. Vs. U.P. Rajya Khanij
Vikas Nigam S.S. & Ors. 2008(8) Supreme 453 and also from the
judgement in the case of Committee of Management and Anr. Vs.
Vice Chancellor and Ors. 2009(1) Supreme 101.
10. The respondent Eastern Coalfields Limited has filed its
counter affidavit denying and disputing the entire claim of the
petitioner. The objection relating to maintainability of this writ
application on the ground of availability of the alternative remedy,
has been reiterated by the respondents.
11. Learned J.C. to A.G. for the respondents would submit that the
petitioners being admittedly "workmen", a specific provision has
been laid down in the Industrial Disputes Act for redressal of their
grievances, if any. Since the legislation has provided a particular
mode for redressal of the grievance, any other mode is forbidden.
Against the impugned order of termination, the petitioners have the
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remedy of preferring appeal before the disciplinary authority and
therefore this writ application is not maintainable.
12. Learned counsel adds further that even otherwise, the
Supreme Court vide its order dated 16.12.2005 passed in the Special
Leave Petition No. 14069 of 2003 filed by the petitioner Gopal
Chandra Mondal, while dismissing the SLP, had made an
observation that "If so advised, the petitioner may approach the
appropriate court for relief in accordance with law". Likewise, the
Division Bench of the High Court of Kolkata while disposing of the
writ application filed by the petitioner, had observed that the
petitioner may move before the appropriate forum under the
Industrial Disputes Act for redressal of his grievance.
13. It is further submitted that earlier, in the writ application filed
by the petitioner Punu Mudi before the High Court of Kolkata vide
W.P.(S) No. 12856 (W) of 2002, by order dated 15.02.2006, a Single
Bench of the Court had dismissed the writ petition, without going
into the merits of the case, with an observation that the writ Court is
not appropriate forum because the dispute raised in the writ
application is disputed question of fact as would appear from the
pleadings filed. A liberty was however given to the petitioner Punu
Mudi to approach the appropriate forum for redressal of his
grievance. Learned counsel submits that it is in the light of the above
facts and the several orders passed by the Supreme Court and the
High Court of Kolkata, the petitioners ought to have approached the
Labour Court/Tribunal for redressal of their grievance and for the
aforesaid reasons this writ application is not maintainable.
14. Referring to the merits of the case, learned counsel would
explain that one Smt. Dingle Kori was an employee of the Badjna
Colliery under Mugma Area of ECL as a Wagon Loader. She died on
04.11.1987
. After her death, one Mahesh Modi, son of the petitioner
Punu Mudi, had approached the Management representing himself
to be Mahesh Kora, brother of deceased Dingle Kori. The petitioners,
knowing fully the actual identity of the said Mahesh Modi, had
falsely identified him as Mahesh Kora, brother of the deceased
Dingle Kori and had also executed indemnity bonds in favour of the
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said impersonator to facilitate his appointment in the name of
Mahesh Kora on compassionate ground. The fraud was
subsequently detected and a vigilance enquiry was conducted which
had confirmed that the petitioners had practiced fraud upon the
Management and had dishonestly facilitated the appointment of
Mahesh Modi on compassionate ground.
Considering the aforesaid facts and also the declaration made
by the petitioners in the letter of indemnity executed by them
whereby each of them had acknowledged that in the event of the
relationship between Late Dingle Kori and Mahesh Kora being
found to be false and incorrect, the petitioners would be liable for
dismissal/termination from service of the company, the impugned
letters of termination were issued to the petitioners. The petitioners
in their pleadings, have admitted the fact that they had executed the
indemnity / surety bonds in favour of the aforesaid Mahesh Modi.
15. As it would appear from the facts stated above, the writ
applications of the petitioners were ultimately dismissed by the
Division Bench of the High Court of Kolkata with a direction to them
to approach the appropriate forum for redressal of their grievance.
In the light of the discussions and the observations recorded in the
judgements, copies of which have been filed with the writ
applications, it appears that reference to the appropriate forum was
made in the context of the dispute raised by the petitioners on the
ground that the impugned orders of their termination is in violation
of the provisions of Section 25-F of the Industrial Disputes Act and in
the context of the pleadings of the respondent Management that the
writ applications were not maintainable in view of the alternative
remedy available to the petitioners for redressal of their grievance
under the Industrial Disputes Act.
16. As sought to be explained by the learned counsel for the
petitioner, the Supreme Court in several judgements, has explained
that the availability of alternative remedy in itself would not be a
ground for rejecting the writ application under Article 226 of the
Constitution of India. In the case of Committee of Management and
Anr. Vs. Vice Chancellor and Ors. (Supra), the Supreme Court while
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referring to its observations in several earlier cases, has reiterated its
observations as under :-
“15…….. But the alternative remedy has been
consistently held by this Court not to operate as a bar
in at least three contingencies, namely, where the writ
petition has been filed for the enforcement of any of the
Fundamental Rights or where there has been a violation
of the principle of natural justice or where the order or
proceedings are wholly without jurisdiction or the vires
of an Act is challenged….”.
17. As submitted by the respondents in their counter affidavit, a
vigilance enquiry was conducted in which the petitioners were
called upon to participate but admittedly, they did not participate in
the enquiry. Consequently, the enquiry was concluded ex-parte and
on the basis of the findings in the vigilance enquiry, the impugned
order of termination was passed against the petitioners.
18. On the other hand, the thrust of the arguments of the
petitioners is that the impugned order of termination having been
passed without affording any opportunity to the petitioners of being
heard and without conducting any departmental proceeding by
serving memorandum of charges on them and the impugned order
having been passed in gross violation and contrary to the provisions
of Section 25-F of the Industrial Disputes Act, is perverse, illegal and
against the principles of natural justice and therefore even though an
alternative remedy of appeal is provided under the Industrial
Disputes Act, the petitioner have a right to seek redressal of their
grievance by invoking the writ jurisdiction of this Court.
19. The fact that no show cause notice was served and neither was
any departmental proceeding initiated against either of the
petitioners on the basis of the purported findings of the vigilance
enquiry and yet, the order of termination was passed against them,
is sufficient to indicate that the principles of natural justice have not
been adhered to by the respondents while passing the impugned
order. It is on consideration of these aspects that initially the Single
Bench of the Kolkata High Court had allowed the writ petitions of
the petitioners. The Division Bench of the Kolkata High Court had
set aside the judgement of the Single Bench basically on the ground
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of lack of jurisdiction though referring the petitioners to approach
the appropriate forum for redressal of their grievances.
20. As has been held by the Supreme Court in the case of
Committee of Management and Anr. Vs. Vice Chancellor and Ors.
(Supra), the availability of alternative remedy would not in all cases
operate as a bar. In a case where it is pointed out that there has been
violation of principles of natural justice, the Court, in appropriate
cases, can exercise its writ jurisdiction under Article 226 of the
Constitution of India.
Furthermore, notwithstanding the objections regarding
maintainability of these writ applications on the ground of
availability of the alternative remedy, both these writ applications
were admitted by this Court and posted for hearing and they have
been kept pending for the past more than three years. In my opinion,
it would not be appropriate, therefore, to refer the petitioners to
avail the remedy under the Industrial Disputes Act after such a long
period.
21. The grounds advanced by the petitioners eloquently declare
that the principles of natural justice were not adhered to by the
concerned authorities of the respondents in passing the impugned
orders of termination of services of the petitioners. On this ground
alone, both these writ applications succeed and they are therefore
hereby allowed. The impugned orders of termination of service
dated 19.08.1994 are hereby set aside. The respondents shall however
be at liberty to take a fresh decision in the matter in accordance with
the procedure laid down under the law after giving reasonable
opportunity of hearing to both the petitioners and allowing them to
submit their fair defence.
With these observations, both these writ applications are
disposed of.
(D.G.R.Patnaik, J.)
Jharkhand High Court, Ranchi
Dated 8th May, 2009
Birendra/N.A.F.R.