IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 2321 of 2004
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1. Kedar Ram @ Kedar Mochi
2. Hirday Ram @ Hirdaya Pd. Ravidas Petitioners
Versus
1. Bharat Coking Coal Limited
2. Chairman-cum-Managing Director, Bharat Coking
Coal Limited, Dhanbad
3. General Manager (Personnel), Bharat Coking
Coal Limited, Dhanbad
4. General Manager, Lodna Area, Bharat Coking Coal
Limited, Dhanbad
5. Project Officer/Manager, Lodna Area, Bharat Coking
Coal Limited, Dhanbad Respondents
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CORAM: HON'BLE MR. JUSTICE D.G.R. PATNAIK
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For the Petitioners: Mr. Mahesh Tiwari, Advocate
For the Respondents: Mr. Anoop Kumar Mehta and Mr. Ananda Sen, Advocates
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CAV ORDER
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Reserved On: 15.10.2009 Pronounced On: 6.11.2009
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5. 6.11.2009
Though both the writ petitioners were employed under the respondent BCCL at
Lodna Colliery, but during the pendency of their services, both of them were
remanded to judicial custody in connection with a police case registered against them
for alleged offences under sections 302/34 of the Indian Penal Code. Both of them
were tried and were convicted for the aforesaid offences by the judgment of the Trial
Court dated 27.5.2003 and sentenced to under imprisonment for life.
The petitioners challenged the judgment of their conviction and sentence
before the High Court by filing a Criminal Appeal No. 787 of 2003. Upon the
admission of the appeal, and pending final disposal, both of them were granted bail by
the High Court.
Upon their release from jail, the petitioners reported at their respective places
of work for joining duty. They were not allowed to join and on the other hand, they
were served with a charge sheet dated 10.7.2003 and 12.9.2003 respectively on the
charge that they had unauthorizedly absented themselves from their respective duties
on and from 29.03.2003.
The petitioners filed their show-cause replies but the same was not found
satisfactory and a departmental proceeding was initiated against them. The petitioners
participated in the departmental proceeding.
During the pendency of the proceeding, both the petitioners preferred an
application before the High Court in the aforesaid criminal appeal for suspension of
their conviction. The prayer for suspension of their conviction was rejected, though
with the following observations.
“There is nothing on record to suggest that a person cannot rejoin the
duty if convicted in a criminal case. There is nothing on the record to
2show that M/s BCCL has framed any Rule similar to proviso to Article
311(2) of the Constitution of India”.
2. At the conclusion of the departmental proceeding, each of the petitioners was
served with the impugned letter of his dismissal from service (Annexures-5 and 5A).
The petitioners have challenged the impugned orders of their dismissal from service
and have prayed for quashing the same and also for issuance of a direction upon the
respondents to allow the petitioners to resume their duties at their original post and to
pay them their full back wages.
3. A counter-affidavit has been filed on behalf of the respondents.
4. Heard learned counsel for the petitioners and the learned counsel for the
respondent BCCL.
5. Assailing the impugned orders of dismissal, Shri Mahesh Tiwari, learned
counsel for the petitioners, would argue that the impugned orders of dismissal suffers
from miscarriage of justice in as much as, even without adopting the procedure laid
down by law, the petitioners have been terminated from service. Learned counsel
explains that the disciplinary proceeding against the petitioners was conducted on the
basis of a single charge namely, that they had unauthorizedly absented themselves
from duty for the period indicated in the charge sheet. Yet, without appreciating the
explanation offered by the petitioners for the reasons of their absence from duty, and
without considering as to whether such absence could be adjusted against permissible
leave to which the petitioners were eligible, the respondents have proceeded to
terminate the petitioners’ service on an additional charge that both of them were
convicted for criminal offences. Learned counsel argues further that such additional
charge was never framed, nor was any inquiry conducted in respect of the same
against the petitioners and furthermore, before proceeding to impose the extreme
punishment on the basis of such extraneous considerations, the respondents have
neither supplied any copy of the inquiry report, nor had served any show-cause notice
to the petitioners to enable them to explain as to why they should not be warded the
extreme punishment of dismissal from service.
Learned counsel adds further that, as observed in the order of this court in the
criminal appeal, the respondent BCCL had never produced any such Rule
corresponding to the provisions of Article 311(2) of the Constitution of India and
therefore, the petitioners could neither be prevented from resuming duty, nor can their
services be terminated on the purported ground of their conviction for criminal
offences.
6. Per contra, explaining the stand taken by the respondents, Shri A.K. Mehta,
learned counsel for the respondents would argue that admittedly the departmental
proceeding against the petitioners was conducted on the basis of a single charge that
they had unauthorizedly absented themselves from duty. In their show-cause relies,
submitted by the petitioners respectively, while explaining the reasons for their
absence, they had also admitted that they were convicted for the offences under
sections 302/34 of the Indian Penal Code and since such offence involves moral
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turpitude, it was within the competence of the respondent BCCL, as per the framed
Rule which guides the service condition of the employee, to terminate the services of
the petitioners and therefore, in this view of the matter, the impugned order of
dismissal do not suffer from any illegality or perversity.
Referring to the judgment of the Supreme Court passed in the case of Union of
India and others vs. Ramesh Kumar [(1997) 7 SCC 514, learned counsel argues
that it has been held by the Apex Court that the employer is entitled to dismiss the
Government Servant who has been convicted on a criminal charge and the employee
has no right to be reinstated in service without an order of suspension of his conviction
and execution of sentence being passed in the Appeal. As such, as long as the
conviction continues to remain operative, disciplinary action such as dismissal or
removal from service on the basis of such conviction, cannot be assailed.
7. Facts as appearing from the rival submissions, reflects two outstanding
features. The first is that both the petitioners, upon their being remanded to judicial
custody, could not attend to their duties as long as they were under detention. Both of
them were convicted and sentenced for the offences under sections 302/34 of the
Indian Penal Code. Pending appeal against the order of their conviction and sentence,
the petitioners were released on bail. Where-after, they had reported for duty, but they
were refused to join duty.
The second aspect is that the disciplinary proceeding was conducted against
both the petitioners on the solitary charge that they had unauthorizedly absented
themselves from their duty. Though the petitioners had sought to explain the reasons
for their absence, but at the conclusion of the inquiry, a finding was recorded by the
Inquiry Officer that the charge relating to unauthorized absence from duty against the
petitioners, was proved. While accepting the findings of the Inquiry Officer, the
Disciplinary Authority appears, however, to have adverted also to the judgment of the
criminal court passed against the petitioners and recorded his observation that the
petitioners were convicted and sentenced for criminal offences involving moral
turpitude, which was in violation of the provisions of the certified standing orders of
the Respondent Company under Para-26.1.19, which appears to have compounded the
gravity of the charge perceived to be highly serious and deserving the punishment of
termination of the services of the petitioners.
8. Apparently, the conviction of an employee for any criminal offence involving
moral turpitude, is deemed to be in violation of certain specific clauses contained in
the certified standing orders of the Respondent Company. If this was so, and conduct
of the employees were considered to be a misconduct under the certified standing
orders, then no doubt, the employer had the authority to take appropriate disciplinary
action which such violation of the provisions of the certified standing orders, would
invite. However, the proposed disciplinary action has always to be made in
accordance with the stipulated Rules of Procedure. The substance of accusation
relating to such misconduct has to be stated by way of a specific charge and the
delinquent employee has to be given adequate opportunity to defend himself by
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offering his explanation, which in this case, does not appear to have been done.
Furthermore, had any proposed disciplinary action been confined to the proof of the
solitary charge of absenteeism for which the petitioners were proceeded against, then
the matters for consideration would have been confined only to such charge and to the
explanation offered by the proceedee, thereto. As it appears, while considering the
findings of the Inquiry Officer, the Disciplinary Authority had allowed himself to be
influenced by the additional fact beyond the charge framed, that the petitioners were
convicted for criminal offence involving moral turpitude. It also appears that before
proceeding to inflict the extreme punishment, the petitioners were neither served with
a copy of the inquiry report, nor was any show-cause notice served upon them to
explain as to why they should not be awarded extreme punishment of dismissal from
service. The plea of the respondents that no separate charge was needed to be framed
in respect of the conviction of the petitioners for criminal offence involving moral
turpitude in view of their own admission, in my opinion, is not correct. As stated
above, conviction of the employee for any criminal offence involving moral turpitude,
may, in itself, be an act of misconduct under the provisions of the certified standing
orders of the respondent BCCL, but before proceeding to take any disciplinary action
on such acts of misconduct, the mandatory procedure has to be adopted and the same
cannot be dispensed merely on the ground that the employee had admitted certain
facts.
9. In the light of the above discussions, I am of the view that the impugned orders
of dismissal from service have been passed without adherence to the principles of
natural justice and without following the procedure laid down under the law as well as
the Rules applicable to the employees of the respondent BCCL. As such, both the
impugned orders (Annexures-5 and 5A) are hereby quashed. The matter is remitted
back to the concerned authorities of the respondents to record a fresh decision on the
basis of the findings in the inquiry report relating to the charge for which the
disciplinary proceeding was conducted against the petitioners. Such decision must be
taken within two months from the date of receipt / production of a copy of this order.
The Disciplinary Authority shall be at liberty to take any appropriate action in
accordance with the Rules of Procedure for any other acts of misconduct on the part of
the petitioners, if found in violation of the provisions of certified standing orders. Such
action if contemplated, shall be taken and concluded within four months from the date
of this order.
With these observations, this writ application is disposed of.
Let a copy of the order be given to the learned counsel for the respondents.
(D.G.R. Patnaik, J)
Ranjeet/A.F.R.