{"id":111694,"date":"2009-05-08T00:00:00","date_gmt":"2009-05-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/gopal-chanrda-mondal-vs-union-of-india-ors-on-8-may-2009"},"modified":"2017-10-10T04:01:36","modified_gmt":"2017-10-09T22:31:36","slug":"gopal-chanrda-mondal-vs-union-of-india-ors-on-8-may-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/gopal-chanrda-mondal-vs-union-of-india-ors-on-8-may-2009","title":{"rendered":"Gopal Chanrda Mondal vs Union Of India. &amp; Ors. on 8 May, 2009"},"content":{"rendered":"<div class=\"docsource_main\">Jharkhand High Court<\/div>\n<div class=\"doc_title\">Gopal Chanrda Mondal vs Union Of India. &amp; Ors. on 8 May, 2009<\/div>\n<pre>                          W.P.(S) No. 5913 of 2006\n                                  With\n                          W.P.(S) No. 5923 of 2006\n                                      ...\n     In the mater of an application under Article 226 of the Constitution of India\n\n            Gopal Chandra Mondal            ...   Petitioner (in 5913\/2006)\n            Punu Mudi                       ...   Petitioner (in 5923\/2006)\n                              -V e r s u s-\n            The Union of India &amp; Others      .... Respondents (in 5913\/06)\n            The Coal India Limited &amp; Others .... Respondents (in 5923\/06)\n                                     ...\n          For the Petitioner: - M\/s. U.S. Agarwal &amp; Kalyan Banerjee, Advocates.\n          For the Respondent (ECL) : - Mr. Rajesh Lala, Advocate\n                                                ...\n                                   PRESENT\n                 The Hon'ble Mr. Justice D.G.R. Patnaik\n\n      Reserved On: 16.04.2009                    Pronounced On: 08.05.2009\n\n\nD.G.R.Patnaik, J.         Petitioners   in   these     two   writ   applications     have\n            challenged the order dated 19.08.1994 issued by the Respondent No.\n            5 whereby their services under the respondent Eastern Coalfields\n            Limited were terminated. Praying commonly for an order quashing\n            the impugned order of termination, the petitioners have also prayed\n            for a direction to the respondents to reinstate them in service with\n            full back wages and to grant them all consequential reliefs for which\n            they are entitled in accordance with law.\n            2.      Case of the petitioners is that they were employed under the\n\n            respondent Eastern Coalfields Limited. While the petitioner Gopal\n\n            Chandra Mondal entered service under the respondent on 10.07.1992\n\n            and was eventually promoted to the post of Electrical Supervisor,\n\n            Badjna Colliery under Mugma Area of ECL, the petitioner Punu\n\n            Mudi joined service under the respondents on 31.03.1973 and he was\n\n            eventually promoted and posted as Pump Khalasi in the Badjna\n            Colliery under Mugma Area of ECL.\n                    While this was so, by letter dated 12.05.1994 they were called\n            upon to appear before the Vigilance Officer and were informed that\n            a disciplinary action would be taken against them for having\n            executed an indemnity bond\/surety bond in favour and support of\n            an employee namely Mahesh Modi (son of petitioner Punu Mudi)\n            who,     by   practicing    fraud    and    misrepresentation      and    by\n                         -2-\n\n\nimpersonating himself as Mahesh Kora, had obtained employment\nunder the Respondent Company.\n      Later, by the impugned order of dismissal dated 19.08.1994,\ntheir services were terminated.\n      The grievance of the petitioners is that the order of termination\nwas made without any departmental enquiry and without even\nserving any charge sheet or any opportunity of being heard and such\norder was totally against the provisions of law under Section 25-F of\nthe Industrial Disputes Act.\n3.    Aggrieved by the impugned order of termination, the\npetitioner Gopal Chandra Mondal had filed a writ application before\nthe High Court at Kolkata vide C.O. No. 12704 (W) of 1994. A single\nBench of the Kolkata High Court had allowed the writ application\nquashing the impugned order of termination, directing the\nrespondent Eastern Coalfields Limited to pay to the petitioner the\narrears of salary and allowances from the date of termination of his\nservices, till the date of judgement.\n4.    The judgement of the Single Judge was however set aside in\nthe appeal filed by the Respondent Management, by a Division\nBench of the Kolkata High Court. The petitioners were however\ngiven a liberty to seek their remedy before the appropriate forum\nunder the Industrial Disputes Act.\n5.    Against the judgement of the Division Bench, the petitioner\nGopal Chandra Mondal moved the Supreme Court. On considering\nthe fact that the writ application was entertained and kept pending\nand later allowed on merits, the Apex Court had observed that it\nwas not appropriate to ask the parties to work out their rights in an\nalternative proceeding. With such observations, the Supreme Court\nset aside the order of the Division Bench of the High Court and\nremitted the matter to High Court for fresh disposal on merits.\n6.    When the matter was taken up again by the Division Bench of\nthe High Court of Kolkata after its remand by the Supreme Court, an\nobjection was taken in respect of the territorial jurisdiction of the\nCourt.   Upholding     the     objection   taken   by   the   respondent\nManagement, the Division Bench set aside the judgement of the\n                          -3-\n\n\nSingh Judge on this ground alone with an observation that it is open\nfor the parties to agitate the same before the appropriate forum.\n7.    Being aggrieved with the order of the Division Bench, the\npetitioner Gopal Chandra Mondal again moved the Supreme Court\nby filing a Special Leave Petition. The Apex Court dismissed the SLP\nwith a liberty to the petitioner to approach the appropriate forum for\nrelief in accordance with law. Thereafter, the petitioner has filed the\npresent writ application challenging the impugned order of his\ntermination from service.\n8.    The petitioner Punu Mudi had also challenged the order of his\ntermination before the Kolkata High Court. A single Bench of the\nHigh Court had allowed his writ application and had directed the\nrespondents to reinstate him in service. The judgement of the Single\nJudge was however dismissed by a Division Bench of the Kolkata\nHigh Court with the following observations -\n                      \"The writ petitioner was dismissed from service\n               along with one Gopal Chandra Mondal on an identical\n               charge. He has come up against the order of dismissal,\n               on the ground that such order was passed without\n               having proper disciplinary proceedings. Sri Gopal\n               Chandra Mondal also filed a similar writ petition. That\n               matter went up to the Apex Court. The Special Leave\n               Petition of Sri Gopal Chandra Mondal was dismissed\n               giving liberty to him to approach the appropriate court\n               for relief in accordance with law.\n                      This Court is not appropriate forum herein\n               because of involvement of disputed questions of facts as\n               would appear from the pleading filed before me. Liberty\n               is given to the petitioner to appear before the\n               appropriate forum for redressal of his grievance\".\n\n      Thereafter he has filed the present writ application before this\nCourt.\n9.    Reiterating the grounds advanced by the petitioners, Sri\nU.S.Agarwal, learned counsel for the petitioners would first want to\nexplain as to why the petitioners have chosen the forum of this Court\nfor seeking relief under Article 226 of the Constitution of India\nthough the alternative remedy was available initially to the\npetitioners.\n      Learned counsel would explain that the impugned order of\ntermination of the petitioners' service was per-se illegal in as much\n                         -4-\n\n\nas it was in total violation of the provisions of Section 25-F of the\nIndustrial Disputes Act. No prior notice was served upon the\npetitioners as required under the law nor was any charge sheet\nserved upon them and neither was any departmental proceeding\ninitiated against either of them and furthermore, no copy of any\nvigilance enquiry report was even given to them and yet their\nservices were terminated on the ground that they had practiced\nfraud upon the respondent Management amounting to an act of\ngross misconduct on their part. Learned counsel explains that such\npatent illegality in the impugned order being in violation of the\nfundamental rights of the petitioners under Article 21 of the\nConstitution of India, the petitioners have a right to seek remedy\nunder Article 226 of the Constitution of India before this Court.\n      Learned counsel argues further that the objection of\navailability of alternative remedy as raised by the respondents,\ncannot now be entertained in view of the fact that notwithstanding\nsuch objection, taken initially, these writ applications have been\nadmitted for hearing and has been kept pending on record ever since\nafter its filing in October, 2006. To buttress his argument, learned\ncounsel would seek support from the judgements of the Supreme\nCourt in the case of State of U.P. and Anr. Vs. U.P. Rajya Khanij\nVikas Nigam S.S. &amp; Ors. 2008(8) Supreme 453 and also from the\njudgement in the case of Committee of Management and Anr. Vs.\nVice Chancellor and Ors. 2009(1) Supreme 101.\n10.   The respondent Eastern Coalfields Limited has filed its\ncounter affidavit denying and disputing the entire claim of the\npetitioner. The objection relating to maintainability of this writ\napplication on the ground of availability of the alternative remedy,\nhas been reiterated by the respondents.\n11.   Learned J.C. to A.G. for the respondents would submit that the\npetitioners being admittedly \"workmen\", a specific provision has\nbeen laid down in the Industrial Disputes Act for redressal of their\ngrievances, if any. Since the legislation has provided a particular\nmode for redressal of the grievance, any other mode is forbidden.\nAgainst the impugned order of termination, the petitioners have the\n                         -5-\n\n\nremedy of preferring appeal before the disciplinary authority and\ntherefore this writ application is not maintainable.\n12.   Learned counsel adds further that even otherwise, the\nSupreme Court vide its order dated 16.12.2005 passed in the Special\nLeave Petition No. 14069 of 2003 filed by the petitioner Gopal\nChandra Mondal, while dismissing the SLP, had made an\nobservation that \"If so advised, the petitioner may approach the\nappropriate court for relief in accordance with law\". Likewise, the\nDivision Bench of the High Court of Kolkata while disposing of the\nwrit application filed by the petitioner, had observed that the\npetitioner may move before the appropriate forum under the\nIndustrial Disputes Act for redressal of his grievance.\n13.   It is further submitted that earlier, in the writ application filed\nby the petitioner Punu Mudi before the High Court of Kolkata vide\nW.P.(S) No. 12856 (W) of 2002, by order dated 15.02.2006, a Single\nBench of the Court had dismissed the writ petition, without going\ninto the merits of the case, with an observation that the writ Court is\nnot appropriate forum because the dispute raised in the writ\napplication is disputed question of fact as would appear from the\npleadings filed. A liberty was however given to the petitioner Punu\nMudi to approach the appropriate forum for redressal of his\ngrievance. Learned counsel submits that it is in the light of the above\nfacts and the several orders passed by the Supreme Court and the\nHigh Court of Kolkata, the petitioners ought to have approached the\nLabour Court\/Tribunal for redressal of their grievance and for the\naforesaid reasons this writ application is not maintainable.\n14.   Referring to the merits of the case, learned counsel would\nexplain that one Smt. Dingle Kori was an employee of the Badjna\nColliery under Mugma Area of ECL as a Wagon Loader. She died on\n04.11.1987<\/pre>\n<p>. After her death, one Mahesh Modi, son of the petitioner<br \/>\nPunu Mudi, had approached the Management representing himself<br \/>\nto be Mahesh Kora, brother of deceased Dingle Kori. The petitioners,<br \/>\nknowing fully the actual identity of the said Mahesh Modi, had<br \/>\nfalsely identified him as Mahesh Kora, brother of the deceased<br \/>\nDingle Kori and had also executed indemnity bonds in favour of the<br \/>\n<span class=\"hidden_text\">                         -6-<\/span><\/p>\n<p>said impersonator to facilitate his appointment in the name of<br \/>\nMahesh    Kora    on   compassionate     ground.    The   fraud   was<br \/>\nsubsequently detected and a vigilance enquiry was conducted which<br \/>\nhad confirmed that the petitioners had practiced fraud upon the<br \/>\nManagement and had dishonestly facilitated the appointment of<br \/>\nMahesh Modi on compassionate ground.\n<\/p>\n<p>      Considering the aforesaid facts and also the declaration made<br \/>\nby the petitioners in the letter of indemnity executed by them<br \/>\nwhereby each of them had acknowledged that in the event of the<br \/>\nrelationship between Late Dingle Kori and Mahesh Kora being<br \/>\nfound to be false and incorrect, the petitioners would be liable for<br \/>\ndismissal\/termination from service of the company, the impugned<br \/>\nletters of termination were issued to the petitioners. The petitioners<br \/>\nin their pleadings, have admitted the fact that they had executed the<br \/>\nindemnity \/ surety bonds in favour of the aforesaid Mahesh Modi.\n<\/p>\n<p>15.   As it would appear from the facts stated above, the writ<br \/>\napplications of the petitioners were ultimately dismissed by the<br \/>\nDivision Bench of the High Court of Kolkata with a direction to them<br \/>\nto approach the appropriate forum for redressal of their grievance.<br \/>\nIn the light of the discussions and the observations recorded in the<br \/>\njudgements, copies of which have been filed with the writ<br \/>\napplications, it appears that reference to the appropriate forum was<br \/>\nmade in the context of the dispute raised by the petitioners on the<br \/>\nground that the impugned orders of their termination is in violation<br \/>\nof the provisions of Section 25-F of the Industrial Disputes Act and in<br \/>\nthe context of the pleadings of the respondent Management that the<br \/>\nwrit applications were not maintainable in view of the alternative<br \/>\nremedy available to the petitioners for redressal of their grievance<br \/>\nunder the Industrial Disputes Act.\n<\/p>\n<p>16.   As sought to be explained by the learned counsel for the<br \/>\npetitioner, the Supreme Court in several judgements, has explained<br \/>\nthat the availability of alternative remedy in itself would not be a<br \/>\nground for rejecting the writ application under Article 226 of the<br \/>\nConstitution of India. In the case of Committee of Management and<br \/>\nAnr. Vs. Vice Chancellor and Ors. (Supra), the Supreme Court while<br \/>\n<span class=\"hidden_text\">                          -7-<\/span><\/p>\n<p>referring to its observations in several earlier cases, has reiterated its<br \/>\nobservations as under :-\n<\/p>\n<blockquote><p>                  &#8220;15&#8230;&#8230;.. But the alternative remedy has been<br \/>\n           consistently held by this Court not to operate as a bar<br \/>\n           in at least three contingencies, namely, where the writ<br \/>\n           petition has been filed for the enforcement of any of the<br \/>\n           Fundamental Rights or where there has been a violation<br \/>\n           of the principle of natural justice or where the order or<br \/>\n           proceedings are wholly without jurisdiction or the vires<br \/>\n           of an Act is challenged&#8230;.&#8221;.\n<\/p><\/blockquote>\n<p>17.   As submitted by the respondents in their counter affidavit, a<br \/>\nvigilance enquiry was conducted in which the petitioners were<br \/>\ncalled upon to participate but admittedly, they did not participate in<br \/>\nthe enquiry. Consequently, the enquiry was concluded ex-parte and<br \/>\non the basis of the findings in the vigilance enquiry, the impugned<br \/>\norder of termination was passed against the petitioners.\n<\/p>\n<p>18.   On the other hand, the thrust of the arguments of the<br \/>\npetitioners is that the impugned order of termination having been<br \/>\npassed without affording any opportunity to the petitioners of being<br \/>\nheard and without conducting any departmental proceeding by<br \/>\nserving memorandum of charges on them and the impugned order<br \/>\nhaving been passed in gross violation and contrary to the provisions<br \/>\nof Section 25-F of the Industrial Disputes Act, is perverse, illegal and<br \/>\nagainst the principles of natural justice and therefore even though an<br \/>\nalternative remedy of appeal is provided under the Industrial<br \/>\nDisputes Act, the petitioner have a right to seek redressal of their<br \/>\ngrievance by invoking the writ jurisdiction of this Court.\n<\/p>\n<p>19.   The fact that no show cause notice was served and neither was<br \/>\nany departmental proceeding initiated against either of the<br \/>\npetitioners on the basis of the purported findings of the vigilance<br \/>\nenquiry and yet, the order of termination was passed against them,<br \/>\nis sufficient to indicate that the principles of natural justice have not<br \/>\nbeen adhered to by the respondents while passing the impugned<br \/>\norder. It is on consideration of these aspects that initially the Single<br \/>\nBench of the Kolkata High Court had allowed the writ petitions of<br \/>\nthe petitioners. The Division Bench of the Kolkata High Court had<br \/>\nset aside the judgement of the Single Bench basically on the ground<br \/>\n<span class=\"hidden_text\">                                       -8-<\/span><\/p>\n<p>            of lack of jurisdiction though referring the petitioners to approach<br \/>\n            the appropriate forum for redressal of their grievances.\n<\/p>\n<p>            20.   As has been held by the Supreme Court in the case of<br \/>\n            Committee of Management and Anr. Vs. Vice Chancellor and Ors.<br \/>\n            (Supra), the availability of alternative remedy would not in all cases<br \/>\n            operate as a bar. In a case where it is pointed out that there has been<br \/>\n            violation of principles of natural justice, the Court, in appropriate<br \/>\n            cases, can exercise its writ jurisdiction under Article 226 of the<br \/>\n            Constitution of India.\n<\/p>\n<p>                  Furthermore,       notwithstanding   the   objections   regarding<br \/>\n            maintainability of these writ applications on the ground of<br \/>\n            availability of the alternative remedy, both these writ applications<br \/>\n            were admitted by this Court and posted for hearing and they have<br \/>\n            been kept pending for the past more than three years. In my opinion,<br \/>\n            it would not be appropriate, therefore, to refer the petitioners to<br \/>\n            avail the remedy under the Industrial Disputes Act after such a long<br \/>\n            period.\n<\/p>\n<p>            21.   The grounds advanced by the petitioners eloquently declare<br \/>\n            that the principles of natural justice were not adhered to by the<br \/>\n            concerned authorities of the respondents in passing the impugned<br \/>\n            orders of termination of services of the petitioners. On this ground<br \/>\n            alone, both these writ applications succeed and they are therefore<br \/>\n            hereby allowed. The impugned orders of termination of service<br \/>\n            dated 19.08.1994 are hereby set aside. The respondents shall however<br \/>\n            be at liberty to take a fresh decision in the matter in accordance with<br \/>\n            the procedure laid down under the law after giving reasonable<br \/>\n            opportunity of hearing to both the petitioners and allowing them to<br \/>\n            submit their fair defence.\n<\/p>\n<p>                  With these observations, both these writ applications are<br \/>\n            disposed of.\n<\/p>\n<p>                                                              (D.G.R.Patnaik, J.)<br \/>\nJharkhand High Court, Ranchi<br \/>\nDated 8th May, 2009<br \/>\nBirendra\/N.A.F.R.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Jharkhand High Court Gopal Chanrda Mondal vs Union Of India. &amp; Ors. on 8 May, 2009 W.P.(S) No. 5913 of 2006 With W.P.(S) No. 5923 of 2006 &#8230; In the mater of an application under Article 226 of the Constitution of India Gopal Chandra Mondal &#8230; Petitioner (in 5913\/2006) Punu Mudi &#8230; Petitioner (in 5923\/2006) [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,18],"tags":[],"class_list":["post-111694","post","type-post","status-publish","format-standard","hentry","category-high-court","category-jharkhand-high-court"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.3 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>Gopal Chanrda Mondal vs Union Of India. &amp; 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