Q3. , <1“ THE HIQ-I wURT OF JUDI$TURE WTISQARH AT I L BILASPUR. ‘V WP. no: MP7 c /200l ”I‘LE. Pandey, age& absut 54 years, s/o shri N. yandey. Senior Asstt. Gra&e-Ix (P) in Natianal Mii§eral DeVelopment oozporatipn Ltd. Bailadilé Iron Oré ProjeCt S ‘x 3‘ l Kirandul (Easter) . V/s Natienal Mineral Deve10pment w corporation Lta. through its chaiman-Cmuadanaging Direcior < Bailadila iron Ore Project Kirqndul K Basta) C.G. g 2. weéutive Erector. Wham! ‘ Natienalk Develogment W 1 oarporatiOn Ltd. Bailadila Iron are Project Kiranaul (Easter) ~ WWEWON or mDIA: ‘ ’ 1 HIGH COURT OF’CEEATTISGARH AT BILASPURM w.P.uo. 149' / 2001 Petitioner : M. P. Pandey Var S 11S National Mineral Develop- ' meat Corporation and anor. Respondents JUDGhENT ( 1{.e.,2oo1 ) ‘In this wr1t petition under Article 226 of the Constitution of India the writ petitioner is v seeking a direction for quashing the order of termination annexureP~ 1'7 dated l6.1.2001 and further to direct the respondents to pay hie arrear, salary and allowances and such other benefits treating him to be in continuous‘service. At the time of issuance of the said impugned order of termination the writ petitioner was serving as Senior Assistant Grade II (P) in the National Mineral Development Corporation Ltd, Bailedipla Iron Oar Project Kirandul ,district . Bag tar o 2, In order top come to a reasonable oonclnsion it is necessary thatWM of 'the‘ case leading M to issuance of termination order are briefly stated 3. . The petitioner was appointed as IL.D.clerk on 13.10.1970.henoe at the time of termination of his services in JanuarY 200a te peitioner had put. in more than 30 years of service. The' petitioner is Secretary of a Registeted Consumer Society registered as " Jai Prakash Memorial Centre". It is a Society registered under the provisions of Societies Registrikaran Adhiniyam 1973 A certifioate of registration Vide annexure -1 has been filed with this petition. It is averted that the said society has been recognised by the Central Government and the same has been, registered as an associetion by the state Government Consumer Association. A certificate of recognition issued by the Government o£ Ithia is at annexure P-2. It is also contended by the petitioner that the said society has received save- rel recognition certificates from the State government. It is also further contended that this association received first prize from the Government of M.P. for the out-standing work done in the consumer protection for the years, 1996,.1997’and 1,998. The society is also'a member of the Central Consumer Protection council and as such it is entitled to receive sample; under the provisions of Food Adultera’tion Rat and pro- secute the offenders under the provisions of-that Act and also under the provisions of Cosmetic mt s: Essential Comodities Act etc. The petitioner himself is the member of State Level Steering committee of Consumer» Welfare Fund and Advisory Committee . C°“tdo o c .3 h t in : 4. In para 5.2 it is averred that news item was published on 13.3.99 1n a meal daily‘uav Bharat/ newspaper as regards the dumping cf slime and iron ore in river Indrawati. Petitioner ’sub- mitted a copy of aaid newspaper item to the Secretary. M.P._Pollution Control Board on 15.3.9.9 and the said letter has been annexed to the petition as annexure P-S and a request was made that necessary action be taken. Another letter was also addressed to the Minister for Housing and Enviornment on 4 1 99 regarding the news aforesaid and request was made that imme- diate action be taken in the matter. It is now v a contended that this action of the writ petitioner in forwarding the photo-copy of the news-paper which published the aforeaaid news annoyed the ‘ competent authority and as such an inquiry was initiated against the writ getitioner by issuing .a charge-sheet contained in memo dated.30.?.99. Three'charges were brought against the writ petitioner. Charge No.1 states that petitioner caused dis-repute to the management ofi N.M.D‘.'c Ltd Bailadila. Iron ore Project by forwarding the xerox copy of newspaper cutting published in] Daily Nav Bha- rat news-paper ,Raipur dt.’ 13.3.2001 under the guise of secretary, Jai ?rakash Memorial Centre to Member Secretary. M.P.Pollution mntrol Board. It is also further stated in the first charge that the‘petitione also addressed another letter to the Hon .Minieter for Housing and Enviornment on 4 1 99 about the pollution of Shankini Dankni river due to alleged slime contained water from the land of Bailadila -4- on ore project. Accoréing to the authority, in v1ew of above, the petitioner had violated the service condition and such violation would amount to major nus-conduct under clause 28' (2) (xx) and 28 (2) (XXI) of the Certified Standing orders pplicable to all workman of all projectsand feasibility of NMDC Ltd. The aforesaid certified Standing orders vide 28 (2) (xx) reads as under :- F "Unauthorised communications of official docu- ments' or information and discvlosnre‘ to any un- authorised person of information relating to the management( s bus iness ." Certified standing order 28 (2) (xx) is as under :- " Writing with or without signatures,allegations devoid Of basis against any worman or Manage- ' ment or writing oflannonymous or pseudonymous ‘ letters criticising superiors in the service / of the Managements or spreading of false rumour or giving of false information which tends to ‘bring into disrepute the Management or its worknan or spreading panic among them.“ \ Charge no.2 states that the petitioner used the quarter allotted to him for accommodating the office of Jai Prakash Memorial Centre Bastar Divi- sion. unauthorisedly. This is said to be dis-honesty in connection with management's property whidm is a major mis-conduct within the meaning of clause 8 (2) (iii) of the Certified standing Order. The said certified standing order reads as under :- i " Theft. Fraudor Dishonesty in connection with Management's business or Property.“ 6. Charge No.3 states that petitioner while undtioningw as Senior Assisgant Grade - III Ir a S. 2 f -5- had made correspondence directly with M.P. Pollution control Board and the'Hon‘ble Minister forLHousing and Enviornment en matters pertaining ,to the memess of the employer and this caused embrassment to his employer organisation and hence the petitioner violated the discipline set by the Corporation. It is further contended that the petitioner used the Corporation quarter allotted to him to be his residence for the pur- pose’of Office of Jai Prakash Memorial Centre and .~it~ has‘ been turned as anti discipline as per the rules set under House allotment rules .‘ Specifically of£ence under clause 28 (2) (w) of the certified standing order is said to have been committed. The said order reads as under :— " An Act subversive of discipline.“ 7. on receipt of articles oEcharges the writ ' petitioner submitted his reply vide annemre P-B ~ dated‘4.10.99. Among other things it was contended by the writ petitioner that he had simply forwarded, the news-paper cutting in the capacity of Secretary of the society and in doing so he could not be said r to have committed any misconduct. as there is no bar to participate in such matters as the officer bearer of the society in asmuchas such participation is permissible vide memo dated 30.9.99 issuedby t'he Senior Manager . 8. Thereafter by order dated 21.11.99 inquiry officer was appointed. An objection was taken by -5- the petitioner that Senior Manager has no power and authority to 1nquire into the matter. By order dated 11.12.99 inquiry officer was appointed and the inquiry was ordered to be completed within three months. The petitioner oonsistently denied that he has committed any mis-conduct. It was also jurther stated by him that there was no offiee of the society in the house oceupied by him. it was contended that even otherwise in terms of the allot- ment rules 1981 no mis’oonduct can be said to have been committed by the writ petitioner in the pre— sent case. After the inquiry was oompleted, the petitioner was found to be guilty and the proposal for dismissal was made and the petitioner ,was directed to show cause against the; proposed order of dismissal. The petitioner gave his reply to the show-cause/nc‘tq‘pe vide annexure P-16 contend-l M ing among other things that the findings of the as per inquiry officer are perverse in as-much-aslcerti- fied standing order no charge of mis -conduct can be ‘said to have been committed in the circumstan- ces of the case and that the entire inquiry is vitiated and in fact no departmental inquiry could have been brought against the petitioner in the present case. Thereafter,the respondent no.2 passed the impugned order of remval on 16.1.2001 .Hence this petition. 9. ' I have heard shri;Gangele ,1earned counsel for the petitioner as well as Mr. P.S.Koshi learned counsel for the tespondents. It has been contenied by Mr.Gange1a that the entire inquiry was conclu- ded “on the basis cf documentary evidence and no witness as such was examined in the present pro- ceedihgs. Mr.Gangele “La/x AM. re erred me to the impugned order dt. 16.1.2001 para 10.3 (i) which reads as under : - " The proceedings reveal that there was intention to produce any’prosecution witness other than documentary evidence,as evident‘from aAn-nexure-III to the charge sheet dated 30.9.99. If for proving the chargemo witness was considered necessary by the Presiding ' fficer.then non—production of any witness does “not constitute any infirmity of the enqiiiry proceedings. " Though, m. Koshi has urged certain preliminary points, I have heard parties on merits at a great length. Drawing my attention to the articles of. charges W.Gangele submits that on the face of this charge no case can he said to have been made out against the petitioner in asmudu as ,the only document in question/relied upon by the competent authority in the present case/is in fact a news- paper cutting/clipping. It is therefore,‘contended by Mr.Gangele that this document is not the of ficial document of the company. Thereforemothing relating to the official hisiness of the corporation wa's communicated toany‘person a un-authorisedly. According to Mr. Gangele the sole basis for initi- ating inquiry against the wit petitioner .is the fact that the writ petitioner had forwarded the copy of the said newspaper cutting in which certain o matter concerning the pollution of some rivers was publ ished . 10. In the return filed on behalf of respondents 21 and 2 certain preliminary opjeetions have been taken. Onfisuch objection is that there is a provisi for appeal and the said forum has not been exhauste by the writ. petitioner before he approaches this Ho Court. According to Mr. P S Koshi learned counsel for the respondents , the writ petition is prematur in-asmuch as‘ there is no final order passed by any appellate authority who is Chairman cum Managing Director, It is also contended that the present mat must first come within the purview of section 33 (2) (B)o£ the Inaustriel Disputes Act 1947. In xA No.451 ’the respondents have contended that there are cert industrial disputes raised by the writ petitioner his personal capacity and such issues are pending befox the Central government Industrial Tribunal/ Labour Court. According to the counsel for the respondent even on thie score alone the writ petition should be dismissed. It is also further suhnitted that in ter o£ section ll-A of the Industrial Disputes Act the is an alternative and efficacious remedy hence‘th petition should be dismissed. u /. 11. As I have stated above this court hasslre‘a’d examined all the aspects of the merits of~t ‘he same writ petition should not stand i ' on d n. e te /2 a i s , m e‘ r y he‘_/ t n a O W pegusal of the pleadings of the parties it can ' not be said that the issues raisedin this writ petition are sub judice before any competent Court / forum. In other wores trie feet that the Union has raised two industrial disputes before the Central Government Industrial Tribunal and the same ’ not are pending.w1ll£stand in the way of disposal of this 'writ petition which in’ substance has to dospecifical] with the order of termination of services of the writ petitioner . 12. As regards the allegation that the petitioner was illegally using the room~of the quarter allotted to him as the office'of Jai’ Prakash Memorial centre, it appears that request was maée to the Competent Authority sometime in 1986 however. the competent pauthority seems to have expressed regrets for not being able to allot the land where a building to housl the Jai Prakash Memorial Centre could have been er€ctedrrThis is reflected in af‘letter dt, 1Q.6.86 addressed to the {Secretary‘of the Association by Personnel officer of the company. Even assuming that no official transaction should be allowed to be carried-on in the quarter allotted to the writ petitionergt, appears to me that if- any action’is called for. notice ought [to have been issued to the writ petitioner in accordance with rules or regu- lations prescribed in this behalf. I‘ may also state that even assuming that some files pertaining to the association were kept by the petitioner as an office bearer of the said association/chat certain corres- pondemes were carried—on between the petitioner as an o£ficer of the association and other agencies; ,such activities would not in any way amount to mis— conduct within the meaning of glause 28‘ (2) (III) of the Certified standing Orders applicable to workmen of all the projects and feasibilities of Nmc Ltd. In my View by no stretch of imagination;pan the writ petitioner be said to have committed inrsuch a situation, theft.fraud on dis-honesty in connection with management's business or property. .If at all the writ petitioner was indeed carrying-on the work of the association as an office bearer of the said association andr that such activity which was carried- on in the quarter allotted to him by the: Company was in any wayrdetrimental to the work of the management. the Company could have simply asked the petitioner to’_ stop such activity and in the event of dis-obedience necessary action could have been initiated by givirif¢ a notice to him. The mere fact that some files were kept in the house of the writ petitioner pertaining to the association of which he himself is anoffice bearer and that certain correspondences were carried- on between the association and the out-side agency, should'not be taken‘t’o be sii‘ch a serious matter which called for such a drastic action culminating in dis- missal / removal of the writ petitioner from service. / 13 . k I have carefully perused the averments made in the pleadings of the parties. I have also heard ounsel representing the parties at length. In my View what provoked the authority to initiate action against the writ petitioner in sum and substance ...11 c appears to, be becauselhe had forwarded a news-“paper item to the State authorities for necessary action concerning the pollution caused to the rivers as a result of excavation activity ofxlron Ore of Bailadila. 7 I may state here that the association is withih its right to high-light any actiyity which causes pollution which is detrimental to the local population of that area. In fact, the very purpose of having such ran‘ association is to carry {on activity of creating aware- ness and to espousethe cause of'b'etter enviornment not only in that area mt in the entire country and for that matter in the entire world. In fact): am rather surprised that inspite of information given to the State authority regarding pollution in the said area, State authority has not taken any positive action till date. This is most unfortunate. 'As a Hatter of factgt»; o is the duty of the State Government in the welfare State like ours to take all possible action to prevent pollution which causes health hazards to the inhabi- tants of that area. 14. ' Ihave given anxious consideration to the suhnissions made on behalf of the parties. I have no doubt in my mind that cause of preventing pollution has been espoused by the association. The petitioner is snmply an officer of the said association. Unfortuu nately the whole brunt of the wrath of the company has fallen on this man, namely) the petitioner. In the entire situation (it can not be said 'that 'it is a personal action of the writ petitiOner in as much as it is the cause which is dear‘to theassociation that is sought tofbe advanced by bringing the news item V of pollution to the competent State authorities. If . \ r /~< -12 —' that be so why one man should be made to suffer? ‘ To put it differently) y: is not the 'caus’e of the ‘ person but the cause which is espoused in the pre- sent case is by a duly registestered assoc1ationp Hence an indiv1dua1 can not be singled-out for undue pun i shment . 15. After taking into consideration all the facts and circumstances of the ‘present case, I hold that the proceedings that have been initiated against the writ petitioner are wholly unjustifiable 1n as much as in my view no action can. be taken against a parti- cular person in the facts and circumstances of the present case as the cause espoused by the association is in public interest. Hence submission that there is effective and efficacious remedy available would not operate in the present case as a bar for this court to exercise jurisdiction under Article 226 of the onstitution. x 16. a It must be‘ borne in mind that petitioner has already put in more than 3O years of serVicegA’t the end of his service career the writ petitioner has not been dealt-with fairly. In my View the circumstan- . ces of the present case would not warrant any punisha‘4 ment) let alone removal from service. , x y 17. In the result, in the premisesiaforesaid, this petition is allowed. The impugned order of removals issued by the executive Director dt. 16.1.2001 is quashed. The writ petitioner shall bere—instated ,contd.. .13 C Jyotishi -13.. forthwith. Further.x direct the respondents to pay arrears of salary and other service benefits treating him to ‘be in continuous service and without any hreak. However, I pass no order as to cos‘ts. W i7 é‘ Sdl- ‘; 1 Chief Justice '1