- 1 - (D CY'\uv' ,y /A- IN THE HIGH COURT OF JUDICATURE CHHATTISGARH: BILASPUR WRIT PETITION N0: -\'3 OF2004 PETITIONER J3aras Nath aged about 42 years S/o Shri Tirath, working as Shot Firer, B Seam Colliery, PO: Khongapani, Dist: Korea (C.G). Versus RESPONDENTS: 1. ^^- ••'^i?; f^y^- -iS* ...-•;4^>?" < •y^' .^*J^ <•• ^*" ..•• 3. ^:^ &'y ^ •^ ,iy^w^^^. <3, ^. -ft *A ^l^- South Eastern Coalfields Limited Through its Chairman-cum- Managing Director, Seepat Road, Bilaspur (C.G). Chief Personnel Manager, South Eastern Coalfields Limited, Hasdeo Area, PO: South Jhagrakhand Colliery, Dist: Korea (C.G) Chief General Manager, South Eastern Coaffields Limited, Hasdeo Area, PO: South Jhagrakhand Colliery, Dist: Korea (C.G). Sub Area Manager, Jhagrakhand sub Area of SECL, Hasdeo Area, PO: Khongapani, Dist: Korea 4-. •^•' ••-mehii&cL^^ <; }it UCCl^- A. < 53 os- i^a-aea ssvi&s ir |C.G»V» -2- WRIT PETITIQN UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA v^~ ^) HV »Tt 1 A IT N< )3/i r* T ^-<»»Arfa !1"S. Post for:3'7/8/2004. Sd/- Fakhruddin Judge ,fTi ^TT WRIT PETITION N0. 293/04 Shri Alok Bakshi, Advocate, for the petitioner. Shri P.S. Nair, Sr. Advocate, with Shri P.S. Koshy ar.d Shri Vinod Deshmukh, Advocates, for respondents no. 1 to 4. Shri Vinay Harit, Sr. Standuig Counsel for respondent no.5. ^- K By ttiis petition, the petitioner chaUenges the dismissal from seryice on Uie ground that he has been dismissed without holding a regrilar enquir;' as contemplated LUider Certified Standing Orders. 2. Brief facts of the case are that the petitioner was po.sted as Shot Firer-cum.-Mining Sirdar at B Seam CoUien- of Jhagrakhand Sub Area S.E.C.L., Hasdeo Area, District Koriya. It is alleged that he was posted in blastuig operation alongwith other workers. The petitioner contended that at 'the time of blasting, foui' Explosive Carriers nam.ely Shri Rajendra, Shri Panna Ram, Sliri Bishraia and Shri Sheshinaii ^1-7 i-'v/1-.~ r were placed at safe places to prevent any person dir couiuig before the face where shots are to be fired. fui'ther contended that after waming the workers t.o tal-i:e safeguard, the above four persons have taken r.he appropriatc !,;.'5~i,a"!'t-('^r* fr'^m ^"h;^ •Fo^'t^ '^';T1'^.'=iT'fs 'hit c;<.;'f'-lT-; o' s'^ c>r1 1-r*: 1~'<?'- 1-Ql<ra7~1 Tt ^ .ICIIGI' ll'UIll tllC 13S^.C "^Vllci.'fci UiciyiUJ.^, llciU tU UC lc5J.iC;il. ll —; ^) also contended fhat the petitioner has confirmed from above nam.ed Explosive Camers that they had taken the shelter at safe places and every one is clear from the place to be blasted, he denoted the explosives and then found that Shri Panna Ram. was not ftiere. It is contended by hira that subsequently he came to know that accident had occiirred and Panna Rara had died. 3. It is contended by the petitioner fhat on 25-12-2003, a charge sheet was issued to hun mentioning that he was negligent tn blasting and due to fhat one Explosive Carrier eould not get shelter in safe place and as a result of which he succumbed to death. It is further mentioned that the petitioner has committed misconduct of clauses 26.05 and 26.15 of Certt&ed Standing Orders and the petitioner was granted 72 hours tune to submit reply. It is also mentioned that smce the chat'ges are very serious m nature, the petitioner is hereby placed under suspension with immediate effect. Annexure-P/1 is the copy of the charge sheet. The petitioner submitted that. he had filed the reply denyin^ charges. The petitioner contended that he had taken due care and the blastmg was done as per the rules, regulations and directions. He further contended that Panna Ram was negligent m moving wiftiin the time. Aimexure-P/2 is the reply submitted by the petitioner. 4. It is also contended bv the learned counsel for the .petitioner that the petitioner was in eniployment under respondent No.l/Company from 1-1-1984. It is further contended that the petitioner had completed tvventy years of service. It is also contended that without holdmg a regular enquiry as contemplated under Certified Standmg Orders, the services of the petitioner have been terminated. It is contended that sunUarly situated persons against whom charge sheets have been issued are working and even theu- suspension has been revoked. 5. Retum. has been filed on behalf of respondent No.2. It is submitted that fhe case of respondents no.l to 4 is that Panna Ram. alongwith five other Carriers were deputed as Explosive Carriers with the petitioner. It is contended that at about 10.30 A.M. blasting was done. It is further contended that shots were flred by the petitioner, when Panna Ram. was at the face to be blasted, without taking care to remove the persons from the blasting zone. Thereafter the body of the deceased was found. It is also contended that the petitioner was assisted by six Explosive Carriers, out of them Shri Rajendra was with the petitioner, Shri Ganesh and Shri Bishram were on Saiitri duty and they have confirmed that they have given okay signal before blasting and other two Explosive Carriers were not at the place of incident. It is contended that it is established that Panna Ram was at the face and was ehecking the connections, when the petitioner blasted fhe shots. The respondents contended that a ^jirelim.tnary enquir;7 was conducted and statenient of the petitioner was also recorded, who had con&rmed that when he blasted the shots, he was not aware of any injury to anybody. It is further contended fhat when the fatal injury to Panna Ram. vvas detected, the petitioner did not inform the Under Manager or Colliery Manager or Sub Area Manager, who were near the mines. 6. It is contended by the learned Senior counsel appearin^ for respondents no. 1 to 4 that as the allegations against the petitioner are of serious natiire, he was placed under suspension wiffa immediate effect. It is further contended that fhe investigation was conducted bv fhe Mines Safety Department and fherein it was found by the Investigating Officer that the petitioner was responsible for fhe fatal accident. It is also contended that vide office order dated 30- 12-2003, the services of the petitioner were terminated witli immediate effect. It is submitted that as per Annexure-R/1 the detailed inquiry is being conducted by the I.S.O., S.E.C.L., and Officials from Directorate General of Mines Safety, Bilaspur Region, which is stUl pending. 7. Shri Vinay Harit, leamed counsel appearing for respondent No.5 also submitted fhat so far as enquir}.' is concerned, it is with respect to safety, which is stUl pendmg. The opportunity was given but report was not submitted. It is further submitted that so far as conduct of the petitioner is .concemed, it is governed by the Certified Standing Orders. "t 8. The parties do not dispute ffaat ffae Certified Standin^ Orders are applicable. Clause 28 relates to procedure for imposition of penalties. Clause 28. 1 stipulates that at Uie enquiry, ffae workaian concerned shall be afforded reasonable opportunity of defenduig himself. The workman concerned shaU. be entitied to be represented or assisted by a co-worker or office bearer of a trade union of which he is a member if so requested by him during the enquiry. Clause 28.2 stipulates that during the period of enquiiy Che workman may be placed under suspension. The order of suspension pending enqLiir^' shall be in writing and shall be foUowed by a charge sheet wifhin three davs setting out the misconduct aUeged against him tn case the charge sheet cannot be issued simiiltaneously. He shall not lea.ve station without the permission of the management. Clause 28.5 stipiilates that if after enqvicy or conclusion of ftie crinim.al proceedings a workm.an is held guilty of the charges alleged agatnst htm or some ofher charges brought ui the course of fhe enquir}" or is convicted hi fhe cnmtnal proceedtngs and is consequently discharged or dismissed, he shall not be entitled to any remuneration for such period other than the subsistence allowance atready pald to him. If a penalty other thaii dismissal, discharge or removal is uuposed on him or he is exonerated of charges against him or he is not convicted in tlie criminal proceedings, he shall be paid the differeiice of ^the subsistence allowance ak-eadv uaid to him aiid the wages l^ which he would have got tf he had not been suspended except ui case where he is suspended not exceeding ten days, as a measure of punishment. Clause 28. 10 stipulates that the proceeduigs of departmental enquirv' shall be in writing. Where after the enqutr^' it is proposed to unpose any punishment against a workman, a copy of fhe enquiiy report shall be given to hira. The workm.an shaU also be given aii opportunity to inspect the day to day record of enquirv' proceedings. 9. The docunients have been perused. Though the preliminary enquiry has been held but regular enquuy has not been held. The opportunity to cross-examine the witnesses has also not been given to the petitioner; even the witnesses have not been examtned before him. The questions were put in preltm.maiy enqiriry and the petitioner has come out with hls own version and denied that he is responsible. This can be done by regular inquiry. The doci.unents also go to suggest that the similarly situated persons against whom charge sheets have been issued are working and even tlieir suspension has been revoked. 10. Counsel were pointedly asked as to whether there is any provision or power to dispense with the iaquiry like oiie, which is prescribed Lmder Riile 19 (ii) or (iii) of the Civil Services (Classification, Control and Appeal) Rules, 1966. Sliri Nair, learned Senior Counsel appearing for respondents No. 1 to 4, faii-ly stated that the matter is not governed by the CivU Services Rules but is governed by the Certr&ed Standia^ Orders. 11. Leamed counsel for the petitioner placed reliance upon the judgment of the Apex Court reported in AIR 1985 SC 251 {Workinen of Hindustan Steel Limited and Another Vs. Hindustan Steel Limited and Othersj. It was a case where fhe inqutry was dispensed with. In that case, Standing Order No.32 was there but ui the present case it is not there. The Apex Court held as ixnder: 'Standing Order No.32 nowhere obligates the General Manager of a plant belonging to Hindustan Steel Ltd., to record reasons for dispensing ivith the inquiry as presci'ibed by S.O. 31. On the contrary, the language of S.O. 32 enjoins a duty upon the Ceneral Manager to record reasons for his satisfactioji why it was inexpedient or cigainst the interest of the security of the State to continue to employ the workman. Reasons for dispensing ivith the inquiry and reasons for not continumg to employ fhe workman stand wholly apart from each other. A Standing Order which confers such arbitrary, uncanalised and drastic power to dismiss an employee by merely stating that it is inexpedient or against the interest of the security to continue to employ the workman are violative of the basic requirement of naturaljustice incismu.ch as the General Manager can impose penalty of such a drastic nature as to affect the livelihood and put a stigma on the character ofthe workman without recording reasons why disdplinary inquiry is dispensed with and what was the misconduct. alleged against the employee. It is time for such a public sector undertaking as Hindustan Steel Ltd., to recast S. 0.32 and to bring it in tune wifh the ohilosoohv ofthe CoTistitution.' /® 12. Learned counsel for the petitioner further placed reliance upon the judgment of the Apex Court tn the case of Sur Bncunel and Stcmtping Works Ltd. ys. The Workmen reported in AIR 1963 SC 1914. The Apex Court has held as under: "An enquiry cannot be said to have been properly held unless, (i) the employee proceeded cigain.st has been informed clearly ofthe charges leveled against him, (ii) the witnesses are examined - ordinarily in the presence of the employee - in respect of the charges, (iii) the employee is given afcdr opportunity to cross examine witnesses, (iv) ke is given a fair opportunity to examine witnesses including himself in his defence if he so wishes on any relevant matter, and (v) the enquiry officer records hisfindings with reasons for the scane in his report. *' It is submitted that m the present case the aforesaid compliance has not been made. 13. Learned coiinsel for the petitioner also placed reliance upon the judgment of fhe Apex Court in the case of M/S Glaxo Ldboratories (I.) Ltd. vs. Presiding Officer, Labour Court. Meerut and others reported m AER 1984 SC S05. The Apex Coiirt has held as under: "..... Certified Standing Orders have more or less a statutory flavour. If that be so, ordinary canons of construction of a statute ivould be attracted where a dispute arises about the construction or interpretation of a Certified Standing Order. No canon of construction of a statute is more firmly established than this that the purpose of interpretation is to give effect to the intention underlying the statute and therefore unless the grammatical construction leads to an absurdity, it is safe to give words their natural meaning because the framer is presumed to use the language which conveys the intention. If two constructions are possible, it is equcdly well established thal the construction which advances the intention of the legislation, remedies the mischief to thwart which it is enacted should be accepted. The Act was enacted for ameliorating the conditions of the workers and therefore conditions of seruice prescribed thereunder naist receive such interpretation as to advance the mtendment underlying the Act and defeat the mischief. " 14. Learaed coiinsel for the petitioner placed reliance upon fhe judgment of the Apex Coiirt tn the case of Lak.shtni Preclsion Screws Ltd. vs. Rtun Bhciaat reported in 2002 f6) SCC 552, wherem the Apex Court has held that the removal of tfae employee's naine from the muster roll is arbitrary. Leamed counsel also placed reliance upon fhe judgment of the Apex Court in the case of Uptron India Ltd. vs. Shantsni Bhcuz and wwther reported in 1998(6) SCC 538 wherein fhe Apex Court has held as under : l!Any clause in Certified Standing Orders providing for automatic temdnatton of service of a permanent employee, not directly related to 'production' in a factory or industrial establishment, would be bad if it does not purport to provide an opportunity of hearing to the employee whose services are treated to have come to an end automatically.s 10 This Court has considered the entire matter and perused the record, which has been produced and admitted position is fhat regular enqrury as contemplated under Certified Standing Orders has not been held. In view of the settled legal position, the dismissal of the petitioner without holduig an inquuy as required under Certt&ed Standuig Orders is not sustainable and is Uable to be set aside. 15. One question however remains i.e. regarding alternative remedv as it was contended that altemative remedv of raisins the dispute before the Labour Court is there. 16. The rule of exclusion of writ jurisdiction by avallability of an alternative remedv is a rule of discretion and not one of compulsion. In an appropriate case, in spite of availability of the alternative remedv, the High Court mav stiU exercise its writ jurisdiction. The Hon. Apex Court in catina of judgments has held so. This Court while consideriiig vai'ious judgments of the Hon. Apex Court has also held so in the case of K.P. Chctndrawanshi emd others vs. National Themial Power Corporation Limited and others reported in 200411} CQLJ26S. Paragraphs 17, 18,19,20 and 21 of the said judgment are pertiiient, wliich are quoted belovv: "17. In this connection, the settled law is that the question of altemative remedy is ru.ie of discretion and not the rule of law. The Hon'ble Apex Court in the matter ofABL Intemational Limited and another ^., Vs. Export Credit Guarantee Corporation of India \ Limited and others held that, 11 'While entertainm.g an objection as to the maintainability of a turit petition under Article 226 of the Coiistitution of India, the Court should bear vi mind the fact that the power to issue prerogative writs underArticle 226 ofthe Constitution is plenary in natu.re and is not limited by any other provisions of the Constitution. The High Court having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. The Court has imposed upon itself certain restrictions in the exercise of this power (See ; Whtrlpool Corporation Vs. Registrar of Trade Marks, Mumbcd and Others) And this plenary right of the High Court to issue a prerogative writ will not normcdly be exercised by the Court to the exclasion of other available remedies unless such action of the State or its instrumentality is arbttrary and unreasonable so as to violate the constitutional mandate of Article 14 or for other valid and legitimate reasons, for zuhich the court thinks it necessary to exercise the saidjurisdiction. In para 27 of the above judgment, the Court has held that 'following legal principles emerge as to the maintainability ofa writ petition :- a) In an appropriate ccise, a writ petttion &s against a State or an instrumentality ofa State ariswig aut of a contractual obligation is maintainable. bj Merely because some disputed questtons of facts arisefor consideration, same cannot be a ground to refuse to entertain a writ petition in all cases as a matter ofrule. c) A writ petition involving a consequential relief ofmonetary claim is also maintainable. ' 18. Therefore, in view ofthe above judgment ofthe Hon'ble Apex Court, the writ petition is also maintainable where some disputed questions of facts arisefor consideration and also in appropriate cases where the writ petition is against a State or an instrumentcdity of a State arising out of a contractual obligation is maintainable. The petitioners' case is that they were appointed by the NTPC cmd their appointment letters contain the terms and conditioiis of the service. Now in violation of those terms and conditions the services 12 of fhe petitioners are being transferred to BALCO. Therefore, in the above circumstances, we are ofthe opinion that the lurit petitions are maintainable. In the present writ petitions the only question involved is of the interpretation of various appointment letters, the agreements entered into between the NTPC & BALCO and that the NTPC is acting agaii-tst the contractual obligations arising out of the terms and conditions oftheir appointment. 19. In the matter of Radha Samantha Vs. Bank of India and others the Hon'ble Apex Court held that:— 'The powers under Article 226 could be exercised for the enforcement of fundamental rights and also for any other purpose. tt was, fherefore, open to the Single Judge to issue an appropriate direction to the respondent Bank, if otherwise justifiable on facts. It was also not improper for the Single Judge to look into undisputed documents and to infer as to the status of employment of the appellant. Examination of undisputed facts is not debarred in aproceeding underArticle 226. ' The Hon'ble Apex Courtfurther goes to hold that 'Powers under Article 226 of the Constitution could be exercise for the enforcement of fundamental rights available under Part nl of the Constitutmn and also for any other purpose. High Courts have often exercised their power under Article 226 of the Constitution for enforcement of a legal right. It is, therefore, open to the leamed Single Judge to issue an appropriate direction to the respondent Bank, if otherwise justifiable on facts. To make matters clear, we may ci'te Style (Dress Land) Vs. Union Territory, Chandigarh in which this Court held that:- 'Action of renewability should be gauged not on the nature of fimction but public nature of the body exercising that function and such action shall be open to judicial review even if it pertauis to the contractaal field.! 20. In the matter ofHarbanslal Sahnia and another Vs. Indian Oil Corporation Ltd. and others, the Hon'ble Apex Court held that 13 'The rule of exclvsion of writ jurisdiction by availability of an altemative remedy is a rule ofdiscretion and not one of convpulsion. £ian appropriate case, m. spite of availability ofthe altemative remedy, the High Court may still exercise its ivrit jurisdiction in at least three contingencies; (i) uihere the ivrit petition seeks enforcement of any of the flindamental rights; (ii) ivhere there is failure of principles of natural justice; or (iil) where the orders or proceedings are vjholly without jurisdiction or the vires ofan Act is challenged.' 21. In the instant case, the petitioners have challenged the contractual obligations and also that some of the employees of BCPP have been transferred to other projects of the NPTC, whereas, the petitioners are not being adjusted, therefore, this action ofNTPC is arbitrary, unreasonable, and violative of Article 14 ofthe Constitution of India. Therefore, the writ petitions are mcdntcdnable, ifitis otherwise justifiable on facts and wrtt can be issued for any other purpose also. In view of the above laivs laid down by the Hon'ble Apex Court, we are of the opinion that the objections raised by the leamed counsel for the respondents about the matntainability of these writ petitions is not sustainable.' This Court has considered and is of the opinion that flie objection regarding mauitainability is not sustainable. 17. Having exaiained the entlre niatter, in fhe opinion of this Court, this is an appropriate case where the principles of natural justice have been violated and the dismissal from service is per se arbitrary and ui contravention of the Certified Standing Orders. Accordingly, the impugned order dated 30- 12-2003 (Annexure-P/3), so far as it relates to dismissal from service, is set aside with liberty to the respondents to hold an tnqulry in accordance with law. It is however dii'ected that the petitioner, who was placed under suspension pursuaiit to Hande/- 14 -<»" fhe order Annexure-P/1 shall continue to reniain under suspension till the mqutry is completed. 18. Leamed Senior Counsel appearing for respondents no. 1 to 4 subiaitted that if the inquiry is to be held, it may be from fhe stage where it was left. 19. So far as fhe aforesaid aspect is concerned, sulSce it to say it is directed fhat fhe inquiry be held tn accordance with ^ law. Sd/- Fakhruddin Judge 27-8-2004