Naresh Bahadur Singh vs Western Coalfields Ltd. Thr. ...
2021 Latest Caselaw 11530 Bom

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              -
                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                            NAGPUR BENCH, NAGPUR.


                          WRIT PETITION NO. 1565 OF 2021


 Naresh Bahadur Singh, aged
 about 59 years, Occu: working as
 Sr. Manager Personnel, WCL Hqrs.
 Nagpur, R/o. 301, Samhita Apartment,
 Behind IOC Petrol Pump, Utkarsh Nagar,
 Post : Katol Road, Nagpur - 440 013.
                                                               .... PETITIONER.

                                     // VERSUS //

 1. Western Coalfields Limited,
    Through its Chairman cum Managing
    Director & the Disciplinary Authority,
    Coal Estate, Civil Lines, Nagpur-440001.

 2. Coal India Limited, through its
    Chairman cum Managing Director &
    Appellate Authority, Coal Bhawan
    Premises, 04 MAR, Plot No.AF-III,
    Action Areal-A, New Town, Rajarhat,
    Kolkata 700 156 (West Bengal)

                                                  .... RESPONDENTS.
  ______________________________________________________________
 Shri M.M.Sudame, Advocate for Petitioner.
 Shri D.L.Dharmadhikari, Advocate for Respondent Nos.1 & 2.
 ______________________________________________________________

                           CORAM :    SUNIL B. SHUKRE AND
                                      ANIL S. KILOR, JJ.

                           DATED :    AUGUST 23, 2021

 ORAL JUDGMENT : (Per : Anil S. Kilor, J.)




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                   Heard.

2. RULE. Rule made returnable forthwith. Heard finally by

consent of the learned counsel for the parties.

3. This petition raises a question as to the legality and

validity of the order dated 20th February 2020, imposing punishment of

reduction to one stage lower in time scale of pay for a period of one

year, upon the petitioner.

4. The brief facts emerged from the present petition, are as

follows :

i. The petitioner was charged with the allegation that the

petitioner while working as Senior Manager (Personnel) at Western

Coal Fields Limited ("WCL" for short) Headquarters, Nagpur during the

period 2013-14, was the dealing officer under clause 9.4.0 of NCWA-VI,

relating to cases of the employees medically unfit and he has miserably

failed to observe the guidelines and because of which most of the

employees who crossed of 58 years of age have been declared unfit

which resulted in providing employment to the dependent of such

employees causing sustained financial burden on the Company for the

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next 32 to 35 years.

ii. Consequently, the inquiry was conducted under Rule 29 of

the Coal India Executives' Conduct, Discipline and Appeal Rules, 1978

(hereinafter referred to as "Rules of 1978") of Coal India Limited, in

the above referred charge.

iii. The inquiring authority after conducting full fledged

inquiry submitted its report holding that the charges have not been

substantiated, against the petitioner.

iv. However, the disciplinary authority, the respondent no.1

served a show cause notice upon the petitioner alongwith his 'dissent

note' and the inquiry report calling thereby an explanation, which was

accordingly, submitted by the petitioner. Whereupon, the punishment

of reduction to one scale lower in time scale pay for a period of one

year on expiry of which it will not operate to postpone his future

increments, has been imposed upon the petitioner, which is the subject

matter of the present petition.

5. We have heard learned counsel for the respective parties.

6. Shri Sudame, learned counsel for the petitioner submits as

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under:-

a) The alleged misconduct has not been proved in the inquiry

and the dissent note of the respondent no.1 does not justify the

impugned action.

b) The role of the petitioner in the matter of declaring any

employee as medically unfit is very limited as the declaration to that

respect needs to be made by Medical Board.

c) No material has been produced by the respondents,

pointing out the role of the Senior Manager (Personnel) in such

matters under clause 9.4.0 of the guidelines, to declare any employee

medically unfit.

d) There is a difference in clause 9.4.0(i) and 9.4.0(ii) of the

guidelines, therefore, the finding of the respondent no.1 that the

petitioner has committed misconduct is not sustainable in the eyes of

law.

7. Shri Dharmadhikari, learned counsel for the respondents

supports the impugned order and submits that while imposing

impugned punishment principals of natural justice have been strictly

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followed, therefore, no interference is warranted in this case. By

arguing so, he prays for dismissal of the present petition.

8. To consider the contentions raised by the respective

parties, we have perused the relevant documents and gone through the

record.

9. The Hon'ble Supreme Court of India in the case of M/s.

Glaxo Laboratories (I)Ltd. ..vs. Presiding Officer, Meerut 1 has held

thus:-

"....it is, obligatory upon the employer to draw up with precision those acts of omission and commission which in his industrial establishment would constitute misconduct. Penalty is imposed for misconduct. The workmen must, therefore, now in advance which act of omission would constitute misconduct as to be visited with penalty. The statutory obligation is to prescribe with precision in the standing order all those acts of omission or commission which would constitute misconduct...."

10. Thus, it is clear that it is obligatory upon the employer to

draw up with precision those acts of omission and commission which in

his industrial establishment would constitute misconduct. The

workman must know in advance which act of omission would

constitute misconduct. The statutory obligation is to prescribe with

precision in the standing order all those acts or omission or commission

1 AIR 1984 SC 505

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which would constitute misconduct.

11. In the teeth of above referred well settled legal position of

law, we will consider the controversy involved in this petition.

12. The challenge in this petition revolves around the role of

the petitioner as a Senior Manager (Personnel) while signing a note

relating to cases under the NCWA guidelines i.e. cases of employees

Medically Unfit. At this juncture therefore, it would be appropriate to

refer to clause 9.4.0, which reads thus:

"9.4.0. Employment to one dependent of a worker who is permanently disabled in his place.

(i) The disablement of the worker concerned should arise from injury or disease, be of a permanent nature resulting into loss of employment and it should be so certified by the Coal Company concerned.

(ii) In case of disablement arising out of general physical debility so certified by the Coal Company, the employee concerned will be eligible for the benefit under this clause if he/she is upto the age of 58 years.

The term 'general physical debility' would mean deficiency of a workman due to any disease or other health reason leading to his/her disablement to perform his/her duties regularly and/or efficiently."

13. It is clear from the clauses 9.4.0(i) and 9.4.0(ii), that both

the clauses are separate. Clause 9.4.0(i) relates to disability arising out

of injury or disease and clause 9.4.0(ii) relates to disabilities arising out

of general physical debility which attracts age bar of 58 years, which is

relevant for the case in hand.

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14. We will now refer to the charge levelled against the

petitioner, in this matter, which reads thus:

"ARTICLE -1 That, Shri N.B.Singh, EIS 90121039, Senior Manager (P) is functioning as dealing officer of 9.4.0 medical unfit cases WCL Nagpur from Dec., 2009 to till date.

That, Shri N.B.Singh, EIS 90121039, Senior Manager (P), WCL while functioning as dealing officer of 9.4.0 medical unfit cases in IR department WCL Nagpur during the period of NCWA-IX (which adopted the provisions of NCWA-VI under clause 9.4.0) has miserably failed to observe the guidelines while processing the proposals of following employees at HQ level for 9.4.0 medical board viz. (1) Shri Malkhan Khutiya Pal, Sr. Security Guard, Umrer Area, date of medical board 23-12-2013; (2) Shri Vimal Kumar, Asst. Transport Supervisor, Pench Area, date of medical board 26-12-2013; (3) Shri Godhe S/o. Manak, Belt Optr. Pench Area, date of medical board 25-06-2013; and (4) Shri Krishna Gulab Patil, Roof Bolt Crew/ Support, Nagpur Area, date of medical board 24-12-2014.

That, due to failure to follow the guidelines under clause 9.4.0 of National Coal Wage Board Agreement-IX, most of the employees who crossed 58 years of age have been declared unfit and thereby provided dependant employment to their wards, and undue advantage for providing appointment to the dependents causing sustained financial burden on the company for next 30/35 years.

Thus, the above said acts of omission/ commission on the part of Shri N.B.Singh, Sr. Manager (P), WCL has contravened the provisions of Rule 4.1(i), 4.1(ii); 4.1(iii); 4.2 & 4.6 which amounts to misconduct as defined under Clause 5.1; 5.5. 5.9 & 5.26 of Conduct, Discipline and Appeal Rules, 1978 (amended up to 2000) of Coal India Limited. "

15. The petitioner denied the said charge by filing his detailed

written statement of defence to the memorandum issued by the

respondents dated 16/10/2017. Thereupon the enquiry was conducted

and the Enquiry Committee recorded his conclusions which being

relevant for the purpose of this case are, therefore,

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reproduced hereunder:

"CONCLUSION The four cases for which charges are framed comes under NCWA-IX. And the agreement provides employment to the dependants of employee as per Clause-9.4.0 of NCWA-VI. The relevant portion of the provisions of NCWA-VI is as below.

(i) The disablement of the worker concerned should arise from injury or disease, be of a permanent nature resulting into loss of employment and it should be so certified by the Coal Company concerned.

(ii) In case of disablement arising out of general physical debility so certified by the Coal Company, the employee concerned will be eligible for the benefit under this clause if he/ she is upto the age of 58 years.

The term "general physical debility" would mean deficiency of a workman due to any disease or other health reason leading to his / her disablement to perform his/ her duties regularly and/ or efficiently.

Further the NCWA-IX also provides as below-

(i) The Clauses 9.3.0, 9.4.0 & 9.5.0 of NCWA-VI will be operative in NCWA-IX till a revised scheme is jointly prepared keeping in view the various verdict of Hon'ble Supreme Court at the earliest.

(ii) A Sub-Committee of JBCCI will formulate a scheme keeping in view various directives of Supreme Court on the subject within three months of signing of the Agreement. From the above it is clear that in Clause (i) disablement of the worker concerned should arise from injury or disease be of a permanent nature resulting into a loss of employment and it should be certified by the Coal Company concerned. This clause is applicable only for persons who has become a disable because of injury or disease.

Clause-(ii) is applicable for disablement out of General Physical Debility due to any disease or health reason. These two clause are different and restriction of age limit of 58 years is applicable in case of general physical debility. So far the judgment of Hon'ble High Court of Madhya Pradesh is concerned, no sufficient background papers of arguments submitted before the Hon'ble High Court was produced during the course of inquiry, neither by PO nor by CO. There are also no evidence produced before the inquiry regarding instructions from the Coal India for applicability of the judgment of Hon'ble High Court of Jabalpur, across all the Subsidiaries of CIL.

In the entire case the involment of Shri N.B.Singh is that he was the officer to whom all the cases from Areas are forwarded for placing before Medical Board of the Company for medical examination and for their recommendation or rejection to the Competent Authority for necessary approval and further

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provision of employment.

Main charge against the CO that Shri N.B. Singh he has placed the four employment cases in which the employee has crossed the age limit of 58 years. In my concluding para itself I made it clear that age limit as mentioned in NCWA-VI is for the cases those who comes under the clause of debility. It is also be made clear that whether the case comes under debility or permanent disability because of injury or disease has to be decided by the Medical Board and not an officer who merely places the papers before the Medical Board Shri N.B.Singh has well highlighted the age of employee in all the four cases in the application itself. Further during the course of inquiry, a statement indicating age of each employee which was submitted to the Medical Board indicating age of each employee was also produced during the course of inquiry.

Taking into account the above facts, evidences and circumstances the charges including the imputations of misconducts in support of the article of charges in respect of Shri N.B.Singh, Sr.Manager (P)/IR, WCL (HQ), Nagpur, vide Memorandum No. WCL/CMD/VIG /17/1663 dated 16.10.2017, have not been substantiated."

16. The respondent No.1 thereafter on 10/10/2019 issued a

memorandum, providing an opportunity to the petitioner to submit his

final representation in defence against the dissent note, within 10 days

from the receipt of the said memorandum.

17. In the said memorandum the respondent No.1 has

observed that the respondent No.1 after careful examination of the

enquiry, is of the considered opinion that the Article of Charges is

proved against the petitioner. The respondent No.1 provided enquiry

report as well as 'dissent note' along with memorandum to the

petitioner for his reply. The points of dissent, are as under :-

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 i.      If IR unit has only role to forward the proposals received from field units

to medical board in respect of these cases as per defense submission, arguments and also agreed by IA as the article of charges have not been substantiated by him, then what is the role of IR unit w.r.t these cases. Argument of mere forwarding role from a senior officer from IR unit cannot be accepted as IR unit has been issuing instructions, clarification, w.r.t. such cases and has also the responsibility of getting the schemes implemented in its true spirit, which did not happen in this case.

ii. After implementation of NCWA-IV, a moratorium on operation of 9.4.3 of NCWA-IV was given by the Director (P) CIL for six diseases issued vide letter No.3207 dated 13th Sept. 1994, where age bar was withdrawn. Subsequently, this circular was superseded by another circular issued by Director (P), CIL on 10th May 1996 vide letter No. 4084. This clearly states that the withdrawal of age bar that too for 6 diseases was exclusively for this period i.e. 13th Sept. 1994 to 10th May 1996 only.

iii. IA further agreed that the CO has mentioned the age of all the four employees in the medical unfit application under 9.4.0 of NCWA - VI. The age criteria has been crucial part of the whole case, as no where it has been found stated while declaring one medically unfit or in any proposal submitted by the IR unit through GM, to the medical board, as this is disablement of permanent nature amount to loss of employment or of general physical debility. This responsibility lies on the unit submitting the proposal for consideration by medical board and the medical board to certify on behalf of Coal Company as stated in clause 9.4.0. in absence of any cogent guidelines w.r.t. which disease would fall in the category of 9.4.0(i) and which in 9.4.0(ii). Although workmen's compensation act, though referred to be followed in NCWA for compensation i.e. clause 9.2.0 and not actually refers to clause 9.4.0, it broadly would have clarified for permanent disability etc. in case of ambiguity. But the clause 9.4.0 (i) and (ii) refers for consideration of disablement as so certified by Coal Company concerned and the IR unit sending proposal to medical board and the medical board which finally recommends the case, have responsibility considering the employment to be given against it and by mere stating that IR job is to forward the case to medical board does not hold good.

iv. Further IA did not appreciate the attendance particulars of the workmen, whose cases have been forwarded to Medical Board. The attendance particulars of workmen do not show that due to disease or other health reason has lead to disablement and has affected his

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performance in the work place.

v. IA is of opinion that no evidence was produced to make the applicability of High Court decision across all the subsidiaries of CIL. It is apparently correct that no instructions based on the judgment of Hon'ble High Court of M.P. has been found issued by any authority. But that does not mean that it would not have any applicability for similar case? Hon'ble High Court of M.P. in its judgment on 12th Nov. 2013 in Virendra Chand Vs. Northern Coalfield Ltd. (Writ Petition No.9018/2011(s) in a similar case of seeking employment by employee against 9.4.3 of NCWA-IV for his son (petitioner) has dismissed its plea which was turn down by NCL based on petitioner's father had crossed 58 years and not entitled to seek companionate appointment as per provisions in NCWA-VII. Hon'ble Court while considering relevant provisions under NCWA-IV, VI and VIII in its order, stated as "Fair reading of this provision no way establishes that an employee crossing 58 years of age retiring on medical ground would entitle him to seek appointment of his dependent on compassionate ground and relief as sought by petitioner seeking appointment on compassionate ground cannot be granted.

18. The respondent No.1 after going through the

memorandum, the enquiry report and the response submitted by the

petitioner to the second show cause notice, issued the impugned order

dated 20th February, 2020, holding that the petitioner has not taken

cognizance of the Madhya Pradesh High Court order and also did not

take cognizance of attendance of employees, whose case has been

forwarded by him to General Manager (P)/IR for onward submission to

Medical Board under Clause 9.4.0, despite knowing that this is for

"employment to one dependent of a worker who is permanently

disabled in his place", and imposed major penalty of reduction to one

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stage lower in time scale of pay for a period of one year, on expiry of

which it will not operate to postpone his future increments, upon the

petitioner.

19. At page 209 of the paper book, a letter written by General

Manager to the Member of Parliament on 12/09/2013 depicts the

process to be followed as regards cases under clause 9.4.0. The

relevant portion of the said letter is reproduced hereunder, which reads

thus:

"The process is that when an employee gives in writing to the unit where he is posted and on receipt of the application, the WO/PO of the concerned unit forward the application with details in the prescribed proforma to Area Medical Officer through Colliery Manager. The Area Medical Officer/examine/ screen the application through Area Medical Committee constituted for the purpose and give its recommendation to Area Personnel Head with intimation to Colliery Manager. Xxxx Personnel Head forward the proposal to GM(P/IR) for getting xxxxx medical examination of the employee concerned under 9.4.0 xxx Board at HQ level. The applications so received at IR Department, are sent to Chief of Medical Services for further action. Subsequently, CMS constitute a Committee comprising of a Doctor Specialist and a Surgeon for the purpose with the approval of Competent Authority. CMS arrange to prepare list of employees and send to Area Personnel Head of concerned Areas with an advice to send the employees to WCL HQ for appearing before the 9.4.0 Medical Board on the scheduled date and time along with ID proof and medical treatment papers. The list so prepared is also uploaded in the website of the company. Further, the Medical Board meets on the scheduled date and examine each employee medically and physically and submit its recommendation to the CMS. CMS after obtaining the approval of competent authority, the list of employees declared medically unfit and fit are sent the concerned Area for further action. The same list is also uploaded in website of the company."

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20. After reading this letter coupled with clause 9.4.0 of the

NCWA Guidelines it is clear that clause 9.4.0 (i) relates to disability

arising out of injury or disease and clause 9.4.0 (ii) relates to

disabilities arising out of general physical debility which attracts age

bar of 58 years. Furthermore, it is also clear that the claim for

disablement arising out of injury or disease or out of general physical

debility, it has to be determined only after medical examination by

Medical Board. Such disability can be declared whether it relates to

clauses 9.4.0(i) or 9.4.0(ii), only after medical examination.

21. Thus, there is no doubt that the issue of providing

employment to eligible dependent of the medically declared disabled

employee, arises only after medical examination.

22. Admittedly, in this matter the petitioner is a Senior

Manager and not the Member of Medical Board. The words 'then what

is the role of IR unit with respect to these cases', used in first charge

mentioned in 'dissent note', are sufficient to say that the respondents

are also not clear about the role of the petitioner in alleged misconduct

and raising mere questions. Whereas, it is a settled law that the charge

must be definite and not based on assumption and presumptions.

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23. Thus, without explaining the role of the petitioner while

forwarding the proposal received from the field units to Medical Board,

for declaring any employee as medically unfit, it has been held that the

petitioner is guilty of misconduct. Equally other points mentioned in

the 'dissent note' which is reproduced herein above, nowhere it speaks

about the specific role of the petitioner in the whole process.

24. Further, nothing has been brought on record to show that

mere forwarding of a note, constitutes misconduct. In this case the

petitioner has forwarded the note for consideration and examination

by the Medical Board, without commenting anything on disability of

employee or eligibility of dependent of employee to provide

employment.

25. Furthermore, it is not the case of the respondent that the

judgment of High Court of Madhya Pradesh, which is referred in the

charge, was supplied to the petitioner alongwith the necessary

instruction.

26. Thus, without specifying the role of the petitioner in the

whole process of forwarding the proposal received from the field unit

to Medical Board under Clause 9.4.0 and without specifying the powers

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of the petitioner in such matters, the penalty has been imposed by

recording dissent to the findings recorded by the Inquiring Authority.

27. On a specific query put to the learned counsel for the

respondents to show the relevant rules or instructions as regards the

procedure to be followed by the petitioner as a Senior Manager

(Personnel) while forwarding the proposals received from the field

units to Medical Board, Shri Dharmadhikari, learned counsel for the

respondents fairly submits that there is no such instruction or Rules

filed on record. Shri Dharmadhikari further failed to point out how the

judgment of Madhya Pradesh High Court, which is referred in the

dissent note, is applicable to the case of the petitioner for holding him

guilty.

28. In the above referred facts and circumstances and having

considered all the relevant aspects of the matter, we have reached to a

conclusion that the imposition of punishment in this matter on the

petitioner is contrary to the well settled principles of law as there is no

instructions or Rules issued by the respondents for the knowledge of

the employees who are involved in the process of Clause 9.4.0, to make

known to the employees, which act or omission would constitute

misconduct as to be visited with penalty. In absence of the same, we

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are of the considered view that the complete action against the

petitioner is unwarranted and the report submitted by the Inquiring

Authority, after considering the complete evidence available on record

and after appreciation of all the relevant aspects of the matter, is just

and proper.

29. In these circumstances, we pass the following order:

 I.                The petition is allowed.


 II.               The impugned order dated 20th February, 2020, is hereby

 quashed and set aside.


                   Rule is made absolute accordingly. No costs.




                   ( ANIL S. KILOR, J )            ( SUNIL B. SHUKRE, J.)




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