Maheswar Goura vs M/S Eastern Coalfields Limited & ...
2022 Latest Caselaw 544 Cal

    27
15.02.2022

Ct. No.23 pg.

IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURISDICTION APPELLATE SIDE (Through Video Conference)

WPA 1008 of 2022

Maheswar Goura Vs.

M/s Eastern Coalfields Limited & Ors.

Mr. Sharanya Chatterjee ... For the petitioner

Mr. Bijoy Kumar ... For the ECL

The petitioner, Maheswar Goura, claims to be the

son of late Sadai Goura and Smt. Rangabati Goura. The

petitioner was given appointment in Eastern Coalfields

Limited (in short "ECL") as the son of Rangabati Goura,

since deceased, who was a wagon loader in ECL and

availed voluntary retirement. ECL, while the petitioner is in

service received a complaint from one person who claimed

that petitioner is actually Abhimanya Goura, son of one

Nakul Goura, and not the son of late Sadai Goura and

Rangabati Goura. The petitioner's claim that he was the

son of late Sadai Goura and Smt. Rangabati Goura was,

therefor, doubted by ECL which led to issuance of a show

cause to the petitioner. The petitioner replied to the show

cause which was considered to be unsatisfactory. ECL by

that time conducted an enquiry through the police and the

Block Development Officer which revealed that Rangabati

Goura was issueless. As a result whereof on 25th January,

2005, a charge-sheet was issued with the following charge:

"As such you are hereby charged under Section 26.1 for dishonesty in connection with employer and under clause 26.9 for giving false information regarding one's name, age, father's name, qualification etc. in connection with employment."

A supplementary charge-sheet was issued on 27th

December, 2005 wherein the petitioner was accused of

having committed misconduct under clauses 26.1 and

26.9 of the Standing Order applicable to the Wage Board

employees of ECL. The issuance of the two charge-sheets

prompted the petitioner to file a Title Suit before the Court

of learned Civil Judge (Junior Division), 2nd Court at

Asansol which was numbered as Title Suit No.219 of 2006.

In the said suit, amongst others, the following two issues

were framed:-

"4. Is the plaintiff son of Smt. Rangabati Goura and Late Sadai Goura?

5. Whether a declaration can be passed that the defendants given appointment the plaintiff under female V.R. Scheme as nominee of Smt. Rangabati Goura on the basis of confirmation of relationship with the plaintiff and identification of plaintiff as nominee made by Smt. Rangabati Goura before management of defendant company?"

The said two issues were decided in favour of the

petitioner and by a decree dated 23rd December, 2015. It

was declared that the plaintiff is the son of Smt. Rangabati

Goura and late Sadai Goura on contest. ECL preferred an

appeal as against the said judgment and decree by filing

Title Appeal No.7 of 2016. The said Title Appeal was

decided by a judgment and order dated 16th August, 2019

by the learned Civil Judge (Senior Division), 2nd Court,

Asansol. In the appeal, the declaration that the petitioner

is the son of Smt. Rangabati Goura and late Sadai Goura

was affirmed. However, the First Appellate Court rejected

the prayer for aid and assistance of a learned advocate to

be present in the defence of the petitioner in the

departmental enquiry and that part of the decree was set

aside.

The petitioner has filed the instant writ petition,

inter alia, directing cancellation and/or setting aside of the

charge-sheets dated 25th January, 2005 and 27th

December, 2005.

The principal thrust of the petitioner in support of

cancelling and/or setting aside the charge-sheets is the

declaration in the Title Suit and its affirmation in the Title

Appeal. The petitioner says that the enquiry on the basis of

the two charge-sheets cannot be proceeded with any

further in view of the declaration by the civil Court as

affirmed by the First Appellate Court.

The petitioner has relied upon a judgment reported

in 1985 Supreme (MP) 572 (Kailashnath Mishra v. Jiwaji

University Gwalior). In the said case, a suit was filed by the

employee against the employer for non-payment of his

salary and allowances for a particular period. While

deciding the said suit, the learned 2nd Additional District

Judge, Gwalior held that the plaintiff in the said suit did

not take any job during the period for which the University

did not pay him the salary and allowances. Subsequently,

a departmental proceedings was initiated on two charges -

one of which was unbecoming of an employee of the

University for having violated certain statutory provision

and for making defamatory allegations against the officers

of the University. In such backdrop, the learned Single

Judge of the Madhya Pradesh High Court held that the

issue involved in the two proceedings, i.e., the civil suit

and the departmental proceedings being identical and

arising between the same parties, the same issue could not

be litigated once again. The petitioner says that once there

has been a declaration from a civil Court which is upheld

by the First Appellate Court, the issue before the enquiry

proceedings will amount to litigating on an issue already

decided by a competent Court.

The petitioner has relied upon two other judgments

- one reported in (1975) 4 SCC 690 (Bombay Gas Company

Limited v. Jagannath Pandurang) and the other reported in

2017 Supreme (P&H) 2723 (Surinder Kumar Sharma v.

Haryana Agro Industries Corporation Limited & Ors.) on

the point that the departmental proceedings initiated on

the basis of the two charge-sheets is barred by res

judicata. The petitioner says that two simultaneous

proceedings cannot be allowed to proceed before Court in

view of the principles analogous to Section 11 of the Code

of Civil Procedure, 1908 by citing the latter two judgments.

In the instant case, there are two charges

altogether against the petitioner before the Enquiry

Proceedings/Disciplinary Proceedings. The first charge is

of dishonesty in connection with the employer and

misconduct. The factual allegation that the dishonesty in

connection and the misconduct may arise from the

assertion by the employer that the petitioner has

fraudulently represented himself as the son of Smt.

Rangabati Goura and late Sadai Goura, but on that basis

the enquiry proceedings cannot be interfered with at this

stage. Firstly, because the enquiry proceedings was a

previous one and the suit was a result of such charge-

sheet. If the enquiry proceedings is stalled, then it will

amount to civil Court indirectly interfering with the

enquiry proceedings on having decided a subsequent suit

before the enquiry proceedings could be completed. That

apart and in any event, the Enquiry/Disciplinary

Proceedings is a quasi-judicial proceeding and not a suit

where the statement of proof is different. The petitioner is

free to rely upon the decree of the Civil Court in the

Enquiry/Disciplinary Proceedings in accordance with the

provisions of Indian Evidence Act, 1872. Secondly, the

principles of res judicata is not applicable in the instant

case where the charges against the petitioner are of

dishonesty and misconduct, although the same may have

been issued on a factual assertion, a portion of which has

been considered and decided by a civil Court. The charges

of dishonesty and misconduct have not been considered

and decided by the Civil Court. It may so happen that

charges of dishonesty and misconduct are proved against

the petitioner even if the finding of the Civil Court is

accepted by the Disciplinary Authority. On the third count,

the interference to an enquiry proceedings is very rare and

that too if palpable illegality is foisted against the employee

as held in (2015) 2 SCC 610 (Union of India v. P.

Gunasekaran). Nothing of such nature has been

demonstrated to have been done by the ECL, the employer

as against the petitioner. Fourthly, a civil suit and a

disciplinary proceedings stand on a different footing and

are permitted to be continued parallelly. The disciplinary

proceedings is on the basis of the employer loosing

confidence on the employee. It may be established in the

enquiry proceedings that despite the declaration from the

civil Court to that effect that the petitioner is the son of

Smt. Rangabati Goura and late Sadai Goura, the employer

has lost confidence in the petitioner to keep him engaged.

The petitioner has cited a judgment reported in

(1983) 1 SCC 124 (The Board of Trustees of the Port of

Bombay v. Dilipkumar Raghavendranath Nadkarni & Ors.)

in support of the proposition for appointing a legal

practitioner as a defence counsel in the enquiry

proceedings held in terms of the two charge-sheets dated

25th January, 2005 and 27th December, 2005. In the said

judgment, the Hon'ble Supreme Court was considering the

provisions of Regulation 12(8) of the Bombay Port Trust

Employees Regulations, 1976. The petitioner has not been

able to show any provision pari materia to Regulation 12(8)

to be prevalent in ECL to persuade this Court to accept the

ratio as laid down in Dilipkumar Raghavendranath

Nadkarni (supra). That apart and in any event, in the

appellate decree dated 16th August, 2019, the First

Appellate Court has specifically turned down the

representation of the petitioner in the enquiry proceedings

by a legal practitioner.

This being the position, unless the first appellate

decree to the extent disallowing the petitioner to be

represented by the legal practitioner in the enquiry

proceedings is altered, there is no question of this Court

sitting in writ jurisdiction to act as the second appellate

court to allow the petitioner to be represented by a legal

practitioner before the enquiry proceedings.

In the aforesaid facts and circumstances, the writ

petition is devoid of merit and is accordingly dismissed.

Urgent photostat certified copy of this order, if

applied for, be given to the parties, upon compliance of

necessary formalities.

(Arindam Mukherjee, J.)