Kuldip Chouhan vs Bharat Coking Coal Ltd. (In Short ...
2021 Latest Caselaw 1653 Jhar

                                   [1]


          IN THE HIGH COURT OF JHARKHAND AT RANCHI
                              L.P.A. No.686 of 2018
                                      With
                               I.A. No.325 of 2021
          Kuldip Chouhan, aged about 67 years, S/o Late Ram Das Chouhan,
          r/o Dalhaitand Basti (Khas Sijua), P.O. & P.S.-Tetulmari, Dist.-
          Dhanbad
                                                       . ... Petitioner/Appellant
                                         Versus
     1. Bharat Coking Coal Ltd. (in short BCCL), Koyla Bhawan, P.O., P.S.
          & Dist.-Dhanbad.
     2. The Chairman-cum-Managing Director, BCCL, Koyla Bhawan, P.O.,
          P.S. & Dist.-Dhanbad.
                                                  ... Respondents/Respondents
                                     -------

     CORAM:              HON'BLE THE CHIEF JUSTICE
              HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
                                     -------

For the Appellant : Mr. Ajay Kumar Singh, Advocate For the Respondents : Mr. Anoop Kumar Mehta, Advocate

--------------------------

ORAL JUDGMENT

11/Dated 07th April, 2021

I.A. No. 325 of 2021:

1. The matter has been heard through video conferencing.

2. The instant interlocutory application is under Section 5 of the

Limitation Act for condoning the delay of 517 days in preferring the

instant appeal.

3. This Court, after taking into consideration the reason assigned in the

instant application as also considering the fact that instead of

dismissing the appeal on the ground of limitation it would be

appropriate in the ends of justice to decide the appeal on its merit,

accordingly, the delay of 517 days in filing the appeal, is condoned.

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4. In the result, the instant interlocutory application is disposed of.

L.P.A. No.686 of 2018:

5. This is an appeal under Clause 10 of the Letters Patent directed

against the order/judgment dated 13.06.2018 passed by learned

Single Judge of this Court in W.P.(S) No.5001 of 2004 whereby and

whereunder the learned Single Judge has refused to interfere with

the order dated 12.08.2004 by which the claim of the

petitioner/appellant for payment of arrears of salary for the period

from 08.03.2001 to 20.03.2002 in the scale of Rs.11,500/- per

month has been rejected.

6. The brief facts of the case which requires to be enumerated reads as

under:

The petitioner/appellant was appointed on 01.01.1973 as

Tub Cheaker at Tetulmari Colliery of M/s BCCL. He was

transferred to C.V. Area No.12 on 02.07.1997 and soon thereafter

he was transferred to Loyabad Colliery in the month of October,

1997. Subsequently thereafter, he was transferred to SSF Plant,

Bokaro Area in July, 1999 and again to South Balihari Area (P.B.

Area) on 31.12.1999.

According to the petitioner/appellant, in pursuance to all

the orders of transfer he has joined his respective areas and

discharged his duty. The petitioner/appellant again was transferred

to Sijua Area from South Balihari Area (P.B. Area) vide order dated

23.02.2001 at his own request on the condition that he will be

posted other than Loyabad Colliery/Hospital. Accordingly, he was

relieved vide order dated 05.03.2001 and given his joining on [3]

08.03.2001 which was duly received in the office on 08.03.2001

itself but even though his joining has been accepted, he did not get

any place of posting and as such he attended the office of the

General Manager, Sijua area.

The respondent authority again issued an order on

01.06.2001 by transferring the petitioner/appellant at Nichitpur

Colliery and was directed to report to the Project Officer, Nichitpur

Colliery area to which the petitioner/appellant immediately

responded and gave his joining in the office of Project Officer,

Nichitpur Colliery on 12.06.2001.

The petitioner/appellant thereafter, came to know that

there was no vacancy and the Project Officer, NOCP had written a

letter to the Deputy Chief Personnel Manager, Sijua area to post the

petitioner/appellant elsewhere in Sijua area. However, he gave his

joining at Nichitpur Colliery on 12.06.2001 which was duly

accepted but he was not assigned with any work and he was also not

paid salary instead of repeated representation made in this regard,

therefore, he filed a writ petition being W.P.(S) No.973 of 2003 for

disbursement of his arrears of salary for the period from 08.03.2001

to 20.03.2002 in the scale of Rs.11,500/- per month.

The writ Court has disposed of the writ petition being

W.P.(S) No.973 of 2003 by remitting the matter before the

concerned authority to take decision and in turn thereof, a decision

was taken by the concerned authority declining the claim of the

petitioner/appellant that he is not entitled to get the salary since he

has not performed his duty assigned to him.

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The order dated 12.08.2004 has been assailed in the writ

petition being W.P.(S) No.5001 of 2004 which is the subject matter

of the instant intra-court appeal.

7. Mr. Ajay Kumar Singh, learned counsel appearing for the

petitioner/appellant has submitted that the learned Single Judge has

not appreciated the fact while refusing to interfere with the order

dated 12.08.2004 that the petitioner/appellant has not been allowed

to discharge his duty and even though there is no fault lying on the

part of the petitioner/appellant, the salary for the aforesaid period

has been declined to be paid by the impugned order which

according to him is the settled position of law that if there is no fault

on the part of the employee, the salary for the aforesaid period

cannot be withheld.

In that view of the matter, submission has been made that

the order passed by the learned Single Judge suffers from infirmity

and the same is fit to be quashed and set aside.

8. Per contra, Mr. Anoop Kumar Mehta, learned counsel for the

respondents has submitted by defending the order passed by the

learned Single Judge while making submission that the learned

Single Judge by dealing with the matter and appreciating the reason

assigned in the impugned order passed by the respondent authority

has rightly not interfered with the same as because the

petitioner/appellant being an employee of the respondent-company

ought to have given his joining in pursuance to the order of transfer

but he on one ground or the other has not resumed his duty and

taking this fact into consideration the claim for the payment of [5]

arrears of salary for the period from 08.03.2001 to 20.03.2002 has

been rejected which cannot be said to suffer from infirmity.

9. We have heard the learned counsel for the parties, perused the

documents available on record and the finding recorded by the

learned Single Judge in the impugned order.

10. The admitted fact herein is that the petitioner/appellant is claiming

salary for the period from 08.03.2001 to 20.03.2002 on the ground

that he has given his joining in terms of the order of transfer but he

has not been allowed to discharge his duty. Thus, the aforesaid

grievance was not meted out.

The petitioner/appellant had filed a writ petition being

W.P.(S) No.973 of 2003 which was disposed of vide order dated

14.05.2004. It is evident from the aforesaid order that another

learned Single Judge of this Court has quashed the decision of the

authority dated 12/14.03.2002 and remitted the matter before the

Chairman-cum-Managing Director of M/s Bharat Coking Coal

Limited, Koyla Bhawan to apply his mind and pass a fresh order in

accordance with law.

The respondent authority, in terms of the order passed in

W.P.(S) No.973 of 2003 had taken a decision on 12.08.2004 by

which the claim has again been rejected. It is evident from the order

dated 12.08.2004 that the concerned respondent authority while

dealing with the claim of the petitioner/appellant for the salary for

the period from 08.03.2001 to 20.03.2002 has taken into

consideration the fact about his transfer from Putki Balihari Area to [6]

Sijua Area by an office order dated 24.02.2001 in pursuance

thereto, the petitioner/appellant has reported for duty at Sijua Area

on 08.03.2001 and remained at the Sijua Area Office till

01.06.2001.

On 01.06.2001, the petitioner/appellant was posted at

Nichitpur Colliery under Sijua Area which was received by the

petitioner/appellant on 12.06.2001 and on which day the

petitioner/appellant reported for duty at Nichitpur Colliery.

On 18.06.2001, Nichitpur Colliery informed that there is

no vacancy available in the Colliery. However, the

petitioner/appellant was allowed to join duty at Nichitpur Colliery

on 29.06.2001 by virtue of the order dated 02.07.2001 issued by the

Project Officer, Nichitpur Colliery.

The office order dated 02.07.2001 could not have been

served upon the petitioner/appellant as he was neither available nor

reported for duty to the Project Officer, Nichitpur Colliery as would

be evident from the service report of the office peon Sri Bhushan

Rewani, who has clearly stated about the refusal to receive the letter

which contained office order dated 02.07.2001.

However, by virtue of the letter dated 14.03.2002 the

Project Officer, Nichitpur Colliery informed that from 02.07.2001

the petitioner/appellant was absent from duty even though informed

several times but instead of repeated advice given, he has not joined

duty at the Nichitpur Open Cast Project and therefore, he has been [7]

held not entitled for salary for the period from 08.03.2001 to

20.03.2002 as he has failed to perform his duty.

It further appears that being aggrieved with the letter

dated 14.03.2002 the writ petition being W.P.(S) No.973 of 2003

has been filed. The respondent authority, after consideration of the

aforesaid letter, more particularly non-receipt of the office order

dated 02.07.2001 as per the report of the office peon, rejected the

claim.

11. This Court, therefore, is of the view that the ground which is being

agitated by the petitioner/appellant that he had not been allowed to

discharge his duties which he was entitled to discharge is not

correct as the office order dated 02.07.2001 has subsequently been

issued by which the petitioner/appellant had been directed to

resume his duty in the Nichitpur Colliery and taking the aforesaid

ground into consideration, the respondent authority came to the

conclusion that the petitioner/appellant has not obeyed the order of

transfer and even not accepted the communication dated 02.07.2001

as is evident from the report of the office peon. The respondent

authority have treated the aforesaid period as No Work No Pay,

thereafter, rejected the claim of the petitioner/appellant for salary of

the period from 08.03.2001 to 20.03.2002.

12. This Court is of the view that the impugned order dated 12.08.2004

since has been passed after taking into consideration the conduct of

the petitioner/appellant as also the issuance of the office order dated

02.07.2001 which has been refused to be accepted by the

petitioner/appellant on the one hand and on the other, he has also [8]

not discharged his duties for the aforesaid period, therefore, the

decision of the authority cannot be said to suffer from any infirmity.

13. The writ petition was filed for issuing writ of certiorari and it is

settled position of law that the High Court sitting under Article 226

of the Constitution of India is supposed to issue writ of certiorari by

quashing and setting aside the decision of the administrative

authority if the order impugned is perverse or suffers from error on

the face of it as has been held in Syed Yakoob vs. Radhakrishnan,

A.I.R. 1964 Supreme Court 477. Paragraph no.7 of the said

judgment is being reproduced hereinbelow:

"The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Art. 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals : these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal Acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the [9]

tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Art. 226 to issue a writ of certiorari can be legitimately exercised (vide Hari Vishnu Kamath v. Ahmad Ishaque, 1955-1 SCR 1104 : ((S) AIR 1955 SC 233); Nagendra Nath v. Commr. Of Hills Division, 1958 SCR 1240 : (AIR 1958 SC 398) and Kaushalya Devi v. Bachittar Singh, AIR 1960 SC 1168.

In Hari Vishnu Kamath vs. Ahmad Ishaque and Ors.,

AIR 1955 Supreme Court 233, the Hon'ble Supreme Court has held

at paragraph no.21which reads as hereunder:

"With regard to the character and scope of the writ of certiorari and the conditions under which it can be issued, the following propositions may be taken as established: (1) Certiorari will be issued for correcting errors of jurisdiction, as when an inferior Court or Tribunal acts without jurisdiction or in excess of it, or fails to exercise it. (2) Writ of certiorari will also be issued when the Court or Tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice. (3) The Court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the Court will not review findings of fact reached by the inferior Court or Tribunal even if they be erroneous. This is on the principle that a Court which has jurisdiction over a subject-

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matter has jurisdiction to decide wrong as well as right, and when the Legislature does not choose to confer a right of appeal against that decision, it would be defeating its purpose and policy, if a superior Court were to rehear the case on the evidence and substitute its own findings in certiorari."

In Sawarn Singh and Anr. vs. State of Punjab and Ors.,

(1976) 2 SCC 868 their Lordships, while discussing the power of

writ under Article 226 of the Constitution of India for issuance of

writ of certiorari, has been pleased to hold at paragraph nos.12 and

13 as hereunder:

"12. Before dealing with the contentions canvassed, it will be useful to notice the general principles indicating the limits of the jurisdiction of the certiorari jurisdiction can be exercised only for correcting errors of jurisdiction committed by inferior courts or tribunals. A writ of certiorari can be issued only in the exercise of supervisory jurisdiction which is different from appellate jurisdiction. The Court exercising special jurisdiction under Article 226 is not entitled to act as an appellate Court. As was pointed out by this Court in Syed Yakoob's case (supra)

13. In regard to a finding of fact recorded by an inferior tribunal, a writ of certiorari can be issued only if in recording such a finding, the tribunal has acted on evidence which is legally inadmissible, or has refused to admit admissible evidence, or if the finding is not supported by any evidence at all, because in such cases the error amounts to an error of law. The writ jurisdiction extends only to cases where orders are passed by inferior courts or tribunals in excess of their jurisdiction or as a result of their refusal to exercise jurisdiction vested in them or they act illegally or improperly in the exercise of their jurisdiction causing grave miscarriage of justice."

In Heinz India (P) Ltd. and Anr. vs. State of U.P. and

Ors., (2012) 5 SCC 443 their Lordships have been pleased to hold

at paragraph nos.66 and 67 as hereunder:

"66. That the court dealing with the exercise of power of judicial review does not substitute its judgment for that of the [11]

legislature or executive or their agents as to matters within the province of either, and that the court does not supplant "the feel of the expert" by its own review, is also fairly well settled by the decisions of this Court. In all such cases judicial examination is confined to finding out whether the findings of fact have a reasonable basis on evidence and whether such findings are consistent with the laws of the land.

67. In Dharangadhara Chemical Works Ltd. v. State of Saurashtra this Court held that decision of a tribunal on a question of fact which it has jurisdiction to determine is not liable to be questioned in proceedings under Article 226 of the Constitution unless it is shown to be totally unsupported by any evidence. To the same effect is the view taken by this Court in Thansingh Nathmal case where this Court held that the High Court does not generally determine questions which require an elaborate examination of evidence to establish the right to enforce for which the writ is claimed."

14. This Court, therefore, is of the view that the petitioner/appellant has

failed to make out any ground for interfering with the impugned

order by issuing writ of certiorari and taking into consideration the

settled legal position as above as also the scope of power conferred

under Article 226 of the Constitution of India pertaining to the

issuance of writ of certiorari. Learned Single Judge has refused to

interfere with the order dated 12.08.2004 which according to us,

suffers from no infirmity.

15. Accordingly, the instant appeal fails and is dismissed.

16. Pending interlocutory application(s), if any, also stands disposed of.

(Dr. Ravi Ranjan, C.J.)

(Sujit Narayan Prasad, J.) Saurabh

N.A.F.R.