Sarfuddin Ansari vs M/S Bharat Cocking Coal Limited
2021 Latest Caselaw 470 Jhar

                                  1

        IN THE HIGH COURT OF JHARKHAND AT RANCHI
                         W.P.(S) No.3301 of 2014
                               -------

        Sarfuddin Ansari                              ...     ...   Petitioner
                                      Versus
        1.     M/S Bharat Cocking Coal Limited.
        2.     Chairman-cum-Managing            Director,       M/S   Bharat
               Cocking Coal Limited, Dhanbad.

3. General Manager, Western Jharia Area of M/S Bharat Cocking Coal Limited, Dhanbad.

4. Project Officer, Murlidih, Dhanbad.

                                                      ...     ... Respondents
                                      -------
        CORAM       : HON'BLE MR. JUSTICE DEEPAK ROSHAN
                                      -------
        For the Petitioner       :Mr. A. K. Sahani, Adv.
        For the Res.BCCL         : Mr. Indrajit Sinha, Adv.
                               -------
08/02.02.2021

Heard learned counsel for the parties through

V.C.

2. The instant writ application has been preferred

by the petitioner praying therein for quashing and setting

aside the order of dismissal issued under Office Order

No.2299 dated 11.07.2009 (Annexure-10) and also for

quashing the appellate order issued under Memo No.2664

dated 24.06.2014 (Annexure-15) whereby the appeal filed

by the petitioner has been rejected.

3. The relevant facts necessary for disposal of the

instant writ application are that an agreement was

executed by and between one Rabul Ansari with

respondent no.1 for sale of his land who was father-in-law

of the petitioner. The said land owner Rabul Ansari also

sworn an affidavit to the effect that he had no son; as such,

the petitioner is being nominated for employment in lieu of

lands acquired and possessed by the respondent no.1.

Pursuant thereto, the documents were processed and

finally an appointment letter was issued in favour of this

petitioner on 11.02.1988 for the post of temporary minor/

loader.

At this stage it is pertinent to mention here that

in the appointment letter; instead of son-in-law, the

petitioner has been shown as son of the land looser-namely

Rabul Ansari. After looking to the aforesaid discrepancy;

the petitioner immediately represented the authority vide

his representation dated 30.12.1988 informing that the

name of the his father has wrongly been recorded as Rabul

Ansari; as he is not son but son-in-law of Rabul Ansari. In

support of his representation he also annexed his driving

license. Thereafter, the matter was set at rest for the time

being.

After about 10 years, petitioner was directed for

registration of the sale deed in favour of the company.

Thereafter, again the matter was kept in abeyance and all

of sudden in the year 2008 i.e. after 20 years of

appointment letter; the respondent had issued a show

cause notice to the petitioner alleging therein that the

petitioner had obtained his employment in the company by

practicing fraud and misrepresentation by claiming himself

as son of the land looser-Rabul Ansari. Thereafter, a charge

sheet was issued and finally the petitioner has been

removed from service.

4. Mr. A. K. Sahani, learned counsel for the

petitioner submits that by no stretch of imagination it can

be said that the petitioner has committed any fraud,

inasmuch as, prior to the appointment of this petitioner an

agreement was signed by his father-in-law along with an

affidavit wherein his father-in-law-Rabul Ansari has

categorically stated that since he had no son, as such the

petitioner has been nominated by him for employment as

per R & R policy. Thereafter, the matter was enquired /

processed and finally the appointment letter was issued in

favour of the petitioner.

Mr. Sahani further contended that it was a

mistake of the respondent company to depict the petitioner

as son of the Rabul Ansari instead of son-in-law; as all the

documents were before them and there is no question of

any fraud or misrepresentation. Mr. Sahani further

contended that immediately after knowing the aforesaid

discrepancy; the petitioner represented the respondent

authority for correction but for the reason best known to

them, the respondents slept over the matter for years.

He further contended that though

dismissal/removal is a major punishment; however, the

respondent failed to issue any show cause notice along

with copy of enquiry report and dismissed the petitioner

from service by the impugned order. He concluded his

argument by submitting that even the order of dismissal

and order in appeal are completely non-speaking and non-

reasoned order, inasmuch as, the reply of the petitioner

has not been considered at all. He also referred Annexure-

12 and contended that in several other cases, the son-in-

law has been given employment by the respondent

authority.

In support of his contention he relied upon a

judgment in the case of Md. Zamil Ahmed Vs. The State

of Bihar & Ors. reported in (2016) 3 Supreme 370

wherein at paragraph 22 and 25 Hon'ble Apex Court held

as under:

"22. In these circumstances, we are of the view

that there was no justification on the part of the

State to woke up after the lapse of 15 years and

terminate the services of the appellant on such

ground. In any case, we are of the view that

whether it was a conscious decision of the State

to give appointment to the appellant as we have

held above or a case of mistake on the part of the

State in giving appointment to the appellant which

now as per the State was contrary to the policy as

held by the learned Single Judge, the State by

their own conduct having condoned their lapse

due to passage of time of 15 years, it was too late

on the part of the State to have raised such

ground for cancelling the appellant's appointment

and terminating his services. It was more so

because the appellant was not responsible for

making any false declaration and nor he

suppressed any material fact for securing the

appointment. The State was, therefore, not

entitled to take advantage of their own mistake if

they felt it to be so. The position would have been

different if the appellant had committed some

kind of fraud or manipulation or suppression of

material fact for securing the appointment. As

mentioned above such was not the case of the

State.

25. As a consequence thereof, the respondent-

State is directed to reinstate the appellant in

service with all consequential benefits such as

payment of full back wages payable from the date

of termination (23.06.2005) till the date of

reinstatement in service. The appellant is also

entitled to claim his seniority and notional

promotions as per rules. It be fixed accordingly."

He further relied upon a judgment in the case of

UCO Bank & Ors. Vs. Rajendra Shankar Shukla

reported in 2018 (4) Supreme 257 and relevant paragraph

12 and 13 are as under:-

"12. We do not find any reason to interfere with

the judgment and order passed by the High Court.

However, it is necessary for us to highlight a few

facts which were brought to our notice during the

course of submissions made by learned counsel.

The first issue of concern is the enormous delay of

about 7 years in issuing a charge sheet against

Shukla. There is no explanation for this

unexplained delay. It appears that some internal

discussions were going on within the Bank but

that it took the Bank 7 years to make up its mind

is totally unreasonable and unacceptable. On this

ground itself, the charge sheet against Shukla is

liable to be set aside due to the inordinate and

unexplained delay in its issuance.

13. What compounds the default on the part of

the Bank is that Shukla was placed in a higher

category as a Manager on 19th July, 1994 while

all these discussions were going on in the Bank.

He was also allowed to cross the efficiency bar on

12th August, 1996 again while the discussions

were going on. Surely, if the Bank was serious

about proceeding against Shukla for misconduct,

they would not only have taken prompt action in

issuing a charge sheet but would not have

granted him the benefit of being placed in a higher

category or crossing the efficiency bar."

Relying upon the aforesaid judgments and the

facts of the case Mr. Sahani submits that the impugned

orders deserve to be quashed and set aside and since the

petitioner had already retired on 11.02.2020; as such, all

consequential benefits should be extended to this

petitioner.

5. Mr. Indrajit Sinha, learned counsel for the

respondent-company opposed the prayer of the petitioner

and submits that in an admitted case like this; no second

show-cause notice is required. He further submits that the

petitioner himself admitted that he is son-in-law of the

Rabul Ansari; as such, in a sense, he has admitted the

charge. As such, giving enquiry report or second show

cause notice was mere formalities.

However, learned counsel for the respondents

could not demonstrate before this Court that all the

documents were within the knowledge and custody of the

respondents then what prevented them from taking note of

all those documents which clearly transpires that the

petitioner is not the son of land looser.

He lastly contended that the son-in-law does not

come under the definition of family as per R & R policy and

further contended that both the impugned orders are well

reasoned and speaking orders, as such no relief should be

granted to the petitioner.

6. Having heard learned counsel for the parties and

after going through the documents available on record it

appears that the petitioner was appointed on 11.02.1988

and that too after an agreement signed by the land looser -

Rabul Ansari who was father-in-law of the petitioner and

the Respondent Company. It further transpires from

Annexure-2 that an affidavit was sworn and submitted by

the land looser-Rabul Ansari stating therein that since he

is having no son and the petitioner, who is son of Md.

Godan Mian, is his son-in-law and performing duty of a son

and since last 10 years the said Rabul Ansari is totally

dependent on him. In the said affidavit it was also stated

that the job, if any, shall be given to this petitioner.

The documents further transpires that after the

said agreement and affidavit and before the appointment of

this petitioner; the matter was taken up for consideration

and the issue was well discussed which transpires from the

note-sheet which has been annexed as annexure-3 to this

writ application which clearly transpires that the

respondents were having full knowledge about the

parentage of this petitioner as such; it would be wrong and

incorrect to say that the petitioner has committed any

fraud or misrepresentation.

It further transpires that the moment the

petitioner came to know about the discrepancy in the

appointment letter, he represented the department

immediately and thereafter nothing was responded from

the other side. All this goes to show that at no point of time

the petitioner has tried to commit fraud or

misrepresentation.

Even otherwise, admittedly; no second show

cause notice has been given to this petitioner along with

the enquiry report. This Court is not in agreement with the

contention of the learned counsel for the respondent that

the charge was admitted by this petitioner because

obviously the charge was with respect to misrepresentation

and committing fraud and petitioner's admission was only

with respect to the fact that he is son of Godan Mian and

he never accepted that he has committed any fraud; as

such the contention raised by the respondent that no

second show cause notice was required is misconceived.

7. In this view of the matter the instant writ

application is allowed and the order of dismissal as

contained in Office Order No.2299 dated 11.07.2009

(Annexure-10) as well as the appellate order as contained

in Memo No.2664 dated 24.06.2014 (Annexure-15) are

hereby quashed and set aside. The respondents are at

liberty to proceed with the case from the stage of serving

the second show cause notice along with enquiry report, if

the law so permits.

8. It is made clear that since the matter is very old

as such if the respondents choose to proceed against this

petitioner, then the entire exercise must be completed

within a period of four months from the date of

receipt/production of copy of this order; failing which the

petitioner shall be entitled for all consequential benefits

within a further period of six weeks.

9. With the aforesaid terms, the instant writ

application stands allowed.

(Deepak Roshan, J.)

Fahim/-