Hiralal Mahto vs The Central Coalfields Limited ...
2021 Latest Caselaw 3837 Jhar

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IN THE HIGH COURT OF JHARKHAND AT RANCHI
                     W.P.(S) No. 7488 of 2011
(An application under Article 226 of the Constitution of India)

Hiralal Mahto                               ..... Petitioner
                             Versus
1. The Central Coalfields Limited through its Chief Managing
   Director, Darbhanga House, Dist- Ranchi
2. The Director (Personnel), Central Coalfields Limited,
   Darbhanga House, Dist- Ranchi
3. The General Manager (A), CCL, Sirka (Argada Area), P.O.
   Argada, Dist- Ramgarh
4. The Staff Officer (Mining) (A)-cum-Enquiry Officer,
   CCL, Sirka (Argada Area), P.O. Argada, Dist-Ramgarh
5. The Personnel Manager-cum-Management Representative,
   CCL, Sirka (Argada Area), P.O. Argada, Dist- Ramgarh
                                            ..... Respondents
                             ---------
For the Petitioner     : Mr. S.S. Choudhary, Advocate
For the Respondents : Mr. Amit Kr. Das, Advocate
                             --------
                             PRESENT
      HON'BLE MR. JUSTICE DEEPAK ROSHAN
                             ---------
                        JUDGEMENT

CAV on: 23/09/2021 Pronounced on: 07/10/2021

1. Heard learned counsel for the parties through V.C.

2. The instant writ application has been preferred by

the petitioner praying therein for quashing of the order dated

21/22.8.2008 (Annexure-7), issued by respondent No.3,

whereby the petitioner who was earlier Prop Mistry, Cat IV was

demoted to the post of Helper, Cat-II.

The petitioner has also assailed the appellate order

dated 21.09.2010 (Annexure-8 A), passed by the respondent

No.2, whereby the appeal preferred by the petitioner was

dismissed.

3. The facts of the case as evident from the writ

application is that the son of the petitioner, namely, Sewal

Kumar @ Charku Mahto was voluntarily been adopted by one

late Gyani Mahto in the year 1986 for which the said Gyani

Mahto (Now deceased) and this petitioner executed a deed of

adoption on 29.11.1986 which was duly registered before the

District Sub-Registrar, Hazaribagh.

Further, when late Gyani Mahto became old then he

voluntarily offered the name of Sewal Kumar for his

employment under para 9:4:3 of National Coal Wage

Agreement-III (NCWA-III) since he adopted Sewal Kumar as

his legal heir. After fulfilling the criteria and verification, Sewal

Kumar (adopted son of Gyani Mahto) was appointed on

13.01.1989.

Subsequently, after more than ten years; on

09.08.2000, the Vigilance Department of the respondent CCL

received a complaint against Sewal Kumar. However, on

enquiry, the said complainant refused to answer anything.

However, a charge-sheet dated 4/5-5-2005 has been issued

against this petitioner for following misconduct:-

i. That in the year 1986 while you were in service of CCL, you executed an

irregular and invalid deed with one Gyani Mahto, Cat-I, Mazdoor of GM (A)'s office Sirka (now retired) for getting your son Sri Sewal Kumar alias Charku Mahto adopted by said Gyani Mahto with the sole purpose of inducting your said son into employment of the company (CCL) at some later stage under para 9.4.3. of NCWA-III in place of said Gyani Mahto. In the process, you in the capacity of 2nd party declared the age of your said son Sri Sewal Kumar alias Charku Mahto as 14 years in the so-

called adoption deed executed in the year 1986 even though his age was more than 16 years on the date of execution of the deed in the year 1986. The said so-called adoption of your son Sewal Kumar alias Charku Mahto by said Gyani Mahto was not valid in the eye of law in as much as the adoptee's age was more than 15 years on the date of so-called adoption which is contrary to the Provisions made under section 10 of the Hindu Adoption and Maintenance Act, 1956 which prescribes that the adoptee's age on the date of adoption should not be more than 15 years of age and so the deed was void in the eye of law.

By Your aforesaid act, you abated Sri Gyani Mahto to indulge an illegal and irregular act of adopting

your said son who was not eligible for adoption and also abated Gyani Mahto to indulge into a grave misconduct of nominating your son for employment in CCL in place of him even though your said son was not eligible for being adopted in terms of the said provisions of Hindu Adoption and Maintenance Act, 1956.

ii. Beside abating Gyani Mahto to indulge in an illegal and irregular act of adopting your said son, who was also not eligible for adopting (as per statutory provisions) for sole purpose of getting Your said son inducted into employment of the company. You also cheated the management of the company. You also cheated the management by causing fraudulent induction on your said son into employment of the company in lieu of Gyani Mahto who was declared medically unfit for employment by the Medical Board of the Company constituted under para 9.4.3 of NCWA- III, and thereby you have also caused financial loss to the company in the form of wages and salary, other fringe benefits etc. irregularly drawn by your said son ever since his irregular appointment in CCL.

The charges were made out under the following provisions of misconducts enumerated in the Certified Standing order applicable in respect of the employees of the respondent-

CCL.

26.1- Theft, fraud or dishonesty in connection with employer's business or property.

26.22- Any willful and deliberate act which is subversive of discipline or which may be detrimental to the interest of the company.

                   26.38-      Abetment   of   any   act   of
                   misconduct.

26.41- Violation of any clause of these standing orders.

4. Pursuant thereto; the petitioner submitted his reply

and the same was not found satisfactory and a departmental

enquiry was instituted against this petitioner. The Inquiry

Officer conducted the enquiry and found the charges to be

proved and submitted its report to the Disciplinary Authority.

Subsequently, copy of the enquiry report was also forwarded to

this petitioner along with second show cause notice to which

the petitioner duly replied on 23.06.2008. Thereafter, the

Disciplinary Authority passed the impugned order i.e.

punishment of demotion.

Thereafter, petitioner preferred an appeal and in the

meantime also preferred a writ application being W.P.(S)

No.630 of 2009 and the same was disposed of with a direction

to the respondent No.2 to dispose of the departmental appeal

and pursuant thereto; the appeal preferred by the petitioner was

also dismissed.

5. Mr. S.S. Choudhary, learned counsel for the

petitioner submits that on bare perusal of adoption deed it

would transpire that late Gyani Mahto has no issue either by

legitimate blood relation or by any adoption and his wife also

died issueless. It would further transpire that before adopting

Sewal Kumar @ Charku Mahto, Late Gyani Mahto performed

all ceremony with regard to adoption which is customary in

Biradari. After couple of years since Gyani Mahto become old

and not in a position to work; he applied for employment of his

adopted son under 9:4:3 of NCWA-III and after proper

verification; the adopted son, namely, Sewal Kumar was

appointed in service on 13.01.1989 in place of Late Gyani

Mahto.

6. Mr. Choudhary further contended that issuance of

charge-sheet is bad in law, inasmuch as, the cause of action of

adoption was 29.11.1986 and after a lapse of 15 years, enquiry

was initiated and charge-sheet was issued. He further submits

that surprisingly the first charge-sheet was withdrawn by the

respondent authorities but again they issued a fresh charge-

sheet. From bare perusal of charge-sheet it would transpire that

the charges made against this petitioner are merely based on

presumption that "this petitioner has abetted Late Gyani Mahto

who adopted Sewal Kumar @ Charku Mahto in the year 1986

with sole purpose to grab his job and property."

7. He further submits that before giving appointment

the respondent authorities had sought legal opinion from their

Law Officer; as such it cannot be said that the appointment of

Sewal Kumar was bad in law and further there is no iota of

evidence that this petitioner has abetted either in adoption or in

making appointment of his natural son who was subsequently

adopted by Late Gyani Mahto.

He lastly submits that the enquiry was conducted in

a most perfunctory manner and Inquiry officer was biased

against this petitioner and on the basis of enquiry report the

Disciplinary authority imposed punishment without application

of mind. Even the appellate authority did not consider the

grounds taken by the petitioner. As such, the impugned order of

punishment as well as the appellate order should be quashed

and set aside.

8. Mr. Amit Kumar Das, learned counsel for the

respondent CCL raised a preliminary objection by submitting

that the instant writ application is not maintainable being a

disputed question of fact and petitioner should have approached

the Industrial Tribunal for redressal of his grievance.

He further submits that the charges were framed

against this petitioner under 26.1 (Theft, fraud or dishonesty in

connection with employer's business or property), 26.22 (Any

willful and deliberate act which is subversive of discipline or

which may be detrimental to the interest of the company),

26.38 (Abetment of any act of misconduct) and 26.41

(Violation of any clause of these standing orders).

Pursuant to the charge-sheet, the petitioner

submitted his reply and the same was not found satisfactory

and as such a departmental proceeding was initiated and

Inquiry Officer has conducted the inquiry in most independent

manner by giving full opportunity to this petitioner to adduce

defence witness etc.

9. In other words, the Inquiry officer held a free, fair

and impartial enquiry observing principles of natural justice

and submitted his report proving the charges against this

petitioner and pursuant to that second show cause notice was

served upon the petitioner along with the enquiry report to

which he duly replied and the Disciplinary authority after

examining the reply to the show cause and the recommendation

made by the Inquiry Officer held the petitioner guilty for the

charges alleged against him and punishment of demotion has

been imposed. Even the appellate authority after considering

each and every aspect of the matter modified the punishment.

In other words, there is no procedural irregularity in conducting

the departmental proceeding.

He further submits that though the Writ Court

cannot re-appreciate the evidence, however, by referring the

enquiry report Mr. Das submits that the management witness

has fully supported the case of the management against this

petitioner which was not rebutted by him, inasmuch as, the

MW-1 during examination-in-chief relied to the management's

document being a certificate issued by the Headmaster,

Government Middle School, Sirka and deposed that the

petitioner had declared date of birth of his son Sewal Kumar @

Charku Mahto while admitting him in Class-I as 18.10.1969

whereas on 19.11.1986, petitioner executed an adoption deed

with late Gyani Mahto wherein he mentioned the age of Sewal

Kumar as 14 years. The management witness has categorically

deposed that for the sole purpose of getting his son employed

in the company's roll, he abetted with late Gyani Mahto by

suppressing his age because admittedly; 14 years was

mentioned for the purpose of executing the adoption deed

because after 14 years no child can be adopted and just after

three years Late Gyani Mahto applied for appointment of his

adopted son in his place.

He lastly submits that the Inquiry officer as well as

Disciplinary authority after looking to each and every aspect of

the matter and the documents produced before them imposed

the punishment upon this petitioner.

He concluded his argument by submitting that the

allegation is of fraud and abetment of fraud; as such the

punishment imposed upon this petitioner is much lesser than

what would have been imposed.

10. Having heard learned counsel for the parties and

after going through the documents annexed with the respective

affidavits and the averments made therein it appears that there

is no procedural irregularity in the entire departmental

proceeding and principles of natural justice has been duly

followed by the management.

11. From perusal of enquiry report it further transpires

that the Inquiry officer after appreciation of facts and

documents brought before him came to conclusive finding in

holding the charge. Relevant portion has been mentioned in the

counter affidavit. For brevity, para-23 is quoted herein below:

"23. i. That as per the certification issued by the Head Master Govt. Middle School, Sirka the date of birth is 18.10.1969 while as per the certificate issued by Principal K.V. Bhurkunda the date of birth is 6.6.1973. Sri Sewal Kumar was at Govt. Middle School, Sirka from Std. I to IV and shifted to K.V. Bhurkunda. The basis of admission at K. V. Bhurkunda should have been on the basis of transfer certificate from Govt. Middle School, Sirka and the same date of birth should have been appeared at both schools K.V. Bhurkunda, has not spelt out the basis of admission and hence appears to be false and fabricated and cannot be considered for the purpose. Hence certificate issued by Principal Govt. Middle School, Sirka is the most authentic document according to which the age of Sri Sewal Kumar on the date of entering adoption deed will be 16 years 11 months 23 days. As per the document vi, vii & viii in relation to Sri Sewal Kumar the age of Sri Sewal Kumar was more than 15 years on the date of entering adoption deed.

ii That it is fact that the age of Sri Sewal Kumar was more than 15 years on the date of entering adoption deed which is contrary to the declaration made by Sri Hiralal Mahto in the adoption deed.

iii. That Sri Hiralal Mahto, father of Sri Sewal Kumar violated the provision of

section 10 of Hindu Adoption and Maintenance Act, 1956 by wrongly declaring the age of Sri Sewal Kumar at the time of execution of adoption deed. iv. That Gyani Mahto was already having one more son Sri Hiralal at the time of adoption in the year 1986 (ME-XII). Thus Sri Gyani Mahto violated the provision of section 11 of Hindu Adoption and Maintenance Act, 1956 by giving wrong declaration of his family members. The law officer without verifying the records that Sri Gyani Mahto was already having sons gave a wrong opinion in respect of adoption deed. v. Thus, thus the adoption deed entered by Sri Hiralal Mahto and Sri Gyani Mahto becomes irregular and invalid.

vi. That the name of Sri Charku Mahto was corrected as Sri Sewal Kumar and entered in the service sheet in the year 1988 (i.e. on 1.8.1988) just before Sri Gyani Mahto declared unfit and retired from services with effect from 1.9.1988 (ME-XXI) which further strengthen the fact that the sole purpose behind all such acts was only to induct Sri Sewal Kumar in to employment in lieu of Sri Gyani Mahto under para 9.4.3 of NCWA-II. The sole purpose of entering into adoption deed was to induct Sri Sewal Kumar into employment of CCL."

12. After going through the findings given by the

Inquiry officer it is crystal clear that his report is based on facts

and materials brought before him which clearly transpires that

the evidence led in the enquiry proceeding meets the

requirement of preponderance of probabilities and the same is

based on cogent, oral and documentary evidence exhibited

during the course of enquiry.

13. At this stage, it is pertinent to mention here that the

documents / statements of management witness could not be

rebutted or demolished by the petitioner. Even the appellate

authority has discussed each and every ground raised by the

petitioner in his appeal and came to the same finding and

taking a further lenient view reduced the punishment of

petitioner's demotion from the post of Prop Mistry Category-

IV to the post of support helper category III.

Thus, the respondents have taken a very lenient

view where the charge is of abetment of fraud.

14. Before parting it is relevant to mention here that the

deed of adoption was executed on 29.11.1986 and just

thereafter late Gyani Mahto voluntarily offered the name of

Sewal Kumar @ Charku Mahto for his appointment under para

9.4.3 of NCWA-III and who was appointed on 13.01.1989 i.e.

just after couple of years. This very fact supports the case of the

management that this petitioner has abetted Late Gyani Mahto

who adopted Sewal Kumar @ Charku Mahto with sole purpose

to grab his job and property

15. Even otherwise, on the one hand; there is no

procedural irregularity in the entire enquiry proceedings and on

the other hand; there is no perversity in the order and the

punishment is based on evidence, both oral and documentary,

and on proper reasoning. At the cost of repetition, even the

punishment imposed upon the petitioner is very lenient and in

any view of the matter, it cannot be said to be harsh and

excessive.

16. Recently, in the case of State of Karnataka and

another versus N. Gangaraj reported in (2020) 3 SCC 423 the

Hon'ble Apex Court has reiterated the power of judicial review

conferred on constitutional Court or Tribunal that it is not the

court of appeal and the judicial review is confined only to the

decision making process. Relevant paragraphs of the said

judgment are quoted herein below:

"8. We find that the interference in the order of punishment by the Tribunal as affirmed by the High Court suffers from patent error. The power of judicial review is confined to the decision-making process. The power of judicial review conferred on the constitutional court or on the Tribunal is not that of an appellate authority.

9. In State of A.P. v. S. Sree Rama Rao, a three-Judge Bench of this Court has held that the High Court is not a court of appeal over the decision of the authorities holding a departmental enquiry against a public servant. It is concerned to determine

whether the inquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. The Court held as under:

"7. ... The High Court is not constituted in a proceeding under Article 226 of the Constitution a court of appeal over the decision of the authorities holding a departmental enquiry against a public servant: it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence."

10. In B.C. Chaturvedi v. Union of India, again a three-Judge Bench of this Court has held that power of judicial review is not an appeal from a decision but a review of the manner in which the decision is made.

Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eyes of the court. The court/tribunal in its power of judicial review does not act as an appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. It was held as under:

"12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry

was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of the Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.

13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has co-extensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry, the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H.C. Goel, this Court held at p. 728 that if the conclusion, upon consideration of the evidence reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued."

17. In view of the aforesaid discussions and the judicial

pronouncement, no relief can be granted to this petitioner.

Consequently, the instant writ application is dismissed.

(Deepak Roshan, J.) Jharkhand High Court, Ranchi Dated: 7th October, 2021 Pramanik/ N/AFR