Suresh Kumar Singh vs Central Coalfields Limited
2021 Latest Caselaw 3880 Jhar

                            1

IN THE HIGH COURT OF JHARKHAND AT RANCHI
            L.P.A. No.371 of 2020
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Suresh Kumar Singh, son of Late Rameshwar Singh, resident of Quarter No.B-161, Central Colony, PO: Makoli, PS: Chandrapura, District-Bokaro .... .... Appellant Versus

1. Central Coalfields Limited, a subsidiary of Coal India Limited, having its Head Office at Darbhanga House, PO: GPO, PS: Kotwali, District- Ranchi through its Chairman-cum-Managing Director, Darbhanga House, P.O. GPO, P.S.-Kotwali, Distt.-Ranchi

2. Director (Personnel), Central Coalfields Limited, Darbhanga House, PO: GPO, PS: Kotwali, District-Ranchi

3. General Manager, Dhori Area of Central Coalfields Limited, PO: Dhori, PS: Bermo, District-Bokaro

4. Project Officer, Amlo Project, Central Coalfields Limited, PO: Dhori, PS:

   Bermo, District-Bokaro                          ....   .... Respondents
                                   With
                      L.P.A. No.373 of 2020
                          ------

Dhaneshwar Yadav, adopted son of Late Bhola Mahto, resident of Village-Bodia, PO: Kathara, PS: Bokaro Thermal, District-Bokaro .... .... Appellant Versus

1. Central Coalfields Limited, a subsidiary of Coal India Limited, a Government of India Undertaking having its Registered Office at Darbhanga House, PO: GPO Ranchi, PS: Kotwali, District-Ranchi through its Chairman-cum-Managing Director

2. General Manager (KTA), Kathara, Central Coalfields Limited, PO: Kathara, PS: Bokaro Thermal (BTPS), District-Bokaro

3. General Manager (Civil), Central Coalfields Limited, Darbhanga House, PO: GPO Ranchi, PS: Kotwali, District-Ranchi

4. Project Officer, Kathara Colliery, PO: Kathara, PS: Bokaro Thermal, District-Bokaro .... .... Respondents

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CORAM : HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE AMBUJ NATH

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L.P.A.No.371/2020
For the Appellant    : Mr. Mahesh Tiwari, Advocate

For the Respondents : Mr. Amit Kumar Das, Advocate : Mr. Shivam Utkarsh Sahay, Advocate L.P.A.No.373/2020 For the Appellant : Mr. Ashim Kumar Sahani, Advocate For the Respondents : Mr. Amit Kumar Das, Advocate : Mr. Amit Kumar Sinha, Advocate

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08/Dated: 18.10.2021

Per Sujit Narayan Prasad, J.:-

It has been submitted by the learned counsel for the parties that in

both the appeals since involving the similar issue, therefore, the same

may be heard together and disposed of with this common order. In view

thereof, both the appeals have been heard together and are being

decided with this common order.

L.P.A.No.371 of 2020

2. The instant intra-court appeal is under Clause-10 of Letters Patent

of Patna High Court directed against the order/judgment dated 05.11.2020

passed by the learned Single Judge of this Court in W.P.(S) No.6725 of

2017, whereby and whereunder, the learned Single Judge while

dismissing the writ petition has refused to interfere with the charge-sheet.

3. The brief facts of the case as per the pleading made in the writ

petition is required to be enumerated which reads hereunder as:-

The writ petitioner who claims to have been adopted by registered

deed as son by late Rameshwar Singh. The said Rameshwar Singh was

appointed on the post of Security Guard on 10.11.1973. Late Rameshwar

Singh has opted for voluntary retirement in the month of October, 1988

making request for proper employment in favour of the writ petitioner as

his adopted son. The writ petitioner passed matriculation examination in

the year 1985 and based upon the said document appointed as Typing

Trainee Category-I on 03.05.1989. Subsequently, he has been promoted

to other post.

The disciplinary authority has issued charge-sheet on 02.02.2017

on the allegation that the deed of adoption signed on 25.01.1985 and on

that date, the writ petitioner has already crossed the age of 15 years and

in view of the provision as contained under the Hindu Adoption and

Maintenance Act, his appointment cannot be said to be proper in terms of

the aforesaid provision of the Act and on the ground of fraud, the name of

biological father is differing.

Show cause has been issued against him. Being aggrieved with

this, the writ petitioner has challenged the said show cause by filing the

instant writ petition being W.P.(S) No.6725 of 2017.

It was contended on behalf of the writ petitioner before the learned

Single Judge that the charge-sheet has been issued against the writ

petitioner is bad in Law in view of the fact that there is no misconduct on

the part of the writ petitioner as also on the ground that the show cause

has been issued after lapse of about more than 28 years. Further, the

adoption deed has been brought to the notice of the learned Single Judge

in support of the argument to the effect that the writ petitioner is nephew of

late Rameshwar Singh and at the time of adoption, he was below 15 years

of age.

It has further been indicated that the adoption was made earlier,

however, the deed was executed later on and therefore, submission has

been made before the learned Single Judge that no fraudulent act on

behalf of the writ petitioner was committed rather in view of the Scheme of

respondent-Central Coalfields Limited.

The writ petitioner was offered appointed on 03.05.1989 and after

expiry of the period of 28 years of service, the charge-sheet in such nature

is not maintainable, which led the writ petitioner to file the writ petition

being W.P.(S) No.6725 of 2017.

L.P.A.No.373 of 2020

4. The instant intra-court appeal is under Clause-10 of Letters Patent

of Patna High Court directed against the order/judgment dated 05.11.2020

passed by the learned Single Judge of this Court in W.P.(S) No.3229 of

2018, whereby and whereunder, the learned Single Judge while

dismissing the writ petition has refused to interfere with the charge-sheet.

5. The brief facts of the case as per the pleading made in the writ

petition is required to be enumerated which reads hereunder as:-

The writ petitioner, namely, Dhaneshwar Yadav who claims to have

been adopted son of Bhola Mahto. Bhola Mahto was a permanent

employee working as Plant Helper (Excavator Plant Helper) in Kathara

Colliery of the respondent-CCL. He was declared medically unfit at the

age of 56 years. He has made an application under the provision of

Clause 9.4.3 of NCWA for employment of the appellant writ petitioner as

his adopted son. At the age of 5 years, his (Dhaneshwar Yadav) biological

father, namely, Gopal Chandra Yadav allowed adoption of the appellant

writ petitioner by Bhola Mahto, who was maternal grandfather of the

appellant writ petitioner.

On 29.08.1988, a registered deed of adoption was executed in

between the Bhola Mahto and Gopal Chandra Yadav, biological father of

the appellant writ petitioner.

On 29.01.1990, the appellant writ petitioner has attended the

interview at Kathara in response to the notice issued under letter

No.GM(KTA)/PD/9.4.2/90/4349. Thereafter, the case of the appellant writ

petitioner was sent and forwarded by the Project Officer, Kathara to the

headquarter of the respondent CCL at Ranchi for approval. Then, his case

was referred to Legal Department to report about the legality of the

adoption deed.

It has been stated that due to non-acceptance of the adoption deed

by the legal department on 10.03.1992, the appellant writ petitioner filed a

civil suit being Title Suit No.9 of 1992 before the learned Munsif Bermo at

Tenughat inter-alia for a decree declaring him as the adopted son of Bhola

Mahto and for declaration that the deed of adoption dated 29.08.1988 is

valid and legal document. The aforesaid title suit being Title Suit No.9 of

1992 was disposed of on the basis of compromise petition filed on

07.04.1992 and accordingly, a decree was drawn on 11.06.1992 and

signed on 23.06.1992.

On 27.07.1992, the Personnel Manager, Kathara Colliery and the

Project Officer Kathara Colliery forwarded the case of the writ petitioner for

consideration to the Personnel Officer, Kathara and on 28.07.1992, the

case was forwarded to the competent authority. Vide letter dated

19.01.1993, the respondent CCL issued an appointed letter to the writ

petitioner on the post of General Mazdoor, Category-I in the pay scale of

38.47-0.70-48.27. Accordingly, the writ petitioner has joined his service on

the said post in Kathara Colliery and the joining report was duly accepted.

The writ petitioner was granted promotion four times from the post

of General Mazdoor, Category-I to the post of Filter Plant Attendant

Category-IV. No adverse remark or misconduct was found against him

rather he was considered as sincere and thus, he was granted promotion

from time to time.

It has further been stated that vide letter dated 02.02.2017, the

Project Officer, respondent no.4 has issued a charge-sheet upon the writ

petitioner alleging therein that the name of his biological father has been

recorded in the School records in the year 1984 and he was more than 20

years of age on the date of his adoption which was in violation of Section

10(iv) of the Hindu Adoption and Maintenance Act, 1956 and his name

was also recorded as one of the dependents of service record of biological

father of the appellant. Thus, the allegation was made that the appellant

writ petitioner has committed misconduct in view of Clause 26.22 and

26.41 of the Certified Standing Orders of the Central Coalfields Limited

and in such circumstance, charge-sheet has been issued against him,

which led the writ petitioner to file the writ petition being W.P.(S) No.3229

of 2018.

LPA No.371 of 2020 & LPA No.373 of 2020

6. The respondent CCL has contested the case by taking the plea that

only a charge-sheet has been issued and the departmental proceeding is

still pending in view of the fact that there is stay operating in the writ

petitions and all the points which have been taken before the learned

Single Judge can well be agitated before the inquiry officer.

Learned Single Judge after considering the submissions advanced

on behalf of the parties has dismissed the writ petitions on the ground of

settled position of Law that the charge-sheet is not liable to be quashed as

it does not adversely affect the rights of the writ petitioners and it does not

give rise to any cause of action, however, it can be quashed on the ground

that issuing authority is not competent to issue the same, but, the

jurisdiction of the issuing authority is not under challenge, which is the

subject matter of the instant intra-court appeals.

7. Mr. Mahesh Tiwari, learned counsel appearing for the appellant writ

petitioner (In LPA No.371 of 2020) and Mr. Ashim Kumar Sahani, learned

counsel appearing for the appellant writ petitioner (In LPA No.373 of 2020)

have jointly submitted by raising the issue of jurisdiction of the issuing

authority of the charge-sheet by making submission that the charge-sheet

since has been issued by the Project Officer who is having no jurisdiction

to issue memorandum of charge against the writ petitioners in view of the

Certified Standing Orders, wherein power to initiate the departmental

proceeding has been vested upon the appointing authority.

According to them, however, the aforesaid aspects of the matter

were raised before the learned Single Judge but without appreciating the

issue, the finding has been arrived at by making reference that the

jurisdictional issue has not been raised while the jurisdictional issue was

already before the learned Single Judge for its appreciation but even

though the same has not been considered.

It has further been submitted that since the authority who has

issued the charge-sheet is having no jurisdiction, therefore, the entire

departmental proceeding will vitiate in the eye of Law and in view thereof,

the order passed by the learned Single Judge since has been passed

without appreciating the jurisdictional issue of the disciplinary authority, as

such, order impugned is not sustainable in the eye of Law.

8. Per contra, Mr. Amit Kumar Das, learned counsel appearing for the

respondent CCL has submitted that in pursuance to the order dated

23.08.2021(In LPA No.371 of 2020), an affidavit has been filed bringing on

record the power of delegation by the competent authority appended as

Annexure-A and Annexure-B to the aforesaid affidavit which is kept at flag

"A" dated 01.10.99 and 25.08.2003 respectively.

He submits on the basis of the said documents that the competent

authority has delegated the power by way of nomination upon the Project

Officer, the authority who has issued charge-sheet against the writ

petitioners herein and therefore, it is incorrect on the part of the writ

petitioners who submit that the authority issued the charge-sheet, is

having no jurisdiction.

9. In response, Mr. Mahesh Tiwari, learned counsel appearing for the

appellant-writ petitioner has submitted that rejoinder to the said affidavit

has been filed on behalf of the CCL Management rebutting the averments

made therein as also by raising the issue that the circular as has been

appended as Annexure-A and Annexure-B to the affidavit filed on behalf of

the CCL Management cannot be said to be in consonance of the Certified

Standing Orders since the said circulars have not been certified by the

Regional Labour Commissioner as required to be certified under the

provision of Section 5 of the Industrial Employment (Standing Orders) Act,

1946, hereinafter referred to as the Act, 1946, which mandates for

certification of the standing orders, therefore, according to him, the

nomination which has been conferred upon the lower authority by the

competent authority cannot be said to be in consonance with the provision

of the Act, 1946.

It has further been submitted that even accepting the power has

been delegated upon the Project Officer then also the Project Officer of

the concerned colliery cannot assume the power of the disciplinary

authority, it is for the reason that the disciplinary authority will always be

the appointing authority and it cannot be the authority lower than the

appointing authority.

In support of his argument, he has relied upon the judgment

rendered by the Hon'ble Apex Court in the case of UCO Bank & Ors. Vrs.

Rajendra Shankar Shukla, (2018) 4 Supreme 257.

10. In furtherance to his reply, learned counsel appearing for the

respondent CCL submits that there is no requirement of getting

certification of the circular, by which, the power has been delegated to the

authority i.e., the Project Officer to act as the disciplinary authority as

because the certified standing order which has already been certified

under the provision of the Act, 1946 contains a provision as under Clause

2.3 which confers power of nomination by the Chairman/Managing

Director concerned by an order in writing for the purpose of these standing

orders, since, the provision as contained under Clause 2.3 of the Certified

Standing Order has already been certified in view of the provision of the

Act, 1946 and in purported exercise of the said power, the

Chairman/Managing Director has nominated the Project Officer to act as

disciplinary authority, therefore, there is no further requirement of getting

certification of the aforesaid circular and as such, the argument advanced

to that effect on behalf of the appellants writ petitioners, is of no worth.

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

documents available on record as also the finding recorded by the learned

Single Judge.

12. This Court, before proceeding to examine the legality and propriety

of the impugned order, deems it fit and proper to refer certain undisputed

fact which is relevant for proper adjudication of the lis i.e., the writ

petitioners appellants in LPA No.371 of 2020 and in LPA No.373 of 2020

claim to be adopted sons of late Rameshwar Singh and late Bhola Mahto

respectively, who were the permanent employees working under the CCL

Management with a request to provide appointment in favour of their

adopted sons i.e., the appellants writ petitioners herein.

The writ petitioners, at the relevant time, were submitted documents

and based upon the said document, the appointments have been offered

in their favour. They started discharging their duty but after rendering more

than 25 years of service the memorandum of charge has been issued,

against them as alleged irregularities of commission of fraud on getting

appointment on the basis of their claim of adopted sons who during the

relevant time have already crossed the age of 15 years.

The writ petitioners have questioned the memorandum of charge

inter-alia on the ground that no misconduct has been committed by the

writ petitioners. Further, the charge-sheet has been issued after delay of

about more than 25 years as also the writ petitioners were not entitled for

appointment since they have already crossed the age of 15 years and by

virtue of that, they cannot claim the benefit under the provision of Hindu

Adoption and Maintenance Act on the basis of the adoption deed.

13. While on the other hand, the plea has been taken on behalf of the

CCL Management that merely the charge-sheet has been issued and no

issue of jurisdictional error has been raised and as such, the writ petitions

being premature require no interference at this stage.

Learned Single Judge after appreciating the aforesaid argument has

declined to interfere with the memorandum of charge by dismissing the

writ petitions.

The issue has been raised while assailing the order passed by the

learned Single Judge on behalf of the writ petitioners about the

jurisdictional error of the authority who has issued the charge-sheet.

This Court, after considering the aforesaid submissions advanced

on behalf of the writ petitioner has passed the order on 23.08.2021 (In LPA

No.371 of 2020) calling upon the relevant documents from the CCL

Management to establish the jurisdiction of the disciplinary authority.

14. At the outset, it requires to refer herein that circulars as appended

as Annexure-A and Annexure-B although have been annexed in the

counter affidavit filed in LPA No.371 of 2020 but since it is a circular of the

CCL Management, therefore, the same will be applicable in the facts of

the case i.e., in LPA No.373 of 2020.

The CCL Management in pursuance to the aforesaid order has filed

an affidavit bringing on record two documents i.e., circular dated 01.10.99

and circular dated 25.08.2003 as have been appended as Annexure-A

and Annexure-B to the affidavit respectively.

The aforesaid documents have been annexed to the said affidavit

has seriously been disputed on behalf of the writ petitioner on the ground

that the said documents cannot confer power upon the Project Officer to

act as disciplinary authority since the said has not been certified under the

provision of the Act, 1946 where the requirement is that the Certified

Standing Order is required to be certified in view of the provision of

Section 5 as contained therein as also the issue of delay of about more

than 25 years has been raised.

15. This Court, on appreciation of the aforesaid argument, deems it fit

and proper first to consider the question of jurisdiction but before

proceeding, it requires to refer herein that the issue of jurisdiction has not

been raised by the writ petitioner before the writ Court as would be evident

from the pleading made in the writ petition, save and except, a bald

statement has been made wherein it has been averred that the inquiry

proceeding is not sustainable in the eye of Law but even though, there is

no pleading to that effect but since the jurisdictional issue being a legal

issue and since it has been raised before the intra court, therefore, we

deem it fit and proper to answer the same.

There is no dispute about the fact that the appointing authority can

exercise the power of disciplinary authority which confers power under the

statute and in absence thereof, if any proceeding is being initiated, the

same will be nullity in the eye of Law due to jurisdictional error.

It is also not in dispute that the writ petitioners being a workmen

working under the CCL Management against whom a memorandum of

charge has been issued and the disciplinary authority is still at the stage of

inquiry which is being proceeded in pursuance to the provision as

contained under the provision of the Act, 1946.

The aforesaid Standing Orders contains a provision as under

Clause 2.3 which is being referred as hereunder:-

"'Competent Authority' means an officer specially nominated by the Chairman/Managing Director concerned by an order in writing for the purpose of these standing orders. Such orders shall be put on Notice Board and copies sent to the concerned registered trade unions."

The documents which have been appended as Annexure-A and

Annexure-B to the affidavit and kept at Flag-"A" pertains to subject

"delegation in terms of provisions of the Certified Standing Orders

applicable to Central Coalfields Limited under Clause 2.3".

The content of the said circular stipulates that in pursuance of

Clause 2.3 of the Certified Standing Orders applicable to Central

Coalfields Limited, 'Competent Authority' for the purpose of these Standing

Orders is to be nominated by the Chairman/Managing Director.

Accordingly, the following Officers are nominated as Competent Authority

for the purpose of Certified Standing Orders in respect of CCL.

The 'Competent Authority' has been defined and the relevant for the

present case which reads hereunder as:-

"(1) In respect of Areas of CCL, the Chief General Mangers/ General Managers/Project Officers/Colliery Managers will be the Competent Authority to exercise the powers for implementation of the provisions of Standing Orders and taking disciplinary action under the provisions of Certified Standing Orders."

Likewise, the 'appellate authority' has also been defined therein in

view of the provision as contained under Clause-30 and Clause-31

thereof.

The documents appended as Annexure-A to the affidavit dated

09.09.2021 speaks about conferment of power to act as the competent

authority in view of the provision as contained under Clause 2.3, however,

the same has been issued under the seal and signature of the General

Manager.

In furtherance to that circular, one another circular was issued on

25.08.2003 as has been appended as Annexure-B to the affidavit. The

content thereof is that in pursuance and in terms of Clause 2.3 of the

Certified Standing Orders applicable to all establishments of Central

Coalfields Limited, the following Officers have been specially nominated

as 'Competent Authority' by the Chairman-cum-Managing director, CCL in

the matter of exercising powers for implementation of different provisions

under the Certified Standing Orders including taking disciplinary action.

Clause 1 thereof confers power upon the Project Officer to act as

the Competent Authority.

16. Mr. Mahesh Tiwari, learned counsel appearing for the appellant writ

petitioner has raised two issues on these circulars i.e., circular dated

01.10.99 and circular dated 25.08.2003 i.e.:-

(i) These two circulars have not been certified by the Regional

Labour Commissioner as required to be certified in view of the provision of

the Act, 1946 and

(ii) The power as under Clause 2.3 of the Certified Standing Orders

is required to be conferred by the Chairman-cum-Managing Director but it

has been conferred by the General Manager and therefore, the same

cannot be said to be in consonance with the provision of Clause 2.3.

17. While on the other hand, learned counsel for the CCL Management

has submitted in rebuttal to the said argument by taking aid of the

provision of sub-section 2 of Section 10 of the Act, 1946 which contains a

provision that any modification proposed to be made requires certification

by the Certifying Officer.

Herein, since the power to act as the competent authority has been

conferred in exercise of power as contained under Clause 2.3 of the

Certified Standing Orders cannot be treated to be a modification of the

Certified Standing Orders and therefore, there is no requirement to get its

certification from the competent authority as required under Section 5 of

the Act, 1946.

18. This Court, in order to consider the aforesaid argument, has gone

across the contents of the circular dated 01.10.99 and circular dated

25.08.2003 and the relevant part of the same are being quoted

hereinbelow:-

".........In pursuance of Clause 2.3 of the Certified Standing Orders applicable to Central Coalfields Limited, 'Competent Authority for the purpose of these Standing Orders is to be nominated by the Chairman/Managing Director. Accordingly, the following Officer are nominated as Competent Authority for the

purpose of Certified Standing Orders in respect of CCL.

COMPETENT AUTHORITY

1. In respect of Areas of CCL, the Chief General Managers/General Managers/Project Officer/Colliery Managers will be the Competent Authority to exercise the powers for implementation of the provisions of Standing Orders and taking disciplinary action under the provisions of Certified Standing Orders.

2. In respect of CCL Hqrs. and other Central Units, the HODs/CGM/GM will be the Competent Authority to exercise the powers of implementation taking disciplinary action under the provisions of Certified Standing Order. This will include all Regional Offices and centralised cadres.

3. In respect of Central Workshop, Barkakana, the General Manager, CWS, Barkakana shall be the Competent Authority to exercise the powers of implementation/taking disciplinary action under the provisions of Certified Standing Orders.

4. In respect of Central Stores, Barkakana, the Head of Central Stores at Barkakana shall be the Competent Authority to exercise the powers of implementation/taking disciplinary action under the provisions of Certified Standing Orders.

APPELLATE AUTHORITY UNDER CLAUSE-30 OF THE CERTIFIED STANDING ORDERS The Appellate Authority, as specified in Clause-30 of the Certified Standing Orders, will be the Director (Pers). Central Coalfields Limited in all cases.

APPELLATE AUTHORITY UNDER CLAUSE-31 OF THE CERTIFIED STANDING ORDERS The Chairman-cum-Managing Director, Central Coalfields Limited will be the Authority for review of punishment as specified in Clause-31 of the Certified Standing Orders................."

"..........In pursuance and in terms of Clause 2.3 of

the Certified Standing Orders applicable to all establishments of Central Coalfields Limited, the following officers have been specially nominated as 'Competent Authority' by the Chairman-cum-Managing Director, Central Coalfields Limited in the matter of exercising powers for implementation of different provisions under the Certified Standing Orders including taking disciplinary action:-

        1. In    respect      of      Areas        of     CCL-CGM/GM/Project
           Officer/Colliery        Manager         will   be     the   Competent
           Authority.
        2. In respect of CCL-HQ, Ranchi-HOD/CGM/GM of

different department situated at HQ, Darbhanga House, Ranchi will be the Competent Authority. The officer heading the NEE Section will assist the HOD/CGM/GM of the concerned department in taking disciplinary action against their employees.

3. In respect of Gandhinagar Hospital, Ranchi, Central Hospital, Naisarai, C.C.L. Office, Kolkata and Mines Rescue Station, Naisarai - the respective Head of Establishment/Department will be the Competent Authority.

4. In respect of Central Workshop, Barkakana the CGM/GM will be the Competent Authority.................."

There is no dispute about the fact that the Certified Standing Order

which has been placed before this Court for its consideration has been

formulated in accordance with the provision of the Act, 1946.

The Act, 1946 has been enacted considering the requirement in

Industrial Establishments to define with sufficient precision the conditions

of employment under them and to make the said conditions known to

workmen employed by them.

"Certifying Officer" has been defined under Section 2(c) of the Act

which means a Labour Commissioner or a Regional Labour

Commissioner, and includes any other officer appointed by the appropriate

Government, by notification in the Official Gazette, to perform all or any of

the functions of a Certifying Officer under this Act.

Section 3 stipulates about the submission of draft standing orders

before the Certifying Officer, while Section 5 provides provision for

Certification of standing orders.

Section 10 contains a provision of duration and modification of

standing orders and sub section 2 of Section 10 thereof provides a

provision of making application before the Certifying Officer to have the

standing orders modified and such application shall be accompanied by

five copies of the modifications proposed to be made by agreement

between the employer and the workmen or a trade union or other

representative body of the workmen, a certified copy of that agreement

shall be filed along with the application.

Thus, it is evident by going through the provision as contained

under the Act, 1946 that the requirement of certification is provided as also

the requirement in case of modification of certified standing order.

19. The argument which has been put forth by the learned counsel for

the appellants writ petitioners that the circular dated 01.10.99 and circular

dated 25.08.2003 were required to be certified by the competent authority

as required under the Act, 1946 but having not done so, its binding effect

being not in consonance with the provision of the Act, 1946.

20. This Court, therefore, is required to examine "as to whether the

circular dated 01.10.99 and circular dated 25.08.2003 are by way of

modification or it is in terms of the provision of Clause 2.3 of the Certified

Standing Orders?"

It is evident from the Certified Standing Order which contains a

provision under Clause 2.3 as quoted and referred hereinabove which

defines the definition of 'Competent Authority' which means an Officer

specially nominated by the Chairman/Managing Director concerned by an

order in writing for the purpose of these standing orders.

21. We, on careful consideration of the circular dated 01.10.99 and

circular dated 25.08.2003 have found therefrom that the said circulars

have been issued in terms of the provision of Clause 2.3 and therefore,

according to our considered view, since the said circulars have been

issued in purported exercise of Clause 2.3 of the Certified Standing

Orders which has already been certified under the provision of the Act,

1946, therefore, the circular issued in terms of the said provision cannot

be treated to be a modification which requires further certification in view

of the provision of Section 10 of the Act, 1946 as because it is explicitly

clear by going through the provision of sub section 2 of Section 10 that an

employer or workman may apply to the Certifying Officer to have the

standing orders modified. But herein, there is no question of modification

of the standing order and it cannot be a case of the writ petitioner because

issue of modification of standing order is not the subject matter rather the

issue of circular dated 01.10.99 and circular dated 25.08.2003 issued in

exercise of power conferred under Clause 2.3 as appended as Annexure-

A and Annexure-B to the said affidavit dated 09.09.2021 which cannot be

said to be a modification in the original standing order and certified

standing order.

The second question has been raised that the circular dated

01.10.99 as contained under Annexure-A to the affidavit dated 09.09.2021

since has been issued by the General Manager who has got no

jurisdiction to issue such notification in view of the explicit terms as

contained under Clause 2.3 that the power is to be delegated and

nominated by the order of the Chairman/Managing Director but we are of

the view that the said argument is having no force, as because, from the

very first paragraph of circular dated 01.10.99, it is evident that the

Chairman-cum-Managing Director has exercised the aforesaid power as

under Clause 2.3 of the Certified Standing Orders and further, the same

has been clarified in furtherance of the circular dated 25.08.2003 ,wherein

it has been stated that in pursuance and in terms of Clause 2.3 of the

certified standing order applicable to all establishments of CCL, the

following Officers have been specially nominated as Competent Authority

by the Chairman-cum-Managing Director, Central Coalfields Limited in the

matter of exercising powers for implementation of different provisions.

Thus, both the circulars taken together clarify the position that it is the

Chairman-cum-Managing Director, who has been conferred with the

power as contained under Clause 2.3 of the Certified Standing Orders,

has delegated/nominated the power to act as disciplinary authority.

The third ground has been taken about the delay in conclusion of

the proceeding and therefore, the charge is fit to be quashed but we are

also not inclined to interfere on this ground due to the proposition set out

by the Hon'ble Apex Court in the case of State of Madhya Pradesh and

Anr. Vrs. Akhilesh Jha and Anr., 2021 SCC Online SC 696, wherein, at

paragraph-15, it has been laid down that every delay in conducting a

disciplinary enquiry does not, ipso facto, lead to the enquiry being vitiated.

It has further been observed that the prejudice caused by the delay

must be demonstrated to have been caused and cannot be a matter of

surmise.

Herein, even accepting that there is delay of about more than 25

years but what prejudice have been caused to the writ petitioners are not

pleaded in the writ petitions, therefore, applying the said ratio laid down by

the Hon'ble Apex Court rendered in the case of State of Madhya Pradesh

and Anr. Vrs. Akhilesh Jha and Anr (supra), we are of the view that the

delay cannot be a sole ground to vitiate the departmental proceeding.

22. Mr. Tiwari, learned counsel for the appellant writ petitioner has

further tried to impress upon the Court that the disciplinary authority must

be the appointing authority and cannot subordinate to it and in support of

his argument, he has relied upon the judgment rendered by the Hon'ble

Apex Court in the case of UCO Bank & Ors. Vrs. Rajendra Shankar

Shukla (supra).

23. This Court, has considered the aforesaid judgment and found

therefrom that the said judgment rendered by the Hon'ble Apex Court in

the facts of the case where the statute itself provides that the disciplinary

authority cannot subordinate to the appointing authority.

But herein in the given facts of this case, learned counsel for the

appellants writ petitioners have failed to demonstrate any Law which

prohibits the respondent CCL to the effect that the disciplinary authority

will not be subordinate to the appointing authority rather his fact is different

in view of the provision as contained under Clause 2.3, based upon the

same, the power has been conferred upon the concerned Officer as would

be evident from the circular dated 01.10.99 and circular dated 25.08.2003

as referred hereinabove.

24. Moreso, the learned Single Judge has considered these aspects of

the matter and considering the fact that the memorandum of charge is

under consideration by the inquiry officer and therefore, the writ petitions

have been said to be premature and as such, declined to be interfered

with the charge-sheet, which according to our considered view, cannot be

said to suffer from error.

25. In one of the appeal i.e., in LPA No.373 of 2020 Mr. Ashim Kumar

Sahani, learned counsel for the writ petitioner appellant has submitted that

deed of adoption, based upon which, the appointment has been provided

being a valid document of the competent Court of Law, the same cannot

be questioned by the enquiry officer but at this stage, we cannot make any

remark upon the same, since it is yet to be considered by the enquiry

officer.

26. We, after taking into consideration the material available on record

and the discussion as has been made hereinabove as also the finding

recorded by the learned Single Judge is of the view that there is no reason

to interfere with the order passed by the learned Single Judge.

27. Accordingly, the instant appeals fail and are dismissed.

28. In consequent to dismissal of these appeals, pending Interlocutory

Application(s), if any, stand disposed of.

(Sujit Narayan Prasad, J.)

(Ambuj Nath, J.)

Rohit/-.A.F.R.