Jharkhand High Court
Smt. Rohini Deshwalin @ Aisha Bibi vs M/S Bharat Coking Coal Ltd on 17 October, 2024
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(L) No. 1376 of 2013
Smt. Rohini Deshwalin @ Aisha Bibi
wife of Nunu sah
at village-Belakunda, P.O.-Bhatdee, P.S.-Mahuda,
District-Dhanbad
(Jharkhand) ... ... Petitioner
Versus
1. M/s Bharat Coking Coal Ltd., Through its Chairman-cum-
Managing Director at Koyla Bhawan, P.O.- Koyla Nagar, P.S.-
Saraidhela, District-Dhanbad (Jharkhand)
2. The Director Personnel, Bharat Coking Coal Limited at Koyla
Bhawan, P.O.- Koyla Nagar, P.S.-Saraidhela, District-Dhanbad
3. The General Manager, Western Jharia Area, Bharat Coking Coal
Limited, P.O.-Moonidih, P.S.- Putki, District-Dhanbad (Jharkhand)
4. The Project Officer, Bhatdee Colliery, Bharat Coking Coal Ltd.
P.O.- Bhatdee, P.S.-Mahuda, District- Dhanbad (Jharkhand)
... ... Respondents
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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioner : Mrs. M. M. Pal, Senior Advocate
: Ms. Mohua Palit, Advocate
For the Respondents : Mr. Amit Kumar Das, Advocate
: Ms. Swati Shalini, Advocate
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18/17.10.2024 Heard the learned counsel for the parties.
2. Learned Senior counsel for the petitioner submits that there is
serious allegation of impersonation against the petitioner, but there has
been no charge-sheet and consequently there has been no departmental
enquiry in terms of Clause 27 of the Standing Order. She has
submitted that certain enquiry was said to have been conducted but the
complainant was not examined. She has submitted that in absence of
any departmental proceeding, the charge of impersonation cannot be
said to have been established. She has also submitted that charge of
impersonation is a gross misconduct and therefore, in order to hold the
petitioner guilty of impersonation, departmental enquiry was required
to be conducted.
3. Learned Senior counsel for the petitioner has referred to Clause
28 of the Standing Order to submit that as per the respondents they
have exercised power under Clause 28 of the Standing Order, but the
condition precedent for exercising of such power is not satisfied and
the petitioner having been removed from service on account of serious
charges of impersonation, for which it was incumbent upon the
respondents to conduct a regular departmental proceeding before
coming to a conclusion that the petitioner had impersonated herself.
She has referred to the so-called enquiry report (Annexure- 7) and
submits that the same cannot be termed as departmental enquiry and it
is at best an internal enquiry.
4. Learned Senior counsel for the petitioner has referred to Clause
27 and 28 of the Standing Order annexed as Annexure- 2 to the writ
petition. The letter of removal from service has also been placed
which is at Annexure- 1 to the writ petition to submit that the removal
is on account of allegation of impersonation.
5. The learned senior counsel for the petitioner has relied upon the
judgment passed by the Hon'ble Supreme Court reported in (2011) 6
SCC 376 (Commissioner of Police, Delhi Vs. Jai Bhagwan) (para 15
to 18) to submit that non-examination of complainant is fatal to such
an enquiry. She has also relied upon judgment reported in (2016) 8
SCC 471 (Avtar Singh Vs. Union of India and others) (para 13, 19,
27 and 28) to submit that suppression of material fact can be proved
only through departmental proceedings.
6. Learned Senior counsel has further referred to judgment
reported in 2017 (1) JBCJ 175 (SC) (Harjas Rai Makhija Vs.
Pushparani Jain and Another) (para 21 and 22) to submit that the
allegation of fraud is required to be proved in a departmental
proceeding. She has further submitted that no criminal case was filed
and Clause 28 of the Standing Order is not applicable.
7. The learned Senior counsel has also referred to judgment
reported in (2010) 2 SCC 169 (Kamal Nayan Mishra Vs. State of
Madhya Pradesh and Others) (paragraphs 19 and 24). She submits
that the petitioner had put in more than 29 years of service, she was
confirmed and promoted and there had been no allegation against the
petitioner at any point of time.
8. Learned counsel appearing on behalf of the respondent, on the
other hand, has submitted that the exercise of power under Clause 28
of the Standing Order has been undertaken in terms of Clause 28 of
Standing Order itself, inasmuch as, the matter was placed before the
competent authority who has taken a decision. He has referred to such
a decision from the records received from the learned Tribunal and
submits that it specifically mentions that the decision was taken by the
Managing Director of the respondent - company.
9. The learned counsel submits that statutory form - B at page no.
43 of the records received from the concerned tribunal reflects that
Rohini Deswalin who was the actual employee was wife of Kali
Deswali and the subsequent document at page no. 45 which is also
form B register reflects that the husband's name of actual Rohini
Deswalin was Kali Deswali. He submits that it is not the case of the
petitioner that her husband's name was Kali Deswali and therefore, on
the face of the record, the petitioner cannot claim to be the actual
employee of the respondent - company.
10. Learned counsel for the respondents has also submitted that
enquiry was conducted and the petitioner had herself admitted during
enquiry that name of her husband was not Kali Deswali and the name
of her husband was Parna Deswali. He has further submitted that
under such circumstances, the Form- B register being statutory
register, the petitioner had neither claimed before the authority that
she was the wife of Kali Deswali nor it was her case that she was wife
of Kali Deswali even before the learned Tribunal and therefore, it
stood admitted from the side of the petitioner that she was not the wife
of Kali Deswali. In such circumstances, the working of the petitioner
in the respondent company is through impersonation and therefore, the
petitioner has been rightly removed from service by exercising powers
under Clause 28 of the Standing Order.
11. Learned counsel for the respondents has also submitted that the
length of service is not relevant when it comes to impersonation. He
has relied upon a judgment passed by the Hon'ble Supreme Court in
the case reported in (2004) 2 SCC 105 (R. Vishwanatha Pillai Vs.
State of Kerala and others) (paragraphs 15 to 18) and submits that in
case of appointment obtained through false caste certificate the
Hon'ble Supreme Court has held that in cases of fraudulent
appointment, the incumbent is not entitled to protection under Article
311 of Constitution of India and he submits that consequently no
regular departmental proceeding was required to be conducted.
12. Learned counsel for the respondents has also relied upon the
judgment passed in the case reported in (1981) 3 SCC 451 (Firestone
Tyre and Rubber Company of India (P) Ltd. Vs. Workmen
Employed, Represented by Firestone Tyre Employees' Union) and
has referred to paragraph 10 of the said judgment to submit that
merely because no formal enquiry or formal charge-sheet was issued
to the petitioner, the same will not vitiate the enquiry conducted by the
respondents. The learned counsel has submitted that the learned
Tribunal has held the enquiry to be fair and proper and the said order
is not under challenge in the present proceedings and therefore, it is
not open to the petitioner to contend that the petitioner has been
removed without any enquiry.
13. Learned counsel for the respondents has also relied upon the
judgment passed in LPA No. 420 of 2017 (Jamuna Harijan @
Jamuna Ahirwar Vs. Central Coal Fields Limited and others) and
has submitted that in case of impersonation, there is no need to
conduct a regular departmental proceeding.
14. The learned Senior counsel for the petitioner, in response, has
submitted that the present case is not a case of simpliciter removal
rather it is a case of removal by holding that the petitioner has
impersonated herself. She has submitted that such serious charge
could have been proved only through regular departmental
proceedings which has not been conducted in the present case. The
petitioner has categorically stated that no charge-sheet was ever issued
and there has been no departmental proceeding.
15. The learned Senior counsel submits that so-called enquiry
report is not a result of any departmental proceeding. She has further
submitted that in the so called enquiry report itself it was mentioned
that there was conflicting opinion and therefore, the matter was
referred to the Superintendent of Police, Dhanbad to conduct an
enquiry who conducted an enquiry and submitted his views. The
learned counsel submits that such enquiry conducted by the
Superintendent of Police, Dhanbad cannot form a part of the enquiry
report as such proceeding by Superintendent of Police, Dhanbad is
without participation of the petitioner.
16. The learned Counsel has referred to Annexure- 6/1 dated
19.07.1987 to submit that during the process of forwarding of service
excerpts to the petitioner seeking her confirmation with regard to the
entries made in service record, only the name of the petitioner is
reflecting and the name of the husband of the petitioner does not find
place in the service excerpts. She submits that this happened way back
in the year 1987 and it is for the respondents to explain as to under
what circumstances the service excerpts which was forwarded to the
petitioner did not contain the name of her husband if the same was
appearing in Form - B register. Such mismatch is completely
unexplained.
17. The learned Senior counsel for the petitioner also submitted that
the husband of the petitioner namely, Parna Deswali expired around
30 to 35 years ago prior to her appointment and subsequently, she
married Nunu Sah.
18. Arguments concluded.
19. Judgment is reserved.
(Anubha Rawat Choudhary, J.)
Pankaj
