D.P. Kundu, J.@mdashWhile the petitioner was working as Despatch Clerk in Sodepur Colliery under Eastern Coalfields Ltd. by virtue of a charge-sheet dated September 13, 1998 some charges were levelled against the writ petitioner. The relevant portion of the charge-sheet is quoted hereinbelow:-
"Sub: Charge-sheet.
This has been reported and also found after preliminary enquiry that there was a discrepancy in despatching coal through road despatch in the month of August 1998. As per sale order No. 98070320 dated July 10, 1998 the consumer "Saraf Silicate" was given sale order of 265 MT of goods ''B'' Steam Coal from Sode 3 A.P. pit. But it was found that an excess of 33.460 MT of the same grade coal was allowed to be lifted and that the excess quantity was taken away by "Saraf Silicate", Nimakanali Road, Barakar. As a Despatch Clerk how you have allowed the above irregularities without; proper verification which is an important task to be done on your part. You have failed to verify the quantities being despatched also failed to keep the records updated for proper reconciliation.
This is a gross negligence on the part of your duty which is of serious nature. You are, therefore, charged under the Standing Order of the company applicable to you u/s as follows:-
Section 17(i)(a)
''Dishonesty in connection with employer''s business''.
17(i)(f)
''Neglect of work''.
As the charges are of serious nature, you are, placed under suspension pending enquiry. You are, required to submit your written explanation within 48 hours of the receipt of this letter as to why disciplinary action will not be taken against you for such misconduct. This will have(sic)effect immediately from September 16, 1998."
2. An enquiry was conducted in respect of the charges levelled against the writ petitioner and the enquiry officer found that the charges for neglect of work and dishonesty in company''s property of business have been established against the writ petitioner.
3. By an order of dismissal dated November 10, 1998 issued by Dy. Chief Mining Engineer/Agent Sodepur Group, Eastern Coalfields Ltd. the petitioner was dismissed from the service of the company with immediate effect. The relevant portion of the order of dismissal is quoted hereinbelow:
"Sri U.N. Pandey,
Despatch Clerk,
UM No. 049915,
Sodepur Colliery
Sub:Dismissal
Dear Sir,
Further to charge-sheet No. SC/CKM/ Sales/Charge-sheet/98/4965 dated September 15, 1998 issued to you and your subsequent reply to the same, this is to inform you that your explanation being found not satisfactory, a written enquiry was held into the above charges levelled against you on different dates, in which you had fully participated. As per the report and findings of Enquiry Officer, the charges levelled against you have been fully proved against you. You had been provided with day-to-day proceedings of the Enquiry on each date of enquiry.
However, you have again been given the total proceedings of enquiry including the findings of enquiry officer and other connected papers vide letter No. pd/C-6/98/36/2880 dated October 30 and November 2, 1998 for your perusal and submission of comments, if any, within 72 hours of the receipt of the said letter. The comment so submitted by you has not been found to be satisfactory.
Your past record of service has been examined to find out as to whether there is any extenuating circumstances in your favour, but nothing has been found.
The Chief General Manager, Sodepur Area, has gone through entire enquiry proceedings and findings of the enquiry officer and has concurred with the findings that on evidence on record, the charges have been fully proved against you.
The charges levelled against you and proved against you being grave and serious in nature, the punishment warranted is that of dismissal from service and has ordered for your dismissal from service.
Accordingly, you are hereby dismissed from the service of the company with immediate effect."
4. The writ petitioner in the instant writ petition has challenged (i) the charge-sheet dated September 15, 1998 (ii) the enquiry proceeding relating to the aforesaid charge-sheet and (iii) the punishment awarded to the petitioner vide letter dated November 10, 1998.
5. On October 4, 1999 this Court passed an order directing the respondents to produce all records relating to the disciplinary proceedings against the writ petitioner. By the said order dated October 4, 1999 the respondents were, further directed to produce the relevant rules to show who is the disciplinary authority of the writ petitioner. Pursuant to the aforesaid order dated October 4, 1999, the respondents on November 15, 1999 produced before the Court the records relating to the disciplinary proceeding against the writ petitioner and by an order dated November 15, 1999 passed by this Court the records so produced by the respondents were directed to be kept in the custody of the Court till the matter is disposed of.
6. In the order of dismissal dated November 10, 1998 issued by the Dy. Chief Mining Engineer it had been stated that the Chief General Manager, Sodepur Area had gone through the entire enquiry proceedings and findings of the enquiry officer and had concurred with the findings that on evidence on record, the charges had been fully proved against the writ petitioner. It was also stated that the comments submitted by the writ petitioner in connection with the enquiry report had not been found to be satisfactory.
7. The copy of the findings of the enquiry officer along with the report of the enquiry officer were furnished to the writ petitioner and the writ petitioner made a representation in connection with the said enquiry report raising various points as to why the enquiry report is not sustainable. Admittedly the said representation of the petitioner in connection with the enquiry report was submitted to the Chief General Manager on November 5, 1998. From the record submitted by the respondents it appears that the Chief General Manager by a letter dated November 7, 1998 communicated his order to the agent, Sodepur R. Colliery directing that the writ petitioner be dismissed from the service with immediate effect. The relevant portion of the aforesaid letter dated November 7, 1998 of the Chief General Manager, Sodepur Area, Eastern Coalfields Ltd., is quoted hereinbelow:-
"I am returning herewith the charge-sheet and report of Enquiry Officer in respect of Shri U.N. Pandey, UM No. 049915, Despatch Clerk of Sodepur Colliery, which was duly forwarded to the undersigned.
Perused the charge-sheet and report of Enquiry Officer, I fully concur with the findings of the Enquiry Officer. The charges levelled against Sri. U.N. Pandey, UM No. 049915 of Sodepur Colliery, has been proved beyond doubt.
The charges are of grave nature and there is no extenuating circumstances on record, as such, I hereby order that Shri U.N. Pandey be dismissed from his service with immediate effect.
This may please be communicated to Sri. U.N. Pandey in writing."
It is both apparent and evident from the above referred letter dated November 7, 1998 by the Chief General Manager that there is nothing in the said letter to show that the Chief General Manager at all considered the representation made by the writ petitioner which was served in the Office of the Chief General Manager on November 5, 1998 in connection with the findings and report of the enquiry officer.
8. It appears that a disciplinary enquiry was also initiated against another employee namely'', ''Ramjiban Roy on the self-same charges which have been levelled against the writ petitioner. It is apparent from the report of the enquiry officer that the enquiry officer held only one enquiry in respect of the charges against the writ petitioner" and also Shri Ramjiban Roy and submitted one enquiry report covering both the writ petitioners and Shri Ramjiban Roy and also submitted his findings covering both the writ petitioner and Ram Jiban Roy.
9. Shri Ramjiban Roy was also found guilty of the charges levelled against him and he was also discharged from the service. Being aggrieved by and dissatisfied with the order of discharge Shri Ramjiban Roy initiated a writ proceeding being W.P. 21248 (W) of 1998. PINAKI CHANDRA GHOSE, J. on May 10, 1999 in W.P. 21248 (W) of 1998, inter alia, passed the following order:
"Mr. Majumdar, learned counsel appearing for the respondents, is fair enough to submit before this Court that his client is agreeable to withdraw the discharge order which has been passed against the petitioner. He has also pointed out before this Court that steps will be taken against the petitioner by withholding two increments.
After considering the facts and circumstances of the case produced before me by the parties, I am of the opinion that ends of justice will be subserved in the event the stoppage of two annual increments is reduced to one and it is ordered accordingly. Respondents authorities shall take all necessary steps to pay the arrear salaries due and payable to the petitioner at an early date.
This writ application thus disposed of without any order as to costs.
Xerox copy of this order, if applied for, be supplied to the parties with utmost expedition."
10. The writ petitioner filed an application being CAN 7998 of 1999 wherein the writ petitioner referred to the aforesaid order dated May 10, 1999 passed by PINAKI CHANDRA GHOSE, J, though it was wrongly stated that the order of Justice PINAKI CHANDRA GHOSE is dated May 6, 1999.
11. The learned Advocate for the respondents raised a preliminary objection regarding maintainability of the writ petition. The learned Advocate for the respondents argued that the petitioner was admittedly a workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 and since the present writ petition arises out of dismissal from service after holding a proper domestic enquiry, justification or otherwise of the said order of dismissal can be adjudicated by an Industrial Tribunal upon a reference made to it u/s 2-A of the Industrial Disputes Act, 1947. The learned. Advocate for the respondents submitted that by reason of invoking the writ jurisdiction of this High Court by the writ petitioner, the management of the respondent No. 1 would be deprived of its opportunity to adduce fresh evidence which they could have done in the event, the matter was adjudicated by an Industrial Tribunal while holding preliminarily (sic) that the enquiry was not fair and proper. It was submitted by the learned Advocate for the respondents that the writ petition should be dismissed for prosecution in a wrong forum.
12. The learned Advocate for the writ, petitioner submitted that the above noted submissions of the learned Advocate for the respondents are not acceptable in view of the decision of Supreme Court in
"Under Article 226 of the Constitution the High Court having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in atleast three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order of proceedings are wholly without jurisdiction '' or the vires of an Act is challenged. There is a plethora of case-law on this point put to cut down this circle of forensic Whirlpool, we would rely on some old decisions of the evolutionary arc of the Constitutional law as they still hold the field."
13. The learned Advocate for the petitioner argued that the facts and circumstances of the present case justify initiating the present writ proceeding and in the facts and circumstances of the present case the writ petition is maintainable.
14. I have to decide first the objection raised by the learned Advocate for the respondents regarding maintainability of the present writ petition. In support of his objection, the learned Advocate for the respondents referred to and relied upon
"We may now summarise the principles flowing from the above discussion:
(1) Where the dispute arises from general law of contract, i.e. where reliefs are claimed on the basis of the general law of contract, a suit filed in Civil Court cannot be said to be not maintainable, even though such a dispute may also constitute an "industrial dispute" within the meaning of Section 2(k) or Section 2-A of the Industrial Disputes Act, 1947.
(2) Where, however, the dispute involves recognition, observance or enforcement of any of the rights or obligations created by the Industrial Disputes Act, the only remedy is to approach the forum created by the said Act.
(3) Similarly, where the dispute involves the recognition, observance or enforcement of rights and obligations created by enactments like Industrial Employment (Standing Orders) Act, 1946 which can be called "sister enactments" to Industrial Disputes Act - and which do not provide a forum for resolution of such disputes, the only remedy shall be to approach the forums created by the Industrial Disputes Act provided they constitute industrial dispute within the meaning of Section 2(k) and Section 2-A of Industrial Disputes Act or where such enactment says that such dispute shall be either treated as an industrial dispute or says that it shall be adjudicated by any of the forums created by the Industrial Disputes Act. Otherwise, recourse to civil Court is open.
(4) It is not correct to say that the remedies provided by the Industrial Disputes Act are not equally effective for the reason that access to the forum depends upon a reference being made by the appropriate Government. The power to make a reference conferred upon the Government is to be exercised to effectuate the object of the enactment and hence not unguided. The rule is to make a reference unless, of course, the dispute raised is totally frivolous ex facie. The power conferred is the power to refer and not the power to decide, though it may be that the Government is entitled to examine whether the dispute is ex facie frivolous, not meriting an adjudication.
(5) Consistent with the policy of law aforesaid, we commend to Parliament and the State Legislatures to make a provision enabling a workman to approach the Labour Court/Industrial Tribunal directly - i.e. without the requirement of a reference by the Government - in case of industrial disputes covered by Section 2-A of the Industrial Disputes Act. This would go a long way in removing the misgivings with respect to the effectiveness of the remedies provided by the Industrial Disputes Act.
(6) The certified Standing Orders framed under and in accordance with the Industrial Employment (Standing Orders) Act, 1946 are statutorily imposed conditions of service and are binding both upon the employers and employees, though they do not amount to "statutory provisions". Any violation of these Standing Orders entitles an employee to appropriate relief either before the forums created by the Industrial Disputes Act or the Civil Court where recourse to Civil Court is open according to the principles indicated herein.
(7) The policy of law emerging from Industrial Disputes Act and its sister enactments is to provide an alternative dispute- resolution mechanism to the workmen, a mechanism which is speedy, inexpensive, informal and unencumbered by the plethora of procedural laws and appeals upon and revisions applicable to Civil Courts. Indeed, the powers of the Courts and tribunals under the Industrial Disputes Act are far more extensive in the sense that they can grant such relief as they think appropriate in the circumstances for putting an end to an industrial dispute."
15. It is now well settled by a plethora of decisions of Supreme Court and different High Courts that in an industrial dispute related to dismissal of a workman the Industrial Tribunal should at first decide whether the enquiry made against the workman concerned on the basis of which the employee has been dismissed was fair and proper and if it is found by the Industrial Tribunal that the enquiry against the workman was not fair and proper then the employer on an application being made at a proper time would get an opportunity to adduce fresh evidence to prove the charges against the workman before the Tribunal. It is true that if a dismissed workman straightaway approaches the writ jurisdiction of the High Court the employer would be deprived of the opportunity of proving the charges against the workman concerned by adducing fresh evidence before the Tribunal. Therefore, while deciding the preliminary objection raised by the learned Advocate for the respondents all these aspects of the matters should be considered.
16. In course of hearing I categorically asked the learned Advocate for the respondents that whether Eastern Coalfields Ltd. was a "state" within the meaning of Article 12 of the Constitution of India. The learned Advocate for the respondents clearly submitted that Eastern Coalfields Ltd. is a "state" within the meaning of Article 12 of the Constitution of India and it is not his case that Eastern Coalfields Ltd. is not a "State" within the meaning of Article 12 of the Constitution of India. Admittedly the writ petitioner was a workman within the meaning of Section 2(s) of the Industrial Disputes Act and employed by the Eastern Coalfields Limited. Does this aspect of the matter make any difference? In my opinion it makes a world of difference. It is now well settled by a decision of Constitution Bench of Supreme Court in
"12. It is also necessary to add that merely because of juristic entity may be an authority and therefore State within the meaning of Article 12, it may not be elevated to the position of State for the purpose of Articles 309, 310 and 311 which find a place in Part XIV. The definition of State in Article 12 which includes an authority within the territory of India or under control of the Government of India is limited in its application only to Part-Ill and by virtue of Article 36, to Part-IV, it does not extend to the other provisions of the Constitution and hence a juristic entity which may be State for the purpose of Parts-Ill and IV would not be so for the purpose of Part-XIV or any other provision of the Constitution."
The above quoted lines from Ajay Hasia case (supra) was relied upon by the Supreme Court in
"Once it is held that the Sainik School Society is "State" within the meaning of Article 12 of the Constitution, application of Article 14 is attracted. Similarly under the Directive Principles - the claim for equal pay for equal work becomes tenable."
17. Thus it is well settled principle of law that an employee of a "state" within the meaning of Article 12 of the Constitution can initiate a proceeding against his employer if his fundamental rights guaranteed by Part-III of Constitution of India are violated by he employer. This being the position in law the workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 of an employer who is a "State" within the meaning of Article 12 of the Constitution of India can initiate a writ proceeding when his fundamental rights guaranteed by Part- III of the Constitution are violated by his employer. Thus a workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 can initiate a writ proceeding against his employer is a "state" within the meaning of Article 12 of the Constitution of India when the disciplinary proceedings is arbitrary and thereby violated the provision of Article 14 of the Constitution and when he is deprived of his livelihood not in accordance with the procedure established by law thereby violating Article 21 of the Constitution of India. In such type of cases I am of the view that even if the workman could have raised an industrial dispute under the provisions of Industrial Disputes Act, 1947 that would not prevent the workman to move a writ application when his fundamental rights under the Constitution are violated. In the Whirlpool Corporation case (supra) it has clearly been laid down that availability of alternative remedy in a case of breach of fundamental rights and breach of principles of natural justice or action taken without any jurisdiction would not at all stand in the way of an aggrieved person to initiate a writ proceeding in High Court. Whether fundamental rights of an employees guaranteed by Part III of the Constitution of India have been violated or not can only be decided on the basis of the facts and circumstances of each case. Therefore, the finding of the Court that fundamental rights under Part-Ill of the Constitution have been violated is a conclusion which can be arrived at by a Court on the basis of facts and circumstances of each case. It is not necessary that the employee or the workman should make a statement in the writ petition that his fundamental rights have been violated. It is enough if he pleads the material and relevant facts involved in the case. If after examination of the facts so stated the Court comes to a conclusion that fundamental right of a workman or employee has been violated by the employer who is a "state" within the meaning of Article 12 of the Constitution of India, Court cannot refuse to entertain or pass appropriate order granting relief to the aggrieved employee or workman. In such cases Court cannot ask the workman u/s 2(s) of the Industrial Disputes Act to take recourse to the forum under the provisions of the Industrial Disputes Act, 1947. That apart Court, can take notice of illegalities glaring on the fact of the record even in absence of any pleading to that effect. This view is supported by the decision of Supreme Court in Anil Kumar Gupta v. State of U.P. reported in 1995 (5) JT 505.
18. The above point requires some elaboration. A workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 of an employer who is a "State" within the meaning of Article 12 of the Constitution of India acquires a status and belongs to a class different from a workman whose employer is not a "state" within the meaning of Article 12 of the Constitution of India. Because a workman whose employer is not a "state" within the meaning of Article 12 of the Constitution of India cannot enforce his fundamental rights guaranteed by Part-III of the Constitution of India against his employer who is not a "state" within the meaning of Article 12 of the Constitution. The single different tact makes a world of difference between these two classes of workman one being a workman of a "state" within the meaning of Article 12 of Constitution of India other being a workman of any establishment other than a "state" within the meaning of Article 12 of the Constitution of India.
19. In a case where workman''s employer is not a "state" within the meaning of Article 12 of the Constitution of India, if the enquiry against the workman is held arbitrarily or in violation of the principles of natural justice, then the employer can produce fresh evidence before the Tribunal to bring home (sic) the charges. In my opinion such would not be the position in a case where a workman''s employer is a "state" within the meaning of Article 12 of the Constitution of India. Because in a case where the employer is a "state" within the meaning of Article 12 of the Constitution of India then such violation of principles of natural justice is a violation of Article 14 of the Constitution. But when the employer is not a "state" within the meaning of Article 12 of the Constitution of India question of violation of Article 14 does not arise. In this connection reference may be made to a decision of Supreme Court in
"The principles of natural justice have thus come to be recognised, as being a part of the guarantee contained in Article 14 because of the new and dynamic interpretation given by this Court to the concept of equality which is the subject-matter of that Article. Shortly put, the syllogism runs thus: violation of a rule of natural justice results in arbitrariness which is the same as discrimination; where discrimination is the result of State action, it is a violation of Article 14: therefore, a violation of a principle of natural justice by a State action is a violation of Article 14. Article 14, however, is not the sole repository of the principles of natural justice. What it does is to guarantee that any law or State action violating them will be struck down. The principles of natural justice, however, apply not only to legislation and State action but also where any Tribunal, authority or body of men, not coming within the definition of "State" in Article 12, is charged with the duty of deciding a matter. In such a case, the principles of natural justice require that it must decide such matter fairly and impartially."
From the above quoted majority view in Tulsiram Patel case (supra) it is apparent that violation of principles of natural justice by an employer who is a "state" within the meaning of Article 12 of the Constitution of India is a violation of Article 14 and such action is liable to be struck down by the Court. Principles of natural justice when violated in case of an employer who is not a "state" within the meaning of Article 12 of the Constitution question of violation of Article 14 does not arise. "In such case" meaning thereby when the employer is not a "state" within the meaning of Article 12 of the Constitution, the principles of natural justice require that it must decide such matter fairly and impartially. Therefore, in a case when a disciplinary action taken by an employer who is not a "state" within the meaning of Article 12 of the Constitution of India is called in question by an employee who is a workman within Section 2(s) of Industrial Disputes Act, 1947 then the only forum available to the workman is the forum under Industrial Disputes Act, 1947. But in a case where a disciplinary action taken by an employer who is a "state" within the meaning of Article 12 of the Constitution of India is called in question by an employer is a "state" within the meaning of Article 12 of the Constitution of India is called in question by an employee who is workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 the workman can, in my opinion, initiate a writ proceeding before the High Court provided his fundamental rights guaranteed by Part-Ill of Constitution of India have been violated by such action of the employer.
20. From the foregoing discussions I am of the view that an employee, irrespective of whether he is a workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 or not, of a "state" within the meaning of Article 12 of the Constitution of India acquires a status in view of the legal relationship between him and his employer which is not the position in a case where an employee''s employer is not a "state" within the meaning of Article 12 of the Constitution of India.
21. In view of the discussions made hereinabove I am of the view that an employee even if he is a workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947, can maintain a writ petition against his employer who is a "state" within the meaning of Article 12 of the Constitution of India provided he can prove that his fundamental rights guaranteed by Part-III of the Constitution of India have been violated by his employer and if he can prove that his employer has violated any or more fundamental rights then he is not required to approach the forum under the provisions of Industrial Disputes Act, 1947, instead he can straight away move a writ application before the High Court against his employer.
22. Therefore, in the instant case I have to examine whether any or more fundamental rights of the petitioner guaranteed under Part-III of the Constitution have been violated by the respondents while dismissing him from the service.
23. Admittedly the service conditions of the writ petitioner are guided and governed by Model Standing Orders for Industrial Establishment in Coal Mines (hereinafter referred to as Model Standing Orders) which is Schedule 1A of the Industrial Employment (Standing Orders) Central Rules, 1946. It is apparent from the charge-sheet that the petitioner was charged under Sections 17(i)(a) and 17(i)(f). Section 17(i)(a) of the Model Standing Orders reads as follows:-
"17. Disciplinary action for misconduct - (i) A workman may be suspended by the employer pending investigation or departmental enquiry and shall be paid subsistence allowance in accordance with the provisions of Section 10-A of the Act. The employer shall normally complete the enquiry within 10 days. The payment of subsistence allowance shall be subject to the workman not taking any employment elsewhere during the period of suspension:
The following shall denote misconduct:
(a) Theft, fraud or dishonesty in connection with the employer''s business or property.
(b) ............................
(c)............................
(d) ............................
(e).........................
(f) Habitual neglect of work
....................."
24. A careful perusal of Section 17(i) of the Model Standing Orders shows that it is exhaustively laid down that should denote misconduct. The term "dishonesty" means "Disposition to lie, cheat, deceive, or defraud; untrustworthiness; lack of integrity, lack of honesty, probity or integrity in principle, lack of fairness and straigtforwardness; disposition to defraud, deceive or betray, Trucker v. Lower, 200 Kan, 1,434 P. 2d 320, 324. It appears that habitual late attendance, habitual absence, habitual neglect of work, habitual indiscipline, habitual money lending have been mentioned in Section 17(4) of the Model Standing Orders as misconduct. The expression "habitually" was considered by Supreme Court in
25. The charge-sheet itself shows that the disciplinary authority did not want to charge the writ petitioner for habitual neglect of work. The disciplinary authority thought that by taking recourse to Section 17(i)(f), even for a neglect of work an employee can be charged under 17(i)(f) of the Model Standing Orders.
26. It is both apparent and evident from the report of the enquiry officer that in the concluding paragraph of the report, the enquiry officer observed:
"This excess despatch of 33.46 M.T. coal A/c. Sarab Silicate and not maintaining the balance register and not entering the despatch made on July 17, 1998 and August 14, 1998 is due to the carelessness, callous attitude and negligence in duties on the part of Sri. U.N. Pandey, Despatch Clerks and Ramjiban Roy, Assistant Loading Inspector, Sodepur (R) Colliery."
27. In the report there is no discussion regarding other charges against the writ petitioner namely "dishonesty in connection with the employer''s business". From the enquiry report it reveals there is also no such evidence against the writ petitioner regarding "dishonesty in connection with the employer''s business". On the other hand in the enquiry report the enquiry officer observed:
"The excess despatch of coal made against July 16 and 17 1998 & August 14, 1998 to the tune of 33.46 M.T. is due to the sheer: negligence on the part of the concerned Despatch Clerk of the colliery, who also failed to maintain the balance register and failed to record the despatch of coal made on July 17, 1998 & August 14, 1998 on the back-side of the S.O. and thereby allowed to despatch an excess to the tune of 33.46 M.T. beyond the S.O. quantity against Sarab Silicate, Barakar."
28. In the findings of the enquiry the enquiry officer recorded "Shri U.N. Pandey was on duty on July 17, 1998 and he was on leave from July 20, 1998 to August 13, 1998 and during this period Shri Ramjiban Roy was authorised to look after the despatch of coal. On August 14, 1998 Shri U.N. Pandey joined his duties but Shri Ramjiban Roy despatched coal on August 14, 1998 under his signature." But strangely the enquiry officer in his finding recorded "Since one truck of coal was despatched on July 17, 1998 when Sri U.N. Pandey was on duty as Despatch Clerk and he failed to enter the said despatch of coal made on July 17, 1998 on the back-side of S.O. and did not maintain the necessary Despatch/ Balance Register uptodate, the charges for neglect of work and dishonesty in company''s property or business have been established against him." . It is needless to say that the finding of the enquiry officer that the petitioner is guilty of the charge of dishonesty in business property or business is based on no evidence and is wholly perverse. Even the finding of enquiry officer regarding neglect of the petitioner speaks about his alleged negligence only on July 17, 1998 meaning thereby that was a singular act of alleged negligence. There is nothing on record to show at least no such discussion has been made by the enquiry officer that the petitioner is guilty of "habitual neglect of work" . Therefore, it is both evident and apparent on the face of the report of the enquiry officer and findings of the enquiry officer that there is nothing on record to show that the petitioner is guilty of the misconduct under Sections 17(i)(a) and 17(i)(f) of the Model Standing Orders.
29. Both the findings of the enquiry officer and the report of the enquiry officer were furnished to the writ petitioner and the writ petitioner submitted a representation in respect of the findings of the enquiry officer to Chief General Manager on November 5, 1998. In the said representation the writ petitioner raised various objections in respect of the enquiry report and stated that he cannot be held responsible on the strength of such enquiry proceeding and findings which has lost its relevance due to clearing manipulation, unwarranted and motivated addition by the enquiry officer. I have already recorded earlier that the Chief General Manager by his letter dated November 7, 1998 communicated his order to the Agent, Sodepur R, Colliery directing that the writ petitioner be dismissed from service with immediate effect. The relevant lines of the said letter dated November 7, 1998 have been quoted in the earlier part of this judgment. It is apparent from the said letter dated November 7, 1998 of the Chief General Manager that there is no mention that the Chief General Manager considered the representation preferred by the writ petitioner which was submitted to the Chief General Manager on November 5, 1998. The learned Advocate for the petitioner argued that on the face of the record it shows that the Chief General Manager, the authority who took the decision to dismiss the writ petitioner from the service, did not consider the points raised by the writ petitioner in his representation submitted by the writ petitioner to the Chief General Manager on November 5, 1998 raising several questions about the enquiry report. The learned Advocate for the petitioner submits that this has violated the principles of natural justice. The learned Advocate for the respondents on the other hand argued that such non-consideration of representation of the writ petitioner by the Chief General Manager by itself does not violate the principles of natural justice. The learned Advocate for the respondents argued that it has been laid down by Supreme Court in
"26. However, when the Inquiry Officer goes further and records his findings, as stated above, which may or may not be based on the evidence on record or are contrary to the same or in ignorance of it, such findings are an additional material unknown to the employee but are taken into consideration by the disciplinary authority while arriving at its conclusion. Both the dictates of the reasonable opportunity as well as the principles of natural justice, therefore, require that before the disciplinary authority comes to its own conclusions, the delinquent employee should have an opportunity to reply to the Inquiry Officer''s findings. The disciplinary authority is then required to consider the evidence, the report of the Inquiry Officer and the representation of the employee against it."
30. I put particular stress upon the words that the disciplinary authority is then required to consider the evidence, the report of enquiry and the representation of the employee against it. Therefore, in B. Karunakar case (supra) it has been laid down that if the employee is furnished with the report of the enquiry officer and if the employee makes a representation in connection with the said enquiry report then the disciplinary authority before taking the final decision should consider the representation of the employee against the enquiry report. It is the dictates of the reasonable opportunity as well as the principle of natural justice. In the letter dated November 7, 1998 of the Chief General Manager there is nothing to show that the representation of the writ petitioner which was submitted to the Chief General Manager on November 5, 1998 was at all considered by the Chief General Manager. The Chief General Manager did not apply his mind to the representation made by the writ petitioner. The Chief General Manager did not assign a single reason why the points raised by the writ petitioner in his representation which was submitted to the Chief General Manager on November 5, 1998 did not appeal to him or was considered not credit-worthy. This is a case of gross violation of principles of natural justice violating provisions of Article 14 of the Constitution of India. Though the Chief General Manager in his letter dated November 7, 1998 did not discuss anything about the representation preferred by the the writ petitioner and submitted to the Chief General Manager on November 5, 1998 yet, it is surprising to note that the Dy. Chief Mining Engineer in his letter dated November 10, 1998 recorded." However, you have again been given the total proceedings of enquiry including the findings of enquiry officer and other connected papers vide letter No. Pd./C-6/98/36/2880 dated October 30/November 2, 1998 for your perusal and submission of comments, if any, within 72 hours of the receipt of the said letter. The comments so submitted by you have not been found to be satisfactory". Though the representation of the writ petitioner was not considered by the Chief General Manager yet the Dy. Chief Mining Engineer by his order of dismissal dated November 10, 1998 intimated that the representation of the writ petitioner submitted to the Chief General Manager on November 5, 1998 has not been found to be satisfactory.
31. It is now well settled principle of law that a person cannot be deprived of his livelihood except in accordance with procedure established by law. Supreme Court in
32. In view of the discussions made hereinabove it is absolutely clear that the petitioner has been dismissed from the service in violation of the procedure established by law. Therefore, his fundamental right guaranteed by Article 21 of the Constitution of India has also been violated.
33. In view of Tulsiram Patel case (supra) enquiry proceeding against an employee or workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 of a "state" within the meaning of Article 12 of the Constitution of India should pass the test of Article 14 of the Constitution of India. When such workman or employee of a "state" within the meaning of Article 12 of the Constitution of India is removed or dismissed from the service then in view of Olga Tellis case (supra) such dismissal or removal from service should also pass the test of Article 21 of the Constitution of India. No decision of any Court has been cited before me where the Court had held that inspite of violation of Articles 14 and 21 of the Constitution of India a workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 of a "state" within the meaning of Article 12 of the Constitution of India should approach the forum under the provisions of Industrial Disputes Act and not the writ jurisdiction of High Court. In my view existence of such decision is also not possible in view of the consistent principles laid down by Supreme Court which have again been restated in Whirlpool Corporation case (supra).
34. In view of the discussions made hereinabove I am of the view that the entire disciplinary proceeding including the order of dismissal has been vitiated due to violation of Articles 14 and 21 of the Constitution of India. I hold that the enquiry report, the findings of the enquiry officer and the order of dismissal dismissing the petitioner from the service is null and void and I set aside and quash the order of the dismissal, the enquiry report and the findings of the enquiry officer. The petitioner is entitled to the full salary for the period if any spent under suspension. The petitioner is also entitled to his full salary from the date of dismissal. The respondents are directed to pay the petitioner (i) his full salary for the period, if any, spent under suspension less the amount of subsistence allowance already paid, (ii) pay the petitioner his full salary from the date of dismissal till he is allowed to resume his duty. Such payment should be paid to the petitioner within six weeks from the date of communication of this order. In these terms the writ petition is allowed.
Later
35. Learned Advocate for the respondent prays for stay, of operation of the judgment and order. Such prayer is considered and rejected.
36. The record produced by the respondent, is given back to the respondent who is present in Court, through learned Advocate for the respondent.
