KACHARIA Vs. WESTERN COAL FIELDS

JUDGEMENT

(1.) This Petition under Article 226 of the Constitution of India is directed against the order dated 25-8-2001 passed by the respondent No. 2 by which the petitioner has been dismissed from service after a departmental inquiry. It is contended that the allegations were made against the petitioner that certain land owned by the respondent No. 1 was encroached upon and construction was done. The petitioner was called upon to remove such encroachment but this was not done, therefore, the petitioner was placed under suspension and inquiry was conducted against him. It is alleged that in the departmental inquiry adequate opportunity of defence was not extended to the petitioner inasmuch as the inquiry officer himself examined the witnesses of the department and recorded their statement. Inquiry report was given against the petitioner after conducting the inquiry in such illegal manner. A show cause notice was issued to the petitioner but again the relevant documents were not made available, as a result though the explanation was submitted by the petitioner with respect to the second show cause notice yet the same was not taken into consideration and the petitioner was dismissed from service by the impugned order. Since the inquiry itself was conducted in illegal manner, the order impugned could not have been passed against the petitioner. As such the order impugned is bad in law and is liable to the quashed. It is very categorically contended by the petitioner that the land was said to be purchased by Narendra Kumar who is son of the petitioner but is living separately. The action was initiated by the respondents against said Narendra Kumar for his removal from the said property under the Public Premises Eviction Act, 1971 and therefore there was no occasion to initiate any departmental inquiry against the petitioner on false allegations. It is further contended that since the registered sale deed was executed in favour of said Narendra Kumar with respect to the property, said to be claimed by the respondents, in fact the title was required to be established by filing a civil suit and then only to take action against the person who has illegally encroached on the land if proved. This too was not done therefore the order impugned could not have been passed against the petitioner. In response to the notice of writ petition issued a return has been filed by the respondents and they have denied all the allegations made by the petitioner and objection is raised by the respondents stating that the standing orders are attracted in the establishment of respondents. Since the petitioner was dismissed from service after a departmental enquiry he should have resorted to the remedy available to him by raising a dispute under the Industrial Disputes Act. If a dispute is raised under the relevant Act, the question with regard to the validity of the inquiry and its reasonableness can be examined by the said competent authority under the Act and a redressal can be granted by the Labour Court. However, since the disputed facts are involved, without resorting to the remedy available under the Industrial Act, the present Writ Petition is not maintainable and the same is liable to be dismissed on this count. It is further contended that the departmental enquiry was initiated against the petitioner and one Shri Narayan Ram was appointed as inquiry officer. The petitioner was granted assistance of one Shri G.R. Likhitkar, senior overman. However, it was specifically mentioned in the letter permitting the petitioner to take the defence assistance that Shri Likhitkar was not under the control of the respondent No. 2 and if the petitioner wanted to take assistance of the said person he was required to bring the said person in the inquiry. The petitioner could have taken assistance of a co-worker but no such application was made in this respect. It is further contended that the inquiry officer examined the witnesses and afforded the opportunity of defence to the petitioner. However, the petitioner was not able to prove that the property of the respondents was not encroached by him and son of the petitioner was not living with him and the proceedings were initiated against the petitioner only for his eviction from the disputed property. It is contended that since the guilt of the petitioner was proved in the inquiry, the report was given. The opportunity was extended to the petitioner for the submission of explanation. As no material was placed by the petitioner, the conclusion was drawn that the charges against the petitioner were proved. As per the standing order penalty was rightly imposed on the petitioner. It is thus contended that the inquiry was rightly conducted and therefore no interference in the order of penalty is called for and the petition is liable to be dismissed.

(2.) Heard learned counsel for parties at length and perused the record.

(3.) It is not disputed that a show cause notice was issued to the petitioner on 15-1-2001 levelling against him charges that he has violated the orders of superior authority. The other charge was that despite giving him a show cause notice he has not removed the illegal possession from the property of the company and has kept the said property in his unauthorized possession. In response to the said show cause notice issued on 15-1-2001 the petitioner has categorically contended that he has not made any unauthorized possession on the property of the company nor has constructed any shops thereon. No enquiry was conducted in this respect but a charge-sheet was issued and the very same allegations were repeated against the petitioner vide charge-sheet dated 28-3-2001. Against the same reply was submitted by the petitioner in response to the said charge sheet. In the inquiry conducted against the petitioner witnesses were examined who have said that construction of the shops was done by some persons by making encroachment on the land, situated at Kailash Nagar of Western Coal Filed, Patharkheda area, which land was acquired for the purposes of construction of residential houses. The statement contains that the construction was being done by the petitioner who was employed in Shobhapur mines. However, how the construction was being done and whether the said land was encroached by the petitioner was not specifically stated. The petitioner has categorically contended that the land was said to be purchased by a registered sale deed by his son from one Smt. Ramrati on 8th May, 2000. After the execution of the said sale deed the said person has started making construction. From the family card produced by the petitioner it is indicated that he and his wife both were living in the family. A show cause notice was issued to one Narendra Kumar son of Kacharia by the authorities of the respondents under the Public Premises Eviction Act for removal of the encroachment. Though the name of the petitioner was also mentioned in the same but reply was given by said Narendra Kumar that the land was purchased by him from one Smt. Ramrati. If this fact was brought to the notice of the respondents/authorities, the same was to be taken into consideration and then appropriate action under the law was required to be taken for cancellation of the said sale deed. Nothing has been indicated by the respondents in this respect, on the other hand, merely because some of the witnesses, who were employees of the respondent company have stated that the petitioner was the person who has made encroachment, in absence of definite documentary evidence, contrary to the reply submitted by the said Narendra Kumar, how could it be said that the petitioner was encroacher of the land. The fact remains that show cause notice was issued on 23-2-2001 of which the reply was submitted on 27-3-2001 by Narendra Kumar under his signature making allegations that he has purchased the land from one Smt. Ramrati, whereas the order of termination was issued against the petitioner on 25-8-2001 without holding any inquiry with respect to the alleged claim of Narendra Kumar. Thus, it cannot be said that the inquiry was rightly conducted against the petitioner and he was removed, from the post on the basis of justified proper inquiry.