W.P.(S) No. 6699 of 2005 (An application under Article 226 of the Constitution of India) Falguni Mahto ... ... Petitioner Versus 1. M/s Bharat Coking Coal Ltd., Dhanbad.
2. Chairman-cum-Managing Director, B.C.C.L., Dhanbad.
3. Director (Personnel), B.C.C.L.
4. General Manager( Personnel), B.C.C.L., Dhanbad.
5. Project Officer/Deputy Chief Mining Engineer, Madhuwan, Colliery, Madhuwan, Dhanbad,. ... Respondents For the Petitioner : Mr. Mahesh Tewari Advocate For the Respondent: Mr. Anoop Kumar Mehta, Advocate PRESENT HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR By Court: The petitioner has approached this Court seeking quashing of charge-sheet dated 25.7.2005 issued by the respondent no. 5.
2. The brief facts of the case are that, the petitioner was appointed as a Fitter Helper at Madhuban Colliery in August, 1990. It is stated that before his appointment there was a land dispute, with respect to which a criminal case was instituted on 29.6.1990. After trial, the said criminal case being S.T. No. 43 of 1994 was decided by order dated 25.5.2004 and the petitioner was convicted and sentenced for the offence under sections 307/325/324/323 of the Indian Penal Code and also under section 148 of the I.P.C. and he was sentenced to undergo R.I. for a period of 10 years for the offence under section 307 of the Indian Penal Code. The petitioner preferred an appeal being Criminal Appeal no. 903 of 2004 in which the prayer for suspension of sentence and for grant of bail made by the petitioner, was allowed by order dated 8.7.2004. On 30/31.7.2004 a charge-sheet was served upon the petitioner under clause 26.1.1, 26.1.19 and 26.1.20 of the Certified Standing Order of the company. The petitioner submitted his reply stating that he had already intimated the authorities that he was on leave from 21.5.2004 to 28.5.2004 and he had also informed the authorities about his conviction and release on bail. An enquiry report was submitted on 30th December, 2004 -2- holding the charges framed against the petitioner proved however, no action was taken by the respondents on the said enquiry report and another charge-sheet was served upon the petitioner on 25.7.2005 under clauses 26.1.11, 26.1.12 and 26.1.19 of the Certified Standing Order of the company. In these facts, the petitioner has approached this Court challenging the issuance of second charge-sheet dated 25.7.2005 3. A counter-affidavit has been filed in which a plea has been taken that the charges in both the charge-sheets are different. In paragraph nos. 5 & 10 the following stand has been taken by the respondents:
5. "That the respondents state that against the said judgement of conviction the petitioner has preferred Criminal Appeal No. 903/2004 Before this Hon'ble Court and by an order dated 8/7/2004 the Appeal has been admitted and the petitioner has been enlarged on bail. It is stated that this Hon'ble Court has not stayed the finding of conviction recorded by the Learned Court below in S.T. No. 43/94 and hence the Order of Conviction still stands. Now, the Hon'ble Supreme Court of India in the case of Union of India and others Versus Ramesh Kumar reported i”
7. SCC 51.has settled the position relating to the effect of conviction in a criminal case vis-a-vis the service of an employee and the difference between suspension of sentence and conviction. It has been held that mere admission of an appeal and suspension of sentence does not mean that the conviction gets postponed. It has been clarified that conviction continues till it is set aside by the Superior Court. It is stated that in the instant case the order of conviction has not been stayed by this Hon'ble Court in Cr. Appeal No. 903/2004 and hence the respondents are fully justified in Law to proceed against the petitioner by issuing the charge sheet dated 25/7/2005.
10. That in reply to statements made in para 17 it is stated that the charges in the two chargesheets are distinct."
4. A supplementary counter-affidavit has been filed in which the details of charges in both the charge-sheets have been given, which are extracted below: "In the first charge-sheet dated 30/31.7.2004, the charges are ; (a) For unauthorized absence from duties without sufficient reasons under clause 26.1.1 of the Certified Standing Orders, (b) Conviction by a Competent Court under clause 26.1.19, and (c) For violation of the Mines Act, 1952 or any Act, Rule Regulation or any Sub Rule framed thereunder or violation of the Standing Orders. -3- In the second charge-sheet dated 25.7.2005, the charges are ; (a) Theft, fraud or dishonesty in connection with company's business or property under clause 26.1.11, (b) Giving false information .. .. .. .. .. .. .. or concealing any fact or any other particular under clause 26.1.12, and (c) Conviction by a Court of law for any criminal offence involving moral turpitude under clause 26.1.19."
5. It has also been pleaded by the respondents that the petitioner did not give any information about his involvement in the criminal case and his conviction by the criminal Court. For the first time after the petitioners appeal was admitted in the Honble High Court he submitted a certified copy of Courts Order and in these facts, the management issued the second charge-sheet to the petitioner. Para 7 of the supplementary counter-affidavit is extracted below :
7. "That the Respondents state that although the petitioner had been convicted in connection with the criminal case, no information whatsoever was given by the petitioner. For the first time, after the petitioner's appeal being Crl. Appeal No. 903/2004 was admitted, the petitioner submitted the order passed by the Hon'ble High Court. He also submitted the certified copy of the learned court below showing that in compliance of the Appellate Court's order, he has been enlarged on bail, still copy of the judgment was not submitted by the petitioner. It is stated that copy of the judgment was forwarded by Shri Pahalu Mahto, the Informant party. It is stated that only after receipt of the judgment, the Respondents came in possession of the judgment in Sessions Trial No. 43 /94. Since the petitioner concealed the aforesaid facts, the Respondent management issued the second charge sheet. As stated hereinabove, the second charge sheet is not in relation to unauthorised absence from duty or violation of Mines Act, Rules, Regulation or Standing Orders which was there in the first charge sheet. While the second charge sheet is in relation to conviction in the criminal case."
6. Heard learned counsel for the parties and perused the documents on record.
7. Mr. Mahesh Tewari, learned counsel appearing for the petitioner has contended that once an enquiry was conducted and concluded, the authorities were required to take action on the basis of the report submitted by the enquiry officer and it was not open to the respondents to issue a second charge-sheet on the same allegations. He further submits that on closure scrutiny of charges framed in both the charge-sheets, it -4- would be clearly revealed that those charges are not attracted in the case of the petitioner. To fortify his contention he relied upon a decision of the Honble Supreme Court reported in (2002) 10 SCC 471.
8. Per contra, Mr. Anoop Kumar Mehta, learned counsel appearing for the respondents has reiterated the stand taken in the counter-affidavit and submitted that in the changed circumstance when the information of the petitioner's conviction and release on bail came to the knowledge of the company, on the information provided by the petitioner himself, a second charge-sheet was issued which is valid and justified.
9. Before adverting to the contention raised on behalf of the learned counsel appearing for the petitioner, I find that the petitioner has challenged the issuance of charge-sheet dated 25.07.2005 in the present proceeding. It is well-settled that generally a writ petition is not maintainable against show- cause notice or charge-sheet. The Honble Supreme Court in Union of India and Another Vs. Kunisetty Satyanarayana, reported in (2006) 12 SCC 28.has held as under:
13. It is well settled by a series of decisions of this Court that ordinarily no writ lies against a charge-sheet or show-cause notice vide Executive Engineer, Bihar State Housing Board v. Ramesh Kumar Singh, Special Director v. Mohd. Ghulam Ghouse, Ulagappa v. Divisional Commr., Mysore, State of U.P. v. Brahm Dutt Sharma, etc.
14. The reason why ordinarily a writ petition should not be entertained against a mere show-cause notice or charge-sheet is that at that stage the writ petition may be held to be premature. A mere charge-sheet or show- cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to to so. It is quite possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well- settled that a writ petition lies when some right of any party is infringed. A mere show-cause notice or charge- sheet does not infringe the right of anyone. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance.
15. Writ jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not ordinarily be exercised by quashing a show-cause notice or charge-sheet.
16. No doubt, in some very rare and exceptional cases the High Court can quash a charge-sheet or show-cause -5- notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere in such a matter.
10. Now, adverting to the contention raised by the learned counsel for the petitioner that on conclusion of enquiry, the respondents were required to take a decision and without taking a decision on the enquiry report it was not open to the respondents to issue a second charge-sheet, I am of the opinion that such a plea can be sustained only when the charges are not found proved in the enquiry and the earlier enquiry was not defective for any technical reason or otherwise. The facts of the case clearly indicate that in the enquiry report charges levelled against the petitioner has been found proved, and therefore, it would not cause any prejudice to the petitioner even if a second charge-sheet is issued mainly for the same charges. Moreover, on perusal of both the charge-sheets, it appears that charges in both the charge-sheets are different. The plea taken by the learned counsel appearing for the petitioner that the charges so framed against the petitioner in both the charge-sheets are identical and would not relate to the petitioner, cannot be gone into the writ proceeding, as in the present proceeding only the issuance of the second charge-sheet has been challenged by the petitioner.
11. In Indian Drugs & Pharmaceuticals Ltd. and Another Vs. R.K. Shewaramani, reported in (2005) 6 SCC 76.while two charge-sheets were pending against an employee, a third charge-sheet was issued on the same allegation under Rule 30(A) of the Industrial Drugs and Pharmaceutical Ltd. (Conduct, Discipline and Appeal) Rules, 1978 which was introduced by an amendment. The challenge by the employee to the issuance of the third charge-sheet has been repelled by the Honble Supreme Court as thus:
10. There is no requirement in law that for continuing with fresh proceedings the charge-sheet issued must indicate that the previous proceedings pending have been given a go-by. The employer is free to proceed in as many departmental proceedings as it considers desirable. Even in a hypothetical case in two of the departmental proceedings the finding is in favour of the delinquent employee, yet in another departmental proceeding a finding adverse to the delinquent officer can be recorded. Merely because the two proceedings -6- were pending, that did not in any way stand on the way of the employer to initiate another departmental proceeding and that too on the basis of an amended provision which came into effect after initiation of the previous departmental proceeding. The High Court's view therefore is clearly unsustainable. The High Court had also observed that in the show-cause notice there was no reference to Rule 30(A). This is not factually correct. As the records reveal, clear reference was made to the IDPL Corporate Office Letter No. IDP/7/32/Estt/90 dated 2-9-1990. This related to the amendment of Rule 30(A). Additionally, the respondent employee was not taken to surprise and no prejudice was caused to him by not mentioning Rule 30(A) specifically. On the other hand, from his reply dated 22.6.1990 it is clearly revealed that he knew that the proceeding was in terms of the amended Rule 30(A). His specific stand as is revealed from the reply to the show -cause notice is the Company having realised that it will not be in a position to establish the allegations forming foundation of the two departmental proceedings, has resorted to Rule 30(A). That being so, the High Court was not justified in drawing an adverse inference by concluding that non-mention of Rule 30(A) specifically in the show-cause notice vitiate the proceedings. There is no dispute that the factors necessary to bring in application of Rule 30(A) existed. The High Court was also not justified in coming to the conclusion that the action of the authorities in initiating the proceedings in terms of Rule 30(A) is not bona fide.
12. In view of the aforesaid, I do not find any merit in the writ petition, accordingly, the writ petition is dismissed.
13. It has been brought to the notice of this Court that during the pendency of the writ petition, the petitioner has been dismissed from service by order dated 22/28.03.2006. It would be in the interest of justice to observe that this Court while deciding the present writ petition has not expressed any opinion on the merit of the charges framed against the petitioner and it would be open to the petitioner to challenge the order of termination by filing a writ petition or to avail of the legal remedy as available in law, if so advised.
14. The writ petition is disposed of. (Shree Chandrashekhar, J.) Jharkhand High Court, Ranchi Dated the 19/7/ 2013 Satyarthi/A.F.R.