Judgment:
ORDER
Ajit Kumar Sinha, J.
1. The present writ petition has been preferred for following reliefs:
i) For the issuance of a writ, direction order in nature of certiorari or any other appropriate writ, direction or order quashing the discharge order dated 7.7.2001 (Annexure-1) issued by Respondent No. 2 whereby and whereunder the petitioner has been discharged from service with immediate effect.
ii) For the issuance of an appropriate writ, direction or order including a writ, direction or order in the nature of mandamus commanding the respondents for giving effect to the impugned orders dated 7.7.2001 contained in Anexure-1 and to direct them to restore the status and public office of the petitioner herein with all consequential benefits in accordance with law.
2. The facts in brief are stated as under:
The petitioner was appointed as clerk by the Management of B.C.C.L. in the year 1971. On 7.7.2001 the petitioner received a discharge letter under the signature of Agent/Project-Officer, Dhansar/industry colliery discharging the petitioner purported to be under Clause 28 of the certified standing orders of B.C.C.L, respondent herein.
3. The main contention raised by the learned Senior counsel Sri P.K. Slnha on behalf of the petitioner is that the charges leveled, against him is baseless, motivated, arbitrary and illegal and he was hot given any opportunity by the management to explain the charges leveled against him and no enquiry was conducted In the matter and thus, it was In violation of the well settled cardinal principle of natural justice as also violative of Article 14 and 311(2) of the Constitution of India.
4. The learned Senior Counsel has further submitted that the order of discharge under Clause 26 of the certified standing order also prescribed a mandatory procedure which was not followed and even the requirement under Clause 27 of the standing order was ignored. To support his contention he has referred to and relied upon several Judgments and in particular 1984 Suppl. SCC pg. 554 para-5 and AIR 1986 pg. 157.
The learned Senior Counsel specifically challenges the vires of standing order under Clause 28 on the ground that the same is violative of Article 14 of the constitution of India andlht wall tattled principles of natural Justice.
5. In reply, the counsel for the respondents submits that the writ petition preferred by the petitioner under Article 226 of the Constitution of India was not maintainable as he has an alternative efficacious remedy to file an Industrial disputes before the Tribunal/Labour Court wherein the parties would be at liberty to lead evidence to prove/disprove the case on the basis of which the discharge order has been passed which will amount to full compliance of the principles of natural justice. It has also been submitted that as per the standing order the Chairman/Managing Director of the Company on being satisfied for reasons to be recorded In writing can discharge a workman from the service without following the procedure laid down In Clause 27 of the standing order In the Interest of security or where it is inexpedient to continue the employee In work. To support his contention he has referred to and relied upon 1996 (1) SCC page 536 and 2003 (4) SCC pg. 579.
6. Learned senior counsel for the petitioner further referred to and relied upon Article 311(2) of the Constitution of India to support his contention that no such person can be dismissed or removed or (educed in rank except after enquiry in which he has been informed of the charges.
Relevant Clause 2B of the Standing order is quoted hereunder:
28.0 - Special procedure in certain cases:
Where a workman has been convicted for a criminal offence in a Court of law or where the Chairman/Managing Director of the Company is satisfied, for reasons to be recorded in writing that it is expedient or against the interest of security to continue to employ the workman, the workman may be removed or discharged from services without following the procedure laid down in Standing Order No. 27.
7. Article 311(2) will not apply in the present case since 311(1) clearly specifies that the same applies to a member of civil services of the Union or all India Services or a civil service of the state who holds a civil post under the union or the state. In the instant case the petitioner is a workman of a public sector company and does not hold the civil post. There is another fact that even under Article 311(2) there are three exceptions which have been carved out and one of the exception is identical to Clause 28 of the certified standing order.
8. In an Identical case considered by another Single Bench of this Hon'ble Court with regard to the same Clause 28 of the standing order while relying upon : (1985)IILLJ206SC Union of India v. Tulslram Patal it was held that principles of natural justice was not applicable since the reasons were recorded and it was specifically mentioned that continuance of the petitioner in service is against the interest and security of the establishment and the writ petition was dismissed. However, it has also given liberty to invoke Industrial disputes.
9. In Tulsl Ram Patel case : (1985)IILLJ206SC at paragraph 44 the Constitution Bench held as under:
For a service to run efficiently there must therefore, be a collective sense of responsibility. But for a government servant to discharge his duties faithfully and conscientiously, he must have a feeling of security of tenure. Under our Constitution, this is provided for by the Acts and rules made under Article 309 as also by the safeguards in respect of the punishments of dismissal, removal or reduction in rank provided in Clauses (I) and (2) of Article 311. It is, however, as much in public interest and for public good that government servants who are efficient, dishonest or corrupt or have become a security risk should not continue in service and that the protection afforded to them by the Acts and rules made under Article 309 and by Article 311 be not abused by Hum to (lie detriment of public interest and public good. When a situation us envisaged in one of the three clauses of the second proviso to Clause (2) of Article 311 arises and the relevant clause is properly applied and (lie disciplinary inquiry dispensed with, the concerned government servant cannot be heard to complain that he is deprived of his livelihood. The livelihood of an individual is a matter of great concern to him and his family but his livelihood is a matter of his private interest and where such livelihood is provided by the public exchequer and the this away of such livelihood is in the public interest and for public good, the former must yield lo the latter. These consequences follow not because the pleasure doctrine is a special prerogative of the British Crown which has been inherited by India and transposed into our Constitution adapted to suit the constitutional set-up of our Republic but because public policy requires, public interest needs and public good demands that there should be such a doctrine.
10. The Hon'ble Supreme Court in : (1996)ILLJ1044SC Hari Pada Khan v. Union of India and Ors. while considering a similar issue at paragraph 5 held as under:
5. The doctrine of principle of natural justice has no application when the authority concerned is of the opinion that it would be inexpedient to hold an enquiry and that it would be against the interest of security of the Corporation to continue in employment the offender-workman when serious acts are likely to affect the foundation of the institution. In Union of India v. Tulslram Patel a Comtltution Bench of this Court upheld the validity of the similar provisions under Article 311 of the Constitution. Recently, in SLP (C) No. 11659 of 1992 the matter had come up before this Court on 13.11.1995, where the validity of a pari materia provision was questioned. This Court upheld the validity slating that the above clause will operate prospectively.
11. The Hon'ble Supreme Court also In a case reported In (2005) 7 SCC Ajlt Kumar Nag v. General Manager (PJ), Indian Oil Corporation Ltd. page 764 held that dismissal without enquiry can be done by the competent authority on being satisfied and on recording reasons that continuance of workman was neither expedient nor In the Interest of security which Is also an Identical case to the present facts and the same was upheld by the Hon'ble Supreme Court. It also at paragraph 13 held that employees of Corporation cannot claim protection under Article 311 of the Constitution. Paragraph 13 is quoted as under:
13. Upholding the objection and considering the ambit and scope of Article 311, this Court held that an employee of a Corporation cannot be said to have held a 'civil post' and, therefore, not entitled to protection of Article 311. According to the Court, the Corporation could not be said to be a 'department of the Government' and employees of such Corporation were not employees under the Union. The Corporation has an independent existence and the appellant was not entitled to invoke Article 311.
And finally while upholding the order It held that considering the gravity and seriousness of charge memo stern action, as per the standing Order 20(vi) was necessary in the circumstances and the same cannot be held to be arbitrary, unreasonable or malafide. Accordingly the dismissal of the workman without holding enquiry and without affording any opportunity of being heard was upheld. It also upheld Clause-VI of the standing order 20 of the respondent Corporation as valid, constitutional and intra vires of Article 14 of the Constitution of India.
12. The Hon'ble Supreme Court again In : (2007)IILLJ113SC Indian Airlines Limited v. Prabha D. Kanan while considering In detail In : (1985)ILLJ267SC Workmen v. Hindustan Steel Limited and : (1985)IILLJ206SC Union of India v. Tulsiram Patel while upholding a similar regulation providing for discharge simpliciter held that the power can be exercised in the interest of the Company and In a case of such nature the requirement to comply with the Principles of Natural Justice as such may not be practicable. It also held that In absence of any appeal being provided the High Court in exercise of Its jurisdiction under Article 226 of the Constitution would not confine Its Jurisdiction only to the known tests laid down therefore i.e. illegality, irrationality and procedural impropriety.
This case also recorded the fact that the direction Issued by the Hon'bte Supreme court in : (1985)ILLJ267SC Workmen v. Hindustan Steel Limited was complied with and an amendment was made accordingly.
13. 13. Considering the aforesaid settled law, the issue in question is no more res Integra and has been conclusively upheld time and again with the rider that it has to be in the interest of Company and it has to be in accordance with the procedure prescribed in the Standing order for the regulation as the case may be and reasons has to be recorded by the named authority that the discharge order was In the interest or security of the company and it is inexpedient to continue the employee In work.
14. In the instant case the charge against the delinquent employee was serious In nature of admitted fraud, misappropriation and defalcation of contribution of employees. Further the petitioner had also indulged In embezzlement of money so deducted from wages of the innocent employees/poor workmen for a long period that shook the confidence of the employees and led to a breach of peace In the colliery. I also find that the requirement under Clause 28 of the certified standing order/has been fully complied with.
Considering the aforesaid facts and circumstances of the case and the Judgments (Supra) directly on the issue and also in view of the compliance of the requirement as laid down under Clause 28 of certified standing order, I find no merit in the writ petition and the same is accordingly dismissed.