Bharat Coking Coal Ltd. and ors. Vs. Babulal and anr. - Court Judgment

Excerpt:

.....single textile material, the said carpet could only be classified as jute carpets and nothing else. it was more so, when in the instant case, such fact was admitted by the assistant commissioner in its order in view of the tests done by department chemical examiner on the spot and during the visit to the factory of the respondent company which was also admitted from the reports of indian industries research association. in such a case, the mere fact that the surface of the carpet is polypropylene fibre, it does not case to become jute carpet. in such a case, the common parlance test would have no application and, therefore, it could not be said that the carpets to the common man would not appear to be jute carpet but polypropylene carpet. it could not also be said that for the purpose of classification in instant case, rule 3 of the rules for the interpretation of the schedule to the act should be applied and by applying the said rule the goods manufactured by the respondent company should be covered under the heading others. clause (b) and clause (c) of the said rule 3 will apply only in those cases which cannot be classified under clause (a). since in the instant case..........that both the first respondents were not present at the site nor had they taken necessary safety precautions to aver (sic) accident to the miners. a fact finding committee came to be appointed to find out the cause for the death of the five and injury to two miners. the report dated july 1, 1989 appears to have put it pointedly that there was dereliction of the duty on the part of the respondents resulting in the mine accident. consequently, the appellant exercised the power under rule 12.4(1)(c) of the common coal cadre, 1974 which reads as under:12.4. termination(i) unless otherwise specifically provided, the contract of appointment of the executive cadre employee may be terminated otherwise than on disciplinary grounds:(a) ...(b) ...(c) ... with three months' notice or pay in lieu thereof on confirmation in the service, on either side.4. on the basis thereof, the service of both the first respondents came to be terminated. it is not in dispute that this court in c.a. no. 3673 of 1988 titled g.p lal v. coat india ltd. had struck down the rule as violative of article 14 of the constitution. consequently, the rule was never in vogue to invoke the exercise of the power by the.....

Judgment:

ORDER

1. Leave granted.

2. We have heard learned Counsel on both sides.

3. These appeals arise from the order made on November 21,1995 by the Division Bench of the Calcutta High Court in FMAT No. 1548/90 and 250/92. Admitted position is that the respondent Babulal was Senior Mining Engineer and the other first respondent Maheshwari Sharma was a Manager working in the South Govindpur Colliery, Govindpur area. On June 30, 1989, an accident had occurred at 2. 00 p.m. due to fall of the roof in XI Seam (of coal) due to which five miners died and two miners were seriously injured. It is the case of the appellant that both the first respondents were not present at the site nor had they taken necessary safety precautions to aver (sic) accident to the miners. A fact finding Committee came to be appointed to find out the cause for the death of the five and injury to two miners. The report dated July 1, 1989 appears to have put it pointedly that there was dereliction of the duty on the part of the respondents resulting in the mine accident. Consequently, the appellant exercised the power under Rule 12.4(1)(c) of the Common Coal Cadre, 1974 which reads as under:

12.4. Termination

(i) Unless otherwise specifically provided, the contract of appointment of the executive Cadre employee may be terminated otherwise than on disciplinary grounds:

(a) ...

(b) ...

(c) ... With three months' notice or pay in lieu thereof on confirmation in the service, on either side.

4. On the basis thereof, the service of both the first respondents came to be terminated. It is not in dispute that this Court in C.A. No. 3673 of 1988 titled G.P Lal v. Coat India Ltd. had struck down the rule as violative of Article 14 of the Constitution. Consequently, the rule was never in vogue to invoke the exercise of the power by the appellants.

5. The question then is: what would be the position of the respondents? It is not far to seek that when charge of dereliction of duty was imputed to both the first respondents, it was necessary to hold an enquiry to give an opportunity to them before taking any disciplinary action for the alleged dereliction of the duty. It is, therefore, necessary that the appellant should hold an enquiry against both the first respondents giving reasonable opportunity to them according to the rule. Constitution Bench rendered the decision in Managing Director, ECIL, Hyderabad and Ors. vs B. Karnukar and Ors. : (1994)ILLJ162SC had held that the delinquent must be deemed to be under suspension pending enquiry.

6. In view of the above, we hold that the respondents are entitled to the subsistence allowance during the pending enquiry. Enquiry should be completed within six months from the date of the receipt of the order. Subsistence allowance shall be paid within six weeks from the date of receipt of the copy of the order.

7. The appeals are accordingly disposed of. No costs.