Niranjan Lenka vs Mahanadi Coalfields Limited and Others

L. Mohapatra, J.—The petitioner who at the relevant time was working as Dumper Operator, Grade-I in Balanda Colliery has filed this writ application challenging the Order dated 22.2.1996 passed by the Project Officer, Balanda Colliery dismissing him from service on the basis of an enquiry report submitted in a disciplinary proceeding.

Case of the petitioner is that whiling working as Dumper Operator, Grade-I he received charge-sheet on 12.4.1991. The charge is "Taking of employment with another employer in addition to that existing at Balanda Colliery, South Eastern Coalfields Limited." After receipt of the charge-sheet the petitioner submitted a representation to the Enquiry Officer requesting him to drop the proceeding on the ground that the charge had finally been decided by this Court in O.J.C. No. 3259 of 1987 vide judgment dated 23.9.1993. Though the petitioner had requested the Enquiry Officer and other authorities to drop the proceeding in view of the judgment of the High Court delivered with the aforesaid case, the disciplinary proceeding was allowed to be continued and ultimately it was concluded exparte and report was submitted. On the basis of the report an order of dismissal has been passed.

Shri Palit, Learned Counsel appearing for the petitioner submitted that in view of the judgment of this Court in O.J.C. No. 3259 of 1987 decided on 23.9.1993 as well as the judgment dated 21.1.1992 passed in O.J.C. No. 3370 of 1987, there was no necessity on the part of the employer to frame a charge as stated above and therefore request of the petitioner to drop the proceeding should have been accepted. Shri Palit drew attention of the Court to the findings of this Court in O.J.C. No. 3370 of 1987 and stated that the fact that the petitioner was Working under Batimela Dam Project had been taken note of in the said judgment and in view of the findings arrived at by the Court, the proceeding should have been dropped.

Shri Sanjit Mohanty, Learned Senior Counsel appearing for the opposite parties referring to the counter submitted that the earlier two Writ Applications have no relevance so far as the present case is concerned and the question as to whether the petitioner had taken a job with another employer in addition to the existing employer at Balanda Colliery or not was never the subject matter of the above two Writ Applications and therefore the Court has not given any finding in that regard, It was further submitted by Sri Mohanty that the petitioner deliberately did not co-operate in the proceeding and after giving the petitioner several opportunities to participate in the proceedings he did not participate. The proceeding was concluded exparte and on the basis of the report of the Enquiry Officer the order of dismissal has been passed.

In order to appreciate rival contention of the parties, it is necessary to look into the judgments in earlier Writ Applications filed by the petitioner before this Court. On perusal of the judgment delivered in O.J.C. No. 3259 of 1 987, it appears that while working as a Dumper Operator under the Central Coalfields Limited which was previously known as South Eastern Coalfields Limited, the petitioner found some difficulties in his vision, which was caused by an accident while operating a Dumper. He represented for assignment of his duty of driving a light vehicle. Said representation having not been allowed the petitioner filed a Writ Application and upon hearing the parties this Court by judgment and Order dated 23.9.993 allowed the Writ Application directing the opposite parties to employ the petitioner as a light motor vehicle driver during the period of service and further directed that this may be done paying him the emoluments of Dumper Operator. On reading of the entire judgment, we do not find a whisper with regard to the charge in respect of which the order of punishment in this case has been passed. O.J.C. No. 3370 of 1987 was filed challenging the order of the Central Government refusing to refer the dispute relating to non-payment of wages from 8.11.1983 to 14.3.1985 to the Tribunal for adjudication. The said Writ Application was disposed of on 21.1.1992. This Court allowed the Writ Application and directed the Central Government to refer the dispute for adjudication to the appropriate authority. In Para 6 of the said judgment, the Court took note of the employment of the petitioner with another employer. Said observation of this Court is quoted below :

"If we would have been satisfied that the petitioner could claim his wages from 11.6.1970 till 25.10.1990 by force of the aforesaid award, we would not have conceded to the prayer of the petitioner, because he cannot demand wages from two sources for the selfsame period. But then, from the additional affidavit filed on behalf of the petitioner, we find that as per him, under the award he was entitled to wages "prior to his employment under the opposite parties", as stated in Para 9. Now, it is an admitted position that the petitioner had joined Opp. Party No. 4 on 6.2.1976. He, however, joined the earlier employer on 25.10.1990 as he was given to understand that unless he joined the erstwhile employer, he would not be able to claim the benefit under the award in question. We further find from Para 13 of the aforesaid affidavit that from the Management of Balimela Dam Project the petitioner had received a small amount of Rs. 1,512/-. This being the position, it cannot be said that the petitioner is trying to have double payment for the period in question. We would not, therefore, reject the petition on this ground.

From the observation made by this Court above, it is clear that the petitioner had joined another employer in October, 1990 as he was given to understand that unless he joins the erstwhile employer he would not be able to claim the benefit under the award in question. The Court also observed that Management of Balimela Dam Project has paid Rs. 1,512/- to the petitioner for the said period. In view of what has been observed by this Court and also admitted by the petitioner, it is clear that while in employment under the present opposite parties, the petitioner had also taken up employment under another employer for a specified period and this being the charge which is admitted by the petitioner and accepted by this Court in the judgment dated 21.1.1992 passed in O.J.C. No. 3370 of 1987, we are of the view that no illegality has been committed by the Enquiry Officer in finding the petitioner guilty of the charge. Apart from the above, from the record it is very clear that in-spite of several opportunities given to the petitioner, he did not contest the departmental proceeding and allowed it to be concluded exparte only on the ground that charge in question had already been decided by this Court in the aforesaid case. What we see from the judgment is that such a finding arrived at by this Court in the aforesaid judgment goes against the petitioner and proves the charge.

In view of the aforesaid reasons, we do not find any merit in the Writ Application and the same is dismissed.

N. Prusty, J.

I agree.