A.K.Mitra, J. - (1.) In this writ petition the petitioner has challenged the disciplinary proceeding initiated against him including the final order of dismissal passed in the said departmental proceeding. According to the petitioner, he is a permanent employee and works at Lakshmi Mata Colliery as an underground loader. The petitioner has been working under the Central Government undertaking, Coal India Ltd. and within its Unit at Eastern Coal Fields Ltd. The petitioner has been appointed from the year 1996 as an underground loader and since then petitioner is working diligently. After appointment the petitioner was issued an Identity Card. The petitioner has made this Identity Card as annexure P-l to the writ petition. In the month of May 1999, the petitioner went to his native village getting the news of ailment of his grandmother. The petitioner took leave only for three days and left the colliery. But unfortunately his grandmother died. The petitioner along with his other family members completed the ritual performs of his grandmother. According to the petitioner, because of serious work load, the petitioner became seriously ill and the local doctor advised him to take rest till recovery.
(2.) The petitioner has averred that being cured from serious ailment he came to' the colliery and submitted his joining letter to the colliery from 14.7.1999. The Attendance Clerk of the colliery advised the petitioner to meet the General Manager and to bring a consent letter from the said General Manager. Accordingly the petitioner met the General Manager and requested him to allow the petitioner to join his duty. According to the petitioner the said General Manager heard the petitioner sympathetically and assured him that he would be allowed to join duty very soon. Since 16.7.1999 the petitioner started moving from door to door of the officers of the authority concerned and got assurance from Dr. Smt. Kuntesh Gupta v. Management of Hindukanya Mahavidyalaya, Sitaput & Ors., AIR 1987 SC 2186 The Assistant Collector of Central Excise v. Jainson Hosiery Industries, AIR 1979 SC 1889 Bhanwar v. T.R.C., 1985(50) FLR 327 Whirlpool Corporation v. Registrar of Trade Marks, Mumbai, AIR 1999 SC 22 State of Punjab v. V.K. Khanna & Ors., AIR 2001 SC 343 B.C. Chaturvedi v. State of Rajasthan, 1996(72) FLR 316 Regional Manager, State Bank of India, Hyderabad v. S. Mohammad Gaffar, AIR 2001 SC 3036 every corner. But on 16.7.1999 the petitioner received a charge-sheet issued by the Manager of the colliery. The charge-sheet has been made annexure P-2. According to the petitioner, he came to know that as per the standing order the respondents will conduct an enquiry. Since the petitioner was suspended he could not come to the place of duty and the petitioner started living in the colliery quarter with a view to attend the enquiry if conducted by the respondents. It has been alleged by the petitioner that suddenly he came to know that certain orders have been passed in the name of the petitioner. To collect the said orders the petitioner went to the office of the Manager on 20.6.2001. The Manager then made over the order of dismissal to the petitioner. Copy of the order of dismissal dated 28.6.2001 has been made as annexure P-3. The petitioner in paragraph 11 of the writ petition has alleged that the order of dismissal passed by the General Manager is bad, illegal and void inasmuch as the said order of dismissal was passed by the General Manager of the colliery who is neither the Disciplinary Authority nor the Appointing Authority of the petitioner and he Is much below in rank than the Disciplinary Authority. The petitioner further alleged that before passing the order of dismissal the Disciplinary Authority should have applied his mind and it would appear from the order itself with the order of dismissal was prepared by another person and the authority only put his signature over there. The order of dismissal is a non-speaking order and the same suffers from non-application of mind of the Issuing Authority. The petitioner further alleged that before passing the order of dismissal the Enquiry Authority failed to consider two aspects, firstly, as per the Circular and the established principles of law the respondents are bound to supply the copy of the proceeding and to issue second show cause notice, but, in the instant case the respondents neither served the copy of the proceeding upon the petitioner nor the petitioner was given an opportunity to defend himself before the higher Authority by answering the second show cause notice. Practically the Manager who is incompetent to pass any order of dismissal in collusion with the Enquiry Officer held the ex parte enquiry and passed the order of dismissal.
(3.) The petitioner also alleged that it is also established procedure followed by Coal India Ltd. that in almost all the cases past record of the delinquent Is considered before passing any major punishment. But In the Instant case that was not done. According to the petitioner, the record of presence of the petitioner in duty will make it clear that in the year 1996 he performed the requisite duty. In 1997 and in 1998 he performed satisfactory duty as required. According to the petitioner, as per Rules of the employees attached with the underground shall have to perform only 180 days duty In a year. Such provision according to the petitioner has been incorporated in a compelling circumstances. The absence was made not willfully but because of the situation beyond his control. On such ground the petitioner challenged the entire proceeding starting from the charge-sheet and prayed for quashing of the same. On behalf of the respondents in affidavit-in-oppositlon has been affirmed and filed. The said affidavit has been affirmed by one Sri Bakul Das claiming to the authorised agent of the respondent No. 2. In the affldavit-in-opposition the respondents averred that the petitioner has no legal right to move the writ petition. According to the respondents, the petitioner being an underground loader is admittedly a workman within the meaning of section 2s of the Industrial Disputes Act, 1947 and as such the petitioner has an efficacious alternative remedy before a forum under the provisions of Industrial Disputes Act, 1947. Consequently the petition is not maintainable and the same is liable to be dismissed on that score. It has also been stated in the said affidavit-in-opposition that on 8.5.2002 the Hon'ble Justice M.H.S. Ansari dismissed the instant writ petition on the ground that this High Court has no territorial jurisdiction to entertain the said writ petition. It has also been stated that against the said order passed by the Hon'ble Justice Ansari the petitioner preferred an appeal being A.P.O.T. No. 343 of 2002 which was heard and allowed by the Division Bench presided over by Hon'ble Justice S. Banerjea. By judgment and order dated November 22, 2002 directed trial Court to hear out the instant petition on merit. According to the respondents, the Hon'ble Division Bench considered the point regarding alternative remedy and as such did not express any opinion regarding existence of alternative remedy. Consequently the said preliminary issue is still wide open before this High Court. It has further been stated in the affidavit-in-opposition that the respondent No. 2 after holding a proper domestic enquiry into the charges leveled against the petitioner in the charge-sheet dated 7.8.1999 for committing misconduct under clause 17(i)(a) of the model standing order for Industrial Establishment of Coal Mines. In the affidavit-in- opposition it has been stated that the petitioner did not give any reply to the charge-sheet explaining his conduct nor did he participate in the enquiry despite the notices for enquiry being issued to him. Consequently the Enquiry Officer who conducted the enquiry had no alternative but to hold the enquiry ex parte. The Enquiry Officer in his report found the petitioner guilty of the charges leveled against him in the charge-sheets. The respondents have annexed the copies of the charge-sheets dated 16.7.1999 and 7.8.1999, the enquiry proceedings and the enquiry report being annexure R-1 to the reply. The respondents in the said affidavit-in- opposition has further submitted that had the petitioner approached the forum and the provisions of Industrial Disputes Act, 1947, the petitioner being dismissed from service might have got an opportunity of being awarded a lesser punishment in lieu of dismissal by an Industrial Tribunal or Labour Court as the case may be under section 1 l(a) of the Industrial Disputes Act, 1947.;