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2001 DIGILAW 367 (JHR)

Central Coalfields Ltd. v. Union Of India

2001-06-08

SUDHANSU JYOTI MUKHOPADHAYA

body2001
JUDGMENT S.J. Mukbopadhaya, J. 1. In all the cases, as common question is involved and similar orders are under challenge, they were heard together and are being disposed of by this common Judgment. 2. The petitioners Md. Ismail Mian (of CWJC No. 200/99); Sri Mianjan Mian (of CWJC NO. 324 of 1999); Md. Manir Mian (of CWJC No. 201 of 1999); Md. Sahebjan Mian (of CWJC No. 225 of 1999); Sri Jalil Mian (of CWJC No. 273 of 1999): and Sri Kitabul Mian (of CWJC No. 296 of 1999) were workmen under the respondent- Central Coalfields Ltd. (CCL) in its Pindra Colliery. After their retirement, certain gratuity amounts were paid but being not satisfied, they preferred their respective applications before the Assistant Labour Commissioner ("ALC". for short) (Central). Hazaribagh, the controlling authority under the Payments of Gratuity Act, 1972 for direction on CCL authorities to pay the rest of the amount. Their applications were rejected by ALC (Central), Hazaribagh by different orders, communicated vide memos all, dated 13th March, 1999. Being dissatisfied, the aforesaid workmen/petitioners preferred appeals before the Regional Labour Commissioner (Central), Dhanbad, who is the appellate authority under the Payments of Gratuity Act, 1972. The appellate authority vide orders, all dated 28th February, 1997, though decided the entitlement as were claimed by the workmen, partly allowed the payment on the ground of non-availability of old records/ maintenance of records in hafhazard condition, on purported compassionate ground. 3. It is not necessary to discuss all the facts of different cases in detail, except the relevant facts to determine the question. 4. The workman Md. Ismail Mian (Of CWJC No. 200 of 1999) claimed that he was engaged on 30th June, 1956 in Topa Colliery and then taken in Pindra Colliery and ultimately his service was taken over by CCL w.e.f. 1.4.1973. He produced evidences relating to deduction of contributions towards Provident Fund, i.e., CFPFA/C slips of 3/58 to 3/69. The Management accepted the continuity of his service w.e.f. 1.4.1973 to 21st August, 1991. However, the controlling authority ALC (Central), Hazaribagh rejected the claim on the ground that the continuity of service had not been established for the period from 30th June, 1956 to 31st August, 1991. The Management paid the gratuity amount of Rs. 24,378.80 ps. as accepted, with regard to the period of service from 1st April, 1973 to 31st August, 1991 and not the earlier period. 5. The Management paid the gratuity amount of Rs. 24,378.80 ps. as accepted, with regard to the period of service from 1st April, 1973 to 31st August, 1991 and not the earlier period. 5. The appellate authority taking into consideration the relevant evidences agreed that the workman was continuously employed from 30th June, 1956 to 31st August, 1991 and he is entitled for payment of gratuity for the total period of 35 years 2 months at Paragraph 8 of the appellate order. The entitlement of gratuity was assessed, as follows :--" ....In the light of the above, if I agree with the contention of the appellant that he was continuously employed from 30.6.1956 to 31.8.1991 hence he is entitled for payment of gratuity for the period 30.6.1956 to 31.8.1991, i.e., for 35 years and 2 months. The respondents has already paid Rs. 24921.88 paise to the appellant and gratuity for the period from 1.4.1973 to 31.8.1991. There is no dispute regarding date of cessation of employment, i.e., 31.8.1991 and last wages drawn, i.e., Rs. 90.29 per day by the parties. Thus, the appellant is entitled to receive gratuity amount as under : For 30 years -- 30 x 15 = 450 days For 05 years -- 05 x 26 = 130 days Total = 580 days The total amount works out to 580 days x Rs. 90.29 = 52,368.20 p." 6. Though, the aforesaid contention of the petitioner was not disbelieved by the appellate authority on the basis of any evidence and it was accepted that the workman established that he was in employment of the Colliery prior to take- over, but merely because there was no trace of CMPF contribution continuously because of non-availability of old records/hafhazard conditions of records of earlier period prior to nationalisation, the appellate authority in place of the demand of rest of Rs. 27,446.32 ps., merely allowed Rs. 10,000/- on compassionate view. 7. In the case of workman Miajan Mian (of CWJC No. 324 of 1999), he claimed continuous service from 5th January, 1959 to 29th December, 1990. In his case also, he produce CMPF Account up to 3/69. His case was also rejected by ALC (Central), Hazaribagh and similar observation was made by the appellate authority, while calculating gratuity amount for 502 days. By similar order, however, the appellate authority did not allow the claim of payment of further sum of Rs. In his case also, he produce CMPF Account up to 3/69. His case was also rejected by ALC (Central), Hazaribagh and similar observation was made by the appellate authority, while calculating gratuity amount for 502 days. By similar order, however, the appellate authority did not allow the claim of payment of further sum of Rs. 20,376.67 ps., but allowed a sum of Rs. 10,000/- on the ground of non-availability of old records/hafhazard conditions of records of employment prior to nationalisation. 8. Similar is the case of workman-petitioner Manir Mian (of CWJC No. 201/99), who claimed continuity of service since 6th April, 1960 and produced CMPFA/C No. 3/66 in support of earlier employment. In his case also, ALC (Central). Hazaribagh rejected the claim, appellate authority made similar observation while calculating gratuity on the basis of 502 days and in place of the claim of rest of Rs. 19,460.16 ps., additional sum of Rs. 4,000/- was allowed by the appellate authority on purported ground of purely compassionate view. 9. In the case of Md. Sahebjan Mian (of CWJC No. 225 of 1999), he claimed continuity of service since 5th January, 1959 up to 31st August, 1991, and then appellate authority though worked out gratuity, taking into consideration the total 528 days, in place of further claim of Rs. 20,665.80 ps., the appellate authority allowed additional sum op Rs. 4,200/- on compassionate view. 10. So far as petitioner Jalil Mian (of CWJC No. 273 of 1999) is concerned, he claimed continuous service from 7th February. 1959, the appellate authority worked out gratuity on the basis of 502 days, but in place of further demand of Rs. 18,034.71 ps., only additional sum of Rs. 2,000/- was allowed because of non-availability of old records/ hafhazard condition of records of the earlier period. 11. In respect to petitioner Kitabul Mian (of CWJC No. 296 of 1999), the appellate authority though took into consideration the claim of continuous employment from 7th March, 1957 to 28th December. 1990 and calculated the gratuity on the basis of 554 days, in place of further demand of Rs. 21,526.70 ps., he allowed a sum of Rs. 4,500/- in favour of said workman. 12. The aforesaid separate appellate orders, all dated 28th February, 1997/6th February, 1997 (in the case of Kitabul Mian), have also been challenged by the Management of M/s. CCL in the connected CWJC Nos. 21,526.70 ps., he allowed a sum of Rs. 4,500/- in favour of said workman. 12. The aforesaid separate appellate orders, all dated 28th February, 1997/6th February, 1997 (in the case of Kitabul Mian), have also been challenged by the Management of M/s. CCL in the connected CWJC Nos. 2517; 2520; 2521; 2522; 2523 and 2524, all of 1997. 13. The main plea taken by the Management that the workmen having employed on 1st April, 1973, such fact having taken into consideration and decided by ALC (Central). Hazaribagh rejecting the claim of workmen, apart from gratuity, as released and paid by Management for the period from 1.4.1973 till retirement, M/s. CCL was not liable to pay any amount taking into consideration the earlier service rendered by one or other workman in a private colliery, if any. 14. The aforesaid submission cannot be accepted as now it is settled that the period of service rendered prior to take-over of services of workman to be counted for the purpose of determination of retiral benefits like gratuity. In this connection, one may refer to the Full Bench decision of Patna High Court given in the case of Agent, Murlidhar Colliery v. Sital Chandra Pathak, reported in 1986 PLJR 1168. 15. Admittedly, the services of all the workmen, named above, were taken over under M/s. CCL w.e.f. 1.4.1973 on nationalisation of Collieries. The fact of takeover of services shows that the workmen were already in services of the Collieries prior to the take-over. 16. Now, the question arises as to till which date they were under the old employer ? This is an issue which can be determined on the basis of an evidence. If, one or other workman produced evidences like CMPFA/C slips of different months, from the original A/c. slips, one can derive at least the month since which workman was in the services of the erstwhile employer. Once such evidence is brought on record, in absence of subsequent break, in service, the workman having found in service of the erstwhile employer and his service having taken over, the service under erstwhile employer to be treated as continuous. This is the reason, the appellate authority in all the cases accepted that the workmen had been able to establish that they were in the employment of the Collieries prior to take-over. This is the reason, the appellate authority in all the cases accepted that the workmen had been able to establish that they were in the employment of the Collieries prior to take-over. Such finding having given, there was no occasion for appellate authority to disallow the total claim of gratuity to which one or other workman is entitled, on computation of amount based on number of days and the wages as drawn at the time of retirement. Such claim could not have been disallowed on the ground of nonavailability of old records which were required to be kept by the Management/erstwhile Management in better condition and for that the workmen shall not suffer for no fault of them.] If, the CMPF contribution was not traced out, in view of continuous service and non- availability of such records of contribution of the earlier period, the authorities should have allowed the gratuity in terms with calculation as made and shown at Paragraph 8 to each of the appellate orders. 17. For the reasons aforesaid, the workmen being entitled for the gratuity amount, taking into consideration the services rendered by them in the Collieries, they being entitled to gratuity in terms with calculation, as made and shown at Paragraph 8 to the appellate orders, the respondents are directed to release and pay the total gratuity amount, as claimed and calculate at Paragraph 8 of the appellate orders of each workman, "after adjusting the amount already paid within two months from the date of receipt/production of a copy of this judgment, failing which they will be liable to pay 8% interest on such rest of the dues towards gratuity. 18. In the result, writ petitions, CWJC Nos. 200 of 1999; 324 of 1999; 201 of 1999; 225 of 1999; 273 of 1999 and 296 of 1999, all preferred by workmen- petitioners are allowed. 19. The writ petitions, CWJC Nos. 2517 of 1997; 2520 of 1997; 2521 of 1997; 2522 of 1997; 2523 of 1997 and 2524 of 1997, as preferred by the Management M/s. CCL. are dismissed. However, in the facts and circumstances, there shall be no order, as to costs. Petition Nos. 200, 324, 201, 225, 273, 296 of 1999 allowed. Petition Nos. 2517. 2520, 2521, 2522. 2517. 2520, 2521, 2522, 2523 and 2524 of 1997 dismissed.