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Jharkhand High Court · body

2003 DIGILAW 119 (JHR)

Laljit Bhuiya v. Bharat Coking Coal Ltd.

2003-01-24

TAPEN SEN

body2003
ORDER Tapen Sen, J. 1. In this writ application, the petitioner has prayed that he should be given the full voluntary retirement dues by calculating the same with effect from his original and initial date of appointment, i.e., 9.4.1973 and not from 1.1.1989, i.e., the date on which he was absorbed. 2. The petitioner has further prayed for similar calculation on the leave encashment amount taking 9.4.1973 as the date and also to pay the remaining amount enuring to his benefit under the V.R.S. Scheme by taking into account the actual length of service. 3. The case of petitioner is that he was appointed on 9.4.1973 as a Wagon Loader/Stone Cutter in the Govindpur Colliery and since then he continued to work without any break. The petitioner relies upon the service excerpt vide Annexure 1 and submits that as per the said document the respondents themselves, have shown his date of appointment to be 9.4.1973. 4. The petitioner has further stated that even in the From B Register the year of the petitioners appointment has been mentioned as 1973 and in support of the aforementioned contention the petitioner has referred to Annexure A of the counter affidavit which is the relevant portion of the said register brought on record by the respondents themselves. The petitioner submits that in this document it has been mentioned 19.11.1973 which means that this was opened on that date but, the fact remains that he was actually appointed on 9.4.1973 as is apparent from Annexure-1 appended to the writ application as also the calculation sheet brought on record by the respondents themselves vide Annexure C which says that the date of appointment is 9.4.1973. 5. On the other hand, the respondents, in their counter affidavit, have stated that the petitioner was regularized on the permanent roll of Govindpur Colliery with effect from 1.1.1989 and therefore, the respondent have considered the said date, i.e., 1.1.1989 as the date for purposes of calculation of all benefits under the V.R.S. Scheme and accordingly have paid all amounts on the basis of such date. They have further stated at paragraph 11 that the petitioner was originally appointed as a Casual Wagon Loader on 9.4.1973 but, he never worked for 240 days in any calendar year between 9.4.1973 and 1985, and only such persons who complete five years of continuous service are regularized on permanent roll of the Company. They have further stated at paragraph 11 that the petitioner was originally appointed as a Casual Wagon Loader on 9.4.1973 but, he never worked for 240 days in any calendar year between 9.4.1973 and 1985, and only such persons who complete five years of continuous service are regularized on permanent roll of the Company. Accordingly, since he was made regular on 1.1.1989, therefore the respondents have taken the period of length of service from 1.1.1989 till 30.3.2000 (i.e., the date when the petitioners application for voluntary retirement was accepted by the Controlling Authority vide Annexure-2). 6. The statements made by the respondents to the effect that he never worked for 240 days in any calendar year between 9.4.1973 and 1985 cannot be believed in the face of Annexure C to the counter affidavit read with Annexure A thereto as also Annexure-1 to the writ application. While Annexures A and C have been brought on record by the respondents themselves, and which show the date of appointment as per Form B Register as 9.4.1973, this Court also comes to a conclusion taking into consideration the service excerpt too (Annexure-1) that the date of appointment of the petitioner is 9.4.1973. 7. Thus, if the petitioner was made permanent on 1.1.1989, as has been admitted by the respondents, in various places of the counter affidavit as also in Annexure C thereto, then the only logical conclusion is that the petitioner during this period, i.e., between the period of 9.4.1973 to 1.1.1989 continued to be in status of a casual employee. 8. Thus, the question that falls for consideration by this Court is whether the aforementioned period between 9.4.1973 to 1.1.1989 (i.e., almost 15 years and 8 months) which the petitioner worked in the status of a Casual Wagon Loader should be allowed to go totally wasted or as to whether this period should be ordered to ensure to his benefits for all practical purposes? 9. The learned counsel for the petitioner relied upon the case of "The Direct Recruit Class II Engineering Officers Association and Ors. v. State of Maharashtra and Ors." reported in AIR 1990 SC 1607 . At paragraph 44 of the said judgment laid down guidelines as to in which manner of dealing officiating service is to be considered. 9. The learned counsel for the petitioner relied upon the case of "The Direct Recruit Class II Engineering Officers Association and Ors. v. State of Maharashtra and Ors." reported in AIR 1990 SC 1607 . At paragraph 44 of the said judgment laid down guidelines as to in which manner of dealing officiating service is to be considered. Paragraph 44(B) reads thus :-- "(B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted." 10. The aforementioned judgment relates to the counting of the officiating service for purposes of seniority. Drawing an analogy from the said judgment therefore, this Court is of the opinion that if officiating service is to be counted for seniority and that too if initial appointment was not made following the procedure, then why should not the "casual status" also enure to the benefit of an employee for purposes of computing the payments under the V.R.S.? According to this Court therefore, the period rendered by the petitioner in a "casual status" must also be counted, especially moreso in view of the fact that there is nothing on record to suggest that the petitioner was not in service during this period. On the contrary Annexure-1 of the writ application and Annexure C to the counter affidavit clearly and loudly announce the date of appointment of the petitioner to be 9.4.1973 and the date of permanency to be 1.1.1989. It does not show that he was not in service during that period. The portion of Form B Register brought on record as Annexure A to the counter affidavit by the respondents also shows 19.11.1973. In other words, his entry is 1973 and this excerpt does not show that the services were discontinued. On the contrary, at the top right hand margin it again reads "permanent on 1.1.1989". Thus, the contention of the respondents at paragraph 11(b) that the petitioner never worked for 240 days in any calendar year between 9.4.1973 and 1985 is a statement that has been made only for purposes of the counter affidavit but it is contrary to the documents on record of this case. 11. Thus, the contention of the respondents at paragraph 11(b) that the petitioner never worked for 240 days in any calendar year between 9.4.1973 and 1985 is a statement that has been made only for purposes of the counter affidavit but it is contrary to the documents on record of this case. 11. Thus, from what appears from the facts pleaded in this case is that the petitioner was appointed in the year 1973 and continued in a casual status till 1989. Merely because, he continued in that status, it would be a travesty of justice if such a long continuous service is ignored and not taken into consideration. 12. For the reasons stated above, this writ petition is disposed off by holding that the period rendered by the petitioner from 1973 was a valuable period of his life which cannot be thrown away just like that. The respondents should, therefore, reconsider their stand and pass a fresh order in accordance with law after taking into consideration the observations made above. 13. The writ petition, therefore, stands remanded to the respondent No. 3 (General Manager, Govindpur Colliery, Area III, Bharat Coking Coal Limited, Dhanbad) who will look into the matter and pass a fresh order relating to computation of the petitioners benefits and will pass an order in accordance with law. With the aforesaid observations and directions this writ petition stands disposed off.