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2008 DIGILAW 722 (JHR)

Sharat Coking Coal Limited v. Baij Nath Mahato

2008-07-15

GYAN SUDHA MISRA, M.Y.EQBAL

body2008
Order This appeal has been preferred by the appellant-Management of M/s Sharat Coking Coal Limited against the order dated 8.2.2008 passed by learned Single Judge in W.P.(S) No. 1477 of 2007* by which the writ petition had been allowed directing reinstatement of the respondent workman alol1gwith back-wages for the period during which he was compelled to remain out of job. 2. To highlight the controversy, it would be relevant to record that the respondent-workman was duly discharging his duties with the appellant-Management since 1977 when he was taken in service arid after his appointment his date of birth admittedly was recorded 29 years ago, when he was due to retire in 2017. However, the appellant-Management raised dispute regarding date of birth of the respondent-workman and referred him before the Board for medical examination. The respondent-workman appeared before the Medical Board where his age was assessed more than what was recorded in Form-B register which was filled at the time of his entry into the service. The Management relying upon the view taken by the Medical Board, superannuated the workman on 30th September, 2006. 3. The respondent workman feeling aggrieved by the order of his superannuation, filed a writ petition before the learned Single Judge. The learned Single Judge was pleased to hold that the entry of date of birth of the respondent-workman in Form-B register of the appellant-BCCL could not have been doubted by the Management so as to refer him to the Medical Board for assessment of his age and hence, the learned Single Judge was pleased to set aside the order of superannuation and directed for his reinstatement with back-wages during which he was out of service. The learned Single Judge also imposed cost on the appellant-Management holding therein that frivolous litigation had been filed by the appellant-Management before the Court and the respondent-workman was unnecessarily made to suffer his superannuation, as a result of which he remained out of job. This is how this appeal has been filed by the appellant-Management before us. 4. Learned counsel for the appellant Management has assailed the order passed by the learned Single Judge and contended that the respondent herein i.e. the workman, was rightly referred to the Medical Board for assessment of his age as his date of birth 'vas not recorded in the order of his appointment. 5. 4. Learned counsel for the appellant Management has assailed the order passed by the learned Single Judge and contended that the respondent herein i.e. the workman, was rightly referred to the Medical Board for assessment of his age as his date of birth 'vas not recorded in the order of his appointment. 5. However, we do not find any substance in this contention and we agree with the view taken by the learned. Single Judge that after his appointment, when his date of birth was recorded in Form-B register, the appellant-Management remained idle over this matter and did not think it proper to rectify or assail the same for more than 29 years and suddenly It woke up from the slumber and assailed the same by passing the order of superannuation on 8.2.2008 against the respondent-workman. It hardly needs to be stated that the order of superannuation is deeply imprint and recorded even in the mind of the employee and suddenly if he is saddled with the order of superannuation, it obviously results into a shock to the employee sought to be retired. Assuming that the respondent-workman had any grievance against his date of birth and he had assailed it at the fag end of his retirement, then the Management as also the Court were bound to reject his plea outright on the ground that his date of birth cannot be allowed to be corrected just prior to the date of his retirement as it would be treated as an afterthought for extension of his service. In our view, the same yardstick should be applied to the Management also for if the Management sought rectification of the date of birth of the respondent-workman, it ought to have done fast and acted immediately after the respondent had entered into the service of the appellant and it is certainly not open to the Management to assail the date of birth after 29 years of his entry into the service which was duly recorded in Form B register at the time of his appointment. Thus, the view taken by the learned Single Judge was perfectly justified and we find no infirmity in the same. Hence, we refrain from interfering with the order passed by the learned Single Judge in the writ petition. 6. Thus, the view taken by the learned Single Judge was perfectly justified and we find no infirmity in the same. Hence, we refrain from interfering with the order passed by the learned Single Judge in the writ petition. 6. Learned counsel for the Management thereafter urged this Court that the cost imposed by the learned Single Judge on the appellant-Management should be waived as this dispute has been raised by the Management in a bona fide manner and was not done with any ill-motive. We found no difficulty in accepting this contention and that perhaps raised further expectation of the learned counsel for the appellant to submit that the order granting back-wages to the respondent-workman should also be interfered with. 7. We do not appreciate this request of the counsel appearing for the appellant Management as the back-wages has been granted merely from the date of superannuation till the date of his reinstatement which was on account of an illegal order 'having been passed by the Management. Learned counsel for the appellant, however, further submitted that the Courts have been showing trend to deny back-wages even. if the termination is held to be illegal. 8. There could not be any difficulty in denying back-wages if it had been proved that the respondent-workman was in gainful employment during the period in which he was out of service, but that yardstick or analogy cannot be allowed to be fitted into a situation of this nature where the respondent-workman did not have any time even to get his case adjudicated before the Labour Court as he was suddenly compelled to retire by virtue or the order of superannuation, due to which he had to remain out of job sitting idle for two years. Besides this, the appellant-Management has still not reinstated the. respondent-workman, though the learned Single Judge. has already passed an order in favour of the respondent-workman and had also imposed cost on the appellant-Management. 9. The attitude of the appellant-Management, therefore, is hardly legal or reasonable while contesting this appeal as prima facie it was outright a highhanded action of the appellant to retire the respondent on one fine morning without any prior notice. The request of the appellant Management to deny back-wages, therefore, is rejected. 9. The attitude of the appellant-Management, therefore, is hardly legal or reasonable while contesting this appeal as prima facie it was outright a highhanded action of the appellant to retire the respondent on one fine morning without any prior notice. The request of the appellant Management to deny back-wages, therefore, is rejected. However, taking a lenient view in regard to imposition of cost, we deem it appropriate to waive the same as ultimately the appellant-Management .is a Public Sector Undertaking and if any cost is imposed, it would ultimately-be a strain on the State Exchequer. 10. Hence, we set aside the order in so far as the order of imposition of cost is concerned, but on other counts, the appeal miserably fails and hence it is dismissed.