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2009 DIGILAW 1531 (JHR)

Abdul Hakim Mia v. Bharat Coking Coal Ltd.

2009-12-02

D.G.R.PATNAIK

body2009
Order Heard counsel for the parties. 2. The petitioner in this writ application has prayed for issuance of a direction upon the respondents to pay him his full salary and all other admissible service benefits for the period 18.6.1999 to 23.9.2002 during which period he was not allowed to work on the ground that he had superannuated from service on attaining the age of superannuation. 3. Pacts of the petitioner's case stated briefly are as follows:- Petitioner was appointed under the B.C.C.L. on 17.6.1971 on the post of Minor Loader at the Murlidih Colliery. At the time of his appointment, a service book, referred to as service records, was opened and his date of birth was recorded therein as 9.11.1951. He continued to discharge his duties regularly but to his surprise, sometime in October, 1998 he learnt that the entry in respect of his date of birth in the original service record, has been struck off and in place of the original entry, a wrong date of birth as 17.6.1939 has been mentioned. He promptly filed his protest by way of his representation on 13.10.1998 followed by another representation on 30.10.1998 before the Project Officer, B.C.C.L., Gobindpur Colliery. His several representations remained unheeded and he was served with a letter dated 6.2.1999 intimating him that he would superannuate with effect from 17.6.1999. A similar communication was subsequently forwarded to him on 19.5.1999. 4. Under such circumstances, he filed a writ application before this Court vide C.W.J.C. No. 941 of 2001. While disposing of the writ application vide its order dated 4.4.2002, this Court directed the respondents to reconsider the petitioner's case after referring the petitioner to the Apex Medical Board to assess his age on the basis of ossification test. In pursuance of the High Court's order, the respondents referred the petitioner to the Apex Medical Board on 11.7.2002. The report of the Medical Board confirmed that his age was assessed as 54 years on 11.7.2002. This, according-to the petitioner, was in consonance with the original entry in respect of his date of birth in the service records. 5. In pursuance of the High Court's order, the respondents referred the petitioner to the Apex Medical Board on 11.7.2002. The report of the Medical Board confirmed that his age was assessed as 54 years on 11.7.2002. This, according-to the petitioner, was in consonance with the original entry in respect of his date of birth in the service records. 5. The grievance of the petitioner is that despite the report of the Medical Board, the respondents did not reinstate the petitioner in service promptly and on the other hand, pressurized the petitioner to accept certain conditions for his reinstatement as imposed by them including a condition that he would not claim back wages for the period during which he was out of employment. 6. When the respondents refused to allow him to resume duty, the petitioner filed a Civil Miscellaneous Application before this Court vide C.M.P. No. 234 of 2002 in the original writ application, seeking protection from the Court in the event he was forced to sign on any agreement by the respondents. 7. On being informed about the miscellaneous application filed by the petitioner, the respondents called upon the petitioner to resume duty after signing the agreement containing a condition that he would not claim back wages for the period during which he remained idle and that the period shall be treated as 'dies non' for the purpose of payment of gratuity. The petitioner's contention is that under such duress he had to sign the memo" randum of settlement on 18.9.2002 and thereafter on 23.9.2002 he was allowed by the respondents to resume duty. 8. The petitioner has demanded payment of the wages for the aforesaid period on the ground that he was illegally prevented by the respondents to continue duty with effect from 17.6.1999 till 23.9.2002 without any fault on his part. 9. The petitioner's further grievance is that he has been discriminated arbitrarily by the respondents inasmuch as, in case of another employee namely Prem Shankar Prasad who had also filed a civil writ application before this Court, and in whose case the facts were identical as that of the petitioner, the respondents had allowed him to resume duty and had paid 75% of the total legal dues for the period when the employee was kept idle. 10. 10. Learned counsel for the petitioner would argue that the respondents cannot derive any mileage on the basis of the agreement nor claim that since the petitioner had agreed not to claim back wages, he is estopped from raising any such demand. Learned counsel explains that having created compelling circumstances and virtually forcing the petitioner to accept the terms, by refusing to allow him to resume duty even after receiving the report of the Medical Board, and taking advantage of the petitioner's financial constraints, the respondents had virtually forced the petitioner to sign on the agreement. Such an agreement has to be deemed as void and not binding upon the petitioner. 11. A counter affidavit has been filed on behalf of the respondents. The stand taken by the respondents is that the petitioner having agreed to the terms of settlement that he would not claim any wages for the period during which he had remained idle and thereafter, having voluntarily resumed duty, he cannot be allowed to resile from his promise to forego the back wages for the idle period and to claim for the purported back wages three years thereafter. 12. Learned counsel for the respondents would further explain that the petitioner had accepted his superannuation with effect from 1.7.1999 and then3after did not raise any grievance against the superannuation for about one and half years and had filed the earlier writ application in 2001. Learned counsel submits that the petitioner is certainly not entitled to claim back wages for the period during which he had remained idle prior to the date of his filing the earlier writ application. Learned counsel adds further that the petitioner had voluntarily agreed to enter into the settlement to forego his claim for the back wages. The settlement is in accordance with the provisions contained under Section 18 of the Industrial Disputes Act and is binding upon the parties. Furthermore, even on the principle of "no work no pay" the petitioner is not entitled to any Wages for the period during which he had remained idle. 13. From the rival submissions, the core issue is as to whether the agreement (Annexure-7) and the conditions imposed thereby, is binding upon the petitioner and he is stopped from seeking any relief contrary to the terms and conditions of the agreement. 14. 13. From the rival submissions, the core issue is as to whether the agreement (Annexure-7) and the conditions imposed thereby, is binding upon the petitioner and he is stopped from seeking any relief contrary to the terms and conditions of the agreement. 14. For better appreciation of this issue, it would also be relevant to keep in mind the background facts stated earlier. The facts of the petitioner's case amply demonstrate that the entry of his date of birth as originally made in his service records was tampered while the documents were in the exclusive custody of the employer and another date of birth was inserted to the disadvantage of the petitioner. The petitioner promptly lodged his protest against such illegal interpolations in his service records but in spite of his protest, instead of restoring the original entry, the respondents proceeded to terminate his services. When the matter was brought to the notice of this Court in the earlier writ application, this Court had found reason to suspect the conduct of the respondents and had directed them to obtain confirmation of the petitioner's age from the Medical Board. It was only pursuant to the directions of this Cour1 that the respondents had, as if reluctantly, for-warded the petitioner to the Medical Board. The facts also indicate that in spite of the confirmation by the Medical Board that the petitioner's age was assessed as 54 years on the date of his medical examination, the respondents chose not to allow the petitioner promptly to resume duty, in spite of his repeated demands and forced him to continue to remain idle. After having obtained the report of the Medical, Board, the employer had no option but to act in accordance with the report by allowing the petitioner forthwith to resume duty. There could be no occasion therefore either for the employer or for the employee to enter into any negotiation or settlement or to impose any condition upon the petitioner for his resuming duty. There could be no occasion therefore either for the employer or for the employee to enter into any negotiation or settlement or to impose any condition upon the petitioner for his resuming duty. The reluctance on the part of the petitioner to sign on any such agreement with condition to forego his back wages, is palpable from the very beginning since, instead of immediately succumbing to the circumstances as created by the respondents, he filed a miscellaneous application before this Court in his earlier writ application bringing to the notice of this Court the fact that he was being compelled to sign upon the agreement against his will. As explained by the counsel for the petitioner, no order on the civil miscellaneous application could be obtained promptly and being in dire financial distress, the petitioner being left with no other option, had to sign upon the agreement with the condition that he would forego his claim for back wages. 15. The above facts and circumstances amply demonstrate that at the time when the agreement was signed, the employer was on an advantageous bargaining position whereas the petitioner did not have any scope for bargaining. Such agreement on the part of the petitioner cannot be deemed to be voluntarily or willingly made. Even otherwise, the agreement is unconscionably unfair and unreasonable. The petitioner's contention that he was virtually forced to sign upon the agreement by the concerned officers of the respondents, cannot be said to be without reasonable basis. 16. From the pleadings of the petitioner it appears that the petitioner's case is not an isolated instance. The petitioner has referred to the 'case of another co-employee in whose case also, by alleged purported manipulations, the employer had prematurely terminated his services and when called upon by the Court later on, the employer was compelled to reinstate the employee in service. In his case also, instead of paying the full back wages for the period the employee was made to remain idle, the respondents had bargained but had paid him at least 75% of the back wages. These facts, as appearing in the pleadings of the petitioner, have not been denied or disputed by the respondents. In his case also, instead of paying the full back wages for the period the employee was made to remain idle, the respondents had bargained but had paid him at least 75% of the back wages. These facts, as appearing in the pleadings of the petitioner, have not been denied or disputed by the respondents. If another employee can be given the kind of treatment as stated above, there is no reason as to why the same treatment should not be given to the petitioner in the matter of payment of back wages and why he should be discriminated. 17. The plea on the principle of no work no pay would not apply to the petitioner's case as because the respondents had forced the petitioner to remain idle by illegally superannuating him, without any fault on his part. 18. In the light of the above discussions and the facts and circumstances of the case, I find merit in this application, accordingly the same is allowed. The respondents are directed to assess the amount of back wages and other service benefits to which the petitioner was entitled during the period he was forced to remain idle on account of illegal termination of his services, and till the date of his resumption of duty. The total amount shall be paid by the respondents within two months from the date of receipt/production of a copy of this order. In the event the amount is not paid within the period stipulated, it shall carry interest at the rate of 6% per annum from the date the amount fell payable, till final payment. Let a copy of this order be given to the learned counsel for the respondents.