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2009 DIGILAW 460 (JHR)

Kamal Narayan Kashyap v. Bharat Coking Coal Ltd.

2009-03-26

AJIT KUMAR SINHA

body2009
ORDER The present writ petition has been preferred for the following reliefs:-i) For issuance of an appropriate writ /Rule/Direction or a writ in the nature of Certiorari for quashing the letter dated 28.11.2003 (Annexure-19) issued under the signature of the Chief General Manager (WCD), Bharat Coking Coal Limited by which the representation filed by the petitioner has been disposed off rejecting the claim of the petitioner in most arbitrary manner, ii) For a direction to make the payment of salary for the period 8.10.1999 to 16.8.2001. The facts in brief are stated as under:- 2. The petitioner was initially transferred vide order dated 19.3.1998 and was released with immediate effect. The petitioner challenged this transfer order vide C.W.J.C. No. 1360 of 1998(R) which was disposed of with a direction to file a representation before the competent authority who in turn was directed to dispose of the same in accordance with law. Accordingly the petitioner preferred a detailed representation which was turned down vide order dated 28.9.1999 on the ground that the transfer was due to exigency of work and requirement of man power. 3. Pursuant thereto the petitioner on 8.10.1999 gave his joining but strangely he received a letter on 13.10.1999 that he had to submit the release order from the present place of posting and the identification certificate for the verification and was directed to produce the same. The petitioner vide its letter dated 21.10.1999 enclosed the copy of the release order which was already sent to the Chief General Manager (CP /WC), Koyla Bhawan and also requested to obtain the identification certificate and the attested photograph of the petitioner and further requested to allow him to make his attendance in the attendance register on 8.10.1999 i.e. the date when he gave his joining. On 21.10.1999 an office order was issued stating that since he had not produced identification certificate alongwith the photograph duly attested by the Controlling Officer, hence it was not possible to allow him to resume his duties. The petitioner again wrote letter dated 26.10.1999 to obtain the identification certificate at their own level from Kenduadih Colliery as the same was not issued to him and further informed that he was continuously attending the office everyday. The petitioner again wrote letter dated 26.10.1999 to obtain the identification certificate at their own level from Kenduadih Colliery as the same was not issued to him and further informed that he was continuously attending the office everyday. Again vide an office order dated 12.11.1999 the earlier office order dated 19.3.1998 was partially modified and the petitioner was transferred from Kenduadih Colliery of P.B. Area to Madhuband Washery under WCD, Koyla Bhawan and again the petitioner was directed to carry the identification certificate and attested photographs duly signed by the Controlling Officer to produce the same at the new place of posting at the time of joining, failing which, he will not be allowed to join his duties. The petitioner requested the Controlling Officer i.e. the Chief General Manager (CP /WC), Koyla Bhawan, Dhanbad to issue him the release order, identification certificate and attested photographs. 4. Inspite of the best efforts of the petitioner he was neither issued the identification certificate nor the attested photographs by his controlling authority and as such he went to give his joining in the new place of posting without those documents and he was not allowed to join his duties. 5. The petitioner kept running from pillar to post to allow him to mark his attendance as he was attending the office everyday as well as regularly tried to get the Identification certificate and the attested photographs from his controlling authority i.e. the Chief General Manager (CP /WC), Koyla Bhawan, Dhanbad. 6. After a lapse of one and a half year, the petitioner received a letter dated 27.11.1999 issued by the Deputy Chief Mining Engineering / Manager, Kenduadih Colliery whereby he was directed to submit his passport size (black and white) photograph to get his identification marked. 7. The petitioner immediately submitted his passport size photograph duly signed by him before the Deputy Chief Mining Engineer / Manager, Kenduadih colliery on 13.10.1999 and requested him to expedite the matter. The petitioner was stationed at Kenduadih colliery from 13.10.1999 to 26.10.1999 for obtaining the Identification certificate but the same was not issued to him. 8. 7. The petitioner immediately submitted his passport size photograph duly signed by him before the Deputy Chief Mining Engineer / Manager, Kenduadih colliery on 13.10.1999 and requested him to expedite the matter. The petitioner was stationed at Kenduadih colliery from 13.10.1999 to 26.10.1999 for obtaining the Identification certificate but the same was not issued to him. 8. The petitioner again received a letter dated 1.1.2000 issued by the Project Officer, Kenduadih Colliery that his LPC and Identification certificate has already been sent to the Chief General Manager (CP / WC), Koyla Bhawan, Dhanbad vide letter dated 11.11.1999 and the petitioner was directed to report his duties at Madhuband Washery zone immediately failing which the Management shall be constrained to take disciplinary action against him, but when the petitioner went to give his joining, his joining was once again not accepted. 9. The petitioner on being left with no option preferred a writ petition No. 749 of 2000 (R) to quash the order dated 12.11.1999 by which he was directed to carry the Identification certificate etc. and further prayed for a mandamus to allow him to join his duties. 10. This Hon’ble Court, after hearing the parties was pleased to dispose of the matter vide order dated 17.1.2001 with a direction to the petitioner to submit his photograph before the Controlling Officer within 10 days and the respondents were directed to allow him to join his duties. As far as payment of salary was concerned, the petitioner was given liberty to file a representation which was to be disposed of within one month thereafter. 11. In pursuance to the order dated 17.1.2001, the petitioner immediately submitted his photograph and also filed a representation for payment of the salary, but he was neither allowed to join his duties nor paid his salary. 12. The petitioner filed M.J.C. No. 84 of 2001 (R) before this Hon’ble Court for the alleged non-compliance of the order dated 17.1.2001. 13. This court vide its order dated 10.8.2001 in M.J.C. No. 84 of 2001 directed the petitioner to forthwith join on the transferred place of posting i.e. Madhuband Washery under Madhuban Zone latest by 17th August, 2001 without complying with the requirement of Identification of photographs and further gave liberty to the competent authority to dispose of the representation of the petitioner with regard to payment for the earlier period. The petitioner immediately gave his joining on 17.8.2001 which was allowed by the respondent on 20.8.2001. 14. Thereafter, as per the liberty he filed a representation for payment of his salary for the period 8.10.1999 to 16.8.2001 and the respondents rejected the same vide letter dated 27.8.2001 on the principle of no work no pay. Being constrained the petitioner challenged letter dated 27.8.2001 in W.P.(S) No. 5978 of 2001. The learned single judge vide a detailed speaking order held as under:- “Notwithstanding the existence of the aforementioned rule however, this Court is of the opinion that there was no deliberate intention on the part of the Petitioner not to go and join the transferred post because immediately after having been transferred and after having been released and notwithstanding his having been directed to carry the identification certificate and attested photographs, he did report for duty on 08.10.1999 as is evident from Annexure-5. It is thereafter that an objection was raised that the Petitioner had not come with a release order. It is thereafter that a series of correspondences were entered upon which also culminated ultimately in the filing of the aforesaid Writ Application and Contempt Application. These facts are enough to show that the Petitioner was not sitting idle but, in fact, he was running from post to pillar and pillar to post trying to seek clarification as to what would be his status. For the reasons stated therefore, this Court is of the firm opinion that while rejecting the claim of the Petitioner; the Respondents have not acted in a fair and reasonable manner. In that view of the matter Annexure 17 is set aside and the matter is remanded once again to the General Manager (WC) (Respondent No. 4) to reconsider the case of the Petitioner sympathetically after taking into consideration the observations made herein.” 15. However, as regards the prayer to fix basic pay-scale at Rs.7398/-instead of Rs.6383/-the learned Single Judge held that since it was a prayer unconnected with the prayer in the writ petition the same cannot be allowed. However, it gave liberty to the petitioner to file a representation before the appropriate authority confined to this prayer and the writ petition was allowed to the extent indicated above. 16. The aforesaid order was passed by the learned Single Judge on 02.09.2003 and the present writ petition has been filed in 2004. 17. However, it gave liberty to the petitioner to file a representation before the appropriate authority confined to this prayer and the writ petition was allowed to the extent indicated above. 16. The aforesaid order was passed by the learned Single Judge on 02.09.2003 and the present writ petition has been filed in 2004. 17. Shri Anoop Kumar Mehta, learned counsel for the respondent submits that pursuant to the order passed by the learned Single Judge the petitioner made a representation which was considered and by a speaking order dated 28.11 /2.12.2003 the same was rejected. It was held that the payment of salary for the period 8.10.1999 to 16.8.2001 was reconsidered and the same was not admissible. 18. The next contention raised by the learned counsel for the respondent is that as per the circular the identification particulars had to be produced and since the petitioner did not produce the same he was rightly not allowed to join and thus the principle of no work no pay will apply. 19. I have considered the rival submissions and the pleadings. It appears that the respondents have completely misdirected itself and in a way has tried to reopen the matter which stood concluded by a judgement passed by this Court on 2.9.2003 in W.P. (S) No. 5978 of 2001. By this judgement the prayer with regard to payment of salary for the period in question i.e. 8.10.1999 to 16.8.2001 was allowed and in fact strictures have been passed against the respondent by observing that they have made the petitioner run from pillar to post and have not acted in a fair and reasonable manner and accordingly the order impugned therein was set aside and the matter was remanded to be considered sympathetically in the light of the observation made and the writ petition was specifically allowed. The representation which was permitted to be filed was basically with regard to fixing the basic pay scale at Rs.7398/-per month instead of Rs.6383/-since that was not an issue in dispute the learned Single Judge permitted to file a representation. 20. On a specific query, as to whether the learned Single Judge order was challenged or not, it is admitted that the same not challenged and thus it has attained finality. 21. 20. On a specific query, as to whether the learned Single Judge order was challenged or not, it is admitted that the same not challenged and thus it has attained finality. 21. Considering the aforesaid facts and circumstance of the case it was incumbent upon the respondents to comply with the order passed by the learned Single Judge which has attained finality more so when the writ petition was allowed. The entire action was rightly held to be unfair and unreasonable. 22. Considering the aforesaid facts and circumstance of the case, this writ petition is allowed with a direction to the respondent to pay the salary dues for the period 8.10.1999 to 16.8.2001 within a period of two months from the date of receipt of this order with cost of Rs.10,000/-.