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2009 DIGILAW 700 (JHR)

Bharat Coking Coal Limited v. Digvijay Singh

2009-05-05

D.K.SINHA, GYAN SUDHA MISRA

body2009
Order I.A. No. 3414 of 2008 This is an application 'for condonation of delay of 140 days in filing the appeal and the reasons assigned by the appellants is that the appellant-Company (M/s BCCL) was seeking legal opinion as to whether the appeal had to be filed against the impugned judgment, in view of ratio of the decision rendered in Kamta Pandey vs. BCCL reported in 2007(3) JLJR 726 (F.B.). It is stated that a decision was taken not to prefer appeal in so far as the dispute in regard to the correction of the date of birth is concerned, but it was opined that the appeal may be filed against the grant of back wages to the respondent-employee as he had not worked during the period when he had accepted superannuation. In the process, some delay has occurred in filing the appeal but the same is bona fide and not deliberate or intentional. 2. Although we are not fully satisfied with the reasons assigned for condonation of delay, yet we considered it just and appropriate to hear the appeal on merit, merely in the interest of justice, and hence in spite of non-availability of the sufficiency of the ground for condonation of delay, we thought it appropriate to take a liberal view in regard to the condonation of delay and hence condone the delay in filing the appeal. The application (I.A. No. 3414 of 2008) accordingly, be treated as allowed and disposed of. L.P.A. No. 432 of 2008 3. As we have condoned the delay in filing the appeal, the counsel for the appellant was permitted to address us on the merit of the matter. 4. This appeal has been filed against the judgment and order passed by the learned Single Judge on 16.4.2008 in W.P.(S) No. 7210 of 2006 by which the learned Single Judge was pleased to allow the writ petition in favour of the respondent-employee and quashed the impugned letter dated 16.8.2006 by which the petitioner-respondent herein was treated as having retired and thus was stopped from discharging duty under the appellant- Bharat Coking Coal Ltd. 5. The appellant had issued the letter of superannuation of the respondent ignoring his date of birth, which was recorded in his matriculation certificate and the same was also contrary to the settlement that had been arrived at between the Union of Workmen and the appellant-Management, wherein it was resolved to rely upon the date of birth which was given in the matriculation certificate and not otherwise which had been recorded in the Service Book by the authority. The learned Single Judge, therefore, was pleased to set aside the order by which the respondent-workman was superannuated and ordered for his reinstatement with all consequential benefits. Thus, the petitioner-respondent was reinstated in service in August, 2008 and in the process he lost his working days from February, 2007 upto August, 2008 although during this period he had received pensionary benefits but not the salary as he was treated to have superannuated. 6. This appeal has been filed by the Management, challenging only a portion of the order passed by the learned Single Judge by which consequential benefits have been allowed in favour of the respondent-employee, including the salary, for the period during which he was out of service and was drawing pension and in support of the appeal, it was submitted that the appellant Management did not restrain the respondent from discharging his duty for any illegal reason but the respondent was restrained from discharging duty on account of the bona fide order of his superannuation that was passed against him. It was, therefore, submitted that even though the petitioner-respondent has been ordered to be reinstated in service, the claim of back wages for this period should not have been allowed by the learned Single Judge. 7. In reply to the aforesaid submission, it was submitted by the counsel for the respondent-employee that the respondent was compelled not to discharge duty during this period although he raised a dispute about this incorrect entry in regard to his date of birth prior to the alleged order of superannuation and the respondent had also stated that as per his date of birth in the matriculation certificate, he could not be superannuated in 2007 and yet the appellant-Management slapped an order of superannuation on the petitioner-respondent contrary to the legal provision and the settlement that had been arrived at between the Union of Workmen and the appellant-Management. Thus, the counsel for the respondent, in effect, has submitted that the action of the appellant-Management compelling the respondent not to discharge duty as a regular employee and treating him as superannuated was clearly illegal and arbitrary on the part of the Management. 8. Having deliberated over the submission and counter submission of the counsel for the parties, we have noticed that the appellant-management itself accepted the position that the appellant has wrongly been superannuated as his date of birth recorded in the matriculation certificate could not have been ignored. Yet in the same breath, it has also been submitted by learned counsel for the appellant that the appellant-Management was correct in issuing order of superannuation in January, 2007. 9. We find that this argument creates an anomalous situation. When the appellant-Management itself noticed that the date of birth recorded in the matriculation certificate was a crucial evidence in proof of age of the respondent and to that effect an agreement had also been entered between the Union of the workmen and appellant-Management then it was expected of the appellant-management, at least, to issue a show cause notice to the respondent before issuing an order of his superannuation. The order of superannuation, therefore, could not have been passed against the respondent one fine morning without caring for its repercussion. In view of these facts, the learned Single Judge has set aside the order of superannuation, which is not even under challenge at the instance of the Management in this appeal and thereafter has granted consequential benefits. It is therefore, not legal and appropriate for the appellant-Management to deny wages to the respondent-workman. It is no doubt true that there are catena of decisions holding that an employee cannot claim back wages, if he has not discharged duties for long period but under all circumstances the wages have not been denied. 10. In the instant matter, the respondent-employee was compelled not to discharge duty in spite of strong prima facie case in his favour in regard to the date of birth and the appellant-Management itself appears to have accepted this legal position that his date of birth was ought to have been written as per the entry made in the matriculation certificate. In the instant matter, the respondent-employee was compelled not to discharge duty in spite of strong prima facie case in his favour in regard to the date of birth and the appellant-Management itself appears to have accepted this legal position that his date of birth was ought to have been written as per the entry made in the matriculation certificate. In spite of this, if the respondent-employee was compelled not to discharge duty for a period of more than one year, the same cannot justify the action on the part of the Management to deny the salary for this period. 11. Besides this, there is no case that the petitioner-respondent was compelled to draw pensionary benefit during this period and thus only 50% of the amount is to be paid by the appellant-Management by way of salary to him, which would be for a period of 18 months and that would amount to approximately Rs. 1,50,000/-. This amount for the Management is not a huge one, so as to contend that this amount ought not to be paid, especially when the appellant itself has admitted that the order of retirement was wrongly passed contrary to his date of birth entered in the matriculation certificate. 12. For all these reasons, we find no merit in this appeal. Hence, it is dismissed at the admission stage itself. 13. The appellant-Management is directed to make payment of the balance amount towards wages minus the pension drawn by the appellant for the period of 18 months and the same be paid expeditiously, but not later than a period of three months from the date of receipt of this order.