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2012 DIGILAW 1597 (JHR)

Jagdish Singh v. Bharat Coking Coal Limited

2012-11-05

APARESH KUMAR SINGH

body2012
JUDGMENT: Heard learned counsel for the parties. 2. This writ petition is being heard on remand by the Division Bench of this Court in L.P.A. No. 233 of 2011 for deciding the claim of back wages of the petitioner vide judgment dated 4th January, 2012. 3. The short facts of the case are required to be put on record in order to resolve the issue for payment of back wages. The writ petition was initially preferred for quashing the order dated 30th January, 2003, whereby the petitioner was dismissed from service. Before that the petitioner had approached this Court in CWJC No. 943/2000(R) against the order of his dismissal dated 29th October, 1999. The said writ petition was allowed vide judgment dated 26th August, 2002, which is Annexure-4 to the present writ application with a direction to the respondents to reconsider the matter on the basis of the cause shown by the petitioner within a period of two months from the date of receipt/production of a copy of the judgment. Apart from this, the learned Single Judge while remanding the matter directed that the consequence of setting aside of the impugned order will be that the petitioner will be restored to his position which he was availing on the date of his dismissal and the petition will be subject to the final decision taken in the case by the respondents. The employer respondents herein aggrieved by the said judgment moved in Letters Patent Appeal being L.P.A. No. 555 of 2002 which was disposed of by judgment dated 3rd December, 2002 by observing that since the matter has been remanded for reconsideration by the learned Single Judge whatever final order passed by the appellant-employer on the conclusion of the inquiry will determine the future course of action, including entitlement of back wages, if any. 4. It is the case of the petitioner that despite the judgment of the learned Single Judge not interfered with by the Division Bench, the petitioner was not reinstated in service but the departmental proceeding was proceeded and the fresh order of dismissal was passed on 30th January, 2003 which is impugned in the present writ application. 5. It appears that the petitioner moved this Court against the said impugned dismissal order which was withdrawn to enable the petitioner to file an appeal vide order dated 9th January, 2004 in W.P. (S) No. 1887 of 2003 (Annexure-8). 5. It appears that the petitioner moved this Court against the said impugned dismissal order which was withdrawn to enable the petitioner to file an appeal vide order dated 9th January, 2004 in W.P. (S) No. 1887 of 2003 (Annexure-8). The impugned order dated 30th January, 2003 and the order passed in appeal dated 20th February, 2004 are under challenge in the present writ application by the petitioner. The matter was heard at length and decided vide judgment dated 26th June, 2009. The reasons for setting aside the impugned orders of dismissal and the appellate order are being reproduced herein-below:- “Paragraphs 14: In 2008 (1) SCC Page 650 the Hon’ble Supreme Court at para 29 has specifically held as under: “Furthermore the discretionary Writ Jurisdiction under Article 226 of the Constitution of India should be exercised keeping in view the conduct of the parties…” In the instant case the conduct of respondent Management is on the face of it unjust, unfair and unreasonable apart from being discriminatory and is thus violative of Article 14 of the Constitution. The following reasons clearly reflects adoption of double standard. a) Out of 8 named accused 6 were charge-sheeted and sent up for trial. The petitioner along with one more was not even charge-sheeted nor sent up for trial and was discharged by the competent court. b) A vigilance Committee of 2 members were constituted by the Management to investigate into the lapses and report. The two members Vigilance Committee also exonerated the petitioner. c) Those delinquent officers who were charge-sheeted and prosecuted were retained in job and even promoted. Even the other officer who was not charge-sheeted has been allowed to continue in service and was promoted also. d) Only the petitioner was dismissed from service even though he was not charge-sheeted and even the Vigilance Committee exonerated him for the same allegation. e) The findings of the disciplinary and appellate authority is based on the deposition of one Sohit Mishra who was charge-sheeted but strangely no disciplinary proceeding was initiated against him. f) Justice should not only be done but should appear to be done has also been flouted in view of the fact that the recommendation for punishment, order of dismissal and the order of appellate authority was passed by the same person i.e. General Manger.” “15. f) Justice should not only be done but should appear to be done has also been flouted in view of the fact that the recommendation for punishment, order of dismissal and the order of appellate authority was passed by the same person i.e. General Manger.” “15. Considering the aforesaid special facts and circumstances of the case and also in view of the double standard and discriminatory approach and the fact that only the petitioner was singled out even though he was neither sent up for trial nor charge-sheeted and even the two Member Vigilance Committee report was in his favour and thus this is a fit case where interference is required in view of the unjust, unfair and unreasonable approach of the respondents which is on the face of it illegal, arbitrary apart from being discriminatory and violative of Article 14 of the Constitution of India.” 6. Learned counsel for the petitioner submits that when the writ petition was decided, inadvertently it could not be brought to the notice of the court that the petitioner had superannuated w.e.f. 31st January, 2007. Learned Single Judge while allowing the writ petition did not pass any order as to back wages. The petitioner thereafter approached the Letters Patent Court in L.P.A. No. 233 of 2011 solely on the ground of full back wages with consequential benefits and the matter has been remanded vide judgment dated 4th January, 2012 on the sole question of grant of back wages with all consequential benefits. The argument of the petitioner rests primarily on two grounds (i) that in the year 1999 the petitioner was dismissed from service and when the dismissal order was set aside the petitioner was directed to be reinstated by the learned Single and the order was not interfered with by the Letters Patent Court, but he was never reinstated in service. The argument of the petitioner rests primarily on two grounds (i) that in the year 1999 the petitioner was dismissed from service and when the dismissal order was set aside the petitioner was directed to be reinstated by the learned Single and the order was not interfered with by the Letters Patent Court, but he was never reinstated in service. In fact, therefore, the petitioner should be treated in continuous service from his first date of dismissal on 29.10.1999 till his second order of dismissal was passed and again further till his natural date of superannuation as the second order of dismissal dated 30th January, 2003 has been quashed by this Court earlier (ii) The second limb of the argument is that in the case of illegal termination which is set aside by a competent court grant of full back wages is the normal rule and the employer has to show reasons from deviating from the same. 7. Learned counsel for the petitioner by way of supplementary affidavit filed on 7th February, 2012 has stated that the petitioner had all along remained out of service without any employment from the period of his dismissal since 29.10.1999 till the date of his superannuation and as such he has discharged the burden of showing that he was out of employment and entitled to get full back wages. The respondents have not rebutted the same. 8. Learned counsel for the petitioner has relied upon the judgments rendered by Hon’ble Supreme Court of India reported in (1979) 2 SCC 80 and 2002(6) SCC 41 , wherein earlier judgment has also been relied upon. 9. Learned counsel for the respondents, on the other hand, submits that grant of back wages is not the normal rule. The rule in relation to grant of back wages has undergone significant change and, therefore, full back wages cannot be granted to the petitioner. 10. Learned counsel for the respondents has relied upon judgment rendered by Hon’ble Supreme Court of India reported in (2006) 7 SCC 180 paragraphs 12 to 17 in the case of U.P.SRTC-vs-Mitthu Singh; (2007) 9 SCC 564 paragraphs 21 to 23 in the case of Secy. 10. Learned counsel for the respondents has relied upon judgment rendered by Hon’ble Supreme Court of India reported in (2006) 7 SCC 180 paragraphs 12 to 17 in the case of U.P.SRTC-vs-Mitthu Singh; (2007) 9 SCC 564 paragraphs 21 to 23 in the case of Secy. Akola Taluka Education Society and another -Vs.- Shivaji and others; (2009) 5 SCC 705 paragraphs 22 to 27 in the case of P.V.K.Distilliery Limited-Vs.- Mahendra Ram and 2011(5) SCC page 142 paragraph 49 in the case of Chairman-cum-Managing Director, Coal India Limited & others-Vs.- Ananta Saha and others in support of his submission. 11. I have heard learned counsel for the parties at length and gone through judgments relied upon by the parties. The facts of the case disclose that out of eight named accused while six persons were charge-sheeted, the petitioner and another person were never charge-sheeted or sent up for trial and were discharged by the competent court. A Vigilance Committee of two members were constituted by the Management to investigate into the lapses, who also exonerated the petitioner. Those delinquent officers who were charge-sheeted and prosecuted were retained in job and even promoted and the other, who was not charge-sheeted were allowed to continue in service and were promoted. The petitioner was dismissed from service though he was not charge-sheeted. It further appears that the findings of the disciplinary proceeding are based upon the deposition of one Sohit Mishra who was charge-sheeted for the same instance, strangely no disciplinary proceeding was initiated against him. It further appears that the order of dismissal and the order of appellate order were passed by the same person i.e. General Manager of the respondent/employer. In these circumstances, the learned Single Judge while setting aside the order of dismissal and the appellate order held the approach of the respondents appears to be unjust, unfair and unreasonable as well as discriminatory and violative of Article 14 of the Constitution of India. 12. The law relating to back wages seems to have gone a significant change since earlier grant of full back wages was the normal rule upon setting aside of the illegal order of termination. The judgment relied upon by the petitioner as well as by respondents shows that no straitjacket formula can be fixed for grant of back wages. 12. The law relating to back wages seems to have gone a significant change since earlier grant of full back wages was the normal rule upon setting aside of the illegal order of termination. The judgment relied upon by the petitioner as well as by respondents shows that no straitjacket formula can be fixed for grant of back wages. However, the Hon’ble Supreme Court has also observed that in order to arrive at a solution a golden mean has to be arrived at. In arriving at the golden mean, the Court also has to take into account whether the employee had remained in service for a considerable length of time and thereafter been dismissed before his superannuation leaving only a short period before his date of his retirement when at that stage he could not be in a position to secure another employment as source of livelihood to secure himself and his family. However, it is also apparent from the reading of the aforesaid judgment relied upon by the respondents that the financial condition of the employer has also to be taken into account and if the financial condition of the employer is weak then due consideration has to be accorded for the same. 13. In the circumstances, which are found in the present case, the petitioner has been twice dismissed from service one in the year 1999 and thereafter in the year 2003 and during the pendency of the writ application superannuated on 31st January, 2007 while remaining out of service. Despite orders of the learned Single Judge in the first instance he was not reinstated and the second order of dismissal was passed. Though it is stated on behalf of the respondents-BCCL that Bharat Coking Coal Limited is a sick Company under BIFR declared under the Act, 1995, but it is also apparent that the respondents undertaking is a huge organization having thousands of employee who are being paid substantial wages. 14. Though it is stated on behalf of the respondents-BCCL that Bharat Coking Coal Limited is a sick Company under BIFR declared under the Act, 1995, but it is also apparent that the respondents undertaking is a huge organization having thousands of employee who are being paid substantial wages. 14. The petitioner has remained out of service for 7 longs years since he was terminated in the year 1999 till his retirement, in the facts of the present case, therefore interest of justice would be served if 75% of back wages is granted to the petitioner apart from all consequential benefits of pay revision and post retirement benefits to which he may be entitled upon setting aside of dismissal and the appellate order by this Court earlier. 15. The writ petition so far the question of back wages and other consequential benefits is concerned, is, therefore, allowed in the aforesaid terms.