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2015 DIGILAW 594 (JHR)

Makhu Singh v. Eastern Coalfields Limited

2015-05-07

SHREE CHANDRASHEKHAR

body2015
Order Aggrieved by order contained in reference dated 24.06.2010, the petitioner has approached this Court. 2. The brief facts of the case are that, the petitioner was engaged as a Fitter Helper (Category-III) on 01.03.1973. The allegation against the petitioner and other two workmen namely, Notan Kumar Baishya and Nifikir Paul is that they assaulted one Mukul Roy, Deputy Chief Mining Engineer in his chamber on 28.02.1992 and made murderous assault on him with sticks and daggers. The petitioner, it is alleged, also tried to strangulate the said Mukul Roy and caused injury to him. In terms of the certified standing orders, an order of dismissal from service was passed on 03.03.1992 which was challenged by the petitioner before the Calcutta High Court. The order of summary dismissal was quashed vide order dated 05.02.1993. Aggrieved, the respondent M/s Eastern Coalfields Limited (ECL) filed F.M.A.T. No. 669 of 1993 which was partly allowed whereby, interference with dismissal order was though upheld, a liberty was given to the appellant M/s ECL to approach the Labour Court for adjudication of the charge of misconduct levelled against the petitioner and other two employees. Consequently, reference was made for adjudication vide award dated 01.09.2003 and the Labour Court directed reinstatement of the concerned workmen with full back wages and continuity of service from the date of order of dismissal. Award dated 01.09.2003 was challenged by the respondent M/s ECL in W.P.(L) No. 1858 of 2004 which failed after dismissal of the writ petition vide order dated 09.02.2010. However, the Writ Court permitted the management to consider grant of all consequential benefits of reinstatement to the workman and to pass reasoned and speaking order. The management of M/s ECL has passed the order contained in reference dated 24.06.2010 whereby, the benefit of back wages and consequential benefits have been denied to the petitioner. 3. Mr. Mahesh Tewari, the learned counsel for the petitioner assailing the impugned order contained in reference dated 24.06.2010 submits that the respondent-M/s ECL has acted in a manner unknown to law. After the award dated 01.09.2003 was affirmed by the Hon'ble High Court in W.P.(L) No. 1858 of 2004, it was not open to the respondent-M/s ECL to deny the benefits of back wages and other consequential benefits to the concerned employee. After the award dated 01.09.2003 was affirmed by the Hon'ble High Court in W.P.(L) No. 1858 of 2004, it was not open to the respondent-M/s ECL to deny the benefits of back wages and other consequential benefits to the concerned employee. It is submitted that merely because a direction was issued to the management of M/s ECL to consider grant of benefits of back wages and other consequential benefits, it would not clothe the authority with arbitrary power to act in a manner contrary to the established principles of law. It is submitted that after the order of reinstatement in service with full back wages and consequential benefits was passed vide, award dated 01.09.2003, the respondent-M/s ECL illegally did not permit the petitioner-workman to discharge his duty and therefore, on the plea of “no work no pay”, the benefit of full back wages and other consequential benefits cannot be denied to the petitioner-workman. 4. As against the above, Mr. Rajesh Lala, the learned counsel for the respondents submits that the order of dismissal of the petitioner was in terms of Article 311(2) of the Constitution of India whereby, the departmental enquiry was dispensed with. The Hon'ble Division Bench of Calcutta High Court permitted the respondent-M/s ECL to get the charge of misconduct against the concerned workman adjudicated in the Labour Court however, the reference itself was improper. The award dated 01.09.2003 in Reference No. 126 of 1997 was modified by the High Court in W.P. (L) No. 1858 of 2004 and thus, it was open to the respondent-M/s ECL to consider the benefit of grant of back wages afresh. Relying on decisions in “Vijay Singh Vs. Union of India & Ors.”, (2007) 9 SCC 63 , “Ex. Hav. Satbir Singh Vs. The Chief of the Army Staff, New Delhi & Anr.”, 2013 (1) JCR 150 (SC) and order passed by this Court in W.P.(S) No. 2563 of 2005, it is submitted that whether the concerned employee was working elsewhere or not is a question of fact which cannot be adjudicated in the writ proceeding. Moreover, when the concerned workman did not perform his duty, grant of full back wages cannot be automatic. 5. The facts in the case are not disputed in so far as, dismissal of the petitioner by order dated 03.03.1992, orders passed by Calcutta High Court and this Court are concerned. Moreover, when the concerned workman did not perform his duty, grant of full back wages cannot be automatic. 5. The facts in the case are not disputed in so far as, dismissal of the petitioner by order dated 03.03.1992, orders passed by Calcutta High Court and this Court are concerned. Order dated 10.07.1995 in F.M.A.T. No. 669 of 1993 would disclose that the order of dismissal from service was converted into an order of deemed suspension with effect from 05.03.1992, that is, the date when the order of dismissal from service was published in the newspaper. It has further been ordered that the workman would be entitled for subsistence allowance as per company's rules. The learned counsel for the petitioner has referred to Clause 28.3 of the certified standing orders which provides that if the enquiry is not completed within the period of 60 days, the suspended workman shall be paid full back wages. However, it is provided that the payment of subsistence allowance would be subject to the employee not having taken up any employment elsewhere during the suspension period. It is not denied that the petitioner was paid suspension allowance by the respondent-M/s ECL and therefore, at this stage, a plea cannot be raised that there exists dispute whether the concerned workman was engaged elsewhere or not. The grievance of the petitioner is with respect to nonpayment of full back wages during the period of suspension. In terms of Clause 28.3 of the standing orders, a suspended workman is entitled for payment of full back wages, if the enquiry is not completed within a period of 60 days. The contention raised on behalf of the respondent-M/s ECL that since the petitioner did not discharge his duty during the period of suspension and therefore, he is not entitled for full back wages and other consequential benefits, is liable to be rejected. It is apparent that when the concerned employee was paid subsistence allowance by the respondents, he in terms of company's rules was required to mark his attendance in the office of the respondents. Moreover, Clause 28.3 itself provides that the payment of subsistence allowance would be subject to the condition that the concerned employee has not taken up employment elsewhere. It is apparent that when the concerned employee was paid subsistence allowance by the respondents, he in terms of company's rules was required to mark his attendance in the office of the respondents. Moreover, Clause 28.3 itself provides that the payment of subsistence allowance would be subject to the condition that the concerned employee has not taken up employment elsewhere. If the respondents themselves did not permit the concerned workman to discharge his duty, on such a plea the concerned workman cannot be denied the benefit of full back wages and other consequential benefits. Award dated 01.09.2003 reveals that a finding has been recorded by the Labour Court that the management failed to substantiate the charge levelled against the workman and consequently, the dismissal of the petitioner from service was held not legal and justified. The management was directed to reinstate the petitioner in service with full back wages and other consequential benefits. The order passed by the respondent no. 2 discloses complete non-application of mind on the part of the concerned authority. The impugned order contained in reference dated 24.06.2010 reveals that the respondent no. 2 has taken note of the facts which have been found by the Labour Court not substantiated by the management and such finding of fact has been affirmed by this Court in W.P.(L) No. 1858 of 2004. The respondent-M/s ECL itself did not permit the petitioner to discharge his duty though, continued to pay subsistence allowance and thus, I am of the opinion that the petitioner is entitled to the benefit of full back wages beyond the period of 60 days from the date of publication of the order of dismissal in the newspaper besides, other consequential benefits, in accordance with law. Clause 28.3 of the certified standing orders also enjoins upon the respondents to pay full back wages to the concerned employee who has been put under suspension if, the enquiry was not completed within a period of 60 days. The judgment relied upon by the learned counsel for the respondents do not lend support to the case of the respondents. Considering the above facts, the impugned order contained in reference dated 24.06.2010 is liable to be interfered with and accordingly, quashed. The judgment relied upon by the learned counsel for the respondents do not lend support to the case of the respondents. Considering the above facts, the impugned order contained in reference dated 24.06.2010 is liable to be interfered with and accordingly, quashed. In so far as, payment of backwages is concerned, the petitioner shall be paid full back wages with effect from 03.05.1992 with interest @ 8% per annum from 24.06.2010 however, the same shall be subject to adjustment of subsistence allowance already paid. 6. The writ petition stands allowed, in the aforesaid terms.