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2015 DIGILAW 731 (JHR)

Employers In Relation To The Management of Moonidih Coal Washery Under Moonidih Area of Bharat Coking Coal Limited v. Their Workmen

2015-06-30

S.CHANDRASHEKHAR

body2015
ORDER : S. CHANDRASHEKHAR, J. 1. At the instance of the respondent-workman Reference No. 220/2001 was made for adjudication, whether the action of Bharat Coking Coal Limited in not accepting 1948 as year of birth of the workman was legal and justified. The Central Government Industrial Tribunal answered the reference vide award dated 28.08.2009 in favour of the workman. The petitioner namely, Management of Moonidih Coal Washery of M/s. Bharat Coking Coal Limited has challenged award dated 28.08.2009. Briefly stated, the facts of the case are that, the respondent-workman was appointed on 31.01.1973 however, at that time his age was not assessed. In the year, 1976 the age of the respondent was determined and it was recorded in Form B, as 28 years in 1976. However, on the pretext that NEIS and EDP records maintained at Koyla Bhawan, BCCL disclosed the age of workman as 01.07.1940, a notice of superannuation with effect from 01.07.2000 was issued to the respondent-workman. After examining the record when it was found that in Form B register of Muraidih Colliery, the date of birth of the workman was recorded as 31.01.1945, the workman was allowed to resume duty. The respondent superannuated on attaining 60 years of age on 01.02.2005. Aggrieved by the decision of Date of Birth Committee which confirmed 31.01.1945 as date of birth of the workman, an industrial dispute was raised. After failure of conciliation proceeding, Reference dated 27.09.2001 was made which was answered in favour of the workman. 2. Heard the learned counsel for the parties. 3. Mr. Anoop Kumar Mehta, the learned counsel for the petitioner submits that finding of the Date of Birth Committee is a question of fact which cannot be interfered by the Tribunal. The Committee after examining all the documents, confirmed the date of birth of the workman as 31.01.1945. It is submitted that at the fag end of his service, the respondent-workman has raised a dispute as to his date of birth which should not have been entertained by the Tribunal. It is further submitted that though the workman has failed to plead and produce evidence that he was not gainfully employed between period 01.02.2005 01.07.2008, the direction to pay all consequential benefits including, back wages to the workman, is definitely not sustainable in law. It is further submitted that though the workman has failed to plead and produce evidence that he was not gainfully employed between period 01.02.2005 01.07.2008, the direction to pay all consequential benefits including, back wages to the workman, is definitely not sustainable in law. Per contra, the learned counsel for the respondent Workman supports the award dated 28.08.2009 and submits that the Tribunal has held that workman was illegally and arbitrarily stopped from duty with effect from 01.02.2005 and therefore, the workman has been held entitled for all consequential benefits including, back wages. 4. A careful examination of the pleadings on record discloses that in Form B register, date of birth of the workman has been recorded as 28 years in 1976. Form B register is a statutory register prepared by BCCL. In the Identity Card register age of the workman was mentioned as 28 years in 1976. The workman was transferred to Kessurgarh Colliery in the year, 1981 and thereafter, to Moonidih Coal Washery. The Last Pay Certificate of the workman also discloses his age as 28 years in 1976 and the same has again been recorded in Form B of Moonidih Coal Washery. In the service excerpts prepared in the year, 1987 age of the workman is recorded as 28 years as on 01.01.1976. In these facts, the respondent workman claimed that he was to superannuate on 01.07.2008 however, he was stopped from discharging duty with effect from 01.07.2000. The Management accepted the claim of the workman after 5 1/2 months and he was allowed to resume duty with effect from 15.12.2000. The Date of Birth Committee has thereafter, changed the date of birth of the respondent to 31.01.1945. Thus, it is apparent that the cause of action to the workman against the decision of the Date of Birth Committee arose only in the year, 200001. The dispute though arose at the fag end of the service of the workman however, it was not at the instance of the workman. Before the Industrial Tribunal workman was examined as WW 1 and he stated that his age was assessed as 28 years in 1976. The Identity Cards, Service Excerpts, Seniority List etc. were marked exhibits. The dispute though arose at the fag end of the service of the workman however, it was not at the instance of the workman. Before the Industrial Tribunal workman was examined as WW 1 and he stated that his age was assessed as 28 years in 1976. The Identity Cards, Service Excerpts, Seniority List etc. were marked exhibits. Letter dated 21.12.2004 of the Project Officer, Moonidih Coal Washery which was marked as exhibit W6 also affirms that in Form B register age of the workman has been recorded as 28 years on 15.01.1976. The Industrial Tribunal has rightly answered the reference in favour of the workman. The Tribunal after considering the evidence brought on record has recorded as under: 7. "As per Form 'B' Register, which is a statutory record as per Mines Act, 1952, at the time of initial appointment of the concerned workman, his date of birth was recorded as 28 years in the year 1976 which means the year of birth of the workman is 1948 and as per guideline of the certified standing order and implementation instruction No. 76 of JBCCI the date of birth shall be treated as 01.07.1948. It only shows that the concerned workman was superannuated in the year, 2005 without considering his date of birth as per Form 'B' Register when he was initially appointed. This action of the management is declared to be unjustified." 5. The Tribunal has held that the decision of the M/s. BCCL in not accepting the year of birth of the workman as 1948 was, illegal and unjustified. As rightly pointed out by the learned counsel for the respondent workman, the Tribunal has also held that the workman was illegally and arbitrarily stopped from discharging duty with effect from 01.02.2005. In Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D. Ed.) and Others, (2013) 10 SCC 324 , the Hon'ble Supreme Court has observed "In case of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule." Considering the above facts, I do not find any infirmity in award dated 28.08.2009 holding 01.07.1948 as date of birth of the respondent-workman and directing M/s. BCCL to pay full back wages and consequential benefits between the period 01.02.2005 and 01.07.2008, in terms of NCWAVI, VII & VIII. In the result, the writ petition fails. In the result, the writ petition fails. I.A. No. 726 of 2010 and I.A. No. 3569 of 2010 also stand dismissed.