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2016 DIGILAW 374 (JHR)

Nirmal Kumar Singh v. Bharat Coking Coal Limited

2016-02-23

SHREE CHANDRASHEKHAR, VIRENDER SINGH

body2016
ORDER : Aggrieved by denial of salary for the period between 01.02.2012 and 31.01.2014 on the principle of “No Work No Pay” handed down to the writ petitioner-appellant vide, impugned order dated 12.12.2014 in W.P.(S) No. 5022 of 2009, the present Letters Patent Appeal has been filed. 2. Heard the learned counsel for the parties and 3. Mr. Sailesh, the learned counsel for the appellant perused the documents on record. contending that the direction not to pay salary to the appellant for the intervening period i.e. after 01.02.2012 when the appellant was forced to superannuate from service, is contrary to the law laid down by the Hon'ble Supreme Court, submits that once it has been held that the appellant was forced to superannuate from service w.e.f. 31.01.2012, though, he would have superannuated on 31.01.2014, payment of salary is automatic. 4. Opposing the prayer for grant of salary for two years, the period during which the appellant was not in service, Mr. Ananda Sen, the learned counsel for the respondent-M/s BCCL submits that the prayer for payment of salary is akin to grant of back-wages, which depends on a host of factors considering which, in the facts of a particular case, the Court may award full back-wages, a part of back-wages or no back-wage at all. It is contended that admittedly the appellant stood superannuated from service w.e.f. 31.01.2012 and thus, the period during which he did not work after his superannuation, he cannot claim salary. 5. The facts of the case, in nutshell, are noticed thus: The appellant was appointed on 17.10.1971 in M/s Bharat Coking Coal Limited. In the year, 1995 while working as Loading Inspector, the appellant when detected discrepancy in his date of birth, he promptly submitted a representation on 29.11.1995 informing the management that his date of birth has been wrongly recorded in EDP record wherein, instead of 02.01.1954 his date of birth has been recorded as 02.01.1952 however, his date of birth was not corrected in the service record. The appellant again submitted a representation on 17.12.1998 however, his representations remained unattended. The appellant again submitted a representation on 17.12.1998 however, his representations remained unattended. In the meantime, the management issued Identification Certificate Report dated 08.08.2006, Service Particulars dated 05.09.2006, Last Pay Certificate (LPC) issued on 28.08.2002 all of which bore his correct date of birth i.e. 02.01.1954 however, necessary correction was not made in his service record which compelled the appellant to knock the door of the Writ Court. During the pendency of the writ petition, the management issued notice dated 08.08.2011 notifying the date of superannuation of the appellant as 31.01.2012, which was challenged by the appellant by filing the interlocutory application being I.A. No. 2501 of 2011 and the said application was allowed, vide order dated 07.11.2012. 6. Before the Writ Court, the appellant-writ petitioner contended that as on 17.10.1971 he was in possession of the Matriculation Certificate issued in the year, 1969 which reflects his date of birth as 02.01.1954 and thus, the wrong entry in service excerpts wherein, his date of birth is recorded as 02.01.1952 cannot be considered for denying him the benefit of two years' service which otherwise would be available to him. The respondent-M/s BCCL referring to the Matriculation Certificate which bears the date of birth of the writ-petitioner as 02.01.1954 contended that as on 17.10.1971, the writ-petitioner had not attained the age of 18 years which is the minimum age for appointment and therefore, he cannot claim the length of service which is otherwise not legally available to an employee who would have been appointed at the age of 18 years. The learned Single Judge referring to the decision in “Kamta Pandey vs. M/s BCCL through Chairman cum Managing Director, Dhanbad & Ors.”, reported in 2007 (3) JLJR 726 and “M/s Bharat Coking Coal Ltd. and Others Vs. Chhota Birsa Uranw”, reported in (2014) 12 SCC 570 rejected the plea of the respondent-M/s BCCL that the date of birth recorded in service excerpts is binding on the employee. The learned Single Judge finally allowed the writ petition in the following terms; 15. “Since the petitioner has already retired on 31.01.2012, no direction can be issued for his reinstatement in service. The learned Single Judge finally allowed the writ petition in the following terms; 15. “Since the petitioner has already retired on 31.01.2012, no direction can be issued for his reinstatement in service. The petitioner has been forced to superannuate from service w.e.f. 31.01.2012 on the basis of his date of birth i.e. 02.01.1952 after completion of 60 years of service, he will be deemed to have been in service till completion of 60 years of service on the basis of his date of birth i.e. 02.01.1954. The petitioner had not performed his duty during the intervening period, he will not be entitled to get any salary for the intervening period on the ground of 'No Work No Pay', but certainly he will be entitled to get pensionary benefits, presuming that he had superannuated from service w.e.f. 31.01.2014, for the purpose of calculation of the pensionary benefits on the basis of the last pay drawn.” 7. Denial of salary for two years after the appellant was forced to superannuated on 31.01.2012, has given a cause of action to the employee to again knock the door of this Court by filing the present Letters Patent Appeal. 8. In “Kamta Pandey”, the Full Bench of this Court held that the date of birth of the employee recorded in the Matriculation Certificate is a conclusive proof of the date of birth of an employee. It was further held that Implementation Instruction No. 76 which is a Bilateral Agreement, is binding on the respondent-M/s BCCL. The relevant portion of Implementation Instruction No. 76 is extracted below; “(B) Review determination of date of birth in respect of existing employees. (i) a) In the case of the existing employees Matriculation Certificate or Higher Secondary Certificate issued by the recognized Universities or Board or Middle Pass Certificate issued by the Board of Education and / or Department of Public Instruction and admit cards issued by the aforesaid Bodies should be treated as correct provided they were issued by the said Universities/Boards/ Institutions prior to the date of employment. (i) b) Similarly, Mining Sirdarship, Winding Engine or similar other statutory certificates where the Manager had to certify the date of birth will be treated as authentic.” 9. Clause (i) (a) of the Implementation instruction fortifies the stand taken by the employee before the Writ Court. (i) b) Similarly, Mining Sirdarship, Winding Engine or similar other statutory certificates where the Manager had to certify the date of birth will be treated as authentic.” 9. Clause (i) (a) of the Implementation instruction fortifies the stand taken by the employee before the Writ Court. This provision has been considered by the Hon'ble Supreme Court in “Chhota Birsa Uranw” case wherein, the Hon'ble Supreme Court referring to Clause (i) (a) of Implementation Instruction No. 76 observed that : 14. “.........In the present case, the appellant Company failed to follow the procedure as laid down in the implementation instruction. It is the appellant's omission and not the inaction of the respondent which led to the dispute being raised in the courts at such a delayed stage. The attitude of such corporations wherein to avoid the rectification of a date of birth, litigation is unnecessarily prolonged just because they have number of resources at their command, goes against the grain of equity and duty towards society at large”. 10. The learned Single Judge distinguishing the case of the writ-petitioner, on facts, held that ratio of “Ram Pyare Singh vs. Bharat Coking Coal Ltd. and Ors.” [ 2014 (3) JCR 679 (Jhr.)] is not applicable. The learned Single Judge found that in the present case the date of birth of the writ-petitioner was not recorded in Form-B Register rather, only the age of the employee as on 17.10.1971, has been recorded as 28 years. The respondent-M/s BCCL has chosen not to challenge the finding recorded by the learned Single Judge in order dated 12.12.2014 in W.P.(S) No. 5022 of 2009. 11. Now, adverting to the question of payment of salary to the appellant for two years, the period during which he would have remained in service, we propose to examine the contentions raised on behalf of the respondent-M/s BCCL, first. In the judgment delivered by a three-Judge Bench in “M/s Hindustan Tin Works Pvt. Ltd. vs. the Employees of M/s Hindustan Tin Works Pvt. Ltd. and others” reported in (1979) 2 SCC 80 , the Hon'ble Supreme Court observed that, “If the workmen were always ready to work but they were kept away therefrom on account of an invalid act of the employer, there is no justification for not awarding them full back-wages which were very legitimately due to them”. However, the Court further held that, “in the very nature of things there cannot be a straight jacket formula for awarding relief of back-wages”, and held the workmen entitled to 75% of the back-wages. 12. In “Surendra Kumar Verma and others vs. Central Government Industrial Tribunal cum Labour Court, New Delhi and another”, reported in (1980) 4 SCC 443 , the Hon'ble Supreme Court observed; “plain common sense dictates that the removal of an order terminating the services of workmen must ordinarily lead to the reinstatement of the services of the workmen”. 13. In “General Manager, Haryana Roadways vs. Rudhan Singh”, reported in (2005) 5 SCC 591 , the three-Judge Bench of the Hon'ble Supreme Court considering the question, whether back-wages should be awarded to the workman in each and every case of illegal retrenchment, held as under : 8. “There is no rule of thumb that in every case where the Industrial Tribunal gives a finding that the termination of service was in violation of Section 25-F of the Act, entire back wages should be awarded. A host of factors like the manner and method of selection and appointment i.e. whether after proper advertisement of the vacancy or inviting applications from the employment exchange, nature of appointment, namely, whether ad hoc, short term, daily wage, temporary or permanent in character, any special qualification required for the job and the like should be weighed and balanced in taking a decision regarding award of back wages. One of the important factors, which has to be taken into consideration, is the length of service, which the workman had rendered with the employer. If the workman has rendered a considerable period of service and his services are wrongfully terminated, he may be awarded full or partial back wages keeping in view the fact that at his age and the qualification possessed by him he may not be in a position to get another employment.” 14. If the workman has rendered a considerable period of service and his services are wrongfully terminated, he may be awarded full or partial back wages keeping in view the fact that at his age and the qualification possessed by him he may not be in a position to get another employment.” 14. In “Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) and others”, reported in (2013) 10 SCC 324 after noticing previous judgments on the issue of grant of back-wages, the Hon'ble Supreme Court held that the cases in which termination/retrenchment was held illegal and invalid for non-compliance of the statutory requirement or related to cases where the Court found that the termination was motivated or amounted to victimization, stand on a different footing and the decision on back-wages payable on illegal retrenchment or termination may have no application to the case where the termination (dismissal or removal or compulsory retirement) is by way of punishment for misconduct in a departmental enquiry and the court confirms the finding regarding misconduct but only interferes with the punishment being of the view that it is excessive, and awards a lesser punishment, resulting in the reinstatement of an employee. 15. Now, in the aforesaid background of the law laid down by the Hon'ble Supreme Court, if we examine the claim of the appellant on the principles akin to grant of back-wages, we find that the appellant would not have secured further appointment after he superannuated w.e.f 31.01.2012, and thus, he was not required to plead and prove that he was not gainfully employed elsewhere on same terms and conditions. The finding recorded by the learned Single Judge that the appellant was “forced to superannuate” must be construed to hold that letter dated 08.08.2011 notifying the date of superannuation w.e.f. 31.01.2012 was illegal. The appellant submitted representations raising claim on the basis of Matriculation Certificate issued in the year, 1969 and his representations remained unattended are the facts which are not denied or disputed by the management which leads to an inescapable conclusion that notice of superannuation dated 08.08.2011 was issued in breach of rules of natural justice. As a sequel to the aforesaid discussions, we find the direction of the learned Single Judge denying salary to the writ-petitioner for the period between 01.02.2012 and 31.01.2014, not sustainable and thus, the same warrants interference. As a sequel to the aforesaid discussions, we find the direction of the learned Single Judge denying salary to the writ-petitioner for the period between 01.02.2012 and 31.01.2014, not sustainable and thus, the same warrants interference. Resultantly, the present Letters Patent Appeal deserves to be allowed as prayed for. Ordered accordingly. 16. In the nutshell, the appellant shall be entitled to salary for the period between 01.02.2012 and 31.01.2014. Respondent-M/s BCCL is directed to release the said amount in favour of the appellant within eight weeks from today, as it is already delayed considerably.