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2018 DIGILAW 188 (JHR)

Akhilesh Singh v. Bharat Coking Coal Ltd

2018-01-19

PRAMATH PATNAIK

body2018
JUDGMENT Pramath Patnaik, J. – In the accompanied writ application, the petitioner has inter alia prayed for quashing order dated 20.10.2003, whereby representation of the petitioner for payment of back wages has been denied and further prayer has been made for payment of post retiral benefits in favour of petitioner no. 1. 2. The facts, in brief, is that the petitioners, who were working in collieries of M/s BCCL were made accused in a criminal case for allegedly making assault upon Project Officer and instigated others to throw coals and stones on him. Basing on such fact, they were dismissed from services vide order dated 21.09.1998. Subsequently, the petitioners were acquitted in criminal case, vide order 11.05.2000. However, the petitioners being aggrieved by the order of dismissal knocked the door of this Court by way of filing CWJC No. 1404 of 1999(R), which was disposed of vide order dated 24.01.2001with a direction the respondents-authorites to review the order of their dismissal in view of their acquittal in criminal case. Accordingly, the petitioners were reinstated in services but without back wages. Being aggrieved by the order of non-payment of back wages, the petitioner again approached this Court by filing WPS No. 3529 of 2001, which was disposed of by setting aside the order passed by respondents-CMD and the matter was remanded to pass fresh order in accordance with the observations made in CWJC No. 1404 of 1999(R). Being aggrieved, the respondents-BCCL filed L.P.A. No. 92 of 2003, which stood dismissed vide order dated 30.04.2003. Thereafter, the petitioners annexing the order passed by learned Single Judge and Division Bench, represented before respondents to pass appropriate order for payment of back wages, but, when no order was passed, the petitioner moved this Court by filing Cont. Case (C) No. 915 of 2005, wherein the petitioners for the first time, came to know that their representation has been rejected vide order dated 20.10.2003. 3. Learned counsel for the petitioner submitted that respondent no. 2 without giving any opportunity of hearing and without appreciating the direction of this Court to consider the case of the petitioners for payment of back wages, straightway rejected the representation of the petitioners solely on the ground that the petitioners were out of employment for their own fault and applying the principle of ''no work no pay'', they are not entitled to get back wages. It has been submitted that it is a case where the petitioners were forced to remain out of employment by the act of respondent no. 2 and not because of their own fault. In the criminal case, the petitioners were acquitted and their innocence were proved beyond all reasonable doubt and allegations were found to be baseless by the competent Court of law. Learned counsel for the petitioner further submitted that during pendency of the writ application, the petitioner retired from services, on attaining the age of superannuation on 30.06.2010, under such circumstances, a direction may be issued to extend the retiral benefits. 4. In support of this argument, learned counsel for the petitioners relied upon the decisions rendered in the case of Deepali Gundu Surwase Vs. Kranti Junior Adyapak Mahavidalaya (D.Ed) & Ors , (2013) 10 SCC 324 ; in the case of Mahendra Harizan Vs. State of Jharkhand & Ors , (2006) 2 JCR 111 (Jhr) and also in the case of Jagdish Singh Vs. M/s BCCL & Ors, 2013 1 JBCJ 294 [HC]. 5. As against this, learned counsel for the respondents submitted that impugned order dated 20.10.2003 was duly communicated to the petitioners and it was received by the petitioners on 6.11.2003, as evident form the acknowledgement and even after the knowledge of passing of such order they did not challenge for a long period of three years. Even otherwise also, it is settled principle of law that the reinstatement in services does not ipso facto entitle the workman for back wages and mere acquittal does not absolve the delinquent from the charges, hence, the petitioners cannot claim any back wages, on such grounds. 6. In support of his argument, learned counsel for the respondents relied upon the decisions rendered in the case of Mulin Sharma Vs. State of Assam & Ors.,2016 4 JCR 101 (SC); as also in the case of Commissioner of Police, Delhi & Ors Vs. Jai Bhagwan , (2011) 6 SCC 376 . 7. 6. In support of his argument, learned counsel for the respondents relied upon the decisions rendered in the case of Mulin Sharma Vs. State of Assam & Ors.,2016 4 JCR 101 (SC); as also in the case of Commissioner of Police, Delhi & Ors Vs. Jai Bhagwan , (2011) 6 SCC 376 . 7. Having heard learned counsel for the parties at length and on perusal of record, it appears that on certain allegation of misconduct of assault and instigation; the petitioners were terminated by the respondents-authorities with the aid of Para 28.0 of the Certified Standing Orders for Workmen of Establishments under BCCL, which deals with the special procedure in certain cases and gives power to C.M.D of the company to remove or discharge the workman, if a workman is convicted for a criminal case. In the case at hand, admittedly, the petitioners were convicted, however, later on they were acquitted and during the interregnum period of dismissal for services till their reinstatement, they have been denied back wages by the respondents-authority. From perusal of orders passed in earlier round of litigation, it appears that this Court at no point of time has ordered for payment of back wages rather it remitted the matter for consideration in view of the acquittal of the petitioner in criminal case. It is no more res integra that regarding order of back wages, it is the discretionary power which has to be exercised by a Court keeping in view the facts in their entirety and no straight jacket formula is there for payment of back wages. Furthermore, it is also a settled principle of law that order of reinstatement not necessarily speaks out about payment of back wages rather factual senario and principles of justice, equity and good conscience have to be kept in mind while passing such order. 8. In the case at hand, the Court in the circumstances of the case left open to the respondents-authorities to decide the matter and upon representation by the petitioners for payment of back wages, it has been denied. In the circumstances of the case, I do not find any reason to interfere with the order dated 20.10.2003 passed by the respondents-authorities denying back wages. 9. In the circumstances of the case, I do not find any reason to interfere with the order dated 20.10.2003 passed by the respondents-authorities denying back wages. 9. From perusal of record, it further appears that while reinstating the petitioners in service, their services have been regularized with continuity in service for the purpose of computation of gratuity etc., and no break of service is alleged to be there. Under such circumstances, the respondents are directed to extend all post retiral benefits to the petitioners, if not granted, at an earliest. 10. With the aforesaid observations and directions, the writ petition stands disposed of.