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2019 DIGILAW 901 (JHR)

Ashu Rawani v. Bharat Coking Coal Limited

2019-04-23

RAJESH KUMAR

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JUDGMENT : RAJESH KUMAR, J. 1. Heard learned counsel for the parties. 2. The present writ petition has been filed for challenging the terms and condition of settlement by which the petitioner had been reinstated in service on the ground that the entire fault lies upon the respondents and as such petitioner cannot be punished. 3. From the pleading and argument, it appears that the petitioner had been appointed as Miner on 17.10.1971 under the respondents. 4. As per Form-B register, the date of birth had been recorded as 24 years on 11.10.1973, which as per the Rule, if converted into date of birth it will come as 11.10.1949. 5. It further appears that there was an arrangement for shifting of record and the new record had been created known as Non Executive Information System (NEIS) i.e. a process of computerization. 6. In the process of computerization of records in the new system, a mistake had been cropped up in the date of birth of the petitioner, which had been recorded as 11.10.1947 instead of 11.10.1949. On the strength of above wrong recording of date of birth, petitioner had been made to retire w.e.f. 01.11.2007. 7. It further appears that petitioner had immediately raised objection and the matter had been referred to the Date of Birth Committee and after scrutinizing the record, it had been observed by the Date of Birth Committee that the mistake had been committed in the case of petitioner and the petitioner should remain in service for two more years treating his date of birth as 17.10.1947 which had been recorded in original From-B Register. 8. Realizing the said mistake, the management had proposed the petitioner for taking back into the service with certain terms and condition. The said proposal was in terms of Section 18(1) of the Industrial Dispute Act, 1947 read with section 2(p). 9. It further appears that petitioner had accepted the proposal and had joined the duty. 10. As per the terms of the reinstatement order dated 01.04.2009, terms of settlement are as follows:- (1) That Sri Rawani shall not be paid any back wages for the idle period and the period of idleness shall be treated as dies non. However the continuity of service shall be taken for the purpose of payment of gratuity. 10. As per the terms of the reinstatement order dated 01.04.2009, terms of settlement are as follows:- (1) That Sri Rawani shall not be paid any back wages for the idle period and the period of idleness shall be treated as dies non. However the continuity of service shall be taken for the purpose of payment of gratuity. (2) The Pension amount due for the period shall be deposited by the workman concern in due course. (3) That his date of birth shall be recorded as 11.10.1949 in all the official record. 11. The argument has been advanced by the learned counsel for the petitioner that being on advantageous position in terms of bargaining power, the petitioner has no other option but to accept the terms and conditions, but it cannot debar the petitioner from challenging the terms and condition, which has been imposed by the respondent and as such, the present writ petition has been filed. 12. Further the terms and condition is contrary to the equity and justice as the petitioner was ready and willing to perform his duty but he has not been allowed to perform his duty and as such he is entitle for entire salary. 13. On the other hand, learned counsel for the respondents has submitted that the Industrial Dispute Act itself contains the provision regarding settlement of an issue. Under said provision, the management has taken steps for settlement and the petitioner had agreed. Bargaining power of the worker has been protected to the extent that the workmen are at liberty to present his case through Union. 14. No complain whatsoever has been made by the workmen to the management rather he has participated in the settlement process and had accepted it happily. 15. This acceptance is further fortified by the fact that the workmen himself has applied for retiral dues and has accepted the retiral dues. Even after acceptance of the retiral dues, he has been allowed to rejoin the duty as per the recommendation of Date of Birth Committee. 16. Heard learned counsel for the parties. 17. From the argument and record, it is admitted position that the date of birth of the petitioner is 11.10.1949. While transferring the data, due to mistake, his date of birth has wrongly been recorded as 17.10.1949. Thus, respondents have acted contrary to the date of birth. 18. 16. Heard learned counsel for the parties. 17. From the argument and record, it is admitted position that the date of birth of the petitioner is 11.10.1949. While transferring the data, due to mistake, his date of birth has wrongly been recorded as 17.10.1949. Thus, respondents have acted contrary to the date of birth. 18. As per the standing order, the date of retirement is fixed on the basis of date of birth. 19. In the present case, admittedly petitioner has been prematurely retired. Realizing this mistake, the corrective steps had been taken. 20. The matter has been referred to the Date of Birth Committee and after scrutinizing the record, offer of reinstatement had been given to the petitioner. On the other hand petitioner had accepted the earlier retirement by accepting all the retiral dues. Retiral dues can be paid only if the application is made. 21. In view of above factual position of the case, this Court finds that petitioner is not entitle for any salary for the intervening period on the principle of “No Work No Pay.” 22. So far as, terms and condition of settlement is concerned, it has been stipulated that the said period will be treated as ‘dies-non’. 23. The concept of ‘dies-non’ has been explained in the judgment of Hon’ble High Court of Kerala at Ernakulam in the of K. Ibrahimkutty vs. The Chairman and Managing Director, Kerala State Road Transport Corporation, Thiruvananthapuram and Others in W.P. (C) No. 5908 of 2014, dated 06.01.2015. Relevant para-20 is quoted herein-under:- “20. In service terms ‘dies-non’ means a day, which cannot be treated as duty for any purpose. It does not constitute break in service, but the period treated as ‘dies-non’ does not qualify as service for pensionary benefits or increment.” 24. Thus, the concept of ‘dies-non’ is that the period in question is taken out of service life of an employee, as if it has never came into existence. Thus, continuity of service is maintained by erasing/deleting the intervening period. 25. In the present case, intervening period has not been erased rather it has been stipulated that the same will be counted for the purpose of gratuity and retiral dues. Thus, the said period cannot be treated as ‘dies-non’. 26. In view of above discussion, the said term of settlement is modified to the extent that the intervening period will not be treated as ‘dies-non’. Thus, the said period cannot be treated as ‘dies-non’. 26. In view of above discussion, the said term of settlement is modified to the extent that the intervening period will not be treated as ‘dies-non’. Further the petitioner will be entitled to get all the benefits as if he was on duty except salary. Further the statutory contribution of employee also will be made by the employer regarding pension and CMPF etc. 27. With above modification of terms of settlement, the present writ petition is, hereby, allowed.