IN THE HIGH COURT OF JHARKHAND AT RANCHI. W.P.(S) No of Bindeshwari Das Petitioner -V e r s u s- B.C.C.L. & Others Respondents

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1 IN THE HIGH COURT OF JHARKHAND AT RANCHI. W.P.(S) No of 2004 Bindeshwari Das Petitioner -V e r s u s- B.C.C.L. & Others Respondents CORAM: - HON BLE MR. JUSTICE D.G.R. PATNAIK. For the Petitioner : - Mrs. M.M.Pal, Advocate. For the Respondents : - Deepak Roshan, Advocate C.A.V on : Pronounced on: / Petitioner s case appears to have a chequered history. He was appointed as a Miner Loader under the erstwhile Murlidih Colliery way back in the year In the same year he contracted Tuberculosis and remained under medical treatment at the C.H.D., Dhanbad. After recovery from his illness, he obtained a certificate from C.H.D., Dhanbad declaring him fit for duty. However, inspite of the fitness certificate issued by the doctor, the erstwhile Management of the Murlidih colliery did not allow him to join duty. In the meantime, all the private mines including the Murlidih colliery was taken over by the new management of the B.C.C.L. under the Coal Mines Nationalization Act, The petitioner approached the new management for allowing him to resume duty but the same was refused even by the new Management. The petitioner pursued his claim by raising an industrial dispute. Initial attempt for conciliation by the Commissioner, having failed, the dispute was referred to the Labour Tribunal. The petitioner succeeded at the Labour Tribunal which, by its Award, had directed the respondent Management to reinstate the petitioner in service with full back wages from Aggrieved by the Award, the Management preferred a writ application before this Court. While admitting the writ petition, this Court had stayed the implementation of Award but with a direction to the respondent Management to pay the petitioner s wages under Section 17(B) of the Industrial Dispute Act till final disposal of the writ petition. Pursuant to the order, the Management paid the petitioner his wages till he attained the age of superannuation. The

2 - 2 - writ petition came to be ultimately disposed of on by confirmation of the Award passed by the tribunal. The Management with intent to pursue its protest against the claim of the petitioner, filed appeal against the judgement of the Single Judge passed in the petitioner s writ application. The Letters Patent Appeal filed by the Management was dismissed by the Division Bench of this Court and against the order of dismissal, the Management had moved the Supreme Court. The Management had lost even at the stage of Supreme Court which dismissed the civil appeal vide Civil Appeal No of 1998 vide its order dated After the Apex Court dismissed the appeal filed by the Management, the petitioner by his representation dated (Annexure-3) while inviting attention of the Chairman-cum- Managing Director of the respondent B.C.C.L. to the Award and the final judgement passed in the writ application by this Court and the finality which the judgement had attained at the level of the Supreme Court, had demanded implementation of the Award in terms thereof in terms of the directions contained in the judgement of this Court passed in the writ application. When the respondent Management failed to respond, the petitioner filed a contempt application before this Court vide M.J.C No. 236 of 2000(R). The contempt petition was disposed of on the undertaking of the Management that the petitioner s claim would be settled shortly. In response to the petitioner s representation, the matter was referred for settlement under the provisions of Section 58 of the Industrial Dispute (C) Rules. In the proceeding which was held on for settlement, the employer was represented by the officers nominated by it while the petitioner had appeared in person and was also represented by the General Secretary of the B.C.M.S., Murlidih colliery. A settlement was arrived at between the Management and the petitioner on the following terms and conditions :- (i) That Shri Bindeshwari Das, ex Minor Loader of Murlidih colliery will be paid 66% of the total full back wages from W.J. Area.

3 - 3 - (ii) That the amount already paid under Section 17(B) of the I.D. Act, 1947 will be deducted from the payable amount. (iii) That the union/workman will not claim or raise any dispute with regard to payment of back wages as per settlement. (iv) That this resolves the dispute in toto. (v) That both the parties will submit implementation report to R.L.C. (C)/A.L.C.(C), Dhanbad within 30 days. Pursuant to the settlement, the petitioner received a cheque dated for the amount of Rs. 2,98, However, the petitioner was not satisfied since according to him, the payable amount was not assessed correctly and many items were not included in terms of settlement such as attendance bonus and gratuity for the period of service from 1967 to 1998, resulting in less payment to him. With a request to the Management to make recalculation of the entire bill, the petitioner filed his representation before the General Manager of the respondent Management on When his demand was not met, the petitioner again filed a contempt petition vide Contempt (C) No. 864 of However, considering the fact that in compliance with the earlier order of this Court, the respondent Management had made payment of the settled back wages to the petitioner, the contempt petition was dropped by order dated Not being satisfied, the petitioner filed the present writ application on for issuance of a direction upon the respondents for prompt payment of all legal dues including gratuity, arrears of salary, provident fund amount, L.T.C., Mini L.T.C. advance/bonus, Sick Leave encashment, Quarter Allowance etc. By order dated , this Court had referred the petitioner s dispute for settlement before the Lok Adalat scheduled to be held on However, by mutual consent of the counsel for the petitioner and the Management, the matter was withdrawn

4 - 4 - from the Lok Adalat on the ground that for full and final settlement of the petitioner s claim, the matter needs to be verified and certain initial paraphernalia has to be observed before the C.M.P.F. Commissioner, Dhanbad subject to the petitioner s eligibility and for which the petitioner has to submit duly filled up forms before the C.M.P.F. Commissioner, the prescribed form for which having been supplied to the petitioner by the respondent Management. 2. A counter affidavit has been filed by the respondent Management in which the petitioner s claim has been denied and disputed. 3. Heard learned counsel for the petitioner and learned counsel for the respondent Management. 4. The petitioner s claim, as it appears, is based on the terms of the relief granted to him under the Award of the Tribunal. The question therefore is whether the petitioner is legally entitled for the arrears of salary, provident fund, L.T.C. etc. in terms of Award of the Tribunal and in terms of the judgement passed by this Court in the writ application filed by him and whether the respondents have any authority to with-hold such payments. Mrs. M.M.Pal, learned counsel for the petitioner would argue that under the Award passed by the Tribunal, the petitioner was directed to be reinstated in service with full back wages and all consequential benefits from the specified date. The Award was upheld not only by this Court but even by the Supreme Court. Therefore, in terms of the Award, the petitioner is deemed to be in continuous service as if his services has never been terminated, as such he is entitled not only to the full back wages but also to the consequential benefits including gratuity, leave encashment, L.T.C. as well as payment of arrears of salary as per the N.C.W.A. for the entire period from 1967 to and also the wages of March, 1998 as per N.C.W.A.-VI rate. Learned counsel submits further that on the dispute being referred to the Lok Adalat on , the petitioner was supplied two A forms by the counsel for the respondents with instruction to submit the same duly filled up by the petitioner before the concerned authorities of the West Jharia

5 - 5 - Area for payment of C.M.P.F. and pension amount. The petitioner had submitted the two forms as directed, before the Project Officer, Murlidih Colliery, West Jharia on for payment of the C.M.P.F. and pension. In reply, the petitioner was told that since no C.M.P.F. number was allotted to him under the Coal Mines Provident Fund Act, 1948, he was not entitled for C.M.P.F. as well as for pension. Challenging the aforesaid decision of the respondents, learned counsel submits that since the direction of this Court in the judgement passed in the petitioner s writ application vide C.W.J.C. No of 1998 (R) was for reinstatement of the petitioner with full back wages and other benefits till superannuation, less the amount already drawn, the term other benefits would also include payment of Provident Fund and pension. Learned counsel adds that it was the statutory duty of the respondents to allot the C.M.P.F. number to the petitioner and to include him under the C.M.P.F. Scheme and under the pension scheme by treating him as being in continuous service. The respondents, according to the learned counsel, cannot take the plea that since the petitioner was not physically present, therefore, he was not allotted the C.M.P.F. number. Learned counsel adds that even if the petitioner was not physically present, the respondents were obliged under the law to release the employer s contribution, at the rate specified in the Coal Mines Provident Fund Scheme, from their side even if no recovery was made from the petitioner s wages of his share of contribution towards provident fund and to deposit the same in his account by allotting the C.M.P.F. number to him and the respondents cannot back out from their responsibility and liability. Learned counsel explains further that under the Employees Provident Fund Scheme, 1952 and in terms of the Award passed by the tribunal, the petitioner being an employee under the respondents, is entitled to become a member of the Fund from the date of launching of the scheme. It is further submitted that had the respondents implemented the Award in letter and spirit, the petitioner would have had the opportunity of being present so that he could have not only claimed the allotment of the C.M.P.F.

6 - 6 - number but would have also contributed his share of contribution towards provident fund. The respondents having denied the petitioner the benefit of resumption of duty from the date stipulated in the Award, they cannot take a plea that the petitioner was absent and therefore he was not allotted any number nor was his share of contribution towards provident fund was deducted from his wages. 5. In their counter affidavit, the respondent Management has taken the stand that the petitioner s claim in the present writ application is not tenable in view of the fact that the petitioner has already received his back wages in full and final satisfaction of his entire claim and it is on considering this aspect that the contempt petition filed by the petitioner was dropped by this Court. As regards the gratuity, it is stated that the claim of the petitioner for gratuity has been processed and on being sanctioned, the sum of Rs. 76,952/- as the payable amount, has been paid to the petitioner. As regards the claim for L.T.C., Mini L.T.C. and advance, it is stated that the amount under such heads could be available only after availing the leave travel. Since the petitioner has not availed the same, he is not entitled to receive any amount towards leave travel. Likewise, in absence of attendance, he is not entitled for payment of bonus and neither is he entitled for leave encashment as the petitioner has no leave due in his leave account. Furthermore, the provision for payment of leave encashment was introduced for the first time by the Rules of N.C.W.A.-VI with effect from whereas the petitioner had already superannuated in As regards the claim for provident fund, the stand taken by the respondent is that no C.M.P.F. number was allotted under the C.M.P.F. Scheme by the office of the Commissioner, C.M.P.F. The excolliery owner under whom the petitioner was initially employed had not opened the P.F. records for the petitioner and as such no C.M.P.F number was allotted to him and neither had the ex-colliery owner filed any return in form HH A. The petitioner was also not a member of the Coal Mines Family Pension Scheme 1971 nor did the

7 - 7 - petitioner ever submit any declaration in form A. Since there was no physical attendance of the petitioner based upon which his monthly wage was paid to him therefore, no deduction towards P.F. was made. Shri A.K.Mehta, learned counsel for the respondents would argue that even otherwise, the petitioner s claim for provident fund and pension is not tenable on account of the fact that the Award as passed by the tribunal had only directed that the petitioner be reinstated in service with full back wages. While disposing of the writ application filed by the Management against the Award, by its judgement dated , the High Court had observed that as the workman had attained the age of superannuation, he would be entitled only to back wages till superannuation less the amount already paid. Pursuant to the directions of this Court and in terms of the settlement arrived at between the petitioner and the respondent Management on , the petitioner was paid 66% of the full back wages minus the wages already paid to him under Section 17(B) of the Industrial Dispute Act. The settlement to which the petitioner was a signatory, was for payment of back wages from which was the date from which the petitioner was to be reinstated in service. As such, the petitioner cannot claim any further benefit prior to the aforesaid date of reinstatement. Learned counsel adds further that in the writ petition filed by this petitioner, this Court had passed an order of stay of operation of the Award though such order was made subject to the condition that the petitioner be paid his wages in terms of Section 17(B) of the Industrial Dispute Act. Since the implementation of the Award was stayed, the petitioner cannot accuse the respondent Management of having failed to implement the Award from the expected date. 6. From the rival submissions, the undisputed facts which emerge are that the petitioner was initially employed under the private colliery where he joined employment in The Management of the colliery was taken over by the respondent B.C.C.L. pursuant to the Coal Mines (Nationalization) Act, In the same year of his joining service in the erstwhile colliery i.e. in the

8 - 8 - year 1967, the petitioner had fell ill suffering from Tuberculosis and consequently he could not possibly attend duties. His claim for allowing him to resume duty was refused by the erstwhile employer. The petitioner could not therefore, resume duty under the erstwhile employer. The new Management had also refused to allow him to be enrolled as its employee. The dispute raised by the petitioner was initially resolved by the Labour Tribunal with a direction that the present Management namely, the respondent herein, shall reinstate the petitioner with full back wages from The Award was challenged by the Management by a writ application before this Court. The operation of the Award was stayed by the order of this Court though subject to the condition that the respondent Management shall pay wages to the petitioner in terms of Section 17(B) of the Industrial Dispute Act. The writ petition was finally disposed of in 1998 upholding the Award of the tribunal but meanwhile the petitioner had attained the age of superannuation. Thus, under the chain of circumstances, the petitioner could not attend duty even for a single day during the entire period ever since after Since admittedly the ex-employer of the petitioner had never opened the P.F. records, no C.M.P.F. number was allotted to the petitioner and neither was any return, in the prescribed proforma, filed by the ex-employer of the petitioner before the concerned authorities of the C.M.P.F. The petitioner was admittedly not even a member of the Pension Scheme, 1971 and neither had he submitted any declaration in the prescribed form A. The above facts obviously indicate that the petitioner did not ever physically work under the respondent company. The contention of the counsel for the petitioner that it was the duty of the Management to allot the C.M.P.F. number to the petitioner and to deposit the employer s contribution towards the provident fund of the petitioner, cannot be tenable. In the light of the stay of the implementation of the Award as made by this Court in the writ petition, the respondent could not possibly have inducted the petitioner in service promptly. The respondents, as per directions of the Court, were under obligation only to pay the wages to the

9 - 9 - petitioner under the provisions of Section 17(B) of the Industrial Dispute Act which they did. Since the petitioner was never a member under the C.M.P.F. Scheme or under the Coal Mines Family Pension Scheme, 1971 and neither was he allotted any number under the C.M.P.F. by the C.M.P.F. Commissioner, the respondents were not obliged either to allot any C.M.P.F. number to the petitioner or to make any deductions from his salary towards his share of contribution to any such fund. 7. Considering the above, I do not find any illegality in the impugned order dated (Annexure-8) of the respondents since as per the terms of Award and the directions contained in the order of this Court passed in the writ petition, the petitioner was entitled for his reinstatement only from along with all back wages computed from that date and not from any previous date. The entitlement of the petitioner for retrial benefits has therefore to be considered in terms of those benefits which he could have legally earned from The petitioner having never opted even under the previous employer to become a member under any provident fund scheme or under any pension scheme, he cannot attribute any fault to the respondents for the omission of his enrollment as a member of the C.M.P.F. and neither can he claim any advantage on the ground that even if no deduction towards his share of contribution was made from his wages, the employer was bound to deposit the employer s contributions under the C.M.P.F. Scheme in favour of the petitioner inspite of the fact that the petitioner was not a member of the scheme. For the same reasons, since prior to the introduction of the benefit of leave encashment, the petitioner had already reached the age of superannuation, his claim for leave encashment is not tenable. In the circumstances, apart from the back wages, the petitioner would at best be entitled to payment of gratuity. It is also relevant to note here that in the earlier two contempt petitions filed by the petitioner, he had not raised any grievance of non-compliance of the terms of the Award or the directions of this Court in the previous writ application on the ground of non-

10 payment of P.F. and pension. On the contrary, on the basis of the settlement arrived at between him and the respondent Management, he had earned and received the entire back wages of Rs. 2,98, as calculated, in full and final satisfaction and a further amount of Rs. 76,952/- towards gratuity. In my opinion, the petitioner is not entitled to claim payment of any further amount except what has already been paid to him in compliance with the terms of the Award and in terms of the directions of this Court in the earlier writ application. With the above observations, this writ application is dismissed. Birendra/A.F.R. (D.G.R. Patnaik, J.)

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