Chattisgarh High Court
D.P. Sharaf (In Person) vs S.E.C.L on 24 April, 2024
Author: Rajani Dubey
Bench: Ramesh Sinha, Rajani Dubey
Neutral Citation
2024:CGHC:14422-DB
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Writ Appeal No.138 of 2024
D.P. Sharaf, aged 52 years, (presently aged 66 years), S/o
Late K. Anand Sharaf, Chief Store Keeper, R/o Quarter
No.E-22, 15 Block, SECL Colony, Korba, Distt. Korba (CG)
---- Appellant/Petitioner
Versus
1. S.E.C.L. through C.M.D., Seepat Road, Bilaspur (CG)
2. Chief General Manager, SECL, Korba (CG)
3. Personnel Manager, SECL, Manikpur, Distt. Korba (CG)
4. Regional Manager, SECL, Korba (CG)
---- Respondents
(Cause-title taken from Case Information System)
For Appellant : In person.
For Respondents : Dr. N.K. Shukla, Sr. Advocate with
Mr. Shailendra Shukla, Advocate.
Hon'ble Shri Justice Ramesh Sinha, Chief Justice
Hon'ble Smt. Justice Rajani Dubey, J
Order on Board
Per Rajani Dubey, J
24.04.2024 Heard Mr. D.P. Sharaf, appellant appearing in person and also heard Dr. N.K. Shukla, learned Sr. Advocate with Mr. Shailendra Shukla, learned counsel for the respondents.
02. The appellant has filed the instant appeal against the order dated 17.8.2021 passed in WPS No.2902/2009 by the learned Neutral Citation 2024:CGHC:14422-DB 2 Single Judge whereby the writ petition has been dismissed.
03. The appellant appearing in person submits the learned Single Judge did not appreciate the provisions of the Mines Act and provisions of National Coal Wage Agreement (NCWA). He is entitled for wages for the weekly day of rest as also for damages, and penalty and the entire action of the respondent-SECL is arbitrary and illegal. However, the learned Single Judge ignoring the settled legal position governing the field passed the impugned order which is liable to be set aside. Learned Single Judge did not appreciate the legal questions involved in this case for proper adjudication of the dispute between the parties. These questions are as under:
1. WPS No.2902/2009 was dismissed on the basis of agreement of JBCCI but whether JBCCI was a committee duly constituted by the appropriate government after publication in the Gazette of India or it has been constituted in violation of provisions of I.D. Act, 1947 by Coal India Limited?
2. Whether Coal India Limited can enter into agreement with such Unions which are unregistered and are non-juristic person in the eye of law?
3. Whether JBCCI constituted by Coal India has the right to reduce the weekly days of 7 under Section 2(r) of the Mines Act to 6 days?
Neutral Citation 2024:CGHC:14422-DB 3
4. Whether by making provision for getting the work of 48 hours in 6 days in Section 30 of Mines Act, it can render Section 30 of the Mines Act void?
5. Whether the committee JBCCI constituted by Coal India has the right to abolish and nullify Section 50 of the Mines Act,1952?
6. Whether Section 2(r) of the Mines Act, 1952 defining week as a period of 7 days can be abolished or made 6 days by way of NCWA?
7. Whether Section 30 of the Mines Act, 1952 prescribing 48 working hours in 7 days can be changed to 48 hours in 6 days on the basis of NCWA? Whether it is justified?
8. Whether Sections 50, 28, 30 and 2(r) of the Mines Act are not binding on the respondents? And whether NCWA shall override the Mines Act?
9. Whether it would be justified to presume a week for 6 days?
10. Whether the weekly off shall have to be taken by the employee of his own?
11. Whether a month is to be treated of 26 days and the year of 312 days only?
12. Whether such supplementary reply is to be accepted in support of which no affidavit is given and this apart, supplementary reply is Neutral Citation 2024:CGHC:14422-DB 4 given when the petitioner raises new issue or makes additional statement.
13. Whether making statement of a new issue directly in the supplementary reply is justified when the petition contains no such new issue at all?"
He submits that the learned Single Judge did not appreciate Sections 50 and 28 of the Mines Act. It is well settled principle of law that any agreement is not above the Rules or the Act. Learned Single Judge in para 6 of the impugned order has recorded an erroneous finding and did not appreciate the fact that the petitioner is entitled for payment of holidays under Sections 3, 4, 5 & 6 of Weekly Holidays Act, 1942 and under Section 50 of the Mines Act, 1952. Therefore, the impugned order is liable to be set aside and the appeal deserves to be allowed.
Reliance has been placed on the decisions in the matters of Jaswant Sugar Mills Ltd. Vs. Sub Divisional Magistrate, Meerut and others, AIR 1960 Allahabad 724; Workmen of Bombay Port Trust Vs. Trustees of Port of Bombay, AIR 1962 SC 481; National Organisation of BankWorkers' Federation of Trade Unions Vs. Union of India and others, 1993 SCC OnLine Bom 495; Food Corporation of India Staff Union Vs. Food Corporation of India and others, AIR 1995 SC 1344; and State Bank of Travancore Vs. Kingston Computers India Neutral Citation 2024:CGHC:14422-DB 5 Private Ltd., (2011) 11 SCC 524.
04. On the other hand, learned counsel for the respondents supporting the impugned order submits that the appellant is a monthly rated employee and governed by the provisions of NCWA and throughout his career he was a workman as defined under Section 2(s) of the Industrial Disputes Act, 1947. He has already retired from the post of Chief Store Keeper on 30.6.2007. Since monthly wages in respect of monthly rated employee like the appellant is strictly governed by the provisions of NCWA, he is not entitled for the relief claimed and as such, the learned Single Judge has rightly dismissed the writ petition. The judgments relied upon by the appellant being distinguishable on facts are of no help to him. The Tribunal is a quasi-judicial body and JBCCI is not like the Tribunal. JBCCI only recommends which may be accepted or may not be accepted by the management of Coal India Limited. In view of above, the instant appeal has no merits and it is liable to be dismissed.
05. Heard the appellant/petitioner in person and learned counsel appearing for the respondents/SECL and perused the material available on record including the impugned order.
06. Learned Single Judge in paras 6, 7 & 8 of the impugned order observed as under:
Neutral Citation 2024:CGHC:14422-DB 6 "6. It is not in dispute that the petitioner was appointed by erstwhile Western Coalfields Limited on the post of Clerk Grade-II on 14.01.1984 (Annexure P/1) and retired from the post of Chief Store Keeper on 30.06.2017. Petitioner's appointment was on monthly salary governed by the provisions of NCWA and he was workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947. The respondent SECL alongwith supplementary affidavit has filed the copy of Chapter II of the NCWA, in which the component of wages have been provided. Chapter 12.2.0 provides for wages for weekly day of rest which states as under:
12.2.0. Wages for Weekly Day of Rest.
Workers in the mines and establishmens governed by Mines Act of Factories Act called upon to the work on the weekly day of rest of the colliery/establishment shall be allowed twice the normal wages.
The aforesaid provisions clearly provides that worker in the mines and establishments governed by the Mines Act or the Factories Act if called upon to work on the weekly day of rest of the colliery/establishment, shall be allowed twice the normal wages.
7. Since the petitioner is governed by the provisions of NCWA including Chapter 12.2.0 in which the wages for weekly day of the rest to be given only if the workmen are called upon to work on the weekly day of the rest, they will be allowed twice the normal wages but no such provision has been brought into the notice of this Court, which entitles the wages for weekly day of rest without being called upon to work on the weekly day of rest by the management.
Neutral Citation 2024:CGHC:14422-DB 7
8. The fact remains that the petitioner is monthly paid employee under the National Coal Wage Agreement, which has the statutory force and the petitioner is not entitled for any claim over and above the wages so prescribed. Therefore, in the considered opinion of this Court, the petitioner is not entitled for any relief which has been claimed in the writ petition. The judgments cited by the petitioner in person are clearly distinguishable to the facts of the present case in view of the findings recorded herein above."
07. It is clear from the documents filed by both the parties that the learned Single Judge rightly appreciated the fact that the appellant/petitioner is a monthly paid employee under the NCWA and is not entitled for any claim over and above the wages so prescribed. It was also observed by the learned Single Judge that Chapter 12.2.0 provides for wages for weekly day of rest, according to which the worker in the mines and establishments governed by the Mines Act or the Factories Act if called upon to work on the weekly day of rest of the colliery/establishment, shall be allowed twice the normal wages. Since the appellant/petitioner is governed by the provisions of NCWA including Chapter 12.2.0, he is not entitled for any claim over and above the prescribed wages. Having gone through the judgments relied upon by the appellant/petitioner and in view of the findings recorded, the learned Single Judge has rightly held the same to be inapplicable to the facts of the present case.
Neutral Citation 2024:CGHC:14422-DB 8
08. Considering the facts and circumstances of the case and the material available on record, the impugned order passed by the learned Single Judge is found to be in accordance with the provisions of the Mines Act, 1952 and NCWA. Accordingly, the instant appeal being without any merits is liable to be and is hereby dismissed.
Sd/ Sd/
(Rajani Dubey) (Ramesh Sinha)
Judge Chief Justice
Khan