Jharkhand High Court
Ganesh Turi vs Central Coalfields Limited Through Its ... on 17 February, 2024
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No.5769 of 2015
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Ganesh Turi, son of Chhotan Turi, resident of village Nawadih, PO+PS-Nawadih, District-Bokaro .... .... Petitioner Versus
1. Central Coalfields Limited through its Chairman cum Managing Director, Darbhanga House, P.O and P.S-Kotwali, District-Ranchi
2. General Manager, Central Coalfields Limited, Dhori Area at and P.O-Jarangdih, P.S-Kathara, District-Bokaro
3. Project Officer, Central Coalfields Limited, Amlo Project, Dhori Area at and P.O-Jarangdih, P.S-Kathara, District-Bokaro
4. Senior Personnel Officer, Central Coalfields Limited, Amlo Project, Dhori Area at and P.O-Jarangdih, P.S-Kathara, District-Bokaro
5. Regional Commissioner, Coal Mines Provident Fund, Region III, Riada Building, P.O.+P.S-Namkum, District:-Ranchi .... .... Respondents CORAM : HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Petitioner : Mr. Abhijeet Kr. Singh, Advocate
For the CCL : Mr. Mukesh Bihari Lal, Advocate
For the CMPF : Mr. Prashant Vidyarthy, Advocate
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12/Dated: 17.02.2024
1. This writ petition has been filed under Article 226 of the Constitution of India seeking for a direction upon the respondent CCL with respect to the payment of post retiral benefits treating the date of retirement as 30.06.2008, i.e., Gratuity, leave encashment, pension, salary/wages from July, 1995 to June, 2008 amount, bonus and other admissible benefits, as also, the direction upon the CMPF to release the arrears of provident fund on the basis of the date of retirement as 30.06.2008.
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2. The issue involved in this case is with respect to the arrears of retiral benefits and the CMPF amount. The same has, although been paid, based upon the age of the writ petitioner, which has been accepted by the C.C.L. as 07.06.1948, since, as per the date of birth of the writ petitioner, as available in the service record, the normal age of superannuation of the writ petitioner is 30.06.2008.
3. It needs to refer herein that the issue of date of birth has culminated into a dispute by way of reference under Section 10(1)(d) of the Industrial Disputes Act, 1947. The same has been adjudicated by the adjudicator, i.e., the industrial tribunal in reference case no.58 of 1998, wherein, the reference, i.e., "Whether the action of the management of Amlo Project, CCL in Superannuating Sri Ganesh Turi, T.R. worker by not correcting his date of birth as per Form "B" Register, C.M.P.F. records etc. is legal and justified? If not, to what relief the workman is entitled?"
4. The said reference was answered in favour of the petitioner workman.
5. The CCL, being aggrieved with the said award, had preferred a writ petition being W.P.(L) No.235 of 2014, but the said writ petition was dismissed.
6. The CCL, being aggrieved with the order passed in W.P.(L) No.235 of 2014 dated 06.07.2019 has preferred letters patent appeal being L.P.A. No.109 of 2020. The aforesaid letters patent appeal being L.P.A. No.109 of 2020 has also been dismissed declining to interfere with the order passed by the learned Single Judge in 3 W.P.(L) No.235 of 2014.
7. Mr. Abhijeet Kr. Singh, learned counsel for the petitioner, at the outset, has drawn the attention of the Court towards the proceeding of Lok Adalat, wherein, at the time of coming to settlement, the plea was taken by the CCL that the issue of date of birth is lying pending for consideration before the Division Bench of this Court in L.P.A. No.109 of 2020 and as such, the issue cannot be settled.
8. However, so far as the amount of CMPF is concerned, it has been recorded in the aforesaid order passed by the Lok Adalat that the CMPF authority has already made payment of the amount pertaining to provident fund and pension admissible, as per the Coal Mines Provident Fund Act, 1948.
9. When this case has been taken up, learned counsel for the petitioner has placed the order passed by the Division Bench of this Court in L.P.A. No.109 of 2020 which was the subject matter of the judgment passed by the coordinate bench of this Court in W.P.(L) No.235 of 2014 in order to show that the said letters patent appeal has been dismissed affirming the judgment passed by the coordinate bench of this Court vide order dated 06.07.2019 passed in W.P.(L) No.235 of 2014.
10. It has been submitted that now the award having been upheld up to the level of the Division Bench of this Court and hence, the date of retirement of writ petitioner will be treated to be as 30.06.2008, hence, the benefit which was given by treating the date of retirement as July, 1995 will be construed to be 30.06.2008 and 4 hence, the entire arrears from July, 1995 to 30.06.2008 is required to be paid by the CCL so far as post retiral benefits and other admissible dues crept up during the said period.
11. It has further been submitted that the similar relief is also to be given to the writ petitioner so far as it relates to the provident fund amount is concerned since whatever amount has been paid that is on the basis of the date of retirement and now when the date of retirement has come as 30.06.2008, hence, the difference of provident fund amount along with pensionery benefit based upon the date of superannuation, i.e., 30.06.2008 is also to be paid in favour of the writ petitioner by the CMPF authority.
12. Mr. Mukesh Bihari Lal, learned counsel appearing for the respondent-C.C.L., however, has not disputed the factual aspect so far as the affirmation of the award up to the level of the Division Bench of this Court. However, he has raised the technical issue that the said award cannot be sought to be implemented by the High Court in exercise of power confirmed under Article 226 of the Constitution of India.
13. He has submitted that the forum is there under the Industrial Disputes Act by way of Section 29 for filing criminal case before the competent court of criminal jurisdiction, therefore, he has raised the issue of maintainability of the present writ petition on the ground of availability of alternative remedy, as available under Section 29 of the Industrial Disputes Act, 1947 to file criminal prosecution.
14. Mr. Prashant Vidyarthy, learned counsel appearing for the 5 respondent-CMPF has submitted by not disputing the aforesaid claim to be paid from the CMPF head along with the pensionery benefit by treating the date of retirement of the petitioner as 30.06.2008.
15. This Court has heard the learned counsel for the parties, gone across the pleading of the respective parties as available on record and on appreciation of rival submissions made on behalf of the parties, is now proceeding to examine first by dealing with the preliminary objection regarding the maintainability of the writ petition on the ground of availability of alternative remedy, as available under Section 29 of the Industrial Disputes Act, 1947.
16. The law is well settled that on the ground of alternative remedy, the writ petition cannot be thrown out due to the reason that Article 226 of the Constitution of India does not bar by putting any restriction upon the High Court in not entertaining the writ petition, rather, the same will impose restriction upon the High Court to invoke the jurisdiction depending upon the facts and circumstances of the case.
17. Such settled position is based upon the premise of the content of Article 226 of the Constitution of India, which is based upon the basic structure of the Constitution, wherein, there cannot be any restriction exercising the power conferred under Article 226 of the Constitution of India, rather, the High Court is to exercise the jurisdiction as conferred under Article 226 of the Constitution of India if there is any flagrant miscarriage of justice, reference in this regard may be made to the judgment rendered by the Hon'ble Apex Court in 6 the case of Godrej Sara Lee Ltd. Vrs. Excise and Taxation Officer-cum-Assessing Authority and Others, reported in (2023) SCC OnLine SC 95, wherein, at paragraph-4, 6 to 8, it has been held as under:-
"4. Before answering the questions, we feel the urge to say a few words on the exercise of writ powers conferred by Article 226 of the Constitution having come across certain orders passed by the high courts holding writ petitions as "not maintainable" merely because the alternative remedy provided by the relevant statutes has not been pursued by the parties desirous of invocation of the writ jurisdiction. The power to issue prerogative writs under Article 226 is plenary in nature. Any limitation on the exercise of such power must be traceable in the Constitution itself. Profitable reference in this regard may be made to Article 329 and ordainments of other similarly worded articles in the Constitution. Article 226 does not, in terms, impose any limitation or restraint on the exercise of power to issue writs. While it is true that exercise of writ powers despite availability of a remedy under the very statute which has been invoked and has given rise to the action impugned in the writ petition ought not to be made in a routine manner, yet, the mere fact that the petitioner before the high court, in a given case, has not pursued the alternative remedy available to him/it cannot mechanically be construed as a ground for its dismissal. It is axiomatic that the high courts (bearing in mind the facts of each particular case) have a discretion whether to entertain a writ petition or not. One of the self-imposed restrictions on the exercise of power under Article 226 that has evolved through judicial precedents is that the high courts should normally not entertain a writ petition, where an effective and efficacious alternative remedy is available. At the same time, it must be remembered that mere availability of an alternative remedy of appeal or revision, which the party invoking the jurisdiction of 7 the high court under Article 226 has not pursued, would not oust the jurisdiction of the high court and render a writ petition "not maintainable". In a long line of decisions, this Court has made it clear that availability of an alternative remedy does not operate as an absolute bar to the "maintainability" of a writ petition and that the rule, which requires a party to pursue the alternative remedy provided by a statute, is a rule of policy, convenience and discretion rather than a rule of law. Though elementary, it needs to be restated that "entertainability" and "maintainability" of a writ petition are distinct concepts. The fine but real distinction between the two ought not to be lost sight of. The objection as to "maintainability" goes to the root of the matter and if such objection were found to be of substance, the courts would be rendered incapable of even receiving the lis for adjudication. On the other hand, the question of "entertainability" is entirely within the realm of discretion of the high courts, writ remedy being discretionary. A writ petition despite being maintainable may not be entertained by a high court for very many reasons or relief could even be refused to the petitioner, despite setting up a sound legal point, if grant of the claimed relief would not further public interest. Hence, dismissal of a writ petition by a high court on the ground that the petitioner has not availed the alternative remedy without, however, examining whether an exceptional case has been made out for such entertainment would not be proper.
6. At the end of the last century, this Court in paragraph 15 of the its decision reported in (1998) 8 SCC 1 (Whirlpool Corporation v. Registrar of Trade Marks, Mumbai) carved out the exceptions on the existence whereof a Writ Court would be justified in entertaining a writ petition despite the party approaching it not having availed the alternative remedy provided by the statute. The same read as under:
(i) where the writ petition seeks enforcement of any of the fundamental rights;8
(ii) where there is violation of principles of natural justice;
(iii) where the order or the proceedings are wholly without jurisdiction; or
(iv) where the vires of an Act is challenged.
7. Not too long ago, this Court in its decision reported in 2021 SCC OnLine SC 884 (Assistant Commissioner of State Tax v. Commercial Steel Limited) has reiterated the same principles in paragraph 11.
8. That apart, we may also usefully refer to the decisions of this Court reported in (1977) 2 SCC 724 (State of Uttar Pradesh v. Indian Hume Pipe Co. Ltd.) and (2000) 10 SCC 482 (Union of India v. State of Haryana). What appears on a plain reading of the former decision is that whether a certain item falls within an entry in a sales tax statute, raises a pure question of law and if investigation into facts is unnecessary, the high court could entertain a writ petition in its discretion even though the alternative remedy was not availed of; and, unless exercise of discretion is shown to be unreasonable or perverse, this Court would not interfere. In the latter decision, this Court found the issue raised by the appellant to be pristinely legal requiring determination by the high court without putting the appellant through the mill of statutory appeals in the hierarchy. What follows from the said decisions is that where the controversy is a purely legal one and it does not involve disputed questions of fact but only questions of law, then it should be decided by the high court instead of dismissing the writ petition on the ground of an alternative remedy being available."
18. Herein, this court is now proceeding to examine the factual aspect, so as to come to the conclusion, as to whether the present writ petition can be dismissed on the ground of availability of Section 29 of the Industrial Disputes Act, 1947.
19. It needs to refer herein that Section 29 of the I.D. Act, as has 9 been submitted on behalf of the learned counsel for the CCL, that Section 29 is the executing proceeding.
20. Therefore, this Court is of the view that Section 29 of the I.D. Act cannot be said to be an executing proceeding, rather, Section 29 is for the purpose of initiating a criminal prosecution in a case of non- implementation/breach of the award.
21. The facts of this case, as to whether there is any flagrant violation of the statutory right of the pensioner is there or not?
22. This Court needs to refer herein the principle so far as the issue of pension is concerned, i.e., the pension is no more bounty, rather, it is a right of the person concerned as has been held by the Hon'ble Apex Court in the case of Deoki Nandan Prasad Vrs. State of Bihar & Ors., reported in (1971) 2 SCC 330, at paragraph 33 has held as under:
"33. Having due regard to the above decisions, we are of the opinion that the right of the petitioner to receive pension is property under Article 31(1) and by a mere executive order the State had no power to withhold the same. Similarly, the said claim is also property under Article 19(1)(f) and it is not saved by sub-article (5) of Article 19. Therefore, it follows that the order, dated June 12, 1968, denying the petitioner right to receive pension affects the fundamental right of the petitioner under Articles 19(1)(f) and 31(1) of the Constitution, and as such the writ petition under Article 32 is maintainable. It may be that under the Pension Act (Act 23 of 5 1871) there is a bar against a civil court entertaining any suit relating to the matters mentioned therein. That does not stand in the way of writ of mandamus being issued to the State to 10 property consider the claim of the petitioner for payment of pension according to law."
23. Since, the pension is not a bounty, rather, it is a right due to the service rendered by one or the other public servant and hence, the core issue has already been decided and the pendency of the litigation regarding the core issue, i.e., the dispute in the date of birth has also been taken in the proceeding of the Lok Adalat and now it is not available for the respondent CCL to take the ground of availability of alternative remedy.
24. Further, since this Court is dealing with the issue of retired person, who even though, has been treated to be retired from 30.06.2008, now we are in the year 2024, then, if the writ petition will be thrown out at the threshold, then the same will cause miscarriage of justice to the petitioner, therefore, this Court is of the view that the writ petition is fit to be entertained and accordingly, this Court is proceeding to examine the factual aspects regarding the entitlement based upon the submission made on behalf of the parties.
25. The admitted fact herein is that the post retiral benefit had been made in favour of the writ petitioner treating the date of retirement to be June, 1995. The writ petitioner has disputed the said date of retirement based upon his date of birth.
26. The matter ultimately culminated into a reference after failure of conciliation, in view of Section 12 of the I.D. Act, 1947 in a reference made by the appropriate government in a reference case no.58 of 1998.
27. The said reference was having been answered in favour of the 11 writ petitioner treating the date of retirement as 30.06.2008 by accepting the date of birth of the writ petitioner as 07.06.1948.
28. The aforesaid finding of the Industrial Tribunal has been upheld up to the level of the Division Bench of this Court, wherein, the order dated 06.07.2019 passed in W.P.(L) No.235 of 2014 has been challenged. Consequently, the said judgment of the coordinate Bench of this Court has also been affirmed by the Division Bench in LPA No.109 of 2020.
29. The question herein is that once the issue of date of birth has already been decided, then there cannot be a question regarding the entitlement of the writ petitioner treating the date of retirement to be 09.06.1995.
30. Accordingly, this Court is of the view that the present writ petition is fit to be allowed.
31. In the result, the instant petition is allowed.
32. In consequence thereof, the respondent-CCL is directed to release the post-retiral benefits along with the other admissible dues treating the date of retirement of the petitioner as 30.06.2008.
33. The similar direction is also upon the CMPF authority to make payment of the CMPF amount treating the date of retirement of the writ petitioner as 30.06.2008.
34. It has been submitted by the learned counsel for the respondent-CMPF that the details regarding the claim of the writ petitioner, are to be forwarded by the CCL.
35. Mr. Mukesh Bihari Lal, learned counsel for the respondent-CCL 12 has submitted that the required documents after completion of the necessary formalities regarding the claim of the writ petitioner, will be sent to the CMPF authority.
36. Considering the aforesaid submission, the following directions are being passed:-
(i) The Chairman-cum-Managing Director of CCL is directed to ensure the disbursement of differential amount and the amount which has not been paid, said to be admissible treating the date of retirement of the petitioner as 30.06.2008 along with the admissible interest, if applicable.
(ii) The respondent-CCL is directed to send the entire calculations along with the relevant documents to the CMPF authority for the purpose of disbursement of provident fund amount along with the pensionery benefit as per the Scheme, as available under the Coal Mines Provident Fund Act, 1948 within three months' from the date of receipt of copy of this order.
(iii) The Regional Commissioner, CMPF-respondent no.5 is directed to ensure the disbursement of the said amount within six weeks' from the date of receipt of such relevant documents along with the calculation, as directed hereinabove.
37. Accordingly, the instant writ petition stands disposed of.
38. Pending Interlocutory Application(s), if any, also stands disposed of.
(Sujit Narayan Prasad, J.) Rohit/-AFR