Jharkhand High Court
Mrs.John Maria vs M/S Central Coal Field Ltd.& O on 18 November, 2016
Author: Shree Chandrashekhar
Bench: Shree Chandrashekhar
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
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W.P.(S) No. 7088 of 2011
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Mrs. John Maria, wife of Shri Regius Bara, Resident of Qr. No.B/178
Dabra P.O.& P.S.-Khalari, Dist.-Ranchi.... ..... .... Petitioner
-Versus-
1.M/s Central Coal Field Ltd., through its Managing Director cum
Chairman CCL Darbhanga House, P.O.-GPO, P.S.-Kotwali, District-
Ranchi
2.Chief General Manager, Central Coal Field Ltd., Darbhanbad House,
P.O.-GPO, P.S.-Kotwali, Dist.-Ranchi
3.General Manager, Land and Revenue Dept. CCL, Darbhanga House,
P.O.-GPO, P.S.-Kotwali, Dist-Ranchi .... .... Respondents
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CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
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For the Petitioner : Mr. Shresth Gautam, Advocate
For the Resp.CCL : Mr. A.K. Das, Advocate
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10/ 18.11.2016The petitioner is aggrieved by denial of back-wages, which was communicated to her through order of reinstatement dated 12.08.2011.
2. Heard.
3. Referring to order dated 17.11.2003 passed in Title Suit No.227 of 2000 and legal-notice issued by the petitioner on 18.08.2004, the learned counsel for the petitioner submits that the petitioner is entitled for back-wages atleast from 12.07.1999 till she was reinstated on 12.08.2011. It is contended that the petitioner, who was ready and willing to discharge her duty and who was prevented on account of illegal order of termination from service dated 12.07.1999, is entitled for full back-wages and allowances from the date of her termination from service. The learned counsel refers to and relies on decisions in "Nawal Kishore v. State of Jharkhand & Ors." reported in 2013 (1) JCR 495 (Jhr), "Arjun Chaubey v. Union of Indian & Ors." reported in (1984) 2 SCC 578 and "Devendra Pratap Narain Rai Sharma v. State of U.P" reported in AIR 1962 SC 1334 to fortify the contention .
that the petitioner is entitled for full back-wages, allowances and consequential benefits such as promotion etc.
4. Seriously objecting to the prayer in the writ-petition, Shri A.K. Das the learned counsel for the respondent-CCL submits that action of the respondent-CCL has neither been held illegal nor unjustified. On the basis of communication dated 18.06.1997 from District Land Acquisition Officer, petitioner's service was terminated for the reason that 7.99 Acres land belonging to Thobius Bara was denotified, which disentitled the aforesaid person from claiming benefits under agreement executed between the land owners and respondent-CCL.
5. Briefly stated, for acquiring 51.95 Acres land for construction of railway line at Piparwar, Notification under Section 4 of Land Acquisition Act, 1894 was issued. Subsequently, it was found that out of 51.95 Acres, 22.70 Acres land was Gairmazurwa land and consequently it was denotified. Out of 22.70 Acres land,7.99 Acres land belong to Thobius Bara through whom the petitioner has staked claim. As noticed above, communication dated 18.06.1997 was received from District Land Acquisition Officer intimating denotification of 22.70 Acres land. In view of the aforesaid, two persons who were granted employment in the year 1993 on account of acquisition of 7.99 Acres land belonging to Thobius Bara were terminated from service on 12.07.1999. Those two persons approached this Court in W.P.(C) No.1880 of 1999(R) challenging notice dated 06.05.1999 which was issued to them. The writ-petition stood disposed of vide order dated 08.02.2000 permitting the petitioners therein to prefer appeal, if aggrieved by the final order. It appears that against the order of termination dated 12.07.1999, an appeal was preferred by the petitioner which was dismissed on 18.03.2000. Thereafter, Thobius Bara and others claiming right, title and interest over 7.99 Acres land preferred .
Title Suit No.227 of 2000 on 18.11.2000. The suit was decreed vide judgment and order dated 17.11.2003. The petitioner asserts that she issued legal-notices, one of which was on 18.08.2004, however, when she was not reinstated in service, she approached this Court in W.P. (S) No.2612 of 2005. The writ-petition stood disposed of on 02.09.2009 directing the respondents to consider the claim of the petitioners. In compliance of order passed in W.P.(S) No.2612 of 2005, order dated 12.08.2011 was issued, reinstating the petitioner in service, however, she was declined back-wages and consequential benefits. The period between 12.07.1999 and 12.08.2011 was to be treated as dies-non.
6. Before adverting to the contention that the petitioner on account of illegal order of termination was prevented from discharging her duties and therefore, she is entitled for full back-wages etc., it needs to be recorded that the claim of back-wages cannot adjudicated as if there is a straight-jacket formula. It depends on the facts and circumstances of the case. One of the circumstances which has to be taken note of, while considering the claim for grant of back-wages, is whether the order under challenge was an illegal order. In "Hindustan Tin Works Pvt. Ltd. v. Employees of M/s Hindustan Tin Works Pvt. Ltd. & Ors." reported in (1979) 2 SCC 80, it has been observed that if termination order is illegal the employee may be entitled for full back-wages, still, in that case also the Supreme Court allowed only 75% back-wages. The issue of grant of back-wages has been debated for over more than half a century before the Supreme Court and in different cases it has also been found that the employee was entitled for 50% or 25% back-wages or not at all. In "U.P State Brassware Corporation Ltd.&Anr. v. Uday Narain Pandey", reported in (2006)1 SCC 479, the Supreme Court has observed as under;
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"27. In Hindustan Tin Works (P) Ltd. v Employees this Court merely held that the relief of reinstatement with continuity of service can be granted where termination of service is found to be invalid. It, therefore, does not lay down a law in absolute terms to the effect that the right to claim back wages must necessarily follow an order declaring that the termination of service is invalid in law."
7. From the facts disclosed in the present proceeding, it appears that on account of communication dated 18.06.1997 from the District Land Acquisition Officer, after issuing the show-cause notice dated 06.05.1999, petitioner's service was terminated on 12.07.1999. The reason for termination was that the employment which was given to the petitioner, was on account of acquisition of 7.99 Acres land belonging to Thobius Bara, however, the said land was subsequently denotified by the State Government which disentitled the petitioner from claiming employment. It has not been brought on record whether the order denotifying 22.70 Acres land which included 7.99 Acres land belonging to Thobius Bara has been challenged or not. Besides the above, the fact remains that the order of termination dated 12.07.1999 has been passed on account of decision of the State Government, whereunder 22.70 Acres land was denotified. The learned counsel for the petitioner has submitted that the petitioner was terminated from service on the ground that over 7.99 Acres land she has no right, title and interest, however, by virtue of order dated 17.11.2003 passed in Title Suit No.227/2000, her right, title and interest has been declared and while so, the order of termination dated 12.07.1999 must be held illegal and she cannot be denied back- wages and other consequential benefits. As noticed above, the order whereunder 22.70 Acres land was denotified was issued by the State Government and thus, order of termination dated 12.07.1999 cannot be .
said to be on account of an illegal action of the respondent -CCL. One more issue which has cropped up in the instant case is, whether in the proceeding of W.P.(S) No.2612 of 2005, the petitioner made a prayer for grant of full back-wages with other consequential benefits or not. However, there is no reference of prayer in the said writ-petition, in the present proceeding. Assuming that such a claim was agitated by the petitioner, order dated 02.09.2009 does not disclose that the same has been granted to the petitioner. The only direction as contained in order dated 02.09.2009 was to consider the claim of the petitioner, which has been considered and granted in part whereunder she has been reinstated in service. And, if no such prayer was made in the previous proceeding, the issue would be barred by constructive res-judicata.
8. For the aforesaid reasons, I am of the opinion that no back- wages to the petitioner can be ordered from 12.07.1999. However, the date on which this Court directed the respondent-CCL to consider the claim of the petitioner, that is, 02.09.2009, should be the date from which the petitioner can be held entitled for back-wages and other allowances on the post of Trainee Category-I till the date of reinstatement i.e. from 02.09.2009 to 12.08.2011. The judgments relied on by the learned counsel for the petitioner are clearly distinguishable on facts. Termination of the petitioner's service cannot be held illegal. Insofar as, issue of promotion is concerned, the petitioner cannot be treated as working between 12.07.1999 to 12.08.2011. Grant of back-wages and other monetary allowances to the petitioner stand on an entirely different footing. The petitioner is held entitled for back-wages and other allowances, except promotion, for the reason that after order passed by this Court on 02.09.2009 in W.P.(S)No.2612 of 2005, she was illegally prevented from joining her post. However, for promotion in the higher .
ranks, one is required to perform duty and it is the experience gained by discharging duty which is one of the essential conditions for promotion.
9. In the result, the writ-petition is allowed to the aforesaid extent.
(Shree Chandrashekhar, J.) SI/, A.F.R.