Pradip Kumar S/O Noni Gopal Roy vs Western Coalfields Ltd., Through ...
2022 Latest Caselaw 6541 Bom

J.WP.1394.2018.odt                                         1


      IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                NAGPUR BENCH, NAGPUR.


                WRIT PETITION NO.1394 OF 2018


      Pradip Kumar s/o Noni Gopal Roy,
      Aged about 62 years,
      Occupation - retired,
      R/o. Shivrani Heights,
      Gokul Housing Society,
      Boargaon, Gorewada Road,
      Nagpur - 440013
                                                ...PETITIONER

                             VERSUS


      Western Coalfields Ltd.,
      through its Chairman cum Managing Director,
      Coal Estate, Civil Lines,
      Nagpur - 440001
                                            ...RESPONDENT

_______________________________________________________

     Shri S.P. Bhandarkar, Advocate for the petitioner.
     Shri A.M. Ghare, Advocate for the respondent.
_______________________________________________________

                     CORAM : A.S. CHANDURKAR AND
                             URMILA JOSHI-PHALKE, JJ.
                     DATED   : JULY 12, 2022.
 J.WP.1394.2018.odt                                                   2



JUDGMENT (Per Urmila Joshi-Phalke, J.)

Heard learned counsel for the petitioner and learned

counsel for the respondent.

2. RULE. Rule made returnable forthwith.

3. By this petition, petitioner has challenged the action of

the respondent-Company withholding the leave encashment of the

petitioner.

4. The brief facts which are necessary to decide the issue

are as under:

A] The petitioner was appointed as a Junior Executive

Trainee in the Central Mine Planning and Design Institute (CMPDI),

Ranchi on 01/07/1981. On 06/03/2003, he was transferred in the

respondent-Company. On 30/11/2016, the petitioner was retired

on attaining the age of 60 years. At the time of retirement he was

General Manager. As per the contention of the petitioner he

worked with dedication, honesty and reached up to the post of

General Manager.

B]           The respondent is one of the eight Subsidiary

Companies of Coal India Limited i.e. CIL.        As the respondent-

Company is subsidiary of the Coal India Limited, the same is

governed by the Mines Act, 1952 and Coal India Executives Leave

Rules, 2010. As per the contention of the petitioner on his

superannuation he was entitled for encashment of Earned Leave

and Half Pay leave at his credit. He was not paid the said amount

for which he is entitled. He is entitled for amount of

Rs.19,04,340/- (Rs. Nineteen lacs four thousand three hundred and

forty) towards the Half Pay Leave and Earned Leave. The

respondent has withheld the leave encashment which he is entitled,

hence the action on the part of the respondent is arbitrary, illegal

and liable to be set aside.

C] The respondent filed the reply in response to the notice

and denied the contention of the petitioner. It is an admitted

position that the petitioner was working as a Junior Executive

Trainee in the Central Mine Planning and Design Institute (CMPDI),

Ranchi. Subsequently, he was transferred in the respondent-

Company. As per the contention of the respondent he was

chargesheeted under Rule 29 of the Conduct Discipline and Appeal

Rules, 1978 (hereinafter referred to as the 'CDA Rules' for short) of

the Coal India Limited vide No.WCL/CMD/VIG/2016-17/2246

dated 25/11/2016 by CMD and Disciplinary Authority, WCL on the

ground of Contravention of the provisions as contained in Rule

4.1(I), 4.1(II), 4.2 and 4.3 which amounts to misconduct under

clause 5.9 and 5.26 of CDA Rules of the Coal India Limited. It is

further the contention of the respondent that the petitioner who

was a public servant had committed grave misconduct by abusing

his official position. He was a tender committee member in

tendering process of supply, installation and commission of

secondary crusher for different areas of WCL. He had granted

undue favor to some of the parties causing a huge loss of

Rs.1,16,56,989/- (Rs. One crore sixteen lacs fifty six thousand nine

hundred and eighty nine) to Company. Since the reply of the

petitioner was not found satisfactory, the departmental enquiry was

initiated against him and the same has not been completed.

Though the petitioner had retired from service the departmental

enquiry is continued by virtue of clause 34.2 of the CDA Rules. It is

further the contention of the respondent that leave encashment and

T.A. bills are withheld on the ground that if charge-sheet for major

penalty has been served and if on the conclusion of the disciplinary

proceeding, service is terminated then encashment of leave can be

forfeited in terms of the Coal India Limited Executives Leave Rules

and T.A. Rules, however, if service is not terminated on conclusion

of the disciplinary proceedings these may be released. The

respondent has further taken a stand that the petitioner is not

covered under Section ii(h) or ii(j) of the Mines Act, 1952. The

encashment of half pay leave has to be given as per the Executive

Leave Rules. The Executive of the Coal India Limited has to

perform their duties not only in mines but in other places as well

and many other places do not fall under the definition of the Mines

as provided under the Mines Act, 1952, hence Coal India Limited

has framed it's own rules related to earned leave. The earned leave

credited under the rules of Coal India is not linked with attendance.

It is the contention of the respondent that once the petitioner had

subjected himself to the terms of the appointment letter which

specifically apply to him the leave Rules of the CPSE and his

petition proceeds on the basis that the Coal India Executive Leave

Rules, 2010 are a complete code in itself, then it is not open to him

to urge that rules of the Mines Act, 1952 are applicable to him and,

therefore, petition deserves to be dismissed.

5. Heard Shri Bhandarkar, learned Counsel for the

petitioner. He submitted that the petitioner is entitled for the leave

encashment. He is already retired from the service. The leave

encashment is towards the work or services rendered by him during

his tenure. In support of his contention, he relied upon the

decision of this Court in the case of Pramod Kumar Battad Vs.

Western Coalfields Ltd. and anr. (W.P. No.3866 of 2017) decided on

19/03/2018, wherein it is held that the petitioner is entitled to

leave encashment benefits as the petitioner has retired on attaining

the age of superannuation but the same are wrongfully denied to

the petitioner. He is also relied upon the decision of this Court in

the case of Sharda Nandlal Das s/o Late Mahabir Lal Das Vs. Coal

India Ltd. and anr. (W.P. No.2163 of 2012) decided on 10/08/2012,

wherein it is held that the petitioner is entitled for the encashment

of Earned Leave and Half Pay Leave. He further relied upon the

decision of the Hon'ble Apex Court in the case of Jaswant Singh

Gill Vs. Bharat Coking Coal Limited and others (2007) 1 SCC 663.

6. On the basis of the decisions referred by him, he

submitted that as the petitioner was working in the mines the

provisions of Section 52(10) of the Mines Act, 1952, the petitioner

is entitled to leave encashment dues.

7. He submitted that in view of the judgment of this Court

in the case of Pramod s/o Gulabchand Baid Vs. Coal India Limited

and another (W.P. No.3430/2010) decided on 26/11/2010, the

petitioner is entitled for the claims.

8. He also invited our attention towards the rules of the

Coal India Executives Leave Rules, 2010 and submitted that clause

7.3 states about Earned Leave on full pay as per clause 7.3.4(a) the

credit for the half year in which an executive is due to retire or

resigns from the service, shall be afforded only at the rate of two

and half days per completed calendar month in that half year up to

date of retirement/resignation. In view of clause 7.3.5 Earned

leave can be accumulated upto 300 days. He submitted that the

petitioner is entitled for the leave encashment in accordance with

the Rule 12.1 of the Coal India Services Rules. Hence, the action of

the respondent is arbitrary and illegal.

9. On the other hand, Shri Ghare, learned Counsel for the

respondent submitted that the petitioner has not come before the

Court with clean hand. He has suppressed the fact that he was

charge sheeted under Rule 29 of the Coal India Executives CDA

Rules, 1978 on an allegation that he had misused his official

position as a General Manager and as a tender committee member

in tendering process of supply, installation and commission of

secondary crusher. He gave undue favor while working as a

member of Tender Committee. As the reply given by him was

unsatisfactory, the departmental enquiry was ordered against him

and the same has not been completed. If he is exonerated from the

said enquiry he is entitled for the said encashment. He invited the

attention towards CDA Rules 34.2 which specifically states that

disciplinary proceeding, if instituted while an employee was in

service whether before his retirement or during his re-employment

shall, after the final retirement of the employee, be deemed to be

proceeding and shall be continued and concluded by the authority

by which it was commenced in the same manner as if the employee

had continued in service. He submitted that the provisions of the

Mines Act, 1972 are not at all applicable to the petitioner as he was

working as an Executive. As the petitioner was charge sheeted his

leave encashment is withheld. The petitioner is very well aware

about the said fact which is specifically mentioned in the

memorandum which was issued to him. The memorandum bearing

No. CIL/VIG/2015 dated 08/09/2015 specifically states that it laid

down vide CIL/VIG/05057/Part-I/2600 dated 22/02/2006 that in

case of final settlement of dues on superannuation or voluntary

retirement/resignation, Vigilance Status shall be withheld only if a

major penalty proceeding memorandum has been served on the

employee and till the issue of final order in the case. Despite such

clear stipulation, it has come to notice that the gratuity/leave salary

etc. is being withheld merely because any investigation by Vigilance

or CBI is going on or any report is under consideration of CVO/DA/

MOC/CVC etc. at the time of superannuation. The said

memorandum specifically states that the leave encashment and T.A.

bill can be withheld if charge-sheet for major penalty has been

served till its finalisation. He submitted that in accordance with the

specific policy of the Company and as charge-sheet is served upon

the petitioner the leave encashment is withheld. Hence the action

of the respondent is legal and proper one and the petition deserves

to be dismissed.

10. After hearing of both the sides and on perusal of the

record it is an admitted position that the petitioner was appointed

as a Junior Executive Trainee (E and M) under the Central Mine

Planning and Design Institute (CMPDI), Ranchi. On 06/07/2003,

the petitioner was transferred in respondent-Company. On

30/11/2016, the petitioner retired from the respondent/Company

on attaining the age of 60 years from the post of General Manager.

Thus it is clear from the record that the petitioner entered in the

service of the respondent as an Executive and he retired from the

service as an Executive on 30/11/2016. When he was in service, on

25/11/2016 the charge-sheet was served upon him vide reference

No.WCL/CMD/VIG/2016-17/2246. As per the charge-sheet, he

was charged with an allegation that while functioning as a General

Manger (E and M) at WCL headquarters, being a public servant, he

has committed grave misconduct by abusing his official position.

As General Manager and a tender committee member in tendering

process of supply, installation and commissioning of secondary

crushers for different areas of WCL he granted undue favor to

M/s. Larsen and Toubro Ltd. by qualifying the firm in Part-I of bid

in deviation to the provisions of NIT (Tender Document) experience

criteria. He was further charged on an allegation that being a

member of tender committee he granted undue favor to M/s. Black

Diamond Equipment Pvt. Ltd. by qualifying the firm in Part-II of bid

in deviation to the provisions of NIT (Tender Document). He was

further charged on an allegation that he illegally disqualified

M/s. Karam Chand Thappar & Sons in Tender No.15, although the

firm submitted its bid as per the laid down norms of NIT. It is

further alleged in the charge-sheet that being a Member of Tender

Committee, he had not considered the preparation of justified cost

with price index of material handling equipment and order price of

M/s Adani Power placed on M/s Larsen and Tourbo Company Ltd.

for same model quoted to the Company and accepted by the tender

Committee. Thus as per the charge he had committed grave

misconduct by abusing his official position and caused a huge loss

to the tune of Rs.1,16,56,989/- (Rs. One crore sixteen lacs fifty six

thousand nine hundred and eighty nine). Said charge-sheet was

served upon him when he was in service on 25/11/2016 and

thereafter he retired from service on 30/11/2016. The respondent

on 08/09/2015 vide reference No. CIL/VIG/2015/1243 issued a

memorandum to all the Executives regarding the subject final

settlement of dues on superannuation. The memorandum states

that it is laid down in OM No.CIL/VIG/05057/Part-I/2600 dated

22/02/2006 that in case of final settlement of dues on

superannuation or voluntary retirement/resignation, Vigilance

Status shall be withheld only if a major penalty proceeding

memorandum has been served on the employee and till the issue of

final order in the case. Despite such clear stipulation, it has come

to notice that gratuity/leave salary etc. was being withheld merely

because any investigation by Vigilance or CBI is going on or any

report is under consideration of CVO/DA/MOC/CVC etc. at the

time of superannuation. This memorandum further clarifies that

under the existing provisions, if no charge-sheet is issued till his

retirement, no charge-sheet can be issued after retirement and his

service cannot be terminated even on deemed basis. In such a

situation, there is no scope for forfeiting gratuity or leave salary or

Travelling Allowance.

11. It further states in paragraph No.3 that however, if

charge-sheet for major penalty has been served before

superannuation, the decision for gratuity may be taken in terms of

clarification issued vide office order No.CIL/C-5A(PC)/CDA/58

dated 08/09/2011. It further clarifies that leave encashment and

T.A. bills can be withheld if charge-sheet for major penalty has been

served till its finalisation. If on conclusion of the Disciplinary

Proceeding, service is terminated through deemed dismissal/

deemed removal/deemed compulsory retirement, encashment of

leave can be forfeited in terms of note. However, if service is not

terminated on conclusion of disciplinary proceeding the same may

be released. Thus it appears from the memorandum dated

08/09/2015 that specific policy is accepted by the respondent in

respect of final settlement of dues on superannuation. This policy

clarifies that if there is a charge-sheet for major penalty then leave

encashment and T.A. bills can be withheld.

12. The petitioner has relied upon the Coal India Executives

Leave Rules, 2010. Rule No.12.3 speaks about the extent of

encashment of earned leave. Rule No.12.4 states about

encashment of earned leave on termination of service/retirement.

Rule 12.4.1 says that leave at credit shall not be granted for

encashment if an executive resigns from the service. However an

executive who has resigned from the service can avail the benefit

for the encashable portion of earned leave prior to the date of his

actual quitting/release from service. Rule 12.4.2 speaks about the

termination which states that an executive governed under the Coal

India Service Rules, whose services are terminated, otherwise than

on disciplinary grounds, or who retires on superannuation, may be

allowed to encash the earned leave at his credit, subject to a

maximum of 300 days. This rule specifically states that a person

who is terminated otherwise than on disciplinary ground may be

allowed to encash the earned leave at his credit and Rule No.12.4.3

speaks about the contingency in case of death. Admittedly in the

present case, the petitioner served with the charge-sheet it means

disciplinary action has been taken and the enquiry is pending.

13. It is submitted by the petitioner that in view of Section

52 of the Mines Act, 1952, he is entitled for the said leave

encashment. Admittedly the Mines Act, 1952 was passed with a

view to amend and consolidating the law relating to the regulation

of labour and safety in mines. The statement and objects as per the

Mines (Amendment) Act No.42 of 1983 speaks about regulating the

working condition in mines by providing for measures to be taken

for safety of the workers employed therein and certain amenities

for them. Section 52 of the Mines Act, 1952 states about annual

leave wages. Wages are a sum of money paid under the contract by

an employers to a worker for services rendered. Wages are

payments for labour services rendered in hourly rates while a salary

is a similar payment expressed in weekly, monthly or annual rates.

Section 52(10) specifically states about the wages to a persons

employed in mines. The petitioner was working with the Company

as a Junior Executive Trainee. At no point of time he worked as a

worker. As he was working as an Executive he had to perform his

duty not in the mines and, therefore, the provisions of Mines Act,

1952 are not applicable to him.

14. The aspects whether the provisions of the Mines Act,

1952 are applicable to the Executives is dealt by this Court in W.P.

No.4104/2017 (Shri Gurjit Singh s/o Late Gopal Singh Vs. Coal

India Ltd. and anr.) and W.P. No.4318/2017 (Mrs. Anjana Mehta

wd/o Deceased Dr. Surendraprasad Mehta Vs. Coal India Ltd. and

ors.) wherein it is held by this Court that in view of the provisions

contained in Section 2(h) and Section 17 of the Act read with

Section 52(10) thereof as well as the provisions contained in the

Coal Mines Regulations 1957 (hereinafter referred to as 'the

Regulations' for short) the legal position was clear that the Act

provides the benefits for those who are actually employed in mines

and similar such benefits cannot be extended to Officers/Executives

of the WCL. It is observed by this Court that in view of the

marginal note given under Section 52 says "Annual Leave with

Wages", it was primarily relatable to entitlement to and release of

wages to any person employed in a mine. The word 'wages' has not

been defined in the Act, but is defined in the Industrial Disputes

Act, 1947. Wages are ordinarily paid to workmen/labourers.

Officers/executives are not paid wages in the sense the term is used

with reference to workmen/labourers. It is further clarified by this

Court in the said writ petitions that the term Manager in Section

2(h) read with Section 17 read with Regulation 31 of the

Regulations would mean only those Managers, who have the

requisite qualifications to work in mine and are comprehended

within the meaning of the words "a person is said to be employed

in a mine". It is observed by this Court that the said petitioners had

no right in law to claim leave encashment benefits, which otherwise

were due to them but for the orders of removal on disciplinary

ground and dismissal consequent to conviction recorded by the

Special Court, in view of clear provision in Rule 7.2 of the Service

Rules.

15. In the present case, admittedly the petitioner was

served with the charge-sheet. The charges levelled against him are

serious in nature. Learned Counsel for the petitioner relied upon

the decision in Jaswant Singh (supra) but the said judgment is

overruled by Chairman-Cum-Managing Director, Mahanadi

Coalfields Ltd. Vs. Rabindranath Choubey (2020) 18 SCC 71 . The

Hon'ble Apex Court in the case of Chairman-Cum-Managing

Director, Mahanadi Coalfields Ltd. (supra) specifically observed

that when the Rule 34 of the CDA Rules permits continuance of the

departmental enquiry even after the retirement of an employee and

such a retired employee is deemed to be in service and on

conclusion of the departmental enquiry initiated while the

employee was in service, penalty of dismissal was permissible. The

employer would get the right to forfeit the payment of gratuity of

such an employee as provided under Section 4(1) and 4(6) of the

Payment of Gratuity Act, 1972 and even under Rule 34.3 of the

CDA Rules.

16. In view of the ratio laid down by the Hon'ble Apex

Court and in the light of specific policy i.e. memorandum issued by

the Company, the specific provision states when the charge-sheet

for major penalty has been served, leave encashment and T.A. bills

can be withheld. Admittedly, the present petitioner was served

with the charge-sheet with serious charges wherein monetary

consideration is involved. In the light of specific provision

petitioner's leave encashment is withheld by the respondent. We

hold that the action of the respondent is as per the Services Rules

and the petitioner is not entitled to any relief. The writ petition is

devoid of any merit and deserves to be dismissed.

17. Hence, the writ petition is dismissed. No costs.

18. Rule stands discharged.

(URMILA JOSHI-PHALKE, J.) (A.S. CHANDURKAR, J.)

*Divya

Signed By:DIVYA SONU BALDWA

Signing Date:12.07.2022 14:54