Jharkhand High Court

Diwesh Narayan Raizada vs Coal India Limited on 18 January, 2021

                                      1

 IN THE HIGH COURT OF JHARKHAND AT RANCHI
                    W.P.(S) No. 4112 of 2008
     Diwesh Narayan Raizada                         ..... Petitioner
                              Versus
    1. Coal India Limited, through its Chairman, having its office
       at 10, Netaji Subhash Road, Kolkata.
    2. The Director (Personnel & IR), Bharat Coking Coal Limited,
       having its office at 10, Netaji Subhash Road, Kolkata.
    3. The Chairman cum Managing Director, Bharat Coking Coal
       Limited, Koyla Bhawan, Koyla Nagar, Dhanbad.
    4. The Director (Personnel) Bharat Coking Coal Limited, Koyla
       Bhawan, Koyla Nagar, Dhanbad.
    5. Bharat Coking Coal Limited, through its Chairman -cum-
       Managing Direcotr, Koyla Bhawan, Koyla Nagar, Dhanbad.
                                              .....   Respondents
                              ---------

CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN

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For the Petitioner : Mr. M.Kanti Roy, Advocate For the Respondents : Mr. A.K.Mehta, Advocate

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15/Dated: 18th January, 2021 Heard learned counsel for the parties through V.C.

2. The instant writ application has been preferred by

the petitioner for following reliefs;

(i) A direction upon the respondents to pay the salary for the period between 1.9.85 to 5.9.85, arrear for the period between January 1987 to March 1993, pension and other benefits as held payable to the petitioner vide reasoned order passed by the respondent no.3 and communicated to the petitioner vide letter no. BCCL:EE:X:C: 2008 :299 dated 7.3.2008 (Annexure-9).

(ii) For quashing letter bearing no. BCCL:EE:X:C: 2008 :299 dated 7.3.2008 (Annexure-9) to the extent wherein it has been held that the petitioner is not entitled to the payment of monetary benefits from 22.06.99 till date of his superannuation i.e., 30.4.2005 and further that the petitioner is not entitled to the payment of salary and consequential benefit for the period 22.06.99 to 30.4.2005, he shall not be entitled to promotion nor monetary benefits and further to the

extent wherein it has been held that the petitioner is not entitled for Non Practicing Allowance (NPA) and arrears for the period between July 1999 to 30.4.2005.

(iii) For a direction upon the respondents to pay LTC & LLTC during the period between 22.06.99 to 30.04.2005, payment of leave encashment and bonus for the period under dismissal (22.06.99 to 30.04.2005) which though had been claimed by the petitioner, however no order to that effect has been passed by the respondent no.3 in his reasoned order passed vide BCCL:EE:X:C: 2008 :299 dated 7.3.2008 (Annexure-9) and or pass any such order (s)/direction

(s) as Your Lordships may deem fit and proper in the facts and circumstances of the case and in the interests of justice."

3. The admitted facts of the instant case is that the

petitioner was dismissed from service on 22.06.1999 on

account of his conviction in R.C.Case No. 16/85 (D) and

R.C. Case No. 17/85 (D) by a judgment dated 08.05.1997

passed by the learned Special Judge, CBI, Dhanbad.

Subsequently, the petitioner preferred criminal appeals

being Cr. Appeal No. 94/97 (R) and Cr. Appeal No. 95/97

(R) before this Court. The above referred criminal appeals

were allowed by this Court by judgment dated 31.07.2006.

However, before the order of acquittal could be passed by

the Appellate Court, the petitioner had attained the age of

superannuation on 30.04.2005.

4. Mr. Mrinal Kanti Roy, learned counsel for the

petitioner submits that the representation of the petitioner

was disposed of whereby certain amounts under different

heads were allowed by the respondent authorities; however

the same has not yet been paid, for which he has given

several representation and reminders requesting them to

make payment in terms of Annexure-9 to the writ

application. He further submits that he is also otherwise

entitled for all back wages etc. during the intervening

period from the date of dismissal i.e. 22.06.99 till the date

of superannuation i.e. on 30.4.2005. He further submits

that it is not the department who initiated any

departmental proceeding or dismissed the petitioner from

service rather it was on account of two criminal case

instituted by CBI; as such, pursuant to the acquittal the

petitioner is entitled for the entire payment from the date of

dismissal till the date of retirement.

5. Mr. A.K.Mehta, learned counsel for the respondent at

the outset opposes the contention of the petitioner on the

ground of delay and latches. He further submits that the

petitioner was dismissed on 22.06.1999 and he was

acquitted by this Court on 31.07.2006, however, he has

challenged the order of termination after a delay of 12 years

from the date of removal that too by way of amendment

application. He further submits that so far as the first

grievance of the petitioner is concerned with regard to non-

payment of admitted amount as per Annexure-9; he draws

attention of this Court towards para 20 and 22 of the

counter-affidavit, wherein it has been specifically stated

that the petitioner has been paid gratuity and for other

retiral benefits such as provident fund under CMPF scheme

he will have to apply in a prescribed format as per CMPF

Scheme and for other LTC and LLTC etc. he will have to

make a separate application. However, the same has not

done by the petitioner till the date of filing of the counter-

affidavit. However, he fairly submits that even now the

petitioner after verifying the present position of the case

shall be at liberty to make an application for payment of

entire benefits as given in Annexure-9 to the writ

application and the same will be processed in accordance

with law and in pursuance to the specific approval given in

Annexure-9.

However, so far as quashing of the order of

termination and grievance of back wages is concerned he

oppose the same and submits that the respondent-

management had no concerned, whatsoever, with the

criminal case as the same were brought at the instant of

CBI who had lodged the FIR. He further referred to a

judgment passed by the Hon'ble Apex Court in the case of

Union of India and Others Vs. Jaipal Singh, as reported

in (2004) 1 SCC 121 which has dealt the issue relating to

payment of back-wages in the event of acquittal in the

criminal case. He submits that in the said case a question

arose as to whether the employee would be entitled for

back-wages for the period of absence i.e. from the date of

dismissal till reinstatement and the Hon'ble Apex Court has

held that the employee will not be entitled to back-wages for

the period of absence, it has also been held in the said case

that the employee would be entitled to back-wages only

from the date of acquittal, however, if the prosecution

which ultimately resulted in acquittal of the employee was

at the behest of the employer, different situation will arise.

As such relying upon the aforesaid judgment passed in the

case of Jaipal Singh (supra), Mr. Mehta contended that he

is not entitled for back-wages. He further referred to the

judgment passed in the case of Chennai Metropolitan

Water Supply and Sewerage Board and Others Vs.

T.T.Murali Babu, reported in (2014) 4 SCC 108, wherein

at para 16 and 17 the Hon'ble Apex Court has held as

under:-----------

"16. Thus, the doctrine of delay and laches should not be lightly brushed aside. A writ court is required to weigh the explanation offered and the acceptability of the same. The court should bear in mind that it is exercising an extraordinary and equitable jurisdiction. As a constitutional court it has a duty to protect the rights of the citizens but simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, without adequate reason, approaches the court at his own leisure or pleasure, the court would be under legal obligation to

scrutinise whether the lis at a belated stage should be entertained or not. Be it noted, delay comes in the way of equity. In certain circumstances delay and laches may not be fatal but in most circumstances inordinate delay would only invite disaster for the litigant who knocks at the doors of the court. Delay reflects inactivity and inaction on the part of a litigant -- a litigant who has forgotten the basic norms, namely, "procrastination is the greatest thief of time" and second, law does not permit one to sleep and rise like a phoenix. Delay does bring in hazard and causes injury to the lis.

17. In the case at hand, though there has been four years' delay in approaching the court, yet the writ court chose not to address the same. It is the duty of the court to scrutinise whether such enormous delay is to be ignored without any justification. That apart, in the present case, such belated approach gains more significance as the respondent employee being absolutely careless to his duty and nurturing a lackadaisical attitude to the responsibility had remained unauthorisedly absent on the pretext of some kind of ill health. We repeat at the cost of repetition that remaining innocuously oblivious to such delay does not foster the cause of justice. On the contrary, it brings in injustice, for it is likely to affect others. Such delay may have impact on others' ripened rights and may unnecessarily drag others into litigation which in acceptable realm of probability, may have been treated to have attained finality. A court is not expected to give indulgence to such indolent persons -- who compete with "Kumbhakarna" or for that matter "Rip Van Winkle". In our considered opinion, such delay does not deserve any indulgence and on the said ground alone the writ court should have thrown the petition overboard at the very threshold."

6. Relying upon the aforesaid judgments Mr. Mehta

contended that on the ground of delay and latches on the

part of the petitioner the instant writ application should be

dismissed. However, he fairly submits that, if the petitioner

is derived from the monitory benefits which has already

been approved as per Annexure-9, he shall make a fresh

application and the same will be looked into and considered

strictly in accordance with Annexure-9, wherein it has been

stated that he will be entitled to pension and gratuity after

allowing him continuity in service till the age of

superannuation on account of acquittal.

7. Having heard learned counsel for the parties and

after going through the documents available on record and

averments made in the respective affidavits, this Court is of

the view that since the employer was not responsible for

initiation of the criminal case and it is only the CBI who

instituted two criminal cases against this petitioner the

petitioner will not be entitled to back-wages for the period of

absence. The law is now well settled that the employee

would be entitled to back-wages only from the date of

acquittal. Since in the instant case the petitioner had

already retired before the date of acquittal, he shall not be

entitled for the back wages during period of absence.

In the case of State Bank of India and another vs.

Mohammed Abdul Rahim, as reported in (2013) 11 SCC

67, the Hon'ble Apex Court has dealt with this issue in

para 11 and 12 has held as under:

"11. In Banshi Dhar this Court answered the question against the employee by holding that grant of back wages is not automatic and such an entitlement has to be judged in the context of the totality of the facts of a given case. It is on such consideration that back wages were declined. In the present case, it will not even be necessary for the Court to perform the said exercise and delve into the surrounding facts and circumstances for the purpose of adjudication of the entitlement of the respondent to back wages in view of the provisions of Section 10(1)(b)(i) of the Act. The said provisions impose a clear bar on a banking company from employing or continuing to employ a person who has been convicted by a criminal court of an offence involving moral turpitude. No discussion as to the meaning of the expression "moral turpitude" is necessary having regard to the nature of the offences alleged against the respondent, namely, under Section 498-A IPC and Section 4 of the Dowry Prohibition Act, 1961. No doubt, the respondent was not in custody during the period for which he has been denied back wages inasmuch as the sentence imposed on him was suspended during the pendency of the appeal. But what cannot be lost sight of is that the conviction of the respondent continued to remain on record until it was reversed by the appellate court on 22-2-2002. During the aforesaid period there was, therefore, a prohibition in law on the appellant Bank from employing him. If the respondent could not have remained employed with the appellant Bank during the said period on account of the provisions of the Act, it is difficult to visualise as to how he would be entitled to payment of salary during that period. His subsequent acquittal though obliterates his conviction, does not operate retrospectively to wipe out the legal consequences of the conviction under the Act. The entitlement of the respondent to back wages has to be judged on the aforesaid basis. His reinstatement,

undoubtedly, became due following his acquittal and the same has been granted by the appellant Bank.

12. The respondent was acquitted on 22-2-2002, the demand for reinstatement was made by him on 22-4-2002 and he was reinstated in service by the appellant bank on 7-11-2002. On the view that we have taken, at the highest, what can be said in favour of the respondent is that he is entitled to wages from the date he had lodged the demand for the same following his acquittal, namely, from 22-4- 2002, until the date of his reinstatement, if the same has not already been granted by the appellant Bank."

Looking to the settled position of law, the

petitioner will not be entitled to back-wages for the period

from the date of dismissal till the date of retirement; thus

there is no infirmity in the order dated 07.03.2008

(Annexure-9). However, since learned counsel for the

petitioner submits that even after passing of Annexure-9,

he has not been paid the entire benefits as per approval. In

this regard from the averments made in the counter-

affidavit specifically in paragraph 20 and 22, it appears that

the respondent-authorities has categorically held that the

petitioner has been paid gratuity and for other benefits he

will have to make application in prescribed format as per

the Coal Mines Provident Fund and Coal Mines Pension

Scheme and also an application for LTC and LLTC; as such,

the petitioner is at liberty to verify his account and make a

fresh application in prescribed format as per the CMPF and

CMPS before the concerned respondents i.e. General

Manager, Executive Establishment, Koyla Bhawan, BCCL,

Dhanbad raising his grievance within a period of three

months from today, if the same has not yet been paid to the