Project Officer vs Assistant Labour Commissioner ...
2022 Latest Caselaw 1004 Jhar

      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                        (Civil Writ Jurisdiction)
                       W.P.(L) No. 6319 of 2003
                            ........

Project Officer, Arrah Colliery of M/s. Central Coalfields Limited, Hazaribagh ..... Petitioner Versus Assistant Labour Commissioner (Central), Hazaribagh -cum - Controlling Authority Under the Payment of Gratuity Act, P.O., P.S. and District- Hazaribagh & Anr. ..... Respondents

CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO (Through : Video Conferencing) ............

For the Petitioner : Mr. Anoop Kumar Mehta, Advocate For the Respondent No.2 : Mr. Sarvendra Kumar, Advocate.

........

09/11.03.2022.

Heard, learned counsel for the parties.

Learned counsel for the petitioner, Mr. Anoop Kumar Mehta has submitted that the petitioner- Project Officer, Arrah Colliery of M/s. Central Coalfields Limited, Hazaribagh has preferred this writ petition for quashing the order / findings dated 29.09.2003 in Case No.36(116)/2002 (Annexure-4) passed by learned Assistant Labour Commissioner (Central), Hazaribagh and Controlling Authority under the Payment of Gratuity Act, 1972, whereby the learned Controlling Authority in violation of the principles of res-judicata has again adjudicated, as the original employee namely, Samsud Mian after his superannuation applied for payment of the amount of gratuity, which was considered by the Assistant Labour Commissioner (Central), Hazaribagh and Controlling Authority under the Payment of Gratuity Act, 1972 vide Reference Case No.36 (34)2000, which has been brought on record as Annexure-1 and after considering the material available on record the learned Controlling Authority under the Payment of Gratuity Act directed the C.C.L. to pay a sum of Rs.16,140/- to Samsud Mian within 30 days from the date of receipt of the findings, which was passed on 30.08.2000.

Learned counsel for the petitioner, Mr. Anoop Kumar Mehta has further submitted that the same has already been honoured and thereafter in the year 2002 after death of Samsud Mian, his wife Sarifan Nisha preferred another application before the Controlling Authority under the Payment of Gratuity Act, 1972 and the Assistant Labour Commissioner

(Central), Hazaribagh, which was instituted as Gratuity Case No.36(116)/2002 and after hearing the same the authority concerned passed an order on 29.09.2003 directing the C.C.L. to pay the sum of Rs.82,168/- to the Sarifan Nisha within 30 days.

Learned counsel for the petitioner, Mr. Anoop Kumar Mehta has submitted that from perusal of Annexure-4 i.e. order dated 29.09.2003 passed in Reference No.36(116)/2002, it appears that issue has already been settled between the parties i.e. C.C.L. and original employee Md. Samsud Mian has been reopened on the application filed by wife of ex- employee, which is contrary to the ratio laid down by the Apex Court in the case of Poundicherry Khadi & Village Industries Board Vs. P. Kulothangan and Another reported in (2004) 1 SCC 68, para-10 of which may profitably be quoted hereunder:-

"In our opinion, the appellant has correctly contended that the industrial dispute pertained to the same subject matter dealt with in the earlier writ proceedings and was barred by the principles of res judicata. It is well established that although the entire Civil Procedure Code is not applicable to industrial adjudication, the principles of res judicata laid down under Section 11 of the Code, are applicable including the principles of constructive res judicata. Thus in State of U.P. v. Nawab Hussain, it was held that the dismissal of a writ petition challenging disciplinary proceedings on the ground that the charged officer had not been afforded reasonable opportunity to meet the allegations against him, operated as res judicata in respect of the subsequent suit in which the order of dismissal was challenged on the ground that it was incompetently passed. This Court also held:

"....it may be that the same set of facts may give rise to two or more causes of action. If in such a case a person is allowed to choose and sue upon one cause of action at one time and to reserve the other for subsequent litigation, that would aggravate the burden of litigation.

Courts have therefore treated such a course of action as an abuse of its process", Learned counsel for the petitioner, Mr. Anoop Kumar Mehta has submitted that while passing the impugned order dated 29.09.2003 in Reference No.36(116)/2002 the Controlling Authority under the Payment of Gratuity Act-cum-Assistant Labour Commissioner (Central), Hazaribagh has erroneously considered that continuous service of the petitioner has not been rightly calculated, which has never been challenged by the employee, Samsud Mian assailing the order dated

30.08.2000 passed in Reference Case No.36(34)/2000.

Learned counsel for the petitioner, Mr. Anoop Kumar Mehta has placed the objection filed by the C.C.L. in Gratuity Case No.36(116)/2002 and referred paras-1 to 17, which may profitably be quoted hereunder:-

"1. That, the present application is not maintainable either in Laws or on facts.

2. That, it is stated and submitted that Samsud Mian, since reportedly died had earlier moved to this learned controlling Authority for the self same relief in P.G. Case No.36(34)/2000.

3. That, in the above P.G. Case it was the contention of the deceased employee/applicant that his date of appointment was 5.12.1957.

4. That, in respect of the above, it is further stated and submitted that it was the contention of the employer/Opp. party that the date of appointment of the deceased employee/applicant was 26.5.1973.

5 That, it is stated and submitted that the learned Controlling Authority after hearing both the parties and in consideration of the facts and materials brought on record had been pleased to hold that the date of appt. of the deceased/applicant was 26.5.1973 and had been pleased to dispose of the above P.G. Claim Case by an order dated 20.8.2k.

6. That, the deceased/applicant had already been paid with the Gratuity amount amounting to Rs.70003.00 + 16140/-) 86,143/on 16/2/2000 & 20/2/01 and which he had received without any objection.

7. That, it is stated and submitted that the Subject matter of date of appointment of the deceased employee having been settled and disposed off; the same cannot be reagitated; in as such as; the learned Controlling Authority is devoid of any authority and jurisdiction to rehear and review its own order.

8. That it is stated and submitted that the deceased/ applicant, at best could have approached the learned Appellate Authority by way of filling an appeal.

9. That, however, it is further stated and submitted that on facts also the present application is not maintainable and liable to be dismissed.

10. That, it is stated and submitted that the Late Samsud Mian had nominated one Smt. SAEIFVNNASH, WIFE as "Nominee" in the Form 'F' under the P.G.Act,1972.

11. That, it is stated and submitted that in view of the above, the

authenticity and identity of the present applicant, Smt. SARIFVNNASH,wife of Late Samsud Mian is doubtful.

12. That, it is stated and submitted that in the Service file of Late Samsud Mian, the date of appointment is recorded as 26.5.1973 and which contains his thumb impression and signature as a token of acceptance thereof. The said Service Register is also attested by the Competent Official of the Opp. party/company.

13. That, in the 'B' Form Record at S1.No.5339 and in respect of the deceased Samsud Mian, the date of first appointment is also recorded as 26.5.73. The said record contains the signature of Samsud Mian as a token of acceptance of the information including the date of appointment recorded there in.

14. That, it is stated and submitted that the 'B' Form record is a statutory register under the Mines Act and the Rules framed there under.

15. That, it is stated and submitted that in the year 1987, the deceased Samsud Mian was provided with the Ex- Service Excerpt Form inviting the objection on any matter recorded in the Service Excerpt. It is stated that the deceased had did not raise any objection on any particulars including the date of appointment recorded in the service excerpt Form.

16. That, it is stated that in Service Excerpt form also the date of appointment was recorded as 26.5.1973.

17. That, it is stated and submitted that when the deceased did not raise any objection in the matter of date of appointment as above, despite giving the opportunity; this apply goes to suggest that he had accepted the date of appointment i.e. 26.5.1976 recorded in the Company' record. It is stated that there appears no reason and justification to raise dispute over the date of appointment at this stage."

Learned counsel for the respondent No.2, Mr. Sarvendra Kumar has submitted that the counter-affidavit on behalf of respondent No.2 has already been filed in this case on 11.02.2005 and as such, Paras-5 to 11 of which may profitably be quoted hereunder:-

"5. That the husband of respondent No.2 Samsud Mian filed a case before the controlling Authority-cum-ALC(C), Hazaribagh which was numbered as Gratuity Case No.36(34)/2000 and the gratuity case was disposed of on 30th August, 2000 holding, that the applicant Samud Mian(deceased) was entitled to Rs.86,143.20/- minus Rs.70,003.00/- as already

paid and the applicant Samsud Mian was entitled to Rs.16,140.00/-

6. That, the respondent No.2 states that the amount of Rs.16,140.00/- was not paid to the husband of the respondent No.2 Late Samsud Mian( since deceased) till to further intervention of the controlling Authority-cum-A.L.C. (C), Hazaribagh.

7. That, the respondent states that the gratuity was claimed by the Late Samud Mian for the period from 5.12.1957 being the date of appointment to 16.09.99 being the date of retirement.

8. That, the respondent No.2 states that the opposite party had submitted before the controlling Authority that Sri Samsud Mian was Ex- employee of Arrah Colliery his date of appointment was 26.05.73 and retired from Arrah colliery as 16.9.99 after attaining the age of 60 years as his date of birth was 16.09.39. Thus the applicant Late Samsud Mian was deprived of gratuity payment for the period from 5.12.57 till 25.05.1973.

9. That Late Samsud Mian filed a gratuity appeal before the Regional Labour Commissioner(C)-cum-Appellate Authority under the payment of gratuity Act, Shram Bhawan, Saraidhella, Dhanbad which was numbered as gratuity Appeal No.108/2000, against the project officer, Arrah Colliery of M/S C.C.L., P.O.-Arrah, District- Hazaribagh.

10. That, the respondent, the project officer, Arrah colliery of M/s C.C.L. Filed a counter affidavit reply on behalf of the respondent to the memorandum of appeal in P.G. Appeal No.108/2000.

11. That, the respondent No.2 submits that in course of proceeding of appeal, appellant Samud Mian died and the Appellate Authority dismissed the appeal as infructutious and did not give any opportunity to make the respondent no.2 as party successor -in - interest."

Learned counsel for the respondent No.2, Mr. Sarvendra Kumar has further submitted that once a proceeding become infructuous in appeal vide P.G. Appeal No.108/2000, the legal heir being Smt. Sarifan Nisha has every right to agitate the issue and as such, it is wrong to submit before this Court, that the same is hit by principles of res-judicata, as the earlier order passed by the competent authority dated 30.08.2000 passed in Reference No.36(34)/2000 never attains finality, rather the same has been assailed by the ex-employee Samsud Mian in P.G. Appeal No.108/2000. Once the appeal has been dismissed as infructuous because of the death of the Samsud Mian without impleading the legal heir Sarifan Nisha as substituted appellant, the wife Sarifan Nisha preferred a fresh application

before the competent authority under the Payment of Gratuity Act, which was registered as 36(116)/2002, which was decided by the authority on the basis of the record, whereby it has been held that the then A.L.C.(C), Hazaribagh in his finding dated 30.08.2000 has taken into account of gratuity amount of late Samsud Mian for a period from 26.05.1973 to 16.09.1999, which is less than the entitlement therefore, the difference of gratuity should be paid. This finding was based on the material available on record by the C.C.L. and C.C.L. has never preferred any application before the competent authority under the Payment of Gratuity Act or Assistant Labour Commissioner(C), Hazaribagh regarding the maintainability of the second application, as such, it is wrong to say, that a legal heir after death has no right to claim the balance amount, as such, the impugned order is not hit by the principles of res-judicata and as such, the writ petition may be dismissed, as no counter affidavit has been filed by the C.C.L. against the averments made in the reply of the petitioner to the counter affidavit filed by the respondent No.2.

After hearing learned counsel for the petitioner- Project Officer Arrah Colliery, Mr. Anoop Kr. Mehta and learned counsel for the respondent No.2, Mr. Sarvendra Kumar and looking into the documents brought on record including the counter-affidavit filed by the respondent No.2, the issue which cropped up before this Court are:-

(i) whether the order passed by the competent authority-cum-Assistant Labour Commissioner (Central), Hazaribagh in Reference Case No.36 (116)/ 2002 is hit by principle of res-judicata, even if the appeal has been preferred by the ex-employee, Samsud Mian vide P.G. Appeal No.108/2000, which became infructuous because of death of the employee as legal heir, wife has not been substituted in his place?

(ii) With regard to the date of birth, so as to consider the contribution towards gratuity amount?

It appears to the Court that in the peculiar facts and circumstances of the case, where Samsud Mian, who was an employee of National Coal Development Corporation, which was subsequently taken over by the Coal India Limited. As per Form B, which is the document for consideration of date of birth of employee, consider the date of

appointment or employment from 26.05.1973, but in view of the document, which has been brought on record before the competent authority and has been referred in the impugned order with regard to the deduction in the CMPF from the quarter ending 5/1959, it has rightly been considered that the date of appointment as 05.12.1957, as the learned competent authority has also considered in the impugned order, that employment of a person below 18 years in mines or part thereof has been prohibited with effect from 31.05.1984, after the commencement of the Mines (Amendment), Act, 1983, as such, legal rights accrued in favour of the legal heir of the Samsud Mina i.e. Sarifan Nisha for filing such application, which has never attains finality.

So far the date of appointment is concerned if the documents with regard to CMPF account shows, that deduction started from the quarter ending 5/1959, there is no reason for this Court to believe that the appointment was made as claimed by the petitioner- CCL on 26.05.1973.

Accordingly, this Court has considered, that whatever is mentioned in the Form-B, this Court is not granting any relief with regard to enhancement of the service tenure, but only with regard to the amount of gratuity after death of employee, Samsud Mian in favour of his wife (Sarifan Nisha) being legal heir.

Under the aforesaid circumstances, the order, which has never attains finality i.e. order dated 30.08.2000 passed in Reference Case No.36 (34)/2000, passed by competent authority under the Payment of Gratuity Act, 1972, the principle of res-judicata will not apply as Samsud Mian was himself not satisfied with the award and he preferred PG Appeal No. 108/2000 soon thereafter, before the appellate authority. It appears from the record that Samsud Mian or his wife were not so literate that they were knowing the legal recourse to get substituted in the PG Appeal No.108/2000, which was dismissed as infructuous after death of Samsud Mian on 06.03.2001. In our country the legal awareness is not so as required and for the lack of legal knowledge a genuine claim cannot be refuted to the legal heir.

Under the aforesaid circumstances, filing of fresh claim before the competent authority under the Payment of Gratuity Act, 1972 by Sarifan

Nisha as P.G. Case No.36(116)/2002 is not hit by principle of res-judicata. It is a peculiar circumstances, which has not been covered in the judgment passed by the Apex Court in the case of Poundicherry Khadi & Village Industries Board (Supra), rather the facts of both the cases are different, so as to invoke the principle of res-judicata on the basis of the judgment passed by the Hon'ble Supreme Court of India.

Now the question before this Court, that if the person was not employed as claimed by the respondent- authority on 26.05.1973 because of the finding given by the competent authority on the basis of CMPF account, where deduction has started from the quarter ending 5/1959, this Court has reason to believe that as per the documents, the date of appointment is to be considered on 05.12.1957, as the date of birth of Samsud Mian has been brought on record as 16.09.1939 (page No.7 of the writ petition), on the basis of which age at the time of appointment was 18 years 2 months, but even he is less than 18 years then also the same was not prohibited before commencement of Mines Amendment Act, 1983, as such, this Court has reason to believe considering it sympathetically while dealing case of a lady i.e. widow of deceased ex- employee, who is illiterate with respect to the payment of gratuity from 05.12.1957. It appears from the record also that if the payment of gratuity Act is considered from 05.12.1957 till 16.09.1999 i.e. date of superannuation the difference comes to only of 372 days wages.

Under the aforesaid circumstances, in view of the materials brought on record, this Court confirms the order passed by the competent authority under the Payment of Gratuity Act, 1972-cum-Additional Labour Commissioner (Central), Hazaribagh, which does not require interference by this Court.

It is further taken note of by this Court that though there is a provision of appeal for the CCL, where the appellate court could have considered the entire materials available on record, which they can adduce as an additional evidence in accordance with law, but the CCL has deliberately not preferred an appeal and preferred writ application before this Hon'ble Court under Article 226 of the Constitution of India, as such,

apart from the merit of the case, the writ petition is dismissed on the ground of maintainability.

Accordingly, the writ petition is hereby dismissed.

Jay/                                         (Kailash Prasad Deo, J.)