Madhya Pradesh High Court
Basoda Prasad Dehariya vs Western Coal Field Limited on 18 December, 2023
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VINAY SARAF
ON THE 18 th OF DECEMBER, 2023
WRIT PET. (SERVICE) No. 5826 of 2004
BETWEEN:-
BASODA PRASAD DEHARIYA S/O SHRI SUKHRAM
DEHARIYA, AGED ABOUT 53 YEARS, R/O POST
CHHINDA COLONY, 200 QUARTERS, CHHINDWARA
(MADHYA PRADESH)
.....PETITIONER
(BY MS. KOUSHIKI SHARMA - ADVOCATE)
AND
1. WESTERN COAL FIELD LIMITED THROUGH ITS
CHAIRMAN CUM MANAGING DIRECTOR,
SEMINARI HILLS, NAGPUR (MAHARASHTRA)
2. WESTERN COAL FIELD LIMITED THROUGH ITS
CHIEF GENERAL, MANAGER, PENCH AREA,
PARASIYA CHHINDWARA (MADHYA PRADESH)
3. WESTERN COAL FIELD LIMITED THROUGH ITS
M ANAGER, SUB AREA PENCH SETHIYA OPEN
CAST MINE CHHINDWARA (MADHYA PRADESH)
.....RESPONDENTS
(BY MR. ANOOP NAIR - ADVOCATE)
Th is petition coming on for hearing this day, th e court passed the
following:
ORDER
Heard finally with the consent of the parties.
2 . By the present petition, the petitioner has challenged the order dated
21.02.2004 (Annexure-P-1) whereby the date of superannuation of the petitioner
was fixed as 16.01.2005.
3. According to the petitioner, the petitioner was working as Badli
worker w.e.f. 22.12.1973 and date of birth of the petitioner is 05.05.1951. The
age of superannuation of the petitioner was 60 years and the petitioner was
entitled to work up to 31.05.2011. However, the respondents erroneously
recorded the date of birth of the petitioner as 01.11.1942 and issued an order
for superannuation on 01.03.2002. The petitioner raised the objection.
Thereafter, he was advised to undergo the medical examination. The Apex
Medical Board opined the age of petitioner between 55-60 years and, therefore,
a fresh order of superannuation was issued whereby the petitioner was to be
retired on 15.01.2004.
4. Learned counsel for the petitioner submits that the petitioner raised
this issue before the Management and a memorandum of settlement was
executed in the presence of the office bearer of the Union and it was decided
that instead of retiring the petitioner on 16.01.2004, the petitioner will work up
to 16.01.2005 and his date of superannuation was fixed as 16.01.2005 by the
impugned order. However, it was decided in the settlement that the petitioner
will not claim the wages for the period of his absence from 01.03.2002 till
further joining and the same will be treated as dies non (No Work No Pay) and
same is under challenge before this Court.
5. Learned counsel for the petitioner argued that the settlement was
signed by the petitioner under the pressure of the management and the petitioner
was not having any other option except to sign the settlement as the petitioner
was not in a position to bargain with the management and the management was
standing on a advantageous position, therefore, the settlement is not a valid
contract and the direction be issued to the respondents to pay the petitioner for
the period from 01.03.2002 to 21.03.2004 because the petitioner was ready to
work during this period and the respondents denied the petitioner to work there,
therefore, the petitioner is entitled.
6. Learned counsel for the petitioner relied on the judgment of the Apex
Court in the matter of Deepali Gundu Surwas vs. Kranti Junior Adhyapak
Mahavidyalaya (D.Ed.) and others, reported in (2013) 10 SCC 324, wherein
the Apex Court has held that the denial of back wages to an employee who has
suffered due to an illegal act of the employer would amount to indirectly
punishing the employee concerned and rewarding the employer by relieving him
of the obligation to pay back wages including the emoluments. The relevant
paragraphs are as under:-
"16. The word "reinstatement" has not been defined in the
Act and the Rules. As per Shorter Oxford English Dictionary,
Vol.II, 3rd Edition, the word "reinstate" means to reinstall or
re-establish (a person or thing in a place, station, condition,
etc.); to restore to its proper or original state; to reinstate
afresh and the word "reinstatement" means the action of
reinstating; re-establishment. As per Law Lexicon, 2nd
Edition, the word "reinstate" means to reinstall; to re-
establish; to place again in a former state, condition or office;
to restore to a state or position from which the object or
person had been removed and the word "reinstatement"
means establishing in former condition, position or authority
(as) reinstatement of a deposed prince. As per Merriam
Webster Dictionary, the word "reinstate" means to place
again (as in possession or in a former position), to restore to a
previous effective state. As per Black's Law Dictionary, 6th
Edition, "reinstatement" means 'to reinstall, to re-establish,
to place again in a former state, condition, or office? To
restore to a state or position from which the object or person
had been removed.'
17. The very idea of restoring an employee to the position
which he held before dismissal or removal or termination of
service implies that the employee will be put in the same
position in which he would have been but for the illegal action
taken by the employer. The injury suffered by a person, who is
dismissed or removed or is otherwise terminated from service
cannot easily be measured in terms of money. With the passing
of an order which has the effect of severing the employer
employee relationship, the latter's source of income gets dried
up. Not only the concerned employee, but his entire family
suffers grave adversities. They are deprived of the source of
sustenance. The children are deprived of nutritious food and
all opportunities of education and advancement in life. At
times, the family has to borrow from the relatives and other
acquaintance to avoid starvation. These sufferings continue
till the competent adjudicatory forum decides on the legality
of the action taken by the employer. The reinstatement of such
an employee, which is preceded by a finding of the competent
judicial/quasi judicial body or Court that the action taken by
the employer is ultra vires the relevant statutory provisions or
the principles of natural justice, entitles the employee to claim
full back wages. If the employer wants to deny back wages to
the employee or contest his entitlement to get consequential
benefits, then it is for him/her to specifically plead and prove
that during the intervening period the employee was gainfully
employed and was getting the same emoluments. Denial of
back wages to an employee, who has suffered due to an illegal
act of the employer would amount to indirectly punishing the
concerned employee and rewarding the employer by relieving
him of the obligation to pay back wages including the
emoluments."
7. Learned counsel for the petitioner further relied on judgment of the
Apex Court in the matter of Shobha Ram Rathuri vs. Haryana Vidyut
Prasaran Nigam Limited reported in (2016) 16 SCC 663, wherein the Apex
Court has ordered to pay the back wages to the employee who has been
reinstated and order to recalculate the retiral benefit on the basis of the same.
The Apex Court held that, had the appellant been allowed to continue in service,
he would have readily discharge his duty and having restrained him from
rendering his service, the respondents cannot be allowed to press the self-
serving plea of denying him wages for the period in question on the plea of the
principles of 'no work no pay'.
8. He further relied on judgment of the Apex Court in the matter of LIC
of India and another vs. Consumer Education & Research Centre and others,
reported in (1995) 5 SCC 482 wherein it is held that, if any unreasonable,
unfair or irrational terms and conditions are included in the contract, it would be
open to judicial review and that will not be binding on the parties. It is further
held that an unfair and untenable or irrational clause in a contact is unjust and
amenable to judicial review.
9. Learned counsel for the petitioner submits that as the settlement was
signed under the pressure of management, therefore, the condition mentioned in
the settlement that petitioner will not claimed the back wages is unfair and the
petitioner is not estopped from claiming the back wages despite execution of
the settlement.
1 0 . Per contra, the learned counsel appearing for the respondents
submits that according to the record of the respondents, the petitioner attained
superannuation on 01.03.2002 and therefore, he was superannuated on
01.03.2002. Thereafter, the petitioner raised the objection. In the medical
examination, the age of petitioner was determined between 55-60 years and
therefore, a fresh date of superannuation i.e. 16.01.2004 was fixed. However,
with the intervention of the Union, the petitioner, union and the management
have entered into the settlement and on 20.02.2004, according to the Rule 58 of
the Industrial Dispute Act, 1947 it was decided that the date of superannuation
will be 16.01.2005 and petitioner will be permitted to work till 16.01.2005 and
petitioner will not claimed the back wages. On the basis of settlement the
petitioner was reinstated and petitioner has availed the benefit of the said
settlement and later on filed this petition by which the petitioner has claiming the
relief of back wages and recalculation the age of petitioner which is not
permissible and the petitioner is estopped from claiming the back wages or
demanding the recalculation of the age according to the principles of estoppel.
He prays for dismissal of the petition.
11. After hearing both the parties and perusal of record, it appears that
the respondents superannuated the petitioner from 01.03.2002 and thereafter the
petitioner agitated this issue before the management and with the intervention of
the union, the petitioner and management were reached to a settlement whereby
it was decided that the date of superannuation of the petitioner will be
16.01.2005. However, at the same time, it was decided that the period from
01.03.2000 to 21.01.2004 shall be treated as dies non and no wages will be
claimed by the petitioner or payable to the petitioner on the basis of principles
of 'no work no pay'. The petitioner accepted the same in the settlement and
after reducing the same, the settlement was signed by all the parties. Thereafter,
very next day, the petitioner was reinstated in furtherance of the settlement
meaning thereby the respondents honoured the settlement. The petitioner also
joined the work and thereafter the petitioner filed the present petition, which was
not fair on the part of the petitioner and petitioner was estopped according to
the principle of estoppel. The judgments relied by the counsel for the petitioner
are not helpful to the petitioner. In the matter of LIC of India (supra), the Apex
Court has held that if the terms and conditions of the contract is unreasonable,
unfair or irrational would be opened to judicial review. But here in the present
case, a settlement took place between the parties and according to settlement it
was decided that the petitioner will work for further year and will not claim the
back wages or it may be argued that the further period of one year was
accepted by the management upon the condition that the petitioner will not
claim the back wages, therefore, the said judgment is not helpful to the
petitioner. Similarly, the judgment rendered in the matter of Shobharam Rathuri
(supra) and Deepali Gundu (supra) are also not helpful to the petitioner as in the
present matter the petitioner entered into a settlement and as per the terms of the
settlement, it was decided by the parties that petitioner will not claimed the back
wages whereas in both the above cases, the issue of settlement was not
involved and therefore, the cases are distinguishable.
12. Resultantly, the present petition is devoid of merit and is hereby
dismissed. No order as to costs.
(VINAY SARAF)
JUDGE
irf.
