Project Officer, Sendra-Bansjora Colliery of M/s. Bharat Coking Coal Ltd. P.O.-Bansjora, P.S.- Loyabad, District-Dhanbad v. …
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (L) No. 1464 of 2015 Project Officer, Sendra-Bansjora Colliery of M/s. Bharat Coking Coal Ltd. P.O.-Bansjora, P.S.- Loyabad, District-Dhanbad, through Sri Ashok Kumar Singh, son of Late Firangi Singh, Project Officer, Sendra-Bansjora Colliery of M/s. Bharat Coking Coal Ltd. P.O.- Bansjora, P.S. Loyabad, District-Dhanbad, PIN-828101 Versus … … Petitioner Smt. Sakina Khatoon, widow of Late Md. Quddus, resident of Loyabad, Madnadih No. 7, P.O.- Koyla Nagar-P.S.-Saraidhela, District-Dhanbad, PIN-828101 … … Respondent CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY --- For the Petitioner For the Respondent --- : Mr. Anoop Kumar Mehta, Advocate : Mr. Manish Kumar, Advocate : Mr. Suraj Singh, Advocate --- 09/18.06.2024
Legal Reasoning
Learned counsel for the parties are present. 2. This writ petition has been filed for the following reliefs:- (i) “For quashing the findings dated 12.09.2013 passed by the learned Controlling Officer under the Payment of Gratuity Act, 1972-cum-Assistant Labour Commissioner (Central), Dhanbad-II in Application No. 36/(20)/2012. E.6 (Annexure-1); whereby and whereunder the said Authority has been pleased to hold that the respondent is entitled to receive the gratuity amount in respect of her deceased husband and the writ petitioner has been directed to determine the total amount of gratuity payable to the respondent; AND (ii) For quashing the appellate order dated 26.3.2014 of the learned Regional Labour Commissioner the Appellate Authority (Central), Dhanbad, under the Payment of Gratuity Act, 1972, in P.G. Appeal No. 37/2013 (Annexure-3) by which the said Authority has been pleased to uphold the findings of the Controlling Authority.” 3. The learned counsel for the petitioner submits that both the impugned orders are perverse and they call for interference. 4. While giving the factual background of the case, the learned counsel has submitted that one plant namely Loyabad Power Plant was taken over by the then Bihar State Electricity Board and was transferred to Bharat Coking Coal Limited in the year 1972. However, the same was given back to the Bihar State Electricity Board in the year 1992. At the time of taking back the said power plant there were 216 casual workers on the rolls of the said power house and out of 216 casual workers, 214 were not taken back by Bihar State Electricity Board on the ground that there was an Award passed by the Central Government in Reference Case No. 27 of 1983. Learned counsel submits that the said Award was challenged in CWJC No. 3486 of 1993 (R) and the Award was set aside vide order dated 14.8.2002. Thereafter the matter was referred to Arbitration Tribunal and during the pendency of the arbitral proceedings, the parties entered into
Decision
settlement and the arbitral proceeding was disposed of in terms of the settlement. The learned counsel further submits that the Arbitration Award is dated 25.5.2009 which is contained in Annexure-4 to the supplementary affidavit and the husband of the opposite party No. 2 [ the concerned workman] attained the age of superannuation on 30.09.2005 and therefore there was no occasion to continue his service under BCCL and the Arbitral Award clearly mentioned that the union insisted for consideration of cases of only 177 casual worker of Loyabad Power House of Bihar State Electricity Board who were continuing at that point of time in BCCL and the arbitral award was implemented . 5. The learned counsel submits that since the concerned workman had expired there was no occasion to apply such an Award to the concerned workman. The Award attained finality. He submits that the import of the Award has not been properly considered by both the authorities and accordingly impugned orders call for interference. 6. The learned counsel appearing on behalf of the respondent while opposing the prayer has submitted that the learned Controlling Authority under Payment of Gratuity Act, 1972, has considered the materials on record and found that the husband of the respondent was working at Sendra Banszore Colliery at SDL during the period from 01.04.1992 till November 1996 and he was getting wages as per 2 BSEB rate and Coal Mines Provident Fund deductions were also made and he came on BCCL roll in December 1996. It has also been recorded that from December 1996 he was working in the said colliery and worked till the age of retirement. He also submits that the workman was getting wages of Category-I in terms of National Coal Wage Agreement. He submits that similar finding has been recorded by the Appellate Authority and the impugned order does not call for any interference. The learned counsel submits that even the records of BCCL produced before the Authorities clearly indicated that the said workman was in the roll of BCCL and was working at the colliery. 7. learned counsel for After hearing the parties and the considering the facts and circumstances of this case, this Court finds that the application dated 21.02.2012 was filed by the respondent, wife of late Kudus praying for determination of the amount of gratuity and issuance of direction for payment to the Project Officer, Sendra Banszore Colliery of M/s. Bharat Coking Coal Ltd. (hereinafter referred to as BCCL). The applicant had stated that in form-N and the annexures therein her husband was appointed in 1992, retired on 30.09.2005, died on 26.11.2009 and had put in 31 years of service and prayed for total amount of gratuity amount of Rs. 3.5 lacs. 8. The petitioner had appeared before the Authority and filed a written statement stating that Md. Kudus was actually employee of BSEB and was not taken in the roll of BCCL during his life time. The dispute in connection with large number of employees who worked in BSEB and were not taken on the rolls of BCCL was ultimately referred to sole arbitrator and a settlement was arrived on 06.11.2008 with regards to 177 workmen for those who were continuing in BCCL. It was also asserted that Md. Kudus was ex-employee of BSEB and had attained the age of retirement on 30.09.2005 as such he was not on the roll of the company and could not be a beneficiary of the Arbitral Award dated 25.05.2009. The witnesses were examined on behalf of both the parties. 9. The witness on behalf of the applicant was the applicant herself who deposed that her husband was working as SDL Mazdoor in 3 Sendra Bansjore Colliery from 1980 and retired in 2005 and used to work sometimes in Loyabad power house of BSEB and sometime at BCCL Colliery. 10. On the other hand, the witness of the petitioner also stated that the husband of the applicant was working in Sendra Bansjor as SDL casual Mazdoor and came from the roll of BSEB. The husband of the applicant attained the age of superannuation on 30.9.2005 and the Award was passed on 25.05.2009 covering those who were serving on the date of the Arbitral Award. During cross examination, the witness stated that the husband of the applicant worked from 01.04.1992 as casual labour and it was the fact that since December 1996 till the date of retirement, he was getting category-1 wages as per NCWA and other benefits from BCCL and it was also a fact that since 01.04.1992 till November 1996 he was getting wages and other benefits from BCCL as per BSEB rate. CMPF deduction was made from the date he came in BCCL roll in December 1996 and at that time, his status was that of a casual mazdoor. 11. The Controlling Authority under the Payment of Gratuity Act considered the materials on record and summarized the case of the respective parties and ultimately held as follows:- “In the instant case, the opposite party contended that Md. Qudus was a casual employee of erstwhile BSEB with 213 others. There was a dispute in the matter abd ab arbitration-award was passed in the matter and benefits to be given to such employees to those who continued on the date of award, whereas, Md. Qudus retired and died prior to date of the award, so he is not entitled for payment of gratuity. Whereas the submission of the applicant is that Md. Qudus had been continuously serving in BCCL. From 1996, he was working at Sendra Bansjora collery as SDL Mazdoor and he worked till the date of his retirement, his wages and her remuneration was paid by BCCL management as per NCWA as a regular employee. The employer deducted his CMPF from 1992 till the date of retirement continuously. On going through the submissions of the parties and documents on record, it is well established that deceased employee was on the roll of BCCL since 1.4.1992 as the employer themselves have confirmed the deduction of from CMPF the deceased employee in respect of 4 01.04.1992 and employer's witness during the course of evidence has also admitted that since 01.04.1992 till November, 1996 he was getting wages and other benefits from BCCL as per BSEB rate. It is also a fact that since November, 1996 till his retirement, there was no break in service as no documentary evidence in this regard has been filed by the employer. The copy of service excerpts and Form-F itself confirmed that the deceased employee was working with BCCL. When it is established that the deceased employee was working in BCCL, the employer has liability to pay his admissible amount of gratuity for the period, he rendered service for his employer. It is also observed that since the applicant is the nominee in form-F of payment of gratuity in respect of late Md. Qudus, the employer has also not raised any objection regarding genuinity of the applicant.” 12. This Court finds that the Controlling Authority has recorded a clear finding on the basis of materials on record that the deceased employee was on the roll of BCCL from 01.04.1992. This was confirmed by deduction of CMPF by the employer in respect of deceased employee from 01.04.1992 and the employer’s witness during the course of evidence also repeated that since 01.04.1992 till November 1996 he was getting wages and other benefits from BCCL as per BSEB rate. The learned authority also considered the service excerpts and form-F and observed that they itself confirmed that the deceased employee was working with BCCL. 13. This court further finds that the list of workmen whose case was considered by the learned Arbitrator as well as the list of workmen who were granted the benefit under the Arbitral Award was never exhibited by the petitioner before the authorities who have passed the impugned orders. However, the learned Authority while passing the impugned order clearly recorded a finding on the basis of materials on record that the name of husband of the applicant was there in the rolls of BCCL and also in the statutory forms of BCCL. 14. The appellate authority also considered the materials on record and recorded following findings: - “ On examination of the facts of the case, submissions of the parties and on perusal of the order of the Controlling 5 Authority, it has been observed that Appellant has denied the payment of gratuity in respect of late Md. Qudus on the ground that Md. Qudus was a casual employee of erstwhile BSEB with 216 others and there was a dispute in the matter. The said matter was referred to Arbitration Tribunal and Tribunal passed award and as per term of award, the management agreed to regularize the aforesaid casual workers w.e.f. date of award provided they have not attained the age of 60 years and since Late Quddus attained the age of 60 years before the award, therefore, he was not regularized in the services of BCCL and since he was not the employee of BCCL, he was not entitled for payment of gratuity. On going through the order of the Controlling Authority and documents filed before him by the parties, it is well, established that deceased employee was on the roll of BCCL since 1.4.1992 as the employer themselves have confirmed the deduction. of CMPF in respect of the deceased employee from 01.04.1992 and employer's witness. during the course of evidence has also admitted that since 01.04.1992 till November 1996 he was getting wages and other benefits from BCCL as per BSEB rate. It is also a fact that since November, 1996 till his retirement, there was no break in service as no documentary evidence in this regard has been filed, by the employer. The copy of service excerpts and Form-F itself confirmed that the deceased employee was working with BCCL. When it is established that the deceased employee was working in BCCL, the employer has liability to pay his admissible amount of gratuity for the period, he rendered service for his employer, so the Controlling Authority has rightly passed order for payment of gratuity in respect of the deceased employee, 1, therefore, do not intend to interfere in the order of the Controlling Authority.” 15. This court finds that both the authorities have passed well- reasoned orders considering the materials on record. The argument of the petitioner that the Arbitral Award has not been properly considered by the Authority is devoid of any merit in view of the specific findings recorded by both the authorities based on records that 6 the husband of the petitioner was on the rolls of the BCCL and entries to that effect were also made in the statutory register which showed that the husband of the applicant was an employee of BCCL. On the one hand, the list of persons whose cases were under dispute and those who were ultimately granted relief were never produced before the concerned authorities and on the other hand a specific finding has been recorded that the workman was working in Sendra Banszore colliery and the entries were duly made in the records of BCCL and CMPF regarding deduction of amount any payment by BCCL. The statutory form also contained the name of the husband of the applicant in form-F. The necessary entries were also made in the statutory form. 16. In view of the aforesaid facts and circumstances, there being no illegality or perversity in the impugned order, the present writ petition is hereby dismissed. 17. Pending I.A., if any, is closed. Binit (Anubha Rawat Choudhary, J.) 7