Baijnath Singh vs Bharat Coking Coal Limited and Others

D.G.R. Patnaik, J.—Petitioner in this writ application, has prayed for issuance of a direction commanding upon the respondents to pay forthwith all his retiral benefits including gratuity, leave salary, insurance, bonus and other consequential benefits of voluntary retirement. A further prayer has been made for a direction to the respondents to allow the son of the petitioner to join in service under the respondents in terms of letter dated 4.1.1995 (Annexure-3), within a specified period.

Heard Shri A.K. Shanai, learned Counsel for the petitioner and Shri Rajan Raj, learned Counsel for the respondent BCCL.

Facts of the petitioner''s case in brief are as follows: The petitioner was initially appointed as a Timber Mistry in Ghanudih Colliery under the respondent BCCL on 12.01.1964. His Service Record was opened and statement of particulars of his service records containing his name, date of birth, post held, date of appointment, CMPF number and list of dependants was given to him on 10.9.1997.

After having rendered about 30 years of service, the petitioner was found medically unfit to continue in service, although according to his date of birth, he would have attained the age of superannuation sometime in the month of July 1998.

Upon being found medically unfit, he had to be separated from service and by deleting his name from the service book, he was asked by his employer by letter dated 31.5.1993 to collect his gratuity and CMPF dues from the office of the Agent of Ghanudih Colliery. After his separation from service, the petitioner filed an application before the competent Authority for grant of employment to his dependant son namely, Vijay Kumar Singh, in terms of the National Coal Wage Agreement (NCWA).

His prayer for grant of employment to his son was accepted by the respondents in terms of Clause-10.4.3 of the NCWA-II and by letter dated 4.1.1995, the respondent No. 5 had offered employment to the petitioner''s son Vijay Kumar Singh as a Piece Rated employee.

However, when the petitioner''s son had wanted to join his post, his joining was refused by the respondent No. 6.

The petitioner filed several representations demanding payment of his retiral benefits and also for allowing his son to join in service. In response, after a considerable delay, though his amounts in his CMPF account was paid to him, but without any interest thereon. As regards his claim for payment of the balance of the retiral benefits, he was informed that the payments have been withheld on account of the detection of a difference in the name of his father and on the ground of some dispute regarding his parentage and identity and the matter is pending inquiry.

Learned Counsel for the petitioner submits that the withholding of the retiral benefits by the respondents is totally illegal, arbitrary and unjustified. After having allowed the petitioner to render service continuously for a period of almost 30 years, the respondents cannot raise any dispute regarding the petitioner''s identity and regarding the genuineness of his appointment. It is further submitted that the claim for retiral benefits is based on the length of service rendered by the petitioner to which he is legally entitled and the dispute regarding the parentage and identity of the petitioner and also the validity of his initial appointment, cannot be questioned after his retirement from service and neither can the retiral benefits be withheld without conducting any inquiry in presence of the petitioner to ascertain as to whether the petitioner had practiced any fraud or misrepresentation in obtaining his initial appointment. Learned Counsel explains further that the respondent authorities had referred the matter to the Deputy Commissioner of the District with a request to conduct an inquiry and inform about the parentage of the petitioner. An inquiry was conducted by the officer deputed by the Deputy Commissioner who had ascertained and affirmed in his report about the petitioner''s identity as being genuine and affirming the fact that the name of the petitioner''s father was Tribhuban Singh as originally declared and entered in the service record of the petitioner and also, the address as appearing the service record of the petitioner, are correct and genuine. Learned Counsel adds that in view of the findings in the inquiry report, there could be no further dispute regarding the genuineness of the petitioner''s identity, nor any ground to dispute the validity of the initial appointment of the petitioner. Yet, the respondents had proceeded to obtain a purported report from its Vigilance wing and declared that the petitioner''s identity was disputed and that, his initial appointment was not valid, even though, no opportunity was given to the petitioner of being heard in the purported Vigilance inquiry.

A counter-affidavit has been filed on behalf of the respondent BCCL. The stand taken by the respondents is that the initial appointment was not given to the petitioner. Rather, appointment was given to another person bearing the name of Baijnath Singh bearing father''s name as Tribhuban Singh and the petitioner, by impersonating himself in place of the actual appointee, had managed to enter and remain as an employee in the colliery in place of the original appointee.

Learned Counsel for the respondents would want to explain that it was only after the petitioner had retired from service, that a complaint was received by way of a legal notice from Md. Azarail Ansari, Advocate of Dhanbad Court, stating that his client Baijnath Singh, son of Late Tribhuban Singh, resident of English Dhakni, District-Bhojpur was the permanent employee in Ghanudih Colliery and that his provident fund number is C/340394. The said employee had gone to his native village, but thereafter, he could not return and resume his duty. It was during his absence, that another person representing himself to be Baijnath Singh, son of Ruplal Singh, Chouparan, Hazaribagh had impersonated his client and illegally substituted himself for the original employee. Learned Counsel submits further that upon receipt of the complaint, a detailed inquiry was conducted not only by the Project Officer of the Colliery, but also by the Vigilance Department of the BCCL and the findings of the inquiry report reveal that one Damodar Singh, who happens to be the own brother of the petitioner, had admitted before the Vigilance Officer that his brother namely, the present petitioner, had been working in the colliery by impersonating him. Learned Counsel explains further that the inquiry had also revealed that there was discrepancy in the permanent address as referred to in Form-B Register vis-�-vis the service book and P.F. Record. The address given in Form-A, as furnished by the employee at the time of entry in service, tallied with the address of the original Baijnath Singh as mentioned in the legal notice. Furthermore, the name and age of wife of Baijnath Singh, as disclosed by service excerpts vis-�-vis the Form-A prepared in 1964, did not tally with the service excerpts prepared in 1987, in as much as the name of wife of Baijnath Singh was different from what was stated in Form-A. Learned Counsel submits that the aforesaid findings in the inquiry report gives a reasonable belief that the petitioner was not the original employee and he had continued to remain in employment by practicing fraud and deception upon the employer. Learned Counsel adds further that though a subsequent letter was received from the lawyer who had sent the legal notice, stating that the dispute between his client and the present petitioner was resolved and that the earlier legal notice is withdrawn, but the fact remains that in view of glaring inconsistency, mentioned above, it is deemed that the petitioner was never appointed in service. Rather, it was his brother who was appointed in service and after having served for sometime, had quit the service under the respondents.

From the rival submissions, following admitted facts emerge.

Appointment was given to Baijnath Singh, son of Tribhuban Singh in the colliery way back in January 1964. Service record of the employee was opened mentioning the address of the employee and a copy of the excerpts of the service record was given to the petitioner. The petitioner continued to render service till the date of his separation from service in 1995. Upon his separation, he was paid his entire CMPF dues.

Prior to the date of his separation, no dispute whatsoever was raised regarding his identity or regarding the validity of his appointment. Admittedly, the petitioner was allowed to serve under the respondents for about 30 years as a permanent employee under the respondents.

Particulars regarding the name, parentage and status of the petitioner, as mentioned in the original service records, including Form-B, had remained undisputed all along till the date of the petitioner''s separation from service.

Counsel for the respondents has tried to point out certain inconsistencies by referring to Form-A (Annexure-3C) which is purportedly a declaration made by a person named Baijnath Singh employed in the Coal Mines. As it would be apparent, the document (Annexure-3(C)) is not in the handwriting of the petitioner, nor does it contain any photograph of the concerned employee. This document cannot constitute any reliable basis. It further appears that the initial appointment granted to Baijnath Singh, son of Tribhuban Singh, has not been denied or disputed by the respondents, nor has such appointment been declared, in any manner, as illegal or invalid. Even if it is contended by the respondents that the original employee after obtaining appointment, had left service and in his place the petitioner had substituted himself, there is no definite statement as to when did the purported original employee leave service and when did the petitioner substitute himself for the original employee. Furthermore, the purported vigilance inquiry was conducted entirely behind the back of the petitioner and that too, after his retirement from service. The petitioner was neither informed about any such inquiry, nor was called upon to explain the matter and affirm his identity. Apparently, the decision taken by the respondents to withhold the petitioner''s retiral benefits is a unilateral decision, that too, based upon their own assumption and without any definite basis.

Considering the aforesaid facts and circumstances, the respondent employer cannot withhold the retiral benefits of the petitioner merely because some complaint was received in respect of the petitioner''s identity, that too, after the petitioner''s retirement from service. Since admittedly, it was the petitioner who had continued to render service for about 30 long years, he had legally earned his retiral benefits as all such benefits are reserved for the employee under the respondent BCCL, in terms of the NCWA.

In the light of the discussions above made, I find merit in this application. Accordingly, the same is allowed. The concerned authorities of the respondents BCCL are directed to assess and pay the entire retiral benefits accrued in the account of the petitioner, within three months from the date of this order, together with interest calculated @6% per annum from the date it was payable to the petitioner and till the final payment. Furthermore, the respondents shall consider the petitioner''s claim for grant of employment to his dependant son in the light of the petitioner''s eligibility in terms of the NCWA and also in the light of the appointment letter issued to the petitioner''s son earlier and after taking an appropriate decision on the same, shall effectively communicate such decision to the petitioner, within the period stipulated above. Let a copy of this order be given to the learned Counsel for the respondent BCCL.