Bimli Kamin vs M/s Bharat Coking Coal Limited And Ors

Sanjay Kumar Dwivedi, J

Heard Mr. Abhay Kumar Mishra, Advocate, learned counsel ap-pearing for the petitioner and Mr. Amit Kumar Das, learned counsel ap-pearing

for the respondent Bharat Coking Coal Limited.

The petitioner preferred this writ petition for direction to make pay-ment of idle period with effect from 25.12.2003 to 31.12.2008. It is con-tended

that the petitioner was first appointed on 31.01.1973 in the Mo-raidih Colliery, as Piece Rated Wagon Loader. The date of birth of the pe-titioner, as

given by and entered by the Management was 01.06.1954. The petitioner was transferred to Block-II Area in the year1988 and the Last Pay

Certificate issued from the Block II Project again depicts the peti-tioner’s date of birth as 01.06.1954. In the service extracts also the date of birth

of the petitioner is recorded as 01.6.1954. Upon transfer of the petitioner to Block-II Area, Form B Register was opened and the peti-tioner’s date

of birth as recorded in the Form B Register is also 1. 06.1954. The petitioner was confirmed as General Mazdoor Category--I vide order dated

15.5.1989. Subsequently, she was confirmed on the post of Peon vide order dated 04.8.1992. There was absolutely no dispute regarding the date of

birth of the petitioner and all the service particulars and Service Book correctly depicted the date of birth of the petitioner as 1. 06.1954.

In the year 1999, the petitioner applied for Female VRS to provide benefit of employment to her only son aged around 20 years when all of a sudden

the respondents created an artificial dispute regarding the date of birth of the petitioner and her date of birth was wrongly recorded as 01.6.1944 in

order to deny the benefit of Female VRS to the petitioner because to be eligible under the scheme she has to be 50 years. The pe-titioner, therefore,

withdrew her application under Female VRS. It is from the note sheet initiated on 17.04.2001 by the Deputy Chief Area with re-gard to the grant of

Female VRS Scheme to the petitioner, she came to know that there was a dispute with regard to her date of birth. In the notesheet it was clearly

mentioned that the date of birth of the petitioner recorded in Form B is 01.06.1954 and the same date of birth is also rec-orded in her Service Extract,

whereas, in the Computer i.e. NEIS (National Electronic Information System) it is wrongly recorded as 01.6.1944.

Mr. Mishra, appearing for the petitioner, submits that date of birth of the petitioner is arbitrarily changed without any notice or show cause no-tice to

the petitioner. The petitioner moved before this Court in W.P.(S) No. 6919 of 2002 for correction of her date of birth as her date of birth is wrongly

recorded as 01.6.1944 instead of 01.6.1954. During the pendency of the writ petition, the petitioner was served with the retirement notice and she was

asked to retire with effect from 31.5.2004. The writ petition filed by the petitioner was disposed of by order dated 02.7.2008 directing the parties to go

for medical test before a Medical Board within a period of one month from the date of receipt of the said order, with due notice to the petitioner, so as

to decide the controversy raised. Pursuant to the order of this Court, the Medical Board was constituted and the petitioner was ex-amined by the

Medical Board. The petitioner has been informed that the Medical Board has assessed her age as 55-60 years as on 13.10.2008. Subsequently, by

order dated 30.12.2008, the age of the petitioner was taken as 57 years, 6 months.

It is further pointed out that the settlement was entered into be-tween this petitioner and the Management, wherein it has been decided that the

petitioner will not claim the wages for the period she has been kept idle by the respondents and the petitioner was reinstated in service with effect

from 30.12.2008. Said settlement is annexed as Annexure 11 to the memo of the writ petition.

Mr. Mishra, appearing for the petitioner, on these facts, argues that the settlement is not binding on the petitioner as the petitioner is an illit-erate lady

and the contents of the settlement has not been explained to the petitioner.

On the other hand, Mr. Das, appearing for the respondent B.C.C.L. submits that the settlement is binding and only on the settlement the peti-tioner

has been provided the employment and by way of signing this set-tlement she has accepted to forgo the wages for the idle period and in view of these,

petitioner is not entitled for the wages with effect from 25.12.2003 to 31.12.2008.

Having heard learned counsel for the parties, this Court finds that the Management, by way of reinstating the petitioner with effect from

30.12.2008, accepted this fact that the petitioner has been wrongly retired in the year 2004 and that is why this settlement has been entered into. The

fact that the petitioner is an illiterate lady is very much apparent from her signature on the settlement. The signature speaks for itself. It gives an

impression that the same is of a person who cannot even sign properly. The Management is having an upper position, whereas the petitioner, who is

an illiterate lady, had not been explained the contents of the settlement and she was made to sign the same somehow.

Moreover, it is well settled that when there are two interpretations, it must go in favour of the have-nots.

Moreover, the settlement is not entered into a conciliation proceed-ing and in view of Section 18(3) of the Industrial Disputes Act, it is also not binding

on the petitioner.

In view of the above discussion, this Court finds that the petitioner is entitled to wages for the period with effect from 25.12.2003 to 31. 12.2008 and

accordingly, respondents are directed to calculate the wages and release the same in favour of the petitioner within 12 weeks from the date of

receipt/production of a copy of this order.

With above observation and direction, this writ petition is allowed.