Nishit Viswas vs Bharat Coking Coal Limited

In the captioned writ application, the petitioner has sought for direction upon the respondents to forthwith release arrears of salary from the date of

making reference by the appropriate Government.   Â

The brief facts, as has been revealed in the writ application, are that Smt. Bina Biswas, who was working as a permanent ‘Aya’ of Tisra

Central Hospital of Bastacolla Area under the BCCL after rendering considerable period of unblemished services due to her ill health requested the

Management to relinquish her job. Accordingly, her case was referred before the Medical Board. On the basis of the opinion of the Medical Board,

the Management of the BCCL vide letter dated 3.4.1995 informed Smt. Bina Biswas that due to her medical unfitness, her name was deleted from

the rolls of the Management. The Bipartite Agreement, which is known as the National Coal Wage Agreement-V, is applicable to the coal industry

including BCCL. Clause 9.4.0 of the said Agreement, inter alia, envisages employment to one dependent of a worker, who is permanently disabled in

his place. As per the aforesaid terms and conditions of the Agreement, an application was submitted on behalf Ms. Bina Biswas through the

Respondent-Union for providing employment to one of her dependent-son and the matter was referred to the learned Tribunal with reference as to

whether the action of the Management in not providing employment to the dependent of Smt. Bina Biswas under para 9.4.0 of N.C.W.A. IV is legal

& justified? If not, to what relief the dependent of the workman is entitled?Â

Thereafter, the learned Tribunal has passed the Award in Reference Case No. 77 of 1998 vide Annexure-2 to the writ application. Since the

Award passed by the learned Tribunal was not implemented, the petitioner submitted representations vide Annexure3 and 3/1 of the writ application.

Thereafter, the respondentsauthorities issued appointment letter on 31.10.2007 for appointment of the petitioner to the post of General Mazdoor

(Trainee). The service of the petitioner thereafter has been regularized on 19.11.2007 on the post of General Mazdoor Category-I. The petitioner has

come up with the prayer for release of salary from 10.09.1998 till the date of joining in pursuance to the Award dated 27th February, 2006 i.e., till

31.10.2007. Since the grievance of the petitioner has not been mitigated, left with no alternative and efficacious remedy, the petitioner has been

constrained to approach this Court under Article 226 of the Constitution of India for redressal of his grievances.

Learned counsel for the petitioner has strenuously urged that the respondents are duty bound to release the arrears of salary from the date of

reference i.e. 10.09.1998 till the date of actual date of joining, since the petitioner was forcibly deprived from discharging his duties. Learned counsel

further submits that the authorities, who are supposed to give employment under Clause 9.4.0 of the National Coal Wage Agreement-V, but due to

inaction of the authorities, the matter was agitated before the learned Tribunal, which has passed the order in Reference Case No. 77 of 1998, dated

27.02.2006 by directing the respondents to reinstate the workman in service. Learned counsel further submits that the action of the respondents in not

releasing the salary for the period, during which, he has been deprived of joining on the post under clause 9.4.0 of the N.C.W.A.-V, amounts to

arbitrary and highhandedness on the part of the respondents, impinging upon Articles 14 and 16 of the Constitution of India.

  Learned counsel for the petitioner during course of hearing has referred to his rejoinder to the counter affidavit, dated 21.01.2013, wherein, it has

been submitted that the learned Tribunal has decided the matter by passing the Award on 27.02.2006, passed in Reference Case No. 77 of 1998 and

thereafter, after lapse of more than a year, appointment letter has been issued on 19.11.2007, to which the petitioner has joined on 21.11.2007,

therefore, there has been no laches or delay by the petitioner. Thus, the petitioner is entitled to be given all consequential benefits from 10.09.1998 to

18.11.2007.Â

Controverting the averments made in the writ application, a counter affidavit has been filed. In the counter affidavit, it has been submitted that the

claim of the petitioner for arrears of salary from the date of approaching the Government for Reference i.e. 10.09.1998 till the date of actual joining is

untenable, since it is well settled law that remuneration, i.e. recurring payment for services rendered is earned by the employee only during the

currency of his tenure of employment. Further, such matters relating to pay in public or quasipublic employment like in statutory corporations or

instrumentalities of the State are governed by rules or administrative instructions, which do not confer any right to the petitioner in respect of the relief

claimed herein. The claim of the petitioner also fails on the basis of principle of no work no pay as remuneration is the consideration which flows from

the employer for the work rendered by an employee under the terms of the contract of employment. Since the petitioner failed to claim the relief

prayed for herein, in Reference Case No. 77 of 1998 and his prayer is barred by the principle of constructive res judicata after the proceedings before

the learned Tribunal attained finality with the award dated 27.02.2006, the relief claimed by the petitioner cannot be granted in view of the order dated

27.02.2006 having attained finality as the petitioner did not prefer any challenge thereto earlier nor in fact in the instant writ petition. In the counter

affidavit, it has been further submitted that the petitioner has got alternative remedy under the Industrial Disputes Act, which he has himself

admittedly, availed earlier. The fact that such remedy may be hit by the principle of constructive res-judicata, does not entitle the petitioner to indulge

in forum shopping preferring a writ petition which by it’s nature is a discretionary remedy.Â

Learned counsel for the Respondents has assiduously submitted that the petitioner from the date of joining on the post of General Mazdoor

Category-I, has been receiving the salary and since the question of payment of salary to the petitioner from the date of reference till the date of

Award has not been specifically directed by the learned Industrial Tribunal, the claim of the petitioner for the salary for the said period is thoroughly

mis-conceived and cannot be legally permissible.

Admittedly, the petitioner was not in employment for the period he is seeking arrears of salary i.e. from the date of making reference till the date of

joining his services. It is well settled proposition of law one cannot claim arrears of salary for the period one was not in employment on the golden

principle of ‘no work no pay’ except for some eventualities like dismissal being set aside, entitling for arrears of salary if the Court/Tribunal

orders so; retrospective revision of pay-scale or deemed promotion from an anterior date. But, in the case at hand, the petitioner is claiming arrears of

salary before the period of his initial appointment, which is not tenable in law. In the circumstances of the case, at best could have approached the

Court of competent authority for damage/compensation for suffering undergone by him, but, for the reasons best known to him, he did not agitate the

matter and straightway approached this Court by filing the instant writ application after two years of joining his services. Even otherwise also, by lapse

of such long span of time such remedy is now hit by principle of res judicata.Â

Furthermore, from perusal of Award passed in Reference Case No. 77 of 1998, it appears that it nowhere speaks about payment of arrears of

salary rather there is default clause, which says that in case of non-implementation of award within 30 days, the dependent-son (petitioner herein), the

workman shall be entitled for wages of General Mazdoor Category-I. For better appreciation, the relevant portion of Awarded dated 27.02.2006

passed in Reference Case No. 77 of 1998 is reproduced herein below:

 “The action of the management in not providing employment to the dependant of Smt. Bina Biswas under para 9.4.3 of NCWA-V is illegal and

the dependant of the concerned workman is entitled for employment. The management is directed to implement this award within 30 days from the

date of publication of the award, failing which the dependant son of the concerned workman shall be entitled for wages of General Mazdoor

Category-Iâ€​Â

From the pleadings available on record, it appears that appointment letter was issued on 31.10.2007 and thereafter, the petitioner joined the post of

Mazdoor on 21.11.2007, much after the period of 30 days from the date of Award but for the reasons best known to the petitioner, he did not choose

to agitate his grievance of wages neither as per the Award nor as sought for in this case before the appropriate Forum and instead thereof knocked

this Court for redressal of grievances. Here, it would be apt to mention here that neither this Court is sitting as an Executing Court against the Award

passed by the Tribunal nor it is the appropriate Court/Forum to decide the matter of awarding damage/compensation for suffering undergone by him.

So far arrears of salary, as sought for by the petitioner is concerned, in view of the reasoning given in the preceding paragraphs that is not tenable.

As a logical sequitur to the facts, reasons and discussions made in the forgoing paragraphs and conclusions arrived at by this Court, no relief can

be granted to the petitioner. Hence, the writ petition being devoid of any merit is dismissed.

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