THE HON’BLE SRI JUSTICE G.CHANDRAIAH %14-08-2008 W.P.NO.10686 of 2005 NALLAMALLA PRABHAKAR RAO PETITIONER And THE SINGARENI COLLIERIES COMPANY LTD., KOTHAGUDEM REP. BY ITS CHAIRMAN AND MANAGING DIRECTOR AND TWO OTHERS. RESPONDENTS Counsel for the petitioners: SRI HARI SRIDHAR Counsel for the respondents- Sri NANDIGAMA KRISHNA RAO < Gist Head Note. ?Cases Referred: THE HON’BLE SRI JUSTICE G.CHANDRAIAH W.P.NO.10686 OF 2005 O R D E R Heard both the counsel. 2. This writ petition is filed for a writ of mandamus to declare the action of the respondents in not taking a decision for reappointment of the petitioner as per the terms of Circular No.P40/5911/IR/335 dated 10.3.2000 issued by the 2nd respondent – the Director, (PA & W), Singareni Collieries Company Limited, Kothagudem as per memo of settlement dated 21.2.2000 even though the petitioner was interviewed as long back as on 18.10.2000, as arbitrary and illegal and violative of Articles 14 and 21 of the Constitution of India. 3. The case of the petitioner as stated in the affidavit filed in support of the writ petition is that he was working as temporary general mazdoor of the 1st respondent – the Singareni Collieries Company Ltd., Kothagudem and was appointed as General Mazdoor in Category – I with effect from 1.1.1985 vide office order of the 3rd respondent – the General Manager (Personnel), Singareni Collieries Company Limited, Munugur, Khammam District vide order dated 26.1.1985 and on satisfactory completion of probationary period, his services as General Mazdoor of PK-I incline of Munguru Division were confirmed with effect from 1.4.1986 vide order dated 21.6.1986. Later he was appointed as Dumpmen with effect from 1.7.1989 vide another office order dated 29.6.1989 issued by the 3rd respondent and on satisfactory completion of probation, he was appointed as Dumpmen with effect from 1.10.1989 as per order of the 3rd respondent dated 18.11.1989. While the petitioner was working as Dumpmen at Prakasham Khani Open Cast-II Munuguru, due to psychological problem, he could not attend duty regularly and his services were terminated with effect from 17.4.1998 due to continuous absence for a long period from 23.1.1996. As the matter stood thus, the 2nd respondent – The Director, (PA &W), Singareni Collieries Company Limited, Kothagudem, issued a circular dated 10.3.2000 vide reference No.P40/5911/IR/335 stating that in terms of item no.26 of memo of settlement dated 21.2.2000 it has been agreed that the High Power Committee headed by the 2nd respondent will examine the cases of workmen dismissed on account of absenteeism during the period from 1.1.1997 to 31.12.1999. As per the said circular those workmen who were dismissed on the ground of absenteeism during the period from 1.1.1997 to 31.12.1999 and desirous of availing the above opportunity should submit their applications in the closed pro-forma requesting for reappoinment in the company afresh as Badli Fillar to the concerned head of the department where the ex-workmen has last worked on or before 30.4.2000 and the area General Managers were requested to forward such applications to the General Manager (Personnel) for taking further action. As the petitioner was eligible as per the circular dated 10.3.2000 issued by the 2nd respondent, he applied and on 15.10.2000 vide reference no.PKOC-II/MNG/17/3300 the respondent issued call letter and interviewed the petitioner on 18.10.2000. As the petitioner was not considered for re-appointment, the petitioner filed the present writ petition. 4. The General Manager of the respondents – company filed counter affidavit and stated inter alia that in order to keep its production levels at highest peak, the unauthorized absenteeism is not permitted in the respondent – company. However keeping in view the hazardous nature, leniency is shown to workmen who committed such misconduct to refrain them from committing again and, therefore, keeping in view the social objective, the company introduced a scheme of bringing back workers who are dismissed on account of unauthorized absenteeism by entering into settlement with the recognized union. As per item no.26 of the memo of settlement dated 21.2.2000 arrived between the management of Singareni Collieries Company Limited and their workmen, represented by S.C. Workers Union (Recognized Union), under Section 12 (3) of the Industrial Disputes Act, 1947, before Regional Labour Commissioner (central), Hyderabad, agreed that a High Power Committee headed by the Director (PA &W) will examine the cases of workmen dismissed on the ground of absenteeism during the period from 1.1.1997 to 31.12.1999 and such of those dismissed workmen who deserve favourable consideration on merits and recommended by the Committee will be appointed as Badli Fillers for a period of one year on trial basis. In response to the circular No.P.40/5911/IR/335 dated 10.3.2000 along with other employees, the petitioner has submitted representation. The employees like the petitioner, have to put in 240 musters per year in 2 calendar years or 200 musters per year in 4 calendar years during the period of five years preceding the years of dismissal, to become eligible for re- appointment. The attendance of the petitioner is stated in the counter as under: Year No. of musters put in during the year 1993. 152 1994. 185 1995. 121 1996. 011 1997. NIL As the petitioner did not put in 240 musters per year in two calendar years or 200 musters per year in four calendar years, and as he did not full the parameters laid down by the committee, his case was not recommended for re-appointment as Badli Fillers and hence there are no merits in the writ petition and sought for dismissal of the same. 5 . The learned counsel appearing for the petitioner submitted that as per the settlement arrived at between the recognized-unions and the management, a settlement has been arrived at and as per the settlement, to consider the case of the employees who were dismissed on account of unauthorized absenteeism between 1.1.1997 to 31.12.1999, the employee shall be below 55 years as on 21.2.2000 and he shall put in 190/240 musters (UG/Surface) in two calendar years or 150/200 musters (UG/Surface) in 4 calendar years during the period of 5 years preceding the year of dismissal. He stated that as per the particulars furnished by the respondents – company in the counter affidavit, the petitioner has fulfilled the criteria of working 240 musters in two calendar years and he also 200 musters in four calendars year during the period of five years preceding the year of dismissal. He submitted as per the settlement, the musters of 240 and 200 shall be for a period of two calendars years and four calendars respectively, during the period of five years preceding the year of dismissal and it is not specifically mentioned that there shall be musters of 240 days per year in two calendars or 200 musters per year in four calendars and therefore, the contention in the counter affidavit that there shall be 240 musters, per year in two calendar years or 200 musters per year in favour calendar years during the period of five years preceding the year of dismissal, is not contemplated and if the settlement arrived at is given interpretation by reading the words into the settlement, which are not specifically stated, it would frustrate the settlement and hence such an interpretation cannot be countenanced and with these arguments, he sought for a direction to consider the case of the petitioner, for re-appointment as he fulfills the terms and conditions of settlement. 6. On the other hand, the learned Standing Counsel appearing for the respondent – company reiterated the counter averments and stated that in order to have the benefit of re- appointment afresh, the employee like the petitioner who works on surface, has to fulfill either of the conditions stipulated viz., 240 musters per year in two calendar years or 200 musters per year in four calendar years during the period of five years preceding the year of dismissal. As the petitioner does not full the required musters, his case was not considered by the High Power Committee for recommending his name for re-appointment. Relying on the judgment of the Division Bench of this court in an unreported decision in W.A.No.499/2006 dated 20.09.2006 he submitted that the Division Bench of this court in similar circumstances and considering the very same circular arising out of the settlement between the respondents – company and recognized union, and finding that the employee therein worked for only 12 days, 89 days, 85 days and 65 days respectively in each calendar year, held that the employee was not eligible for re-appointment and accordingly by setting the order of the learned single Judge dated 16.3.2006 in W.P.No.5797/2002, where under, the respondents were directed to consider the case of the employee for re- appointment who does not fulfill the 190 required musters in an year, allowed the writ appeal. With these averments, he sought to dismiss the writ petition. 7. In view of the above rival contentions, the only point that arises for consideration is whether the petitioner fulfilled the required conditions as stipulated under the settlement dated 21.2.2000 arrived at between the management of the respondent - company and the recognized unions? 8. Before proceeding further, it is necessary to note the item no.26 of the settlement dated 21.2.2000 arrived at between the management of Singareni Collieries Company Limited and their workmen represented by recognized S. C. Workers Union, as under: “Item No.26: Review of the case of workmen dismissed on absenteeism for their re- appointment (Demand No.38). The Union has stated that some of the workmen whose attendance was relatively better in the previous years were dismissed that such cases should be considered for reinstatement, to avoid hardship to such workmen and their families. The management has stated that disciplinary action was taken against the chronic/long absentees in accordance with the procedure laid down in the Company’s Standing Orders. In view of the persistent request made by the union it is hereby agreed that a High Power Committee headed by Director (PA&W) will examine the cases of workmen dismissed on account of absenteeism during the period from 01.01.1997 to 31.12.1999. Such of those dismissed workmen who deserve favaurable consideration on merits and recommended by the committee will be appointed as Badili fillers for a period of one year on a trial basis. If the workmen on such re-employment do not put in satisfactory attendance of 190 actual muster in a year (trial period) their services would stand terminated at the end of the year without any notice” 9 . The parameters devised by the High Power Committee, constituted by the Management for considering the cases of the workers for re-employment, as per the above settlement dated 21.2.2000 is as under: a. An employee who is aged below 55 years as on 21.2.2000 and put in 190/240 musters (UG/Surface) in 2 calendar years or 150/200 musters (UG/Surface) in 4 calendar years during the period of 5 years preceding the year of dismissal will be treated as qualified for selection. b. An employee who has not fulfilled the above criteria was treated as not qualified for selection. 10. From a reading of the above extracted portion of the settlement dated 21.2.2000, it could be seen that the employees who were dismissed on account of absenteeism during the period from 1.1.1997 to 31.12.1999 and who have relatively better attendance in the previous years, were contemplated to be considered for re-instatement in order to avoid hardship to such employees. The High Power Committee constituted by the management pursuant to the settlement, devised certain criteria for consideration of such employees for re-appointment. As per the said parameters, an employee, who was dismissed between 1.1.1997 to 31.12.1999 on account of absenteeism, shall be below fifty five years as on 21.2.2000 and shall have put in 190/240 musters (UG/Surface) in two calendar years or 150/200 musters (UG/Surface) in four calendar years during the period of five years preceding the year of dismissal and if he does not fulfill the said criteria, he will not considered for re-appointment. 11. In the present case, there is no dispute that the petitioner herein was dismissed on account of absenteeism on 17.4.1998 and he thus falls within the period of 1.1.1997 to 31.12.1999 prescribed in the settlement and that there is also no dispute that he is below the age of 55 years as on 21.2.2000. 12. The main dispute is with regard to the calculation of the muster years. The petitioner is an employee who works on the surface and, therefore, as per the above parameters stipulated by the High Power Committee, he shall possess 240 musters in two calendar years or 200 musters in four calendar years during the period of five years preceding the year of dismissal. The number of musters put in by the petitioner is stated in the counter affidavit, which was not disputed by the petitioner, was extracted at paragraph no. 4 while narrating the averments made in the counter affidavit. 13. Here the contention of the counsel for the respondent – company is that the petitioner shall possess 240 musters in each year in two calendar years or 200 musters in each year in four calendar years during the period of five years preceding the year of dismissal. 14. A plain reading of the above extracted parameters, devised by the High Power Committee, for considering the case of the petitioner for re-appointment, who was dismissed from service on account of absenteeism is that, he shall possess 240 musters in two calendar years or 200 musters in four calendar years during the period of five years preceding the year of dismissal. It is not specifically mentioned that the employee shall possess ‘240 musters per year ‘in two calendar years or ‘200 musters per year’ in four calendar years during the period of five years preceding the year of dismissal. As already noted above, the object of settlement arrived at between the management and the recognized workers union is that in order to avoid hardship to the workmen who were dismissed from service on account of absenteeism, but whose attendance was relatively better in the previous years. Further as stated in the counter affidavit, the duties under taken by the workmen in the respondent – company are hazardous in nature and, therefore, leniency was shown to such workmen who committed such misconduct and to refrain them from committing again, the above scheme was evolved. Reading words, into the settlement arrived at, which are not beneficial to the employees and which is opposed to the object of the settlement arrived at between the workmen and employers, would frustrate the very settlement itself. Therefore, the contention of the learned standing counsel for the respondent that the dismissed workmen shall put in 240 musters in each years for two calendar years or 200 musters in each year in four calendar years during the period of five years preceding the year of dismissal, for consideration of his case for re-appointment, cannot be countenanced and the said contention is rejected. 15. A reading of the facts in the judgment of the Division Bench of this court, relied on by the learned counsel for the respondent – company, would reveal that at one stage the Division Bench noted that “a careful reading of the order under challenge shows that counsel appearing for the parties as also the learned Single Judge proceeded on the premise that completion of 190 musters in a calendar year was a condition precedent for consideration of candidature of dismissed employees for the purpose of re-appointment.” From this statement, it can be inferred that Their Lordship have taken exception to the said understanding. Their Lordships further noted as under: “. . In the opinion of the learned single Judge, when the company had considered the candidature of two other employees namely one Kishan and Banoth chandulal even though they had not completed 190 musters in a calendar year, there could no justification, legal or otherwise to deny similar treatment to the writ petitioner. The learned single Judge noted that the candidature of other two workmen appear to have been considered by the management of company on the recommendations made by National Commission for Scheduled Castes and Scheduled Tribes and observed that this extraneous factor was not sufficient to deny similar treatment to the respondent. In our opinion, the reason assigned by the learned single Judge for entertaining the respondent’s prayer for reconsideration of his case for reappointment is legally untenable and the order under challenge is liable to be set aside.” 16. The Division Bench further considering the facts on record, held as under: “It is not in dispute that in furtherance of the settlement arrived at between the management of the company and the workers union, the former constituted High Power Committee headed by the Director (PA & W). The said Committee evolved criteria to consider the candidature of only those who had completed five years service and worked for 150/200 musters in the preceding four calendar years. The respondent had served the company for a period of three years and one month. In the first year, he worked for only 12 days. In the next three calendar years, he worked for 89 days, 85 days and 65 days respectively. It is thus clear that in none of the three calendar years preceding his dismissal from service, the respondent had worked for a period of even three months. Therefore, he was clearly ineligible to be considered for re-appointment and the High Power Committee did not commit any illegality by not recommending the respondent’s name for re-appointment.” 17. From the above extracted portion of the judgment, it could be seen that the petitioner therein had put in only three years and one month service and he has not fulfilled the criteria of completing the five years service and in those three years one month of service, he worked for only 12 days in first year, 89 days in second year, 85 days and 65 days respectively in subsequent years and thus he did not work even for a period of three months in an year. 18. Coming to the facts of the present case, the petitioner appointed as General Mazdoor in Category-I on 1.1.1985 and subsequently after being appointed to different posts and on completion of probationary periods, finally appointed as Dumpmen on 1.7.1989 and his services were confirmed with effect from 1.10.1989 and his services were terminated with effect from 17.4.1998 i.e., on account of absenteeism. Thus, in all, the petitioner has put in about thirteen years of service before he was terminated from service and whereas in the case of the Division Bench, the workman had put in only three years and one month of service. Therefore, the facts in the case before the Division Bench and in the present case are quite different. 19. As per the particulars given in counter affidavit, which is not disputed by the petitioner, the petitioner has put in 152 musters in the year 1993, 185 musters in the year 1994, 121 musters in 1995, 11 musters in 1996 and he did not put up any musters in the year 1997. As per the parameters prescribed by the High Power Committee, an employee like the petitioner who works on surface has to put in 240 musters in two calendar years or 200 musters in four calendar years during the period of five years preceding the year of dismissal. The petitioner was dismissed with effect from 17.4.1998. From a calculation of the musters put in by the petitioner, the same are fully satisfying the conditions stipulated by the High Power Committee. As the calculation of musters is not specifically made year wise as per the above guidelines prescribed by the High Power Committee, the respondents are not justified in denying the benefit of the settlement to the petitioner. The issue framed above, in answered in the affirmative. 20. For the foregoing reasons, the action of the respondents is not considering the case of the petitioner for re-appointment as Badli Filler, who was dismissed from service on 17.4.1998 and who was interviewed on 18.10.2000 as per the settlement arrived at between the workmen and the management dated 21.2.2000, in spite of his fulfilling the criteria prescribed by the High Power Committee, is arbitrary and illegal. 21. Hence, the respondents shall consider the case of the petitioner for re- appointment as Badli Filler and pass appropriate orders within a period of two months from the date of receipt of a copy of this order. 22. In the circumstances of the case, there shall be no order as to costs. AVS --------------------------------- 14 --08—2008 Note:L.R. copy to be marked. B/O