^Y^ IN THE HIGH COURT OF CHHATTISGAR AT BILASPUR WRITPETITION^ No. ^eS^-/2005 .-" Petrtioner / Kaladhar S\o Gopal Nair Aged about 50 years North Chirimiri Colliery Gelhapani, Dist: Korea. Respondents Versus (p / l^ .^. .<^^ .^y .v^\v'-/' '/•"'^•''^y ^ ^' ^"> 4) ^yy ^•>'v :."• (^) <?'.' A«'Ia ^' South Eastem CoalfieldLimited Through its Chainnan-cum- Managing Director Seepat Road, Bilaspur (CG) - 495 006 ChiefGeneral Manager S.E.C.L. Chirimiri Area P.0. West Chu-imiri Colliery Dist.Koria-(CG) Sub Area Manager, North Chmmiri Colliery, SECL Post: Gelhapani Chirimiri Area Dist: Korea ./' Writ Petjtion under^Article 226 ofthe Constitution oflndia K i -. S: [ -<•s^% 1 ,^^^ '^^ '£w-^<y o A^ H1GH COURT OF CHHATTISGARH : BILASPUR PETITIONER RESPONDENTS WRIT PETITION N0.2884 OF 2005 Kaladhar Versus South Eastern Coalfield Limited & Others Post for pronouncement of the orders on the _^^day of February, 2011 Sd/- Satish K. Agnihotri Judge HIGH COURT OF CHHATTISGARH : BILASPUR WRIT PETITION N0.2884 OF 2005 PETITIONER RESPONDENTS Kaladhar Versus South Eastern Coalfield Limited & Others (Writ petitions under Article 226 of the Constitution of India) Single Bench : Hon'ble Shri Satish K. Agnihotri, J. Present:- Shri Gary Mukhopadhyay, Advocate for the petitioner, Shri H.B. Agrawal, Sr. Advocate with Ms Meera Jaiswal, Advocate for the respondents. (Delivered on this -K.'day of February, 2011) The petitioner, by this petition, seeks quashing of the termination order dated 4-6-1997 (Annexure - P/9), further quashing of the settfement dated 5-2-1998 (Annexure - P/10), direction to treat the petitioner in continuous employment as electrical fitter, payment of the IOD for the period from January, 1991 to January, 1992 with interest, his pay protection as well as consideration of his candidature for promotion to the higher posts. The facts, in nutshell, as projected by the petitioner, for adjudication of the case, are that in the year 1977 the petitioner was appointed on the post of Category I Mazdoor in the respondent SECL. After passing the statutory Electrical Wiremanship Certificate Examination, the petitioner was promoted to the post of Electrician Category IV. On 1-10-1990 when the petitioner was working underground, he met with an accident and as a result of which he sustained injuries. Thereafter, the petitioner was taken to regional hospital, Kurasia Coiliery, where after putting -^. plaster on the right leg, the petitioner was discharged vtmm-^the hospital and advised to report after six weeks. When the petitioner reported in the hospital after six weeks, the doctors found that the knee of the petitioner was not properly bending and the petitioner was referred to Indore Medical College with an advance of ? 2,000/-. In the said Medical College after obtaining the biopsy report, the doctors advised the petitioner to arrange an' amount of ? 30,000/- for operation of his right knee. According to the petitioner, on account of poverty and non-availability of the attendant for a period of six months, he left Indore and went to his native State i.e. Kerala for his further treatment at Trivendrum. The said fact was informed to the respondent No.3. The petitioner availed the treatment from 31-1-1991 to 31-10-1991 at Trivendrum, as is evident from Annexure - P/1. Thereafter, the petitioner joined his duties, but the petitioner was not paid single paisa by the respondent authorities and even the petitioner was not referred to Medical Board for assessment of the compensation in spite of the fact that petitioner's leg was shortened and the knee became stiff due to the accident. The Workers' Union approached the respondent authorities on behalf of the petitioner, thereon, the Personnel Manager of the SECL, directed the petitioner to appear before the Chief Medioal Officer on 2-4-1997, vide letter dated 27-3-1997 (Annexure - P/5). The petitioner appeared before the Chief Medical Officer, but he refused to assess the PPD and advised to refer the petitioner to the Apex Medical Board at Head Quarter of the respondent/Coalfield. Thereafter, by letter dated 30-4-1997 (Annexure - P/6) the petitioner was directed to appear before the Medical Board -at SECL, Bilaspur, on 3-5-1997. The Medical Board vide Annexure - P/7 dated 3-5-1997 referred the petitioner to Medical College Hospital Trivendrum (Kerala) for further check up and treatment where the doctors after treating the petitioner certified that the "his knee is well found now and he is fit for work', as is evident from Annexure - P/8 dated 6-6-1 997. 5. Consequent thereupon, the petitioner reported to the respondent No.3 forjoining of his duties, he was not allowed tojoin duty on the ground that the petitioner was medically unfit as advised by the Apex Medical Board on 3-5-1997 and handed over the termination order dated 4-6-1997 (Annexure - P/9) to the petitioner, in spite of the fact that the Apex Medical Board itself referred the petitioner to Medical College Hospital, Trivendrum, where the doctors certified that the petitioner was fit for work. However, when the petitioner was facing starvation with his children, he was forced to sign a settlement (Annexure - P/10) and accepted the Job of category l Mazdoor, though he was originally holding the post of Electrical Fitter Category IV. Thereafter, a fresh appointment order dated 13-2-1998 (Annexure - P/11) was issued in favour ofthe petitioner for the post of Category 1 Mazdoor. The respondents ought to have protected the wages of the petitioner, which the petitioner was drawing as Electrical Fitter Category IV before termination, but the same has not been done. However, subsequently the respondents agreed to protect the pay of the petitioner in its »? fj ;..^ meeting dated 11-12-1999 (Annexure - P/12), but the same has not been implemented. Thus, this petition. 6. Shri Mukhopadhyay, learned counsel appearing for the petitioner, would submit that the impugned action of the respondent authorities is illegal, arbitrary and unconstitution.al. The impugned order of termination is in clear violation of the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short "the Act, 1995"). Shri Mukhopadhyay would further submit that in fact on 3-5-1997 the Apex Medical Board, Bilaspur, referred the petitioner to Trivendrum Medical College for further treatment without forming the opinion. However, the impugned termination order was passed on the ground that the Apex Medical Board declared the petitioner unfit on 3-5-1997, which is not at all sustainable in the eye of law. The impugned termination order was passed behind the back of the petitioner. On the said date i.e. 3-5-1997 nothing has been discussed by the Apex Medical Board, Bilaspur, about the fitness/unfitness of the petitioner. The respondents have not at all appreciated the certificate issued by the doctors of Medical College, Trivendrum, where they declared the petitionerjit for work. 7. Shri Mukhopadhyay would also submit that as per the provisions of Section 47 of the Act, 1995 the petitioner could not have been terminated from the service nor had he been reduced in rank. The respondents ought to have shifted the petitioner to some post and his pay should have been protected. The petitioner was forced to put his signature on the settlement and on the basis of which the ^ ;^g^'" petitioner was appointed on the post of category 1 Mazdoor. The respondents issued the letter dated 11-12-1999 (Annexure - P/12) for pay protection, but the same has not been implemented till date. On account of inaction on the part of the respondent authorities the petitioner is facing acute financial hardship. Even the medical expenses incurred by the petitioner have also not been paid to the petitioner, in spite of the fact that the petitioner met with an accident while discharging the duties. 8. On the other hand, Shri Agrawal, learned senior counsel appearing with Ms. Meera Jaiswal, learned counsel for the respondents, would submit that the settlement cannot be challenged in a writ petition in view ofthe terms & conditions mentioned in para 4 ofthe settlement. Looking to the medical unfitness, the petitioner has been given lighter job so as to provide employmenf and earn livelihood, which he has accepted without raising any objection at that juncture. Even otherwise, the cause of action arose in the year 1999 whereas the petitioner preferred the instant writ petition in the year 2005 without explaining the delay by giving sufficient and cogent reasons, therefore, the petition may be dismissed on the ground ofdelay and laches. 9. Shri Agrawal would further submit that after appointment of the petitioner on the post of Category 1 Mazdoor, the petitioner was promoted to the post of Gaplamp Cleaning Mazdoor Category II w.e.f. 15-7-2002 (Annexure - R/3). There is no violation of any statutory provisions as alleged by the petitioner in arriving the settlement. If the petitioner is aggrieved by the settlement, the Central Government Industrial Tribunal-cum-Labour Court, -i'-'., ./ n ^ Jabalapur has the appropriate jurisdiction to settle the issb^_J ^' petitioner without approaching the appropriate forum preferred the instant writ petition. Thus, the petitioner is not entitled to any relief and the petition deserves to be dismissed. 10. I have heard learned counsel appearing for the parties, perused the pleadingsand the documents appended thereto. 11. The facts, as admitted, are that the petitioner while working as Electrician Category IV met with an accident. Thereafter, he had undergone treatment at various places. The Apex Medica] Board vide its advise dated 3-5-1997 (Annexure - P/7) referred the petitioner to Medical College, Trivendrum (Kerala) for further check up and treatment. 12. The referral advise dated 3-5-1997 reads as under: 'TdrcboHI fcPTFT ^Tresr f^-t chld^c^'H T^3ft. ^itTO 7FS, 1Tt.sff. Tt. 60 Rpll';-!^ 495006 ^r aTT^T 5P. ^'1-l^^icl ^lli'H'fl: 'gf^ISt : 92/129 R'1 3.5.97 ^3T- 'cST ''TH ^ft cfjmm^, ^iNrft ^r ^NET ;- iTitn/ftriT/^r/TTT'ft/^/^t ??? cb4'c<i'?r 'cpr •TFT. toT/qfrT 'cfiT ''TPT................................... 4<-1I^ ^O Vffe? fSm^/' Tnsf Ri'iftfl SR /Si//^ti? TFT.^.gn^.i^X............................Tt^T.. ^ 1W^ %" ^S} ^fscpcl ^fc^uf Rl^l Rfcb^lcl^ ^ RPTPT TT 1?c|? ^R'cll'ich (?TH :¥^cf?cT 3T^--ie) c^ ^ST RRb'^91 ^ SI-^I 'SRM RCTT ^DrfT t ^ERT fSlRh^HI t^ WTir 2000=00 <^\ '^TN WTEt) ^f , RlRi(+|ct?|^| giftTtf EFRlf^T 'tcfl^ ?l?t 'uTTtft 11 ^ft ul-l^id ^ Tf t[tft ^T ^T^ tl .<t..T..?HL<IM lir *:.'^ ^RT ST-TTT^T 3TTt?T cte-T ^fRT f^rff •c^ f$(^ gTTT^r cTSTT ^ cTR ^f ?TT3T ?f5t -un ^Td5tft 11 'OT^N ^t ?ftert ^ sfK 31^ ^f ^ fSlfcboH* ^r 'tT^PT^I Wq^ ^ ^STT ^nTT f^fT 'c^ ST^? RlfcboH^'4 HSTT ZTrar »InTT fitcT TRItT 'cp^-TT 3TT?WEI? 11 'qT^T l^TT 'cT ST-^T f^pT 'cpT ipRTT-T RRi^l pl^'HlclcT] ^ SI^TN '^T ?tTTT sft? Pl-y^l-j.'HI'; ^q ^T'TT 1 '•S^RT U-WW ^\V/yw\v\'-l '<^f> ^ft/ ^TPft/ 3TN 30/17-4-97 ^ 3FTHN t, ^ET ^{8^ 3Tf6R?Tft STCT 3<'J,4H]Rd 11 ^t/- 'g®rRif^b^-ii sriSTEprft ^;^4^"^'?i, Rcti'i-iy yfafcif1):- 2. sNUr 'to' ffsreTEp 3. W^fsttT oyfch^, 4. 3TTC y?I Rifc^l te^t/Rifcb^i 5. 'qTR7 4>l4<7f f/^r g®r Riftb^i 13. After examination of the petitioner, the Medical College, Trivendrum (Kerala) certified that his knee is well found now and he is fit for work on 6-6-1997 (Annexure - P/8). 14. In the advise dated 3-5-1997, there was no recommendation or advise that the petitioner was not found fit for work, however, the services of the petitioner was terminated vide order dated 4-6-1 997 (Annexure - P/9) on the ground that the Medical Board on 3-5-1997 had declared the petitioner as unfit for service. No document has been produced by the respondents to indicate that at any stage either in the notings or in any documents the petitioner was declared as unfit by the Medical Board on 3-5-1997r Thus, the ?A 'S •y/ basis for termination of the services of the petitioner is cor the facts and records. 15. It appears that the petitioner did not take any action to challenge the termination order, but representations were made before the authorities. A settlementwas reached between the parties on 5-2- 1998 (Annexure - P/10) and thereafter, he was granted re-employment on the post of category - 1 Mazdoor on the following terms and conditions : "4. TERMS & CONDITIONS i) The management agrees to provide him employment as Category-1 Mazdoor in the Category-1 Scale of pay of NCJA-V with initial basic of Category-1. ii) The workman agrees not to claim any benefit under clause9.4.0 of NCJA-V. iii) The workman agrees not to claim any back wages for the period he remained idle due to his unfitness for employment. iv) The workman agrees not to make any claim or raise any dispute related to this " matter what-so-ever through any Forum or before any Authority. v) This is the full and final settlement on the matter." 16. The petitioner did not challenge even the setttement immediately. After a period of about six years, the petitioner has filed the instant writ petition before this Court on 16-6-2005 chaltenging the termination order, settlement and seeking for several reliefs as aforestated. 17. The petitioner seeks reliefs in view of the provisions of the Act, 1995. Section 47 of the Act, 1995 provides for non-discrimination in Government employment on account of disability during his service wherein it is clearly provided that the service's employee shall not be dispensed with, or reduce in-rank, who •V acquires disability during his service. If an employee after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits. It was further provided in proviso to sub-section (1) of Section 47 that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or, he attained the age of superannuation, whichever is earlier. Sub-section (2) of Section 47 of the Act, 1995 •» deals with promotion. 18. Section 47 ofthe Act, 1995 reads as under: "47. Non-discrimination in Government employment.— (1) No establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service : Proyided that, if an employee, after acquiring disability is not su[table fdr the ppst he was Fiolding, cbuld be shifted to some dther post with the" same pay scale and service benefits: Proyided further that if it is not possible ' to adjust the employee against any post, he » may be kept pn a supernumerary p'ost until a syifable po'st is available or he aftains the age of superannuation, whichever is earlier. (2) No promotion shall be denied to a person'rrierelybn the ground of his disability: Provided that the appropriate Goyernment may, having regard tp the type of work carried pn in any establishmenf, by -" notification and subject t'p such condjtions, Ff any, as may be specified in such notification, exempt any' establishment from the provisions ofthis sectfon." 19. Bare perusal of the provisions makes it clear that if an employee after acquiring disability is not suitable for the post he could be -<*• shifted to some other post with the same pay scale and service 10 benefits. It is not the case of the respondents that the provisions of the Act, 1995 are not applicable to the employees of the respondent/Coalfield. Even otherwise, the respondent/Coalfield is a 'State' under the provisions of Article 12 of the Constitution of India. Thus, the above-stated benefidary legislation is applicable in the case of the petitioner also. 20. It is not disputed that the petitioner has acquired disability during the service period. Thus, if he was not found fit to work*in underground mines as Electrician Category IV, it was incumbent upon the respondent authorities to protect the pay of the petitioner and other service benefits what he was having before acquiring disability during his service. 21. The aforesaid view is fortified by the Supreme Court in Kunal Singh v. Union of India and Another, wherein the facts of the case was that the employee was a constable in the Special Servi.ee Bureau. When he was on duty, he suffered an injury in his left leg whichled to amputation of his leg. He was declared as permanently incapacitated for service and thereafter, his service was terminated. In the facts of the above-stated case, the Supreme court held as under: "12. .....Once it is held that the appellant has acquired disability during his service and if found not suitable for the post he was holding, he could be shifted to some other post with same pay scale and service benefits; if it was not possible to adjust him against any post, he could be kept on a supernumerary post until a suitable post was available or he attains the age of superannuation, whichever is earlier. It 1 (2003) 4 SCC 524 y».}y#,mf»^if ^i:' ^i 1 «E ^..- ^j> !^'-iS:, 11 appears no such efforts were made by the respondents. They have proceeded to hold that he was permanently incapacitated to continue in service without considering the effect of other provisions of Section 47 ofthe Act." 22. Reliance of the petitioner upon the decision of the Supreme Court in Union of Indiav. Sanjay Kumar Jain , is not applicable to the facts of the present case, as in that case the respondent was denied promotion on the ground of disability. 23. So far as the contention of the respondents with regard to delay and laches is concerned, the petition cannot be dismissed on merit on the ground of delay and laches alone, as there is a continuing cause of action, as the petitioner was denied the pay scale and other service benefits from the date, he was terminated from service on unsubstantiated ground and thereafter, re-appointed as category I Mazdoor on account of the settlement, the claim of the petitioner cannot be defeated on this count. Thus, the'contention •V of Shri Agrawal, learned senior counsel appearing for the respondents, is rejected. It is also not the case of the respondents that any third party rights have been created in the inten/ening period from the date of termination till filing of the writ petition in this Court. 24. In respect of delay and laches and on the question of pay protection the Supreme Court in M.R. Gupta v. Union of India and Others held that the pay fixation was not in accordance with the rules, was the assertion of a continuing wrong against him which 2 (2004) 6 SCC 708 3AIR1996SC669 12 •^ ^.ti3£'1 "'':; y5^! 25. 26. 27. gave rise to a recurring cause of action each time he vifas-paid a salary which was not computed in accordance with the rules. The Supreme Court in Basanti Prasad v. Chairman, Bihar School Examination Board and Others , observed as under "22. We do not think it necessary to burden this judgment with reference to various decisions of this Court, where it has been emphasised time and again, that, where there is inordinate and unexplained delay and third-party rights are created in the intervening period, the High Court would decline to interfere. However, if the delay is properly explained, and if the third-party rights are not going to be affected, the High Court may entertain the petition and consider the case of the aggrieved person on merits." From perusal of the recbrd, it appears that the respondent authorities have also by order dated 11-12-1999 (Annexure-P/12) directed to protect the pay of the petitioner, which according to the petitioner was never acted upon and the petitioner was denied tRe benefit. There are certain clauses in settlement. All the terms and conditions of the settlement are contrary to the provisions of the Act, 1995 and public policy. By settlement, the petitioner could not have been forced to accept the conditions, which were against the public policy and contrary to the provisions of law. In Advanced Law Lexicon (3 Edition) the word 'public policy' described as under: "Public policy does not admit of definition, and is not easily explained; it is a variable quantity, which must vary and does vary, with the habits, capacities, and oppori:unities of' the public (per KEKEWICH, J. Davies v (2009)6 SCC 791 n>aw"'^ ^^ ".9 ^ 13 28. Davies, 1887, 36 Ch. D, at p. 364); but there are certain classes of contracts which have been dealt with by the Courts as opposed to Public Policy. Sir WILLIAM ANSON enumerates these classes as follows - (1) Agreements tending to injure the public service; (2) agreements which injure the State in its relation with other States; (3) agreements which tend to prevent the course of justice; (4) agreements which tend to abuse of legal process; (5) agreements, which affect the freedom of security of marriage; (6) agreement in restraint of trade; and (7) agreements which in resfraint of marriage etc. (Ency. of the Laws of England)." In Black's Law Dictionary (Eighth Edition) the word 'public policy' described as under: 29. "Public policy. 1. Broadly, princjples and standards regarded by the legislature or by the courts as being of fundamental concern to the state and the whole of society. Courts sometimes use the term to justify their decisions, as when declaring a contract void because it is "contrary to public policy". The Supreme Court in I.T.C. Bhadrachalam Paperlmards and Anofherv. Mandal Revenue Officer, A.P. and Others , observed as under: "30. .....It is submitted that by allowing the Government to go back on such representation, the appellant will be prejudiced. The learned counsel also contended that where the Government makes a representation, acting within the scope of its ostensible authority, and if another person acts upon such representation, the Government must be held to be bound by such representation and that any defect in procedure or irregularity can be waived so as to render valid which would otherwise be invalid. The counsel further submitted, that altowing the Government to go back upon its promise contained in GOMs (1996) 6 SCC 634 ~-s-\' •:.. Vf y' "fi? .^' 14 No. 201 would virtually amount to allowing it to commit a legal fraud. For a proper appreciation of this contention, it is necessary to keep in mind the distinction between an administrative act and an act done under a statute. If the statute requires that a particular act should be done in a particular manner and if it is found, as we have found hereinbefore, that the act done by the Government is invalid and ineffective for non-compliance with the mandatory requirements of law, it would be rather curious if it is held that notwithstanding such non-compliance, it yet constitutes a 'promise' or a 'representation' for the purpose of invoking the rule of promissory / equitable estoppel. Accepting such a plea would amount to nullifying the mandatory requirements of law besides providing a licence to the Government or other body to act ignoring the binding provisions of law. Such a course would render the mandatory provisions of the enactment meaningless and superfluous. Where the field is occupied by an enactment, the executive has to act in accordance therewith, particularly where the provisions are mandatory in nature. There is no room for any administratiye action or for doing the thing ordained by the statute otherwise than in accordance therewith. Where, of course, the matter is not governed by a law made by a competent legislature, the executive can act in its executive capacity since the executive power of the State extends to matters with respect to which the legislature of a State has the power to make laws (Article 162 of the Constitution). The proposition urged by the learned counsel for the appellant falls foul of our constitutional scheme and public interest. It would virtually mean that the rule of promissory estoppel can be pleaded to'defeat the provisions of law whereas the said rule, it is well settled, is not available against a statutory provision. The sanctity of law and the sanctity of the mandatory requirement of the law cannot ' be allowed to be defeated by resort to rules of estoppel. None of the decisions cited by the learned counsel say that where an act is done in violation of a mandatory provision of a statute, such act can still be made a foundation fpr invoking the rule of promissory/equitable estoppel. Moreover, when the Government acts outside its authority, as in this case, it is difficult to