^ ^:^ (^ IN THE HIGH COURT OF JUDICATURE CHHATTISGARH AT BILASPUR W.P.NO. l"? 2-3 / 2004 Petitioner Respondents Madhav Prasad S/o Late Jwala Prasad, Aged about 57 years, R/o Qr.No. l/C-32, 1 Near Post of&ce Bishrampur, Dist : Sm-guja-(C.G.) Versus 1. 2. 3.. Coal Lidia Ltd., Through Chairman, 10, Netaji Subhash Road, Kolkatta Chairmaii Cum Maaagmg Director, Soufh Eastem Coalfields Ltd., Seepat Road, BUaspm--(C.G.) ..*• Personal M[aiiager, Kumda Sub Ai'ea, Bishrampur Area, Dist: Surguja - (C.G.) (^V^ ..^VC'^ Union of hidia Through Secretaiy ^'^'n ^.'oA Ministiy of Coal, Shastii Bhawan, New . ^>'^<^^''\ Dellii. ^•yy ^^:^" •"" ~^"^ "" .\ "• 5. The Director Mimstiy of Coal, Govemment of India, Shastri Bhawan, New Delhi. WRIT PETITION UNDER ARTICLE^226/227 OF THE CONSTITUTION OF INDIA HIGH COURT OFCHHATTISGARH :BILASPUR WRIT PETITION N0.1723/04 MADHAVPRASAD Vs. • 1 . COAL INDIA LIMITED & OTHERS Shri Ravish Agrawal, Sr.Advocate wifh Shri P,Diwaikar, Advocate for fhe petitioner. | Shri P.S.Koshy with Shri Abhishek Sinha, Advocates, for respondents l^ 2 & 3. OXDER- ":'! By this petition underArfcicle 226/227 of the Constitation of India, fhe petitioner lias challenged ftie unpugned notice dated 26/06/2003 passed by respondentNo. 3, whereby he has beeu directed fhat as he has coinpleted 42 years of selvice, he would be superaiuiuated on retirenient witfa effect froni 31/12/2004. 2. It is stated fhat the petitioner joiaed his services on 19/12/ 1962. His date of birtli as per the service record Annexiire-P/1 is 01/07/1947. It is contended fhat fh.e petitlorier was appouited as adolescent in surface of Kuinda sub area as category-I labour. Presentiy/he is workiag as Senior Loadiag Inspector of Kurada sub area. It is further contended that he wiU coiaplete the age of60years on 30/06/2007 and as such he is entitied to contmue tffl 30/06/2007. It is also eontended fhat as per Sectk>n 2(1) (a) offh.e Miaes Act, 1952, "adolesceut' aieaiis a person who has conipleted |his 15th year but has not^completed his 18th year. The pay slip ofMay 2003 has been filed as Annexure P/3, wherenr fhe date ofbirthoftihLe pdtitk?:aer is recorded as 01/07/ 1947 and fhere is ho dispute about this. It is contended that so far as adolescent is conceraed, this provisionl of | einpk>ynient was deleted wrth efiectfioui 31/05/ 1984 aiid pnor to jit, it was a pi^ctice to enrptoy adolescent, It is pointed out that Sectioii 40 of fhe Mnies Act -iptl" ^: has beeu amended aad it is aiter flie amendment the position is fhat now no person below 18th years of age can beaUowed to work iii any iniae or part fhereof. 3, Counsel for fhe petitioner contended tliat Annexure-P/5 dated l/2{1999 caanot over ride the relevant provisions. The laeino Armexure-P/5 nierely stated that sonie cases jhave come to the kuowledge that persons are renderiiig service inore Uiaa 42 and 45 years, This inatter inay be looked iato by ttie Couipaay aiid considered. It does not lay down as a inle, It is for fhe CoBipany to look into fhe inatter, uiquire iato it aiid take such action. Merely on fhe basis of the said letter, fhe petitioner cannot be rctired when undisputedly his date of l3irth is 1/7/1947. Counsel further referred to the circular AnD.exure-P/6 dated 13/2/1999 aiid also referred to notice dated 26/6/2003 issued by respondeut no.3 aad contended fhat the notice is illegal aad ia contravention of law. 4. Counsel for the petitioner contended fhat immediately on receipt of notice dated 26/6/2003 the petitioner submitted the reply on 15/7/2003, which is filed as Annexure-P/8. It was specifically stated fhat he has not completed fhe age of60years, If was also contended fhat tiiere are cases where fhe workiaen have been in eniploynient of SECL for about even raore fbiaa 42 years aiid &€ Conipaiiy has accepted this position in cases of Chandrika Prasad, Shot Firer aiid Jaoiuna Prasad/ Foreinan In-charge of Hasdeo area, The said representatioii was forwarded by the Deputy Chief Personnel Maiiager to the Chief General Maaager on 18/08/2003. On 23/08/2003, a nieetmg had taken place between fhe office bearers and the represeutatives offhe Maiiagenient. Itein no.7 rclated to consideration of the withdrawal of tlie notice of retirement iu respect of Madhav —-^ ^ Prasad, the petitioner, working ia Vishrainpur Area, This is contauied in docuinent Annexure-P/10. It is contended fhat fh^reafter/ npfhin.g was done aiid fhe representation was not decided, j 5. Counsel for respondents 1 to 3 opposed aGLd contended thaf fhe petitioiier is a worknian under fhe defmition of fhe Industrial Disputes Act and the respondents no,l to 3 faU wifhia the definitk)u of aa iD^dustiy under fhe said Act and as such aiiy dispute pertamiag to fhe service coiiditions between aa einployer arid aa einployee is considered fo be aa iadustrial dispute, It is also contendedj fhat even ofhen/vise dispirted questions of facts aad laws have been itaised in fhe petition which could be adjudicated upon only after appreciation of evidence which could not be possible whUe heanag a petition under Aiticle 226/227 of the Constitation of Indiia. It is alsa coutended fhat fhe petition has been filed belatedly. Counsel stx'enuoiisly urged aiid referrcd to Section 40 of the Muies Act to the efiect that ao person shall be aUowed to work ia aisy part of a Biiae which is jbelow groumd unless he has coiiipleted his 16th years, It is contended thjat the inatter is such ^vdiich niay be referred to fhe age determination coniinittee, 6, Counsel fbr the petitioner on fhe other haiid contended fhat the I- ' '^ ^ questiou mivolved ia this petit^ as fo wfaefUer a person can be retired just on the iiiemo Annexure-P/5 aiM the da^ is not disputed. j 7. Perusal of fhe record shows fhat this petition was filed on 23/06/2004. Notices were issued to fhe respondents 6n 7/7/2004. The respondents did not file fhe retuni. The itiatte|r was nientioned and* it was only todayon 24/12/2004 fhe retani has b^en Ifiledi 011 behalf of respoudeiits No, 1 to 3, The coBJbeiition regardiiig djelay in filittg the petitk)n is devoid of merit and liable to be dismissed. i Thiis coritentioii ^ has uo force, The delay has occurred on behalfofthLe respondents iii not considering fhe representation dated 15/7/2003 aad ftuther not filing fhe retura till 23/ 12/2004. So far as disputed questions are conceraed, the dateofbirthoffhepetitioneras 1/7/1947 hasnotbeen disputed. It is borae out froni fhie service record Annexure-P/1 and tlie pay slrp of May, 2003 Annexure-P/3, So far as existence of aa alteniative reiaedy is conceraed, it is not aa absolute bar to the reMef iinder Article 226 of fhe Constitution of In.dia. It is acircuinstaiice, which the Court has to take into consideratk)jn. in exercisiag its discretionary power under Article 226. It does not take away fhe jurisdiction of the Court to grant relief under Aiticle 226. The law is well settled. The Hon. Apex Court in the cases of Uni^n ^fihdia i?s» Wcrmn^T^ reported m 19S8 SCR 499 & SIuMeipal C^undl ^s, Kctfnal Kunu&r reported in ASR 1965 SC 1321 has held so. The Hon. i . . : • • - ' .. Apex Court also in the case of Harbcsnslal Se^hnia and another VB^ Xndimt (Hl Corporatioii Limitcd and others reported m (2003^2^S^ 107 has held as under: "The rule of exclusion of writ jurisdiction by availahility of an alteiriatwe remedy is a rule qf discretion and not one of compulsion. In an appropriate ca.se, in spite of availability of the aUemative remedy, the High Court may still exerdse its writ jiirisdiction in at least tfrree contingendes; fi) where the writ petition seeks enforce^nent of any of the fundamental rights; fii) where ffwre is faihire of principles of natural justice; or fiii) where the orders or proceedings are wholly imthout jurisdiction or the vires of anAct is challenged. " 8. The Hon. Apex Court also ia the case of ^ABL Interncational Limlted ajr&d wiQthcr ys< J&cport Credit Quarantee Corfforati^n of India Limited emd ethers reported m JT 2003 (10] SC 300 (Para 27) has heM fhat fbUowiag legal prmcrples enierge as to the maintamabiltty of^ writ petitiou: <-,; <(a. In an appropriate case, a writ petition as against aState or an mstrwnentdiity qfa State arising oui of a contractudl obligation is maintavzable. b, Merely because some disputed questions of facts arise for consideratiori, same cannot be a ground to refuse to entertain a writ petition in all casesds amatter ofrule, i a A lurit petition involving a consequential relief of jnonetary clahn is also maintainable/' 9. A Division Bench of this Court in Writ Petition No.2072/2001 (K,P. Chaiidrawaashi aad ofhers vs, Natk)nal j Theraial Power Corporation Lmiited aad ofhers) while considermg the| law laid down by fhe Apex Court ia fhe cases of ABZ. Intematiosuxl^IAmtted fsuprss), Barbanslal Seshnia fsuprc^ & Rcxdha Ramjan Sanwntavs. Bc&nfe of India. and others reported ia f2004) 1 SCC 605, Uas dealt with the matter. This Court farther held fhat tiie writ petitiou is also niaiiitamable where some disputed questions of facts arise for consideration and if it is otherwise justifiable on faete of fhe case in. haiid, a writ caa be issued for aiiy ofher purpose also. In view of fhe above legal position as eraerges froin fhe decisionsi of fhe Hon. Apex Court as weU as this Court, fhe objections raised by fhe respondents about the niaiatauiability of the writ petltion are not sustaiaable aoxl fhis petition is held to be inamtainable, 10. So far as the Bienio dated 1/2/1999 Aniiexure-P/5 is conceraed, on thie basis ofwhich fhe action has been taken, it reads as under: {( I am directed to state that it has come to\the noti(^ of Ministry that there are persons zuorking in C.LL. and its subsidiaries, who have rendered or are tikely to render service of niore tfian 45 years, Considering the retirement age of Coal Minor and the age of hrs @n<n/ in l^jte seruice of P.S.Us^ it is obvious that persons can not render seruice qf over 42 yectrs. Jf any coa?minor ^s worfcm^ foe^pnd (hre iime Umit, it is Ukely that there is something wrong withihe documents relating io his entry in the seruice of, the Coal Coinpany. It is therefore recfuested ihat the Cornpany mcty] look into this matter and consider (afcfng drsdp^naryjac^ion under the Company Rizles and penal actibnimjdertheLHC. where ^ warranted, againsf such persons. A reporf in the matter rnay khzdly befiimished tothis Mirvistry within afortnight Whiletaking acf.ion as suggestedabove, pending Cozsrtcases, if any, should be kept in consideration." 11. The petitioner entered into ser^ice on 19/12/1962. His date of birth is 1/7/1947. The petitioner has speci&caUy stated fh.at he was appoiated as adolescent in. surface of Kurada sub area as category-I labour aad not below ground, , 12. Section 40 does aot contain bar for employnient. It contains the pre-cautions, which are to be taken before allowiag adolescent to work in aiiy pat ofaniio.e, which is below grouud. This is protective aad pre- cautionar}r section. An adolescent caa be eniployed bzit cannot be posted in a laiiie iinless the safeguards as conteraplated are taken. The safeguards were provided for fhe purposes of postiiig iii fhe below ground, Section 40(1) of fhe Miaes Act conteniplates that no adolescent shall be allowed to work ia any part of a niiae which is below ground zuiless conditions (a), (aa), (b) aad (c) are conipleted. The petitioner here has speci&cally stated th.at he was posted in surface aad fhis fact has not beeu denied. Even ofhLerwise, fhe period of adolescent reniaiiied for tliree years only which expired in the year 1965. The petitioner attaiaed the age of 18 years after 30/6/ 1965. He is also ia employment tUl date. Under tlie circiunstaiices, tiie provisions contaiaed iii Section 40 ofthe Muies Act do not help ia any way the controversy raised ia the case. 13. In view oftlie above discussions, it is amply clear that fhe age of Tetirem.ent is 60 years. A pex'son can.be retired ifhe attsias tlie age of 60 years. Annexure-P/5 does not authorise fhe departsiient to serve a Botk-e wrthout properly lookmg mto fhe matter. Ttie mipugned notice has been issued withozit aay inqniry when tlie date of bii-th continues iu the record. The departtnent caa certaialy look iato the inatter and proceed iti fhe matter ia accordance with law after coiaplyia.g wifh tlie T^ requirement, but till fhat is done aad the department after giviag aa opportuuity comes to a findiag fhat his date of birth is not the oue which has been recorded, the action taken is not sustaiaable. 14. Counsel for the respondents subnutted that fhey niay be allowed to look rato the niatter as envisaged, No specific permission is required for the purpose, It is always open to the respondeuts to proceed aud ^ look iatb tlie niatter ia accordaace wrth law, 15, Subject to fhe obseryations raade above, fhe petition is allowed aad the impugned notice dated 26/06/2003 du'ectmg for retiremeut is set aside. Counsel fee as per scale. Sd/- Fakhruddin Judge 24/12/2004 Hande/-