Case: Omprakash S/O Jiwandas Miglani Vs. Coal India Limited, A Government of India Undertaking &amp; Another

upto the General Manager, which was in the Personal Department and thus an ancillary work of the mine. During this period he was subject to leave Rules of Coal India Limited as also subject to the Mines Act, 1952. The petitioner was appointed as a Director by Public Enterprises Selection Board with the approval and sanction of the President of India for a period of 5 years and he served from 01.01.2008 to 30.04.2011, when he tendered his resignation for personal reasons. As Director he was subjected to WCL/CIL leave Rules and was paid salary and dues by WCL, therefore, Shri Sudame, learned counsel relies upon the position of Director of company under the scheme of Rules and Mines Act. He submits that the Director of Company is an employee and certainly not owner of the company.19. What we find from reading of the entire material placed before us is, that once the petitioner has subjected himself to the terms of the appointment letter which specifically apply to him the leave Rules of the CPSE and his petition proceeds on the basis that the Coal India Executive Leave Rules, 2010 are a complete code in itself, providing for types of leave, calculation of leave, procedure for encashment etc. then, it is not open to him to urge that these rules are applicable to him in so far as they carve out an exception regarding encashment of half pay rules but not earned leave and that leave benefit is derived from Mines Act, 1952. What the petitioner does is to rely on these rules for the purpose of half pay leave as it is clearly beneficial to him. He is aware that half pay leave is admissible to him even if resigns from the service, even when he is removed or dismissed or dies in service, and credit of the same is permissible. In so far as the earned leave on termination of service/retirement is concerned, it is dealt with by specific rule namely 12.4. Rule 12.4.1 provides that leave at credit shall not be granted for encashment, if an executive resigns from service. However, an executive who has resigned from the service can avail the benefit of the encashable portion of earned leave prior to the date of his actual quitting/release from service.20. In this case, we are not concerned with Rule 12.4.2. It is Rule 12.4.2 which can be said to be pari-materia with Rule 7.2 which was under consideration of the Division Bench. We must clarify that we are not concerned with a case of Termination on Disciplinary grounds, as here the petitioner has resigned from services. His services are not terminated on disciplinary grounds as in case of Pramod Baid (supra). Here the petitioner is not entitled to encashment of leave at credit, because he resigned from service, but he can avail the benefit of the encashable portion of the earned leave prior to the date of his actual quitting/release from service.21. Therefore, we are of the opinion that the larger controversy as to whether this Rule is in conflict with Section 52 of the Mines Act, 1952 does not arise for determination and consideration. Here the petitioner is governed by the 2010 Rules, as is admitted by him, therefore, it is not permissible for him to rely on any judgment and urge that Rule 7.0 of the 2010 Rules is pari-materia with Rule 12.4. We do not find them to be pari-materia, because the later part of Rule 12.4 is not appearing in Rule 7.0. The later part of Rule 12.4.1. is reproduced by the petitioner himself at page no.5 of his writ petition and once this is not the subject matter in Pramod Baids case (supra), then, we are of the opinion that there is no substance in the contentions of Shri Sudame, learned Counsel for petitioner that both the rules being pari-materia, his case will be covered by the judgment delivered in Pramod Baids case. In such circumstances, we are of the view that the learned counsel for the petitioner cannot derive any assistance from the ratio of the judgment in Pramod Baids case or the view taken therein about conflict between Section 52 of the Mines Act and the 2010 Rules.22. There is some substance in the contention of Shri Mehadia, learned counsel for respondents, that the petitioners case would be governed by the leave rules and he cannot fall back on the leave rules whenever it is convenient to him and challenge the provisions therein, merely because they deprive him of some benefits or entitlement. By projecting a conflict between the same and the 2010 Rules, the petitioner is picking and choosing the provisions to his advantage and benefit, which we think is enough to deny him any relief in discretionary and equitable jurisdiction under Article 226 of the Constitution of India. The petitioner has always understood his case to be covered by the 2010 Rules and derived benefits thereunder. Once that is stated to be a complete code by the petitioner, then, to allege conflict between them and the Mines Act, 1952 and that too only in relation to benefit of earned leave, would clearly mean that the petitioner is wriggling out of the same. He is also backing out of the terms and conditions on which he was appointed as a Director in 2008. He has enjoyed the pay scale and perquisites, facilities and benefits thereof till date. It is now the Rules and the terms are questioned and that too for few monetary benefits. In Harishankar .vrs. Deputy E & T Commissioner reported in AIR 1975 SC 1121 at para no.22 page no.1126, the Honble Supreme Court holds that the writ jurisdiction of High Court is not intended to facilitate avoidance of obligations voluntarily incurred. The obligations and the facilities in terms of the 2010 Rules, cannot be applied whenever it is convenient to the petitioner and brushed aside when he finds the compliance therewith inconvenient or not suitable.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]20. In this case, we are not concerned with Rule 12.4.2. It is Rule 12.4.2 which can be said to bewith Rule 7.2 which was under consideration of the Division Bench. We must clarify that we are not concerned with a case of Termination on Disciplinary grounds, as here the petitioner has resigned from services. His services are not terminated on disciplinary grounds as in case of Pramod Baid (supra). Here the petitioner is not entitled to encashment of leave at credit, because he resigned from service, but he can avail the benefit of the encashable portion of the earned leave prior to the date of his actual quitting/release from service.21.Therefore, we are of the opinion that the larger controversy as to whether this Rule is in conflict with Section 52 of the Mines Act, 1952 does not arise for determination and consideration.Here the petitioner is governed by the 2010 Rules, as is admitted by him, therefore, it is not permissible for him to rely on any judgment and urge that Rule 7.0 of the 2010 Rules iswith Rule 12.4. We do not find them to bebecause the later part of Rule 12.4 is not appearing in Rule 7.0. The later part of Rule 12.4.1. is reproduced by the petitioner himself at page no.5 of his writ petition and once this is not the subject matter in Pramod Baids case (supra), then, we are of the opinion that there is no substance in the contentions of Shri Sudame, learned Counsel for petitioner that both the rules beinghis case will be covered by the judgment delivered in Pramod Baids case. In such circumstances, we are of the view that the learned counsel for the petitioner cannot derive any assistance from the ratio of the judgment in Pramod Baids case or the view taken therein about conflict between Section 52 of the Mines Act and the 2010 Rules.22. There is some substance in the contention of Shri Mehadia, learned counsel for respondents, that the petitioners case would be governed by the leave rules and he cannot fall back on the leave rules whenever it is convenient to him and challenge the provisions therein, merely because they deprive him of some benefits or entitlement. By projecting a conflict between the same and the 2010 Rules, the petitioner is picking and choosing the provisions to his advantage and benefit, which we think is enough to deny him any relief in discretionary and equitable jurisdiction under Article 226 of the Constitution of India. The petitioner has always understood his case to be covered by the 2010 Rules and derived benefits thereunder. Once that is stated to be a complete code by the petitioner, then, to allege conflict between them and the Mines Act, 1952 and that too only in relation to benefit of earned leave, would clearly mean that the petitioner is wriggling out of the same. He is also backing out of the terms and conditions on which he was appointed as a Director in 2008. He has enjoyed the pay scale and perquisites, facilities and benefits thereof till date. It is now the Rules and the terms are questioned and that too for few monetary benefits. In Harishankar .vrs. Deputy ET Commissioner reported in AIR 1975 SC 1121   at para no.22 page no.1126, the Honble Supreme Court holds that the writ jurisdiction of High Court is not intended to facilitate avoidance of obligations voluntarily incurred. The obligations and the facilities in terms of the 2010 Rules, cannot be applied whenever it is convenient to the petitioner and brushed aside when he finds the compliance therewith inconvenient or not suitable., we are of the opinion that the larger controversy as to whether this Rule is in conflict with Section 52 of the Mines Act, 1952 does not arise for determination and consideration.Here the petitioner is governed by the 2010 Rules, as is admitted by him, therefore, it is not permissible for him to rely on any judgment and urge that Rule 7.0 of the 2010 Rules iswith Rule 12.4. We do not find them to bebecause the later part of Rule 12.4 is not appearing in Rule 7.0. The later part of Rule 12.4.1. is reproduced by the petitioner himself at page no.5 of his writ petition and once this is not the subject matter in Pramod Baids case (supra), then, we are of the opinion that there is no substance in the contentions of Shri Sudame, learned Counsel for petitioner that both the rules beinghis case will be covered by the judgment delivered in Pramod Baids case. In such circumstances, we are of the view that the learned counsel for the petitioner cannot derive any assistance from the ratio of the judgment in Pramod Baids case or the view taken therein about conflict between Section 52 of the Mines Act and the 2010 Rules.