Case: Pradip Kumar s/o Noni Gopal Roy Vs. Western Coalfields Ltd

major penalty has been served till its finalisation. If on conclusion of the Disciplinary Proceeding, service is terminated through deemed dismissal/ deemed removal/deemed compulsory retirement, encashment of leave can be forfeited in terms of note. However, if service is not terminated on conclusion of disciplinary proceeding the same may be released. Thus it appears from the memorandum dated 08/09/2015 that specific policy is accepted by the respondent in respect of final settlement of dues on superannuation. This policy clarifies that if there is a charge-sheet for major penalty then leave encashment and T.A. bills can be withheld. 12. The petitioner has relied upon the Coal India Executives Leave Rules, 2010. Rule No.12.3 speaks about the extent of encashment of earned leave. Rule No.12.4 states about encashment of earned leave on termination of service/retirement. Rule 12.4.1 says that leave at credit shall not be granted for encashment if an executive resigns from the service. However an executive who has resigned from the service can avail the benefit for the encashable portion of earned leave prior to the date of his actual quitting/release from service. Rule 12.4.2 speaks about the termination which states that an executive governed under the Coal India Service Rules, whose services are terminated, otherwise than on disciplinary grounds, or who retires on superannuation, may be allowed to encash the earned leave at his credit, subject to a maximum of 300 days. This rule specifically states that a person who is terminated otherwise than on disciplinary ground may be allowed to encash the earned leave at his credit and Rule No.12.4.3 speaks about the contingency in case of death. Admittedly in the present case, the petitioner served with the charge-sheet it means disciplinary action has been taken and the enquiry is pending. 13. It is submitted by the petitioner that in view of Section 52 of the Mines Act, 1952, he is entitled for the said leave encashment. Admittedly the Mines Act, 1952 was passed with a view to amend and consolidating the law relating to the regulation of labour and safety in mines. The statement and objects as per the Mines (Amendment) Act No.42 of 1983 speaks about regulating the working condition in mines by providing for measures to be taken for safety of the workers employed therein and certain amenities for them. Section 52 of the Mines Act, 1952 states about annual leave wages. Wages are a sum of money paid under the contract by an employers to a worker for services rendered. Wages are payments for labour services rendered in hourly rates while a salary is a similar payment expressed in weekly, monthly or annual rates. Section 52(10) specifically states about the wages to a persons employed in mines. The petitioner was working with the Company as a Junior Executive Trainee. At no point of time he worked as a worker. As he was working as an Executive he had to perform his duty not in the mines and, therefore, the provisions of Mines Act, 1952 are not applicable to him. 14. The aspects whether the provisions of the Mines Act, 1952 are applicable to the Executives is dealt by this Court in W.P. No.4104/2017 (Shri Gurjit Singh s/o Late Gopal Singh Vs. Coal India Ltd. and anr.) and W.P. No.4318/2017 (Mrs. Anjana Mehta wd/o Deceased Dr. Surendraprasad Mehta Vs. Coal India Ltd. and ors.) wherein it is held by this Court that in view of the provisions contained in Section 2(h) and Section 17 of the Act read with Section 52(10) thereof as well as the provisions contained in the Coal Mines Regulations 1957 (hereinafter referred to as the Regulations for short) the legal position was clear that the Act provides the benefits for those who are actually employed in mines and similar such benefits cannot be extended to Officers/Executives of the WCL. It is observed by this Court that in view of the marginal note given under Section 52 says Annual Leave with Wages, it was primarily relatable to entitlement to and release of wages to any person employed in a mine. The word wages has not been defined in the Act, but is defined in the Industrial Disputes Act, 1947. Wages are ordinarily paid to workmen/labourers. Officers/executives are not paid wages in the sense the term is used with reference to workmen/labourers. It is further clarified by this Court in the said writ petitions that the term Manager in Section 2(h) read with Section 17 read with Regulation 31 of the Regulations would mean only those Managers, who have the requisite qualifications to work in mine and are comprehended within the meaning of the words a person is said to be employed in a mine. It is observed by this Court that the said petitioners had no right in law to claim leave encashment benefits, which otherwise were due to them but for the orders of removal on disciplinary ground and dismissal consequent to conviction recorded by the Special Court, in view of clear provision in Rule 7.2 of the Service Rules. 15. In the present case, admittedly the petitioner was served with the charge-sheet. The charges levelled against him are serious in nature. Learned Counsel for the petitioner relied upon the decision in Jaswant Singh (supra) but the said judgment is overruled by Chairman-Cum-Managing Director, Mahanadi Coalfields Ltd. Vs. Rabindranath Choubey (2020) 18 SCC 71. The Honble Apex Court in the case of Chairman-Cum-Managing Director, Mahanadi Coalfields Ltd. (supra) specifically observed that when the Rule 34 of the CDA Rules permits continuance of the departmental enquiry even after the retirement of an employee and such a retired employee is deemed to be in service and on conclusion of the departmental enquiry initiated while the employee was in service, penalty of dismissal was permissible. The employer would get the right to forfeit the payment of gratuity of such an employee as provided under Section 4(1) and 4(6) of the Payment of Gratuity Act, 1972 and even under Rule 34.3 of the CDA Rules.

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

Explanation:
0[ds]Rule No.12.3 speaks about the extent of encashment of earned leave. Rule No.12.4 states about encashment of earned leave on termination of service/retirement. Rule 12.4.1 says that leave at credit shall not be granted for encashment if an executive resigns from the service. However an executive who has resigned from the service can avail the benefit for the encashable portion of earned leave prior to the date of his actual quitting/release from service. Rule 12.4.2 speaks about the termination which states that an executive governed under the Coal India Service Rules, whose services are terminated, otherwise than on disciplinary grounds, or who retires on superannuation, may be allowed to encash the earned leave at his credit, subject to a maximum of 300 days. This rule specifically states that a person who is terminated otherwise than on disciplinary ground may be allowed to encash the earned leave at his credit and Rule No.12.4.3 speaks about the contingency in case of death. Admittedly in the present case, the petitioner served with the charge-sheet it means disciplinary action has been taken and the enquiry is pending.Admittedly the Mines Act, 1952 was passed with a view to amend and consolidating the law relating to the regulation of labour and safety in mines. The statement and objects as per the Mines (Amendment) Act No.42 of 1983 speaks about regulating the working condition in mines by providing for measures to be taken for safety of the workers employed therein and certain amenities for them. Section 52 of the Mines Act, 1952 states about annual leave wages. Wages are a sum of money paid under the contract by an employers to a worker for services rendered. Wages are payments for labour services rendered in hourly rates while a salary is a similar payment expressed in weekly, monthly or annual rates. Section 52(10) specifically states about the wages to a persons employed in mines. The petitioner was working with the Company as a Junior Executive Trainee. At no point of time he worked as a worker. As he was working as an Executive he had to perform his duty not in the mines and, therefore, the provisions of Mines Act, 1952 are not applicable to him.14. The aspects whether the provisions of the Mines Act, 1952 are applicable to the Executives is dealt by this Court in W.P. No.4104/2017 (Shri Gurjit Singh s/o Late Gopal Singh Vs. Coal India Ltd. and anr.) and W.P. No.4318/2017 (Mrs. Anjana Mehta wd/o Deceased Dr. Surendraprasad Mehta Vs. Coal India Ltd. and ors.) wherein it is held by this Court that in view of the provisions contained in Section 2(h) and Section 17 of the Act read with Section 52(10) thereof as well as the provisions contained in the Coal Mines Regulations 1957 (hereinafter referred to as the Regulations for short) the legal position was clear that the Act provides the benefits for those who are actually employed in mines and similar such benefits cannot be extended to Officers/Executives of the WCL. It is observed by this Court that in view of the marginal note given under Section 52 says Annual Leave with Wages, it was primarily relatable to entitlement to and release of wages to any person employed in a mine. The word wages has not been defined in the Act, but is defined in the Industrial Disputes Act, 1947. Wages are ordinarily paid to workmen/labourers. Officers/executives are not paid wages in the sense the term is used with reference to workmen/labourers. It is further clarified by this Court in the said writ petitions that the term Manager in Section 2(h) read with Section 17 read with Regulation 31 of the Regulations would mean only those Managers, who have the requisite qualifications to work in mine and are comprehended within the meaning of the words a person is said to be employed in a mine. It is observed by this Court that the said petitioners had no right in law to claim leave encashment benefits, which otherwise were due to them but for the orders of removal on disciplinary ground and dismissal consequent to conviction recorded by the Special Court, in view of clear provision in Rule 7.2 of the Service Rules.15. In the present case, admittedly the petitioner was served with the charge-sheet. The charges levelled against him are serious in nature. Learned Counsel for the petitioner relied upon the decision in Jaswant Singh (supra) but the said judgment is overruled by Chairman-Cum-Managing Director, Mahanadi Coalfields Ltd. Vs. Rabindranath Choubey (2020) 18 SCC 71. The Honble Apex Court in the case of Chairman-Cum-Managing Director, Mahanadi Coalfields Ltd. (supra) specifically observed that when the Rule 34 of the CDA Rules permits continuance of the departmental enquiry even after the retirement of an employee and such a retired employee is deemed to be in service and on conclusion of the departmental enquiry initiated while the employee was in service, penalty of dismissal was permissible. The employer would get the right to forfeit the payment of gratuity of such an employee as provided under Section 4(1) and 4(6) of the Payment of Gratuity Act, 1972 and even under Rule 34.3 of the CDA Rules.