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

4. The brief facts which are necessary to decide the issue are as under:A] The petitioner was appointed as a Junior Executive Trainee in the Central Mine Planning and Design Institute (CMPDI), Ranchi on 01/07/1981. On 06/03/2003, he was transferred in the respondent-Company. On 30/11/2016, the petitioner was retired on attaining the age of 60 years. At the time of retirement he was General Manager. As per the contention of the petitioner he worked with dedication, honesty and reached up to the post of General Manager.B] The respondent is one of the eight Subsidiary Companies of Coal India Limited i.e. CIL. As the respondentCompany is subsidiary of the Coal India Limited, the same is governed by the Mines Act, 1952 and Coal India Executives Leave Rules, 2010. As per the contention of the petitioner on his superannuation he was entitled for encashment of Earned Leave and Half Pay leave at his credit. He was not paid the said amount for which he is entitled. He is entitled for amount of Rs.19,04,340/- (Rs. Nineteen lacs four thousand three hundred and forty) towards the Half Pay Leave and Earned Leave. The respondent has withheld the leave encashment which he is entitled, hence the action on the part of the respondent is arbitrary, illegal and liable to be set aside.C] The respondent filed the reply in response to the notice and denied the contention of the petitioner. It is an admitted position that the petitioner was working as a Junior Executive Trainee in the Central Mine Planning and Design Institute (CMPDI), Ranchi. Subsequently, he was transferred in the respondentCompany. As per the contention of the respondent he was chargesheeted under Rule 29 of the Conduct Discipline and Appeal Rules, 1978 (hereinafter referred to as the CDA Rules for short) of the Coal India Limited vide No.WCL/CMD/VIG/2016-17/2246 dated 25/11/2016 by CMD and Disciplinary Authority, WCL on the ground of Contravention of the provisions as contained in Rule 4.1(I), 4.1(II), 4.2 and 4.3 which amounts to misconduct under clause 5.9 and 5.26 of CDA Rules of the Coal India Limited. It is further the contention of the respondent that the petitioner who was a public servant had committed grave misconduct by abusing his official position. He was a tender committee member in tendering process of supply, installation and commission of secondary crusher for different areas of WCL. He had granted undue favor to some of the parties causing a huge loss of Rs.1,16,56,989/- (Rs. One crore sixteen lacs fifty six thousand nine hundred and eighty nine) to Company. Since the reply of the petitioner was not found satisfactory, the departmental enquiry was initiated against him and the same has not been completed. Though the petitioner had retired from service the departmental enquiry is continued by virtue of clause 34.2 of the CDA Rules. It is further the contention of the respondent that leave encashment and T.A. bills are withheld on the ground that if charge-sheet for major penalty has been served and if on the conclusion of the disciplinary proceeding, service is terminated then encashment of leave can be forfeited in terms of the Coal India Limited Executives Leave Rules and T.A. Rules, however, if service is not terminated on conclusion of the disciplinary proceedings these may be released. The respondent has further taken a stand that the petitioner is not covered under Section ii(h) or ii(j) of the Mines Act, 1952. The encashment of half pay leave has to be given as per the Executive Leave Rules. The Executive of the Coal India Limited has to perform their duties not only in mines but in other places as well and many other places do not fall under the definition of the Mines as provided under the Mines Act, 1952, hence Coal India Limited has framed its own rules related to earned leave. The earned leave credited under the rules of Coal India is not linked with attendance. It is the contention of the respondent that once the petitioner had 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, then it is not open to him to urge that rules of the Mines Act, 1952 are applicable to him and, therefore, petition deserves to be dismissed.

Reasoning:
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.