GOUR BAURI Vs. BHARAT COKING COAL LIMITED

JUDGEMENT

(1.) THE petitioner was allotted personal no. 00687814; his date of birth in form B Register and in the other record was recorded as 25.11.1948; the petitioner was transferred to Baseria Colliery, however, on transfer in E.D.P. his date of birth was shown as 6.5.1944; on being objected about the wrong date of birth in E.D.P., inter- department correspondence was exchanged and vide letter dated 12.2.2004 clerical mistake was accepted by the department. The petitioner was made to retire in the month of May, 2004 considering the date of birth as 6.5.1944. Feeling aggrieved, the petitioner had approached this Court by way of writ petition being W.P.(S) No. 1769 of 2005. This Court, vide order dated 10.1.2007 was pleased to dispose of W.P. (S) No. 1769 of 2005 with direction that the petitioner would file fresh representation before the Chief General Manager (Personnel) Koyla Bhawan, Dhanbad, who will examine the matter and pass a reasoned order in accordance with law. If he finds that petitioner's contention is correct, he will immediately allow him to join duties and will also consider as to how the petitioner can be suitably compensated for the intervening period, if he was not at fault. Order of this Court dated 10.1.2007 is Annexure-1 to the writ petition. Thereafter, the authorities have considered the petitioner's representation and came to the conclusion that there was mistake on the part of the department while recording his date of birth as 6.5.1944 instead of 25.11.1948. The petitioner was directed to be reinstated in service vide order dated 30.5.2007 with the condition that petitioner shall not be paid salary for the intervening period; copy of which is annexed as Annexure-3 to the writ petition. Petitioner has approached this Court for payment of the back wages for the period he remained idle for no fault on his part.

(2.) IN the counter affidavit, it has been pleaded by the respondents that the petitioner was allowed to join under the memorandum of settlement and as per memorandum of settlement, the intervening period, when the petitioner remained idle was agreed to be counted in continuity of service for the purpose of fixation of pension. However, it was agreed that the petitioner shall not be paid any back wages for the period, he remained idle.

(3.) PERUSAL of the order passed by the learned Single Judge of this Court dated 10.1.2007, Annexure-1 to the writ petition, would also reveal that this Court has directed the respondents to consider as to how the petitioner should be suitably compensated for the intervening period. Therefore, it was not open to the respondents- Management to compel the petitioner to enter and sign the memorandum of settlement to the effect that he will not be paid the back wages. Since the petitioner was made to retire for no fault on his part, therefore, he is entitled to receive back wages and the principle of 'no work no pay' can not be pressed in service in the peculiar facts and circumstances of the present case.