TARAK NATH CHOUDHURY Vs. BHARAT COKING COAL LTD.

JUDGEMENT

(1.) Heard learned counsel for the parties. The petitioner has approached this Court in the present writ petition being aggrieved against part of the letter dated 13.9.2010 issued by the respondent No. 6, Deputy Chief Personnel Manager, Burdwan by which he has ordered that the petitioner will not claim any back wages and the period of his idleness, from the date of his dismissal till resumption of duty, shall be treated as dies non. The petitioner consequently seeks direction upon the respondents to pay the back wages for the period from January, 1992 to January, 1996 i.e. the period of his suspension for which he was only paid 75% of basic pay. He also seeks full salary from March, 2003 i.e. from the date he was out of service on being dismissed to September, 2010 till he was reinstated. He also seeks correction in his basic pay as Rs. 21,457.80 in place of Rs. 17,447.84 and consequent arrears of salary on that account.

(2.) The short facts of the case, according to the petitioner, are that he was in service of the respondent-BCCL on being appointed as Clerk at Nichitpur Colliery, Dhanbad on 1.10.1971. In January, 1992, he was implicated in a criminal case on the basis of the allegation that he was caught red-handed by the CBI team while demanding illegal gratification of Rs. 2,000/- from one employee for processing his case for joining duty as a loader in Nichitpur Colliery. The petitioner, after registration of the said criminal case being R.C. Case No. 2(A) of 1992, was put under suspension in January, 1992 and till January, 1996 he was paid only 75% of basic salary as subsistence allowance. His suspension was revoked in January, 1996. He continued to work under the respondent in his transferred place of posting on Chanch Victoria Area-XII of BCCL and also resumed his duty with full salary. However, he was convicted for the offence proceeded against in the criminal case instituted by the CBI vide judgment dated 26.2.1998 and order of sentence dated 9.3.1998. He preferred a Criminal Appeal No. 65 of 1998(R) before the High Court. He was dismissed from service on the basis of conviction in March, 2003 by the respondent-BCCL. The Criminal Appeal No. 65 of 1998(R) was however allowed by this Court and he was acquitted of the charges vide judgment dated 8.9.2009. The order of conviction and sentence dated 26.2.1998 and 9.3.1998 respectively were set aside. Thereafter, on his representation made before the General Manager, Chanch Victoria Area-XII, BCCL, the petitioner was reinstated in service vide order dated 13.9.2010 by the order of Deputy Chief Personnel Manager, Chanch Victoria Area-XII on the basis of approval of the Competent Authority. However, the petitioner is aggrieved as the order of reinstatement denies him back wages for the period he remained out of service as also treated that period as dies non. That is the reason for moving this Court in the present writ petition.

(3.) Learned counsel for the petitioner submits that, in relation to charge of illegal gratification, which is connected to course of his employment, the petitioner was proceeded against and convicted in the criminal case initiated by the CBI in which the official of the respondent-BCCL deposed as witness. That was the reason for his dismissal as well. Upon being acquitted in the said criminal case by the Appellate Court i.e. High Court and upon his reinstatement, he deserves to be granted full back wages and remaining salary for the period of his suspension and correction of his Basic Pay. Learned counsel for the petitioner submits that in similar circumstances, the Division Bench of this court in the case of The Chairman-cum-Managing Director, BCCL & Anr. vs. Binod Kumar Singh & Anr., 2007 1 JLJR 469 has allowed 50% back wages to such employee, who was dismissed on conviction in a criminal case at the instances of the employer and who was acquitted of the said charges by the Appellate Court. Learned counsel for the petitioner, therefore, submits that in the instant case, charges are related with the course of employment in which the petitioner was convicted on the basis of the evidence adduced by the respondent themselves. Therefore, the same benefit of back wages on reinstatement should also be granted to him. Learned counsel for the petitioner, has also assailed the Memorandum of Settlement which is said to have entered into between the petitioner and the Management vide Annexure-A to the counter affidavit, dated 28.7.2010 relying upon which, the respondents have denied back wages to the petitioner for the period he remained out of service upon his dismissal. He submits that the said settlement is not in consonance with Rule 58 of the I.D. Act. Therefore, in a matter of unconscionable bargaining position of the poor petitioner with mighty Management, this terms of such settlement cannot be enforced and the petitioner should not be denied back wages in question.