Judgment:
IN THE HIGH COURT OF JHARKHAND AT RANCHI W. P. (S) No. 6247 of 2013 … Hari B. P. … …Petitioner -V e r s u s- 1. Bharat Coking Coal Ltd.
2. General Manager, Katras (Area-IV), BCCL, Dhanbad 3. Project Officer, Keshalpur Colliery, AKWM, Colliery, Dhanbad .... ...Respondents … CORAM: - HON’BLE MR. JUSTICE APARESH KUMAR SINGH … For the Petitioner : - Mr. Pratiush Lala, Adv. For the Respondents : - Mr. Ananda Sen, Adv. … 03/22.06.2015 Heard learned counsel for the parties. The petitioner is aggrieved vide office order dated 21.11.2012, Annexure-6, issued by the respondent no. 3, Project Officer, Keshalpur Colliery, AKWM, Colliery, Dhanbad as he has been deprived of the back wages on his reinstatement pursuant thereto. He was a permanent employee of BCCL having entered service on 15.10.1982 as a Carpenter at Keshalpur Colliery, Katrasgarh, Dhanbad. It is the case of the petitioner that he was retired prematurely w.e.f. 01.02.2012 by the respondent on a misreading of correct date of birth. This was for the reason that notice of retirement, Annexure-1 itself was issued on 27.04.2012. On the petitioner's representation before the respondent enclosing relevant records in support of his claim for date of birth, the respondents permitted him to resume in service w.e.f. 22.11.2012. He, therefore, remained out of service for the period from 27.04.2012 to 21.11.2012. Upon the petitioner's representation, the parties arrived at settlement recorded in Form-H, Annexure-4 for resumption of his duties i.e. w.e.f. 22.11.2012 treating the date of birth as 14.01.1957 instead of 14.01.1952 with conditions incorporated in the settlement which was signed by the petitioner as well as by the representative of the Management and two other independent witnesses with a copy to the Labour Authorities. It shows that the petitioner's date of birth is accepted as 14.01.1957 instead of 14.01.1952 and he would be allowed to resume duties with immediate effect without back wages for the period he was idle till the date of resumption of his duties. The entire period of his idleness will be treated as dies-non, but it will be treated as continuous service for the purpose of calculation of gratuity only. It was specifically settled that he will never claim any wages for the period of idleness at any point of time in future before any forum. The pension amount due for the above idle period shall be deposited by the employee himself. The petitioner, after resuming duties being aggrieved by the aforesaid terms and conditions incorporated in the office order dated 21.11.2012, Annexure-6, has assailed the same taking a ground that it is only because of the fault of the respondent he could not resume duties as his date of birth was wrongly treated as 14.01.1952. Once the respondents have accepted their mistake, the petitioner's back wages for the period he was deliberately kept out of service should not be denied by the respondents. Learned counsel for the respondent -BCCL submits that settlement arrived at in industrial matters is binding upon the parties in terms of Section 18 of the Industrial Disputes Act, 1947. The petitioner is not going to lose his seniority or the benefit of gratuity, pension etc. as he would be treated to be continuous in service for the period he remained out of service on account of bonafide dispute in relation to the correct date of birth of the petitioner. The petitioner did not protest at any point of time that the settlement was arrived at in exercise of undue influence, coercion or duress upon him. Two independent witnesses were testimony to the voluntarily settlement entered into between the parties. If at all the petitioner has reason to resile from the settlement on the ground of undue influence, coercion or fraud, this allegation of facts can be adjudicated in the forum of the Industrial court where disputed question of facts can be thrashed. The parties are to abide by the terms of the settlement, which is a necessary condition for his reinstatement. Therefore, the order impugned dated 21.11.2012, Annexure-6, cannot be said to suffer from any illegality or is inequitable either. The petitioner was out of service and therefore, does not deserve to be paid idle wages for the said period. Learned counsel for the petitioner has relied upon the judgment rendered in the case of Sukra Kujur Vs. State of Bihar & Ors. reported in 2006(4) JCR597(Jhr.), in the case of Saheb Singh @ Saheb Prasad Singh Vs. The State of Jharkhand & Ors. reported in 2013 (2) JLJR560and in the case of Ramesh Kumar Mandal Vs. BCCL, Dhanbad through its Chairman-Cum-Managing Director reported in 2013(2) JLJR570 I have heard learned counsel for the parties and considered the rival submissions in the factual backdrop of the case noticed hereinabove. The material question involved to consider the limited grievances of the petitioner for the back wages for the period he remained out of service due to genuine dispute about his date of birth, which was ultimately amicably resolved in favour of the petitioner by a reasonable settlement between the parties, is whether the petitioner should abide by the terms of settlement or question it in writ proceeding on the ground that it was not voluntary. There are no material on record to show that the petitioner at any point of time registered any protest with regard to the settlement entered into between the parties with open eyes in the presence of two independent witnesses. If at all, petitioner is aggrieved by the terms of settlement on the grounds that it was vitiated by fraud, undue influence or coercion or malafide, the same can be adjudicated in Industrial Court as the terms of settlement are binding upon the parties as per the mandate of Section 18 of the Industrial Dispute Act. The order at Annexure-6 permitting him to resume duty with a condition incorporated therein as per the terms of settlement cannot be said to suffer from illegality or arbitrariness. Whether in fact the petitioner was subjected at any point of time to undue influence, coercion or fraud is a question of facts which can be determined in an appropriate Forum where disputed question of facts can be adjudicated upon adducing evidences on behalf of the parties. The allegation of undue influence, coercion or fraud, according to the respondents, is not there even in the writ petition. Otherwise also, it appears that except the back wages for the certain period petitioner remained out of service, he was allowed to continue in service with the benefit of gratuity and pension paid at the time of his retirement treating his entire service as uninterrupted. The judgments which are relied by the petitioner are distinguishable as in those cases it is found that there are no settlement arrived at between the employee and employer in the manner entered into between the petitioner and the respondent employer. In the present case, so far as the settlement entered into between the employer and the retired employer is concerned, the same are not upset by findings of duress, malafide, undue influence or fraud by any competent Court. Having given anxious thought on the issues involved in the instant case, this Court is not convinced that the claim for back wages made by the petitioner in teeth of the settlement arrived at between the parties, can be granted in writ jurisdiction by this Court. Therefore, this Court is not inclined to exercise its discretionary jurisdiction to grant relief in the aforesaid circumstances. Accordingly, the writ petition is dismissed. (Aparesh Kumar Singh, J.) Kamlesh/