WP/1723/2004 of MADHAV PRASAD Vs COAL INDIA LTD. and ORS. on 24 December 2004

1. COAL INDIA LIMITED & OTHERS

Shri Ravish Agrawal, Sr.Advocate wifh Shri P,Diwaikar, Advocate for fhepetitioner.|Shri P.S.Koshy with Shri Abhishek Sinha, Advocates, for respondents l^2 & 3.

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OXDER-

By this petition underArfcicle 226/227 of the Constitation ofIndia,fhepetitionerliaschallengedftieunpugnednoticedated26/06/2003 passed by respondentNo. 3, whereby he has beeu directedfhatashehascoinpleted42yearsofselvice,hewouldbesuperaiuiuated on retirenient witfa effect froni 31/12/2004.

2. It is stated fhat the petitioner joiaed his services on 19/12/ 1962.Hisdateof birtliastheservicerecordAnnexiire-P/1isper01/07/1947.It is contended fhat fh.e petitlorier was appouited asadolescent insurfaceof Kuindasubarea ascategory-Ilabour.Presentiy/he is workiag as Senior Loadiag Inspector of Kurada subarea.It is further contended that he wiU coiaplete the age of60yearson 30/06/2007 and as such he is entitied to contmue tffl 30/06/2007.It is also eontended fhat as per Sectk>n 2(1) (a) offh.e Miaes Act, 1952,"adolesceut' aieaiis a person who has conipleted |his 15th year but hasnot^completed his 18th year. The pay slip ofMay 2003 has been filed asAnnexure P/3, wherenr fhe date ofbirthoftihLe pdtitk?:aer is recorded as01/07/ 1947 and fhere is ho dispute about this. It is contended that sofar as adolescent is conceraed, this provisionl of | einpk>ynient wasdeleted wrth efiectfioui 31/05/ 1984 aiid pnor to jit, it was a pi^ctice toenrptoy adolescent,It is pointed out that Sectioii 40 of fhe Mnies Act has beeu amended aad it is aiter flie amendment the position is fhatnow no person below 18th years of age can beaUowed to work iii anyiniae or part fhereof.

3,Counsel for fhe petitioner contended tliat Annexure-P/5 datedl/2{1999caanotoverridetherelevantprovisions.ThelaeinoArmexure-P/5nierelystated that soniecases jhavecometothekuowledge that persons are renderiiig service inore Uiaa 42 and 45years, This inatter inay be looked iato by ttie Couipaay aiid considered.It does not lay down as a inle,It is for fhe CoBipany to look into fheinatter, uiquire iato it aiid take such action.Merely on fhe basis of thesaid letter, fhe petitioner cannot be rctired when undisputedly his dateof l3irth is1/7/1947.Counsel further referredto the circularAnD.exure-P/6 dated13/2/1999 aiid also referred to notice dated26/6/2003 issued by respondeut no.3 aad contended fhat the notice isillegal aad ia contravention of law.

4. Counsel for the petitioner contended fhat immediately on receiptof notice dated 26/6/2003 the petitioner submitted the reply on15/7/2003, which is filed as Annexure-P/8.It was specifically statedfhat he has not completed fhe age of60years,If was also contendedfhat tiiere are cases where fhe workiaen have been in eniploynient ofSECL for about even raore fbiaa 42 years aiid &€ Conipaiiy hasaccepted this position in cases of Chandrika Prasad, Shot Firer aiidJaoiunaPrasad/ ForeinanIn-chargeof Hasdeoarea,Thesaidrepresentatioii was forwarded by the Deputy Chief Personnel Maiiagerto the Chief General Maaager on 18/08/2003. On 23/08/2003, anieetmghadtakenplacebetweenfheofficebearersandtherepreseutatives offhe Maiiagenient.Itein no.7 rclated to considerationof the withdrawal of tlie notice of retirement iu respect of Madhav Prasad, the petitioner, working ia Vishrainpur Area,This is contauiedin docuinent Annexure-P/10. It is contended fhat fh^reafter/ npfhin.gwas done aiid fhe representation was not decided,j5.Counsel for respondents 1 to 3 opposed aGLd contended thaf fhepetitioiier is a worknian under fhe defmition of fhe Industrial DisputesAct and the respondents no,l to 3 faU wifhia the definitk)u of aaiD^dustiy under fhe said Act and as such aiiy dispute pertamiag to fheservice coiiditions between aa einployer arid aa einployee is consideredfo be aa iadustrial dispute,It is also contendedj fhat even ofhen/visedispirted questions of facts aad laws have been itaised in fhe petitionwhich could be adjudicated upon only after appreciation of evidencewhich could not be possible whUe heanag a petition under Aiticle226/227 of the Constitation of Indiia.It is alsa coutended fhat fhepetition has been filed belatedly.Counsel stx'enuoiisly urged aiidreferrcd to Section 40 of the Muies Act to the efiect that ao person shallbe aUowed to work ia aisy part of a Biiae which is jbelow groumd unlesshe has coiiipleted his 16th years, It is contended thjat the inatter is such^vdiich niay be referred to fhe age determination coniinittee,6,Counsel fbr the petitioner on fhe other haiid contended fhat theI-''^ ^questiou mivolved ia this petit^as fo wfaefUer a person can beretired just on the iiiemo Annexure-P/5 aiM the da^is notdisputed.j

7. Perusal of fhe record shows fhat this petition was filed on23/06/2004.Notices were issued to fhe respondents 6n 7/7/2004.The respondents did not file fhe retuni. The itiatte|r was nientioned and*it was only todayon 24/12/2004 fhe retani has b^en Ifiledi 011 behalf ofrespoudeiits No,1 to 3,The coBJbeiition regardiiig djelay in filittg thepetitk)n is devoid of merit and liable to be dismissed.i Thiis coritentioii ^

has uo force,The delay has occurred on behalfofthLe respondents iiinot considering fhe representation dated 15/7/2003 aad ftuther notfiling fhe retura till 23/ 12/2004.So far as disputed questions areconceraed, the dateofbirthoffhepetitioneras 1/7/1947 hasnotbeendisputed.It is borae out froni fhie service record Annexure-P/1 and tliepay slrp of May,2003 Annexure-P/3,So far as existence of aaalteniative reiaedy is conceraed, it is not aa absolute bar to the reMefiinder Article 226 of fhe Constitution of In.dia.It is acircuinstaiice,which theCourt has to take into consideratk)jn. in exercisiag itsdiscretionary power under Article 226.It does not take away fhejurisdiction of the Court to grant relief under Aiticle 226.The law iswell settled.The Hon. Apex Court in the cases of Uni^n ^fihdia i?s»Wcrmn^T^ reported m 19S8 SCR 499 & SIuMeipal C^undl ^s,Kctfnal Kunu&r reported in ASR 1965 SC 1321 has held so.The Hon.i..: ••-'..Apex Court also in the case of Harbcsnslal Se^hnia and another VB^Xndimt (Hl Corporatioii Limitcd and others reported m (2003^2^S^107 has held as under:

"Theruleofexclusionof writ jurisdictionbyavailahility of an alteiriatwe remedy is a rule qfdiscretion and not oneof compulsion.In anappropriateca.se,in spite of availability of theaUemative remedy, the High Court may still exerdseits writ jiirisdiction in at least tfrree contingendes; fi)where the writ petition seeks enforce^nent of any ofthe fundamental rights; fii) where ffwre is faihire ofprinciples of natural justice; or fiii) where the ordersor proceedings are wholly imthout jurisdiction or thevires of anAct is challenged. "

8. The Hon. Apex Court also ia the case of ^ABL InterncationalLimlted ajr&d wiQthcr ys< J&cport Credit Quarantee Corfforati^n ofIndia Limited emd ethers reported m JT 2003 (10] SC 300 (Para 27)has heM fhat fbUowiag legal prmcrples enierge as to the maintamabilttyof^ writ petitiou:

<-,;

<(a. In an appropriate case, a writ petition asagainst aState or an mstrwnentdiity qfa Statearisingouiofacontractudlobligationismaintavzable.b, Merely because some disputed questions offacts[arise]for[consideratiori,][ same][ cannot][ be][ a]ground to refuse to entertain a writ petition in allcasesds amatter ofrule,iaA lurit petition involving a consequential reliefof jnonetary clahn is also maintainable/'

9. A Division Bench of this Court in Writ Petition No.2072/2001

(K,P.Chaiidrawaashiaadofhersvs,Natk)nalj TheraialPowerCorporation Lmiited aad ofhers) while considermg the| law laid down byfhe Apex Court ia fhe cases of ABZ. Intematiosuxl^IAmtted fsuprss),Barbanslal Seshnia fsuprc^ & Rcxdha Ramjan Sanwntavs. Bc&nfe ofIndia. and others reported ia f2004) 1 SCC 605, Uas dealt with thematter.ThisCourt farther held fhat tiie writ petitiou isalsoniaiiitamablewheresomedisputedquestionsof factsariseforconsideration and if it is otherwise justifiable on faete of fhe case in.haiid, a writ caa be issued for aiiy ofher purpose also.In view of fheabove legal position as eraerges froin fhe decisionsi of fhe Hon. ApexCourt as weU as this Court, fhe objections raised by fhe respondentsabout the niaiatauiability of the writ petltion are not sustaiaable aoxlfhis petition is held to be inamtainable,

10. So far as the Bienio dated 1/2/1999 Aniiexure-P/5 is conceraed,on thie basis ofwhich fhe action has been taken, it reads as under:

{( I am directed to state that it has come to\the noti(^ ofMinistry that there are persons zuorking in C.LL. and itssubsidiaries, who have rendered or are tikely to renderservice of niore tfian 45 years, Considering the retirementage of Coal Minor and the age of hrs @n<n/ in l^jte seruice ofP.S.Us^ it is obvious that persons can not render seruice qfover 42 yectrs.Jf any coa?minor ^s worfcm^ foe^pnd (hreiime Umit, it is Ukely that there is something wrong withihedocuments relating io his entry in the seruice of, the CoalCoinpany.

It is therefore recfuested ihat the Cornpany mcty] look intothis matter and consider (afcfng drsdp^naryjac^ion underthe Company Rizles and penal actibnimjdertheLHC. where ^

warranted, againsf such persons.A reporf in the matterrnay khzdly befiimished tothis Mirvistry within afortnightWhiletaking acf.ion as suggestedabove, pending Cozsrtcases,if any, should be kept in consideration."

11. The petitioner entered into ser^ice on 19/12/1962.His date ofbirth is 1/7/1947.The petitioner has speci&caUy stated fh.at he wasappoiated as adolescent in. surface of Kurada sub area as category-Ilabour aad not below ground, ,

12. Section 40 does aot contain bar for employnient.It contains thepre-cautions, which are to be taken before allowiag adolescent to workin aiiy pat ofaniio.e, which is below grouud. This is protective aad pre-cautionar}r section. An adolescent caa be eniployed bzit cannot beposted in a laiiie iinless the safeguards as conteraplated are taken. Thesafeguards were provided for fhe purposes of postiiig iii fhe belowground, Section 40(1) of fhe Miaes Act conteniplates that no adolescentshall be allowed to work ia any part of a niiae which is below groundzuiless conditions (a), (aa), (b) aad (c) are conipleted. The petitioner herehas speci&cally stated th.at he was posted in surface aad fhis fact hasnot beeu denied.Even ofhLerwise, fhe period of adolescent reniaiiied fortliree years only which expired in the year 1965. The petitioner attaiaedthe age of 18 years after 30/6/ 1965.He is also ia employment tUl date.Under tlie circiunstaiices, tiie provisions contaiaed iii Section 40 oftheMuies Act do not help ia any way the controversy raised ia the case.13.In view oftlie above discussions, it is amply clear that fhe age ofTetirem.ent is 60 years.A pex'son can.be retired ifhe attsias tlie age of60 years.Annexure-P/5 does not authorise fhe departsiient to serve aBotk-e wrthout properly lookmg mto fhe matter.Ttie mipugned noticehas been issued withozit aay inqniry when tlie date of bii-th continuesiu the record.The departtnent caa certaialy look iato the inatter andproceed iti fhe matter ia accordance with law after coiaplyia.g wifh tlie requirement, but till fhat is done aad the department after giviag aaopportuuity comes to a findiag fhat his date of birth is not the ouewhich has been recorded, the action taken is not sustaiaable.14.Counsel for the respondents subnutted that fhey niay be allowedto look rato the niatter as envisaged,No specific permission is requiredfor the purpose,It is always open to the respondeuts to proceed aud^ look iatb tlie niatter ia accordaace wrth law,15,Subject to fhe obseryations raade above, fhe petition is allowedaad the impugned notice dated 26/06/2003 du'ectmg for retiremeut isset aside.

Sd/-FakhruddinJudge24/12/2004

Counsel fee as per scale.

Hande/-