Dismissed

Sahendra Kumar Sinha v. Coal India Limited

Chhattisgarh HC4 Aug 2023WPS/2235/2018

Case brief

AI extract

What is this about?

This petition challenged the constitutional validity of Coal India Executives Leave Rules 2010, arguing they violated the Mines Act 1952 by denying leave encashment. The Court held the Act applies only to on-site mine managers, not executives at headquarters, thus finding the rules intra vires.

What did the court decide?

The writ petition challenging the constitutional validity of Rule 12.4.2 and 12.5.1(e) of the Coal India Executives Leave Rules 2010 is dismissed.

Sahendra Kumar Sinha Vs Coal India… — Pension and Retirement Benefits | Chhattisgarh HC (2023)

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{W.P.(S)No.2235/2018}

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AFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Writ Petition (S) No.2235 of 2018

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Order reserved on: 15-6-2023

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Order delivered on: 4-8-2023

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Sahendra Kumar Sinha, S/o Late Santan Prasad, Aged about 62 years, R/o SHWET SHILP, Chesire Home Road, Near Vikramshila Garden, PO: RMCH, Bariatu, Ranchi, Jharkhand, PIN: 834009

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---- Petitioner

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Versus

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1.Coal India Limited, Through its Chairman cum Managing Director, Coal Bhawan Premise No.4 MAR, Plot No.AF-III, Action Area-1A, New Town, Rajarhat, Kolkata, PIN: 700156 (WB)

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2.South Eastern Coalfields Limited, Through its Chairman cum Managing Director, Seepat Road, PO: SECL, Bilaspur (CG) PIN: 495006

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3.Director Personnel, South Eastern Coalfields Limited, Seepat Road, PO: SECL, Bilaspur (CG) PIN: 495006

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---- Respondents

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---------------------------------------------------------------------------------------------For Petitioner: Mr. Gary Mukhopadhyay, Advocate. For Respondents: Mr. H.B. Agrawal, Senior Advocate with Ms. Preeti Yadav, Advocate. Amicus Curiae : Mr. Prasun Kumar Bhaduri, Advocate.

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Hon'ble Shri Sanjay K. Agrawal and Hon'ble Shri Arvind Singh Chandel, JJ.

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C.A.V. Order

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Sanjay K. Agrawal, J.

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The petitioner seeks a writ of mandamus declaring Rules 12.4.2 & 12.5.1(e) of the Coal India Executives Leave Rules 2010 (for short, ‘the Rules of 2010’), non-statutory in nature, to be

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{W.P.(S)No.2235/2018}

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unconstitutional as being directly in conflict with Sections 52(8) & 52(10) of the Mines Act, 1952 (for short, ‘the Act of 1952’) and also violative of the Act of 1952.

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The aforesaid challenge has been sought to be made on the following factual backdrop: -

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The petitioner herein was appointed as Junior Engineer Trainee (Civil) on 6-6-1981. He was involved in construction of roads and bridges and buildings in the mines for smooth functioning of the mining activity conducted by the subsidiary company of respondent No.1 herein. While he was working as Deputy General Manager (Civil), Sohagpur Area, the Central Bureau of Investigation registered a case against him for accepting illegal gratification and another case for possessing disproportionate assets and consequently, he was issued with a departmental charge-sheet on 21-11-2014 and after full-fledged enquiry, while he was working as Chief Manager (Civil), SECL Headquarter, Bilaspur, by order dated 21-12-2015, penalty of removal from service was inflicted upon him. Appeal of the petitioner was also rejected by the appellate authority.

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It is the case of the petitioner that at the time of removal from service, he was having 154 earned leaves and 305 half pay leaves to his credit for which he has made representation for encashment on 8-1-2016, which was also rejected and his departmental appeal was also rejected on 28-7-2018. Since the

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representation of the petitioner was not considered appropriately, he filed the instant writ petition questioning the constitutional validity of the impugned Rules.

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It is the further case of the petitioner that he is the person employed in mines as per the definitions contained in Sections 2(j) & 2(h) of the Act of 1952 and therefore Sections 49, 52(8) & 52(10) of the Act of 1952 would apply and the non-statutory rules contained in shape of Rules 12.4.2 & 12.5.1(e) of the Rules of 2010 being contrary to the aforesaid provisions – Sections 52(8) & 52(10) of the Act of 1952, which clearly provide that even if the person employed in a mine is discharged or dismissed from service, he shall be entitled to payment of wages in lieu of leave, would not apply and as such, the non-statutory Rules of 2010 cannot override the provisions of the Act of 1952. Therefore, the aforesaid rules i.e. Rule 12.4.2 read with Rule 12.5.1(e) of the Rules of 2010 are liable to be declared ultra vires.

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Return has been filed by the respondents opposing the writ petition that the petitioner has failed to demonstrate how the impugned Rules of 2010 are contrary to the provisions of the Act of 1952 and the petitioner was working as Executive at the time of his termination as Chief Manager (Civil), SECL, Headquarter, Bilaspur, and thus, the Rules of 2010 are applicable and the provisions of the Act of 1952 are not applicable, therefore, the writ petition deserves to be dismissed. The respondents have

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relied upon the memorandum dated 8-9-2015 / 10-9-2015 (Annexure R-1) to hold that the petitioner is not entitled for any relief.

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Mr. Gary Mukhopadhyay, learned counsel appearing for the petitioner, would submit that since the petitioner was employed in mines, the provisions of the Act of 1952 i.e. Sections 2(j) & 2(h) of the Act of 1952 and furthermore, Sections 49, 52(8) & 52(10) of the Act of 1952, would be applicable and therefore the impugned rules being in direct conflict with and contrary to the provisions contained in Sections 52(8) & 52(10) of the Act of 1952, be declared ultra vires and unconstitutional being directly in conflict with and violative of the Act of 1952. He would rely upon the decisions of the Supreme Court in the matters of C.I.T., Andhra Pradesh v. M/s. Taj Mahal Hotel, Secunderabad 1, Babaji Kondaji Garad v. Nasik Merchants Co-operative Bank Ltd., Nasik and others 2 and Indian Ex-Servicemen Movement and others v. Union of India and others 3 to buttress his submission.

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Mr. H.B. Agrawal, learned Senior Counsel appearing for the respondents, would submit that the petitioner, at the time of termination, was not employed in mines, he was employed in the SECL Headquarter at Bilaspur, therefore, the provisions of Sections 49, 52(8) & 52(10) of the Act of 1952 are not applicable

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1 1971(3) SCC 550

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2 (1984) 2 SCC 50

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3 (2022) 7 SCC 323

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and the Rules of 2010 and the Act of 1952, both, operate in different field, therefore, the Rules of 2010 are not contrary or in direct conflict with the Act of 1952, as such, the writ petition deserves to be dismissed.

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Mr. Prasun Kumar Bhaduri, learned counsel appearing as amicus curiae , has brought to our notice the relevant provisions of the Act of 1952 and would submit that leave in public service cannot be claimed as a matter of right, it is a condition of service and has also brought to our notice, the decision of the Delhi High Court in the matter of Sh. S.B. Singh v. National Textile Corporation 4 in which it has been held that leave encashment can be withheld if there are proven misconduct, or enquiry is pending at the time of retirement and that, the denial of the same cannot be by way of an arbitrary exercise of power. Mr. Bhaduri, learned amicus curiae , has further brought to our notice a detailed decision of the Supreme Court in the matter of Chairman-Cum-Managing Director, Mahanadi Coalfields Limited v. Rabindranath Choubey 5 in which where the removal from service has been inflicted by way of punishment and misconduct is proved, in such circumstances, whether retiral benefits can be given or denied, has been discussed by their Lordships of the Supreme Court.

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We have heard learned counsel for the parties and considered

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4 AIR OnLine 2020 Del 1521

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5 AIR 2020 SC 2978

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their rival submissions made herein-above and also went through the record with utmost circumspection.

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Admittedly, the petitioner while working as Chief Manager (Civil) at SECL Headquarter, Bilaspur, was terminated pursuant to a full-fledged departmental enquiry, on 21-12-2015 for accepting illegal gratification and thereafter, his appeal against the order of termination has also been dismissed on 28-7-2018. At the time of removal from service, his services were governed by the Rules of 2010 approved by the Board of Directors of Coal India Limited which came into effect from 1-7-2010. Impugned Rules 12.4.2 & 12.5.1(e) of the Rules of 2010 state as under: -

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“ 12.4.2 On Termination

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An executive governed under 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, in terms of this Scheme.

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However, this will be applicable in the case of executives who are employed on contract, on tenure, on deputation, on re-employment etc., if it is mentioned in their Contract/Agreement.

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12.5 ENCASHMENT OF HALF PAY LEAVE

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12.5.1 Encashment of half pay leave subject to maximum of 300 days of HPL at the credit of the executive is permissible on the following conditions:

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e) In case of cessation of service after attaining the age of 50 years or more provided the executive has put in a minimum of 20 years continuous service as a regular executive in the company and the cessation is

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not as a result of disciplinary action or leaving the service without approval of the Management.”

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The aforesaid rules are non-statutory in nature. Rule 12.4.2 of the Rules of 2010 states that an executive governed under the Rules of 2010, 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, in terms of this Scheme. Rule 12.5.1(e) provides that encashment of half pay leave subject to maximum of 300 days of HPL at the credit of the executive is permissible if in case of cessation of service after attaining the age of 50 years or more provided the executive has put in a minimum of 20 years continuous service as a regular executive in the company and the cessation is not as a result of disciplinary action. Rule 3.1 defines, “Executive” means the whole time regular executive cadre.

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A conjoint reading of Rule 3.1 read with Rules 12.4.2 & 12.5.1(e) of the Rules of 2010 would show that an executive will be entitled for encashment of earned leave at his credit to a maximum extent of 300 days and half pay leave to a maximum of 300 days only if he has not been terminated on disciplinary grounds, but if he has been terminated pursuant to disciplinary proceeding, he will neither be entitled for earned leave nor half pay leave. As such, the petitioner being an executive as per Rule 3.1 of the Rules of 2010, on termination of his services by order dated 21-

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12-2015 duly affirmed by the appellate authority, would not be entitled for earned leave as well as half pay leave. The petitioner having been faced with the difficulty of not having been entitled for encashment of EL & HPL in light of those rules and not having been paid the same, has challenged the constitutional validity of Rules 12.4.2 & 12.5.1(e) of the Rules of 2010, stating that the said Rules are in conflict with the provisions contained in Sections 2(h)(vii) & 2(j) as also Sections 49, 52(8) & 52(10) of the Act of 1952.

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The preamble of the Mines Act, 1952 states that the Mines Act, 1952 has been enacted to amend and consolidate the law relating to the regulation of labour and safety in mines. Therefore, the Act of 1952 has to be read keeping in mind why it was enacted and what is the mischief that was sought to be remedied by reason of introduction of such a legislation. The petitioner has relied upon Sections 2(h)(vii) & 2(j) of the Act of 1952. He has mainly relied upon Section 2(h)(vii) which relates to – in any kind of work whatsoever which is preparatory or incidental to, or connected with, mining operations. The expressions used in Section 2(h)(vii) are of wide import and general in nature, however, they are qualified by three expressions i.e. “preparatory to, connected with, mining operations”. Therefore, the person employed in a mine must be directly connected with mining and its preparation and not

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otherwise. The expression “mining operations” has not been defined in the Act of 1952, however, it has been defined in Section 3(d) of the Mines and Minerals (Development and Regulation) Act, 1957 which states that “mining operations” means any operations undertaken for the purpose of winning any mineral.

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The Supreme Court in the matter of Shri Shri Tarakeshwar Sio Thakur Jiu v. Bar Dass Dey and Co. and others 6 has considered the expression “mining operations” and noted that what is required to see is the essence of the activity to conclude whether it is a mining operation or not.

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Sections 49, 52(8) & 52(10) of the Act of 1952 have been included in Chapter VII of the Act, which deals with “Leave With Wages”. Section 49, which deals with “Application of Chapter”, states that the provisions of this Chapter shall not operate to the prejudice of any right to which a person employed in a mine may be entitled under any other law or under the terms of any award, agreement or contract of service. Similarly, Section 52 deals with “Annual leave with wages”. Sub-section (8) of Section 52 states as under: -

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“(8) If the employment of a person employed in a

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mine is terminated by the owner, agent or manager of the mine before he has taken the entire leave to which he is entitled up to the day of termination of his employment, or if such person having applied for and having not been granted such leave, quits his

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6 AIR 1979 SC 1669

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employment before he has taken the leave, the owner, agent or manager of the mine shall pay him the amount payable under section 53, in respect of the leave not taken, and such payment shall be made, where the employment of the person is terminated by the owner, agent or manager, before the expiry of the second working day after such termination, and where a person himself quits his employment, on or before the next pay day.”

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A careful perusal of Section 52(8) of the Act of 1952 provides that if the employment of a person employed in a mine is terminated, he shall be entitled to payment of wages in lieu of leave before the expiry of the second working day after such termination. Similarly, Section 52(10) provides as under: -

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“(10) Where a person employed in a mine is discharged or dismissed from service or quits his employment or is superannuated or dies while in service, he or his heirs or his nominee, as the case may be, shall be entitled to wages in lieu of leave due to him calculated at the rate specified in sub-section (1), if,—

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(a) in the case of a person employed below ground in a mine, he has put in attendance for not less than one-half of the total number of days from the date of his employment to the date of his discharge or dismissal or quitting of employment or superannuation or death; and

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(b) in any other case, he has put in attendance for not less than two-thirds of the total number of days from the date of his employment to the date of his discharge or dismissal or quitting of employment or superannuation or death,

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and payment of such wages shall be made by the owner, agent or manager of the mine at the rate specified in section 53, where the person is discharged

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or dismissed from service or quits employment or is superannuated, before the expiry of the second working day after such discharge, dismissal, quitting of employment or superannuation, as the case may be, and where the person employed dies while in service, within a period of two months of his death.

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Explanation .—For the purposes of sub-sections (1), (3) and (10) any fraction of leave of half a day or more shall be treated as one full day and fraction of less than half a day shall be omitted.”

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Section 52(10) of the Act of 1952 also provides that where a person employed in a mine is discharged or dismissed from service or quits his employment or is superannuated or dies while in service, he shall be entitled to wages in lieu of leave due to him. As such, a conjoint reading of the aforesaid provisions as a whole would show that the Section relates to leave of those persons who are directly employed in mining operation and not otherwise.

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In the aforesaid context, it is quite clear that Sections 2(h)(vii) & 2(j) read with Sections 52(8) & 52(10) of the Act of 1952 would show that the Mines Act, 1952 would be applicable where a person employed in a mine is discharged or dismissed from service or quits his employment or is superannuated or dies while in service, whereas the Coal India Executives Leave Rules 2010 would be applicable only to the Executives. Section 2(h) of the Act of 1952 refers to Manager. Section 52 of the Act of 1952 deals with annual leave with wages. It is primarily relatable to entitlement to and release of wages to any person employed in a

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mine. The word ‘wages’ has not been defined in the Act of 1952, 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. As such, the Act of 1952 would not be applicable to the executives working with the subsidiary company of Coal India Limited to whom the Rules of 2010 are applicable.

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Thus, it is quite vivid that Sections 52(8) & 52(10) read with Section 2(h) of the Act of 1952 are applicable to Managers working in the mines and the petitioner herein admittedly, was not working in the mines and when he was terminated on 21-122015, he was working as Chief Manager (Civil), SECL Headquarter and he had no essential qualifications of a manager and therefore the Rules of 2010, which are applicable to the executives as defined in Rule 3(f) of the Coal India Executives’ Conduct, Discipline and Appeal Rules, 1978, a whole time regular executive cadre working on the surface. Therefore, Rules 12.4.2 & 12.5.1(e) of the Rules of 2010 cannot be said to be in conflict with Sections 52(8) & 52(10) read with Section 2(h) of the Act of 1952, as those provisions are applicable to the Managers under Section 2(h) read with Sections 17, 52(8) & 52(10) of the Act of 1952 and it is not the case of the petitioner that he was working in the mines and thus, he falls within the definition of Manager as contained in Section 2(h) read with

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Section 17 and he is clearly governed by the definition contained in Rule 3.1 of the Rules of 2010 and in such case, the provisions of the Act of 1952 do not apply to the officers / executives of the subsidiary company of respondent No.1. As such, Rules 12.4.2 & 12.5.1(e) of the Rules of 2010 are neither in conflict nor inconsistent with the provisions of the Act of 1952 and thus, not violative of the provisions of the Act of 1952. Reliance placed by the learned counsel for the petitioner on M/s. Taj Mahal Hotel’s case (supra), Babaji Kondaji Garad (supra) and Indian ExServicemen Movement (supra) are quite distinguishable and not applicable to the facts of the present case.

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As a fallout and consequence of the aforesaid discussion, Rules 12.4.2 & 12.5.1(e) of the Rules of 2010 are held to be intra vires and they are not unconstitutional, and accordingly, the writ petition challenging the constitutional validity of Rules 12.4.2 & 12.5.1(e) of the Rules of 2010 deserves to be and is accordingly dismissed leaving the parties to bear their own cost(s).

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Before we part with the record, we express our sense of gratitude and appreciation to Mr. Prasun Kumar Bhaduri, learned amicus curiae , who in short notice not only assisted the Court, but has prepared and submitted written notes on the issue involved in the writ petition.

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Sd/Sd/(Sanjay K. Agrawal) (Arvind Singh Chandel) Judge Judge

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Soma

Sahendra Kumar Sinha v. Coal India Limited

Case brief

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Sahendra Kumar Sinha v. Coal India Limited

Case brief

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