Aparesh Kumar Singh, J. - (1.) Heard learned counsel for the parties. Petitioner is the widow of late Nityanand Singh, who fought and succeeded against the respondent -Bharat Coking Coal Limited (B.C.C.L.) on the question of premature retirement based upon the entry of his date of birth contested between the parties. Her husband i.e., employee was made to retire on 31.1.2001, which he claimed to be unsustainable on the strength of entries recorded by his erstwhile Employer, Steel Authority of India Ltd. (SAIL) relating to his date of birth i.e. 1.1.1943. Subsequently the Patherdih Colliery and other establishments was transferred to B.C.C.L. by S.A.I.L. and he became an employee of B.C.C.L. Twice he approached this Court in W.P.S. No. 1984 of 2000 and thereafter in W.P.S. No. 4973 of 2002 after rejection of his representation. Learned Single Judge in W.P.S. No. 4973 of 2002 opined that assessment of date of birth could not be decided in writ petition and relegated the petitioner to seek redressal from appropriate Forum. The employee instituted Title Suit No. 131 of 2003 for declaration that his date of birth is 1.1.1943 and he would therefore be deemed to continue in service till he attained the date of superannuation with further declaration that order of superannuation passed by the respondent -Employer was illegal, arbitrary and without jurisdiction. The suit was hotly contested by the defendant/respondent -BCCL but was decreed in favour of the plaintiff/employee based upon appreciation of relevant material evidence produced on behalf of both the parties. The defendant -BCCL preferred First Appeal (S.J.) No. 23 of 2005 being aggrieved by the judgment dated 25.9.2004 and decree dated 1.10.2004 passed by Sub -Judge -VI, Dhanbad in T.S. No. 131 of 2003. Learned Single Judge of this Court vide detailed judgment dated 22.5.2010 upon due consideration of the relevant pleas, (Annexure -1) found no illegality in the judgment and decree passed by the learned Trial Court and dismissed the appeal finding no merit in it. All material facts and evidences have been elaborately discussed in the appellate judgment. Thereafter, widow of the employee i.e. present petitioner approached this Court in W.P.S. No. 1012 of 2012 for direction upon the respondents to make payment of the wages for the period from 31.1.2001 to 31.3.2003 with all consequential benefits for the said period. She also sought refund of the penal rent to the tune of Rs. 31,500/ - which was deducted from the dues of the deceased employee. The said writ petition was disposed of vide Annexure -2 judgment dated 27.3.2012 directing the respondents to decide the petitioner's representation in accordance with law within stipulated period. The order at Annexure -3 dated 31.10.2012 has decided the plea of arrears of salary against the petitioner but allowed refund of penal rent of Rs. 30,786/ -. This order has been assailed by the petitioner in the present writ petition, who also has prayed for arrears of salary for the period 31.1.2001 to 31.1.2003.
(2.) Respondent -BCCL in their counter affidavit have taken a plea that the judgment and decree of the Trial Court was only a declaration of date of birth of the employee as 1.1.1943 but he was not entitled to wages for the idle period on the principle of 'No Work No Pay'. No directions were passed in the title suit for payment of back wages nor were they claimed. In view of the relevant provision of Order II Rule 2 of the Civil Procedure Code employee/present petitioner is therefore precluded from raising this plea in an independent proceeding like the present. Learned counsel for the respondent has also stated that the employee was occupying the company's quarter after his retirement and eviction proceeding was initiated against him under the provisions of the Public Premises -(Eviction of Unauthorized Occupants) Act, 1971, but on declaration of his age, respondents have on due consideration refunded the amount of penal rent deducted earlier from the death -cum -retiral dues of the employee. However no claim for wages for the idle period should be allowed to the petitioner.
(3.) In reply to the counter affidavit, petitioner has reiterated her statements.;