ORDER :

Sanjay K. Agrawal, J.

1. 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 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.

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

3. 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.

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

5. 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.

6. 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 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.

7. 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, 1971(3) SCC 550, Babaji Kondaji Garad v. Nasik Merchants C