Bharat Coking Coal Ltd. vs Employer''s In Relation to the Management of Dhanbad Colliery and Others

S.K. Choudhuri, J.—C.W.J.C. 1304 of 1972 is filed for quashing the award annexure 3 passed by the Presiding Officer, Central Government, Industrial Tribunal (No. 1), Dhanbad (respondent No. 2) dated 5. 9. 1972 passed in Reference case No. 3 of 1971, whereby he ordered that the action of the Management of new Dharmaband colliery in dismissing 40 workmen mentioned in schedule of the reference order with effect from 18. 10. 1969 is not justified and that they should be reinstated with continuity in service by the petitioner who is liable to pay their wages and other emoluments with effect from 1.5.1972. the appointed day under the Coking Coal Mines Nationalisation Act, 1972 (Act 36 of 1972) including the wages due from 18. 10. 1969 to 30. 4. 1972 for which the previous Management and the petitioner are jointly liable. Whereas C.W.J.C. 1314 of 1972 is filed for quashing the award (annexure 3) passed by the Presiding Officer, Central Government Industrial Tribunal (Mo. 1), Dhanbad (respondent No. 2) dated the 1st July, 1972 whereby he directed payment of arrears of variable dearness allowance payable to the workmen concerned for the period from 1. 10. 1967 to 31. 8. 1970 and again from t. 10, 1970 to 16. 10. 1971 as the petitioner is the successor of the previous management who was liable to pay the same to the workmen. These two writ applications were ordered to be heard together and as such they were taken up for hearing together.

The petitioner before this Court is the same in both the cases. The admitted came in both the cases are as follows:

The petitioner is a Government undertaking having been formed by an Act of the Parliament known as the Coking Coal Mines (Nationalisation) Act, 1972 (Act 3o of 1972) published in the Gazette of India Extraordinary, Part If, Section 1 dated, New Delhi, 17th August, 1972 having its registered office at Dhanbad, Prior to this Act there was an Ordinance known as Coking Coal Mines (Emergency Provision) Ordinance, Ordinance 12, 1971 (hereinafter to be called as ''the Ordinance'') published in the Extraordinary Gazette dated the 16th of October, 1971. The said Ordinance came into force on the 17th October, 1971 and by virtue of the said Ordinance the management of the employers (respondent No. 1) vested under the Central Government along with the other collieries mentioned in the schedule attached to the said Ordinance. The aforesaid Ordinance was thereafter replaced by an Act of Parliament known as Coking Coal Mines (Emergency Provision) (Act 64, 1971) published in the Gazette of India Extraordinary, dated the 23rd December, 1971. It appears that with a view to exercise greater control over the Coking Coal Mines and the coke oven plants as mentioned in the schedule attached to the Coking Coal Mines (Emergency Provision) Act, 1971 (Act 64 of 1971) another Act, namely, Coking Coal Mines (Nationalisation) Act, 1972 (Act 36, 1972) (hereinafter to be called the Act) was enacted. Thus by virtue of the Ordinance the management (respondent No. 1) colliery vested in the Central Government and finally it came under the nationalisation perview by the Act and all the right, title and interest of respondent No. 1 accordingly vested in the Central Government.

I shall state first the facts of C.W.J.C. 1314 of 1972. The relevant facts as stated in the writ petition are as follows:

On the 21st October, 1970, the Central Government in Ministry of Labour and Rehabilitation, Department of Labour and Employment referred to the Central Government Industrial Tribunal (No. 2) u/s 10(1)(d) of the Industrial Disputes Act, 1947, for adjudication of the dispute in relation to the matters specified in the schedule annexed thereto in the following terms:

Whether the management of New Lakurka Colliery, post office Katrasgarh, District Dhanbid, having regard to their financial capacity are justified in not paying variable dearness allowance as per recomendations of the Wage Board for Coal Industry? If not, what should be the quantum of variable dearness allowance and from what date?

This reference was numbered as Reference Case No. 20 of 1970. Thereafter on 6.12.1971 an application was filed by the workmen of New Lakurka Colliery represented by the Secretary, Colliery Majdoor Sangh (respondent No. 3) for adding the Custodian and Custodian Central as party to the reference under the Ordinance. But before they could be added as parties, the aforesaid Ordinance was replaced by Coking Coal Mines (Emergency Provision) Act, 1971 (Act 64 of 1971) as aforesaid and by the order of the Ministry of Steel and Mines in the Department of Mines dated the 12th January, 1972, published in the Gazette of India, Part II the Central Government acting under the provision of Sub-section (7) of Section 5 of the Act 64 of 1971 appointed Bharat Coking Coal Ltd., Dhanbad, the petitioner as the custodian of all coking coal mines specified in the first schedule and of the coke oven plants specified in the second schedule with effect from 12th January, 1972. Accordingly the workmen (respondent No. 3) filed another petition on the 29th January, 1972 praying to the (tribunal for making Bharat Coking Coal (petitioner) as party to the reference which was allowed. Thereafter the petitioner filed an application on the 24th of March, 1972 stating therein that it had no objection to its being added as party to the reference. A copy of the said petition is marked annexure T to the present application. Thereafter on 13. 4. 1972 the petitioner filed its written statement denying any relationship of employer and employee between the petitioner and the workmen (respondent No. 3) and further denying that there was any industrial dispute between them. It further alleged that it was not responsible for any act of the past management prior to the date of taking over under the Act. A true copy of the written statement is made annexure ''2'' to the writ application. It appears from the impugned order (annexures 3) passed by the Presiding Officer of the Industrial Tribunal, respondent No. 2 that the case of the workmen was that the company had agreed to pay and actually paid variable dearness allowance from 1.9.1970 to 1.10. 1970, correctly in accordance with Wage Board but had not paid to the said workmen respondent No. 3 the difference due from 1.10.1961 to 31.8.1970 and again from 1.10.1970 to date. The tribunal respondent No. 2 thereafter took evidence in the matter. On behalf of the workmen Exts. Wl to W4 and W6 and W7 were marked on admission whereas on behalf of the company Ext. Ml was similarly marked on admission. The petitioner did not raise any objection to the marking of the said exhibits. Besides, on behalf of the workmen a witness was examined and Ext. W. 5 was marked and on behalf of the company also one witness was examined and Exts M2 to Ml1 were marked. No witness was examined nor any document was marked on behalf of the petitioner. The tribunal (respondent No. 2) after hearing the parties on the materials on the record came to a conclusion that there was no truth behind assertion of respondent No. 1 to the effect that the financial capacity did not permit the company to pay the variable allowance to the workmen (respondent No. 3). It further found that respondent No. I was liable to pay to their workmen the arrears of last paid variable allowance for the period from 1.10.1967 to 31.8.1970 and again from 1.10.1970 to 17.10.1971 calculated according to the formula of the Wage Board. It further recorded the finding that the petitioner is the successor-in-title to respondent No. 1 and therefore responsible for payment to the workmen all the arrears of last paid variable dearness allowance which was to be payable by respondent No. 1. It also overruled the objection of the petitioner that there was no relationship of employer and employee between the petitioner and the workmen (respondent No. 3) at the time when the reference was made. It also negatived the objection to the effect that there was no existence of any dispute between the petitioner and the workmen, respondent No. 3. With the aforesaid findings the tribunal, respondent No. 2 passed its award dated the 1st July, 1972 (annexure 3) holding the petitioner liable for payment of the variable dearness allowance as per recommendation of the Wage Board for the coal industries and as such directed to pay to the workmen (respondent No. 3) the arrears of less paid variable dearness allowance for the period from 1.10.1967 to 31.8.1970 and again for the period from 1.10.1970 to 16.10.1971 as the successor-in-title of the said management. Being aggrieved by this award (annexure 3) the petitioner has filed the present writ application.

In C.WJ.C. No. 1304 of 1972 the relevant facts are these : On the 17th of May. 1971 a reference was made by the Central Government, Ministry of Labour and Rehabilitation to the Central Government Industrial Tribunal No. 1 (respondent No. 2) u/s 10(1)(d) of the Industrial Disputes Act in the following terms:

Whether the action of the Management of the New Dhanbad and Colliery, Post Office Malkera, district Dhanbad, in dismissing the following workmen with effect from the 18th of October, 1969, is justified? If not, to what relief are they entitled?

This reference related to 40 workmen represented by the Vice-President, Bihar Colliery Kamgar Union (respondent No. 3). The said reference was numbered as reference No. 3 of 1971 before the Tribunal, respondent No. 2. Due to the taking over of the coking coal mines under the Ordinance followed by an Act, as aforesaid the Bharat Coking Coal Ltd. was added as party in the reference. After the petitioner was added as a party the notice, which was issued to the petitioner to show cause as to why it should not be added as a party to the reference, is made annexure 1 to the writ application. The petitioner thereafter filed a written statement denying the relationship of employer and employee between its workmen concerned (respondent No. 3). It also pleaded that the petitioner was not in any way liable or responsible for any act of the past management of respondent No. 1 prior to the taking over under the Act. The said written statement is made annexure''2''to the writ application.

The Tribunal, respondent No. 2 after hearing the parties gave its award on 5th September, 1972 (annexure 3). By the said award it came to the conclusion that the dismissal of the workmen concerned was not justified and accordingly it set aside the order of dismissal and gave the concerned workmen (respondent No. 3) continuity of their service without any break and also entitled them to the wages under the orders from the date of dismissal to the date of their reinstatement. The Tribunal further came to the conclusion that since the interest of the management (respondent No. 1) vested in the petitioner with effect from the appointed day, that is, 1st of May, 1972, the workmen concerned by virtue of Section 17(1) of the Act would be deemed to be in the employment of the petitioner in which the right title and interest of the said management had vested and the services of the said employees continued under the same terms and conditions and the same rates of pension, gratuity and other benefits as would have been admissible to them if the rights with respect of the said mines had not vested in the Government Company. It therefore finally concluded that the dismissal of the concerned workmen, respondent No. 3 being declared illegal and they continued and are still continuing in service of the petitioner it was bound to pay the wages to the concerned workmen from 1st of May, 1972 and also held that the petitioner and the employer (respondent No 1) are jointly liable to pay their arrears of wages from the date of their dismissal that is 18th October, 1969 to 30th of April, 1972. Being aggrieved by the said award (annexure 3) the petitioner has filed the present writ application.

In none of the aforesaid two writ applications any counter affidavit has been filed in this Court by any of the respondents. In C.W.J.C. 1314 of 1972 no body appeared on behalf of the concerned workmen of New Lukurka Colliery, respondent No. 3 to oppose the writ application. In C.W.TC. 1301 however Mr. Karuna Nidhari Keshava appeared on behalf of the concerned workmen, respondent, No. 3 and argued in support of the award annexure 3.

The learned Advocate General appeared on behalf of the petitioner and raised two points one in each of the writ applications namely (1) in C.W.J.C 1314 of 1972 the learned Advocate General contended that the award (annexing 3) having been passed in relation to the owner (respondent No. 1) for a period prior to the appointed day, namely, 1st of May, 1972 the said liability of respondent No. 1 could not be enforced against the Central Government or the Government Company u/s 9 of the Act and as such the award in question is liable to be set aside and (2) in C.WJ.C. 1304 of 1972 the contention of the learned Advocate General was that the award in question having been passed after the appointed day in relation to a matter, claim or dispute which arose before the appointed day could not be enforced against the Central Government or the Government Company and as such the award in question is liable to be set aside.

I take up the first question for consideration. As both the points raised by the learned Advocate General embrace interpretation of different clauses of Section 9 of the Coking Coal Mines (Nationalisation) Act, 1972 (hereinafter to be called as ''the Act'') it is necessary to quote Section 9 as a whole which reads as follows:

Central Government not to be liable for prior liabilities : (1) Every liability of the owner, agent, manager, or managing contractor of a coking coal mine or coke oven plant, in relation to any period prior to the appointed day, shall be the liability of such Owner, agent, manager, or managing contractor, as the case may be, and shall be enforceable against him and not against the Central Government or the Government Company.

(2) For the removal of doubts, it is hereby declared that

(a) save as otherwise provided elsewhere in this Act, no claim for wages, bonus, royalty, rate, ''rent, taxes, provident fund, pension, gratuity or any other dues in relation to a coking coal mine or coke oven plant in respect of any period prior to the appointed day, shall be enforceable against the Central Government or the Government Company

(b) no award, decree or order of any Court, tribunal or other authority in relation to any coking coal mine or coke oven plant passed after the appointed day, but in relation to any matter, claim or dispute which arose before that day, shall be enforceable against the Central Government or the Government Company

(c) no liability for the contravention of any provision of law for the time being in force, made before the appointed day, shall be enforceable against the Central Government or the Government Company.

The learned Advocate General contended that the aforesaid section, namely, Section 9 of the Act was not at all brought to the notice of the Presiding Officer of the tribunal (respondent No. 2) and as such a different opinion was taken by the said Presiding Officer on the basis of a case of the Supreme Court in Bihar State Road Transport Corporation Vs. State of Bihar and Others, According to the learned Counsel the said decision has no application to the facts of the present case as the said decision was a decision given on interpretation put to different Sections and notifications made under the Rayya Transport Corporation Act, 1950 (Act 64 of 1950). He further contended that in the said Act there is no provision similar to the provision of Section 9 of the Act quoted above, in other words he contended that, but for Section 9 of the Act, the decision of the Supreme Court would have become applicable to the present case. In Bihar State Road Transport Corporation Case (supra) an employee (Head Clerk) of the Rajya Transport Authority, whose service was purely temporary, was terminated without notice and without assigning any reason. He was therefore, by an order dated the 18th February, 1959 issued by the State Transport Commissioner Rajya Transport discharged him from service with immediate effect. The said Rajya Transport Authority was taken over by the State Government in exercise of the power conferred by Section 3 of the Road Transport Corporation Act (Act 64 of 1950) on the 20th April, 1959 and the Bihar State Road Transport Corporation was set up from 1st of May. 1959. On the 24th of February, 1961 the conciliation proceeding regarding the dispute raised by the discharged head clerk having failed, the State Government referred the same to Labour Court. The tribunal to whom the dispute was referred held that the order of termination to be invalid and the head clerk concerned was declared to be deemed to have continued in service of the Rajya Transport and thereafter of the Bihar State Road Transport Corporation and on that basis directed the said Bihar State Road Transport Corporation to reinstate the head clerk in its service and pay compensation for the period from February to September, 1959. The Bihar State Transport Corporation then approached the High Court in its writ jurisdiction. The High Court negatived the contention raised by the appellant-corporation and refused to quash the order of the Labour Court and accordingly dismissed the writ application. The matter thereafter went to the Supreme Court, it was held by the Supreme Court that the appellant-corporation was successor-in-title of the said Rajya Transport Authority and therefore, the obligation and liabilities of the said authority devolved upon the appellant-corporation. The Supreme Court after referring to the several clauses of the notification u/s 3 of the Road Transport Corporation Act, 1950 held that the termination of the service of the head clerk was invalid and it never became operative and therefore he would be deemed to be continued in the service of Rajya Transport Authority on 1st May, 1959 and therefore on its rolls. Referring to para 5 of the writ application filed by the appellant-corporation in the High Court wherein it was said that the appellant-corporation had taken over from 1st May, 1959, as such the employees of the Rajya Transport Authority in its service who were on the rolls of the said authority on the day it came into existence, the Supreme Court held that a person whose termination of service has been declared to be invalid would be deemed to be on the rolls on the relevant date, namely, the 1st May, 1959 and no distinction can be drawn between persons whose names were on the rolls and those persons who would be deemed in law to be on the rolls. The Supreme Court further held that the appellant-corporation being the successor-in-title of the Rajya Transport Authority, in the absence of any valid termination of the service of the head clerk, he continued and still continuing to be in the service of the appellant-corporation and therefore it was bound to pay the wages and other emoluments from 1st May, 1959 to the head clerk, whose service was illegally terminated, for the period prior to that. The corporation was also held to be liable to pay the previous dues of the said head clerk payable by the authority corporation being the successor-in-title of the said authority.

I thought it necessary to discuss the aforesaid Supreme Court decision as the said decision has been relied upon on behalf of the workmen concerned by the learned Counsel appearing on their behalf in support of his contention. Thus it appears that the submission of the learned Advocate General to the effect that the decision of the Supreme Court would have been otherwise, had there been a provision like Section 9 of the Act in the Road Transport Corporation Act, 1950, appears to be correct. The learned Advocate General has placed strong reliance upon Sub-section (1) of Section 9 and Sub-section (2)(b) of the said section. I have already quoted the aforesaid section verbatim, On reading Sub-section (1) of the said section it becomes clear that the liability of the owner of a coking coal mine for any period prior to the appointed day, namely, the 1st May, 1972 as defined in Section 3(a) of the Act cannot be enforced against the Central Government or Government Company. Sub-clause (2) of the said section the words "for removal of doubts it is hereby declared that" in my opinion make it perfectly clear that to obviate any dispute with regard to the interpretation of the word ''liability'' used in Sub-section (1) of Section 9, Clauses (a)(b) and (c) of Sub-section (2) of Section 9 has been inserted by the Legislature thereby making its intention very clear. On reading Clause (b), of Sub-section (2) of Section 9 quoted above it is manifest that any award which is passed after the appointed day in relation to any matter, claim or dispute cannot be enforced against the Central Government or the Government Company. The petitioner is admittedly a Government undertaking and is a Govt. Company within the definition of Section 3(h) of the Act. In the present case the reference of dispute was made on 21.10.197 (Sic) The appointed day as defined in Section 3 (a) of the Act is 1st May, 1972 and the award in question annexure ''3'' has been given on 1st of July, 1972. Thus it is clear that in the present case Clause (b) of Section 9(2) is clearly attracted which prohibits enforcement of any award passed after the appointed day against the Central Government or Government Company in relation to any matter or dispute raised before the appointed day. In the Act there is a chapter namely, Chapter VI which provides for payment of compensation to the owner as well as payment of any claim by any person against the owner. Section 23 appears in that chapter which makes provision for making an application by any person for his claim against an owner before the Commissioner within 30 days from the specified date. Thus from the framework of the Act it appears clear that the workmen who were dismissed before the appointed day had a remedy by way of a claim, if any, under Chapter VI of the Act, but as already stated above an award passed after the appointed day for reinstatement of a dismissed employee whose dismissal was declared illegal by the said award could not be enforced against the Central Government or the Government Company. In that view of the matter the award passed by the Tribunal (annexure 3) enforcing it against the petitioner-company is against the express provision of Section 9 of the Act and therefore illegal and liable to be set aside. The said award (annexure 3) in C.W.J.C. 1314/72 is therefore quashed.

I now take up the second point for consideration. In reply to the second point raised by the learned Advocate General, Mr Karuna Nidhan Keshava, appearing for the workmen concerned (respondent No. 3 in C.W.J.C. 1304 of 1972) drew our attention to Section 17 of the Act and relying upon the said section contended that under the said section an employee who was in the employment of coking coal mine or coke oven plant would become the employee of the Central Government or the Government Company on and from the appointed day. He further contended that an employee whose service has been terminated illegally or an employee who has been dismissed illegally would be deemed to be in the emplyoment on the appointed dayand therefore u/s 17 of the Act such employee became an employee of the Central Government or the Government Company as the case may be, on and from the appointed day. In support of this proposition, learned Counsel relied upon the case of Bihar State Road Transport Corpora-lion (supra) wherein, I have already pointed out above, it has been held that an employee whose termination of service was held to be invalid would be deemed to be on the rolls on 1st May, 1959 and as such the said employee on such date became an employee of the appellant-corporation. It is not necessary to deal with the aforesaid Supreme Court case again here as it will amount to repetition of what has been stated above by me about the aforesaid Supreme Court decision. I have already indicated above that the learned Advocate General pointed that, but for Section 9 of the Act, the workmen concerned (respondent No. 3) could have taken the benefit of the aforesaid Supreme Court decision. Learned counsel, appearing on behalf of respondent No. 3 however contended that harmonious construction should be put to both Section 17 as well as Section 9 of the Act and effect should be given to both the Sections in order to make the two Sections workable. But, in my opinion, the question of putting harmonious construction does not arise in the present case. In view of the provision of Section 9 of the Act, retrospective effect u/s 87 of the Act to employees whose services have been illegally determined before the appointed day cannot be given effect to. Sub-section (2)(b) of Section 9 in express words and without any ambiguity has taken away such interpretation that could have been put upon ioSectn 17 of the Act by applying the principle laid down in the Bihar State Road, corporation case, (supra). Therefore, in my opinion the workmen concerned (respondent No. 3) cannot take advantage of Section 17 of the Act and the principle laid down in the aforesaid Supreme Court decision in enforcing the award passed after the appointed day against the petitioner. In that view of the matter the award (annexure 3) by the directing reinstatement of the workmen concerned (respondent No. 3) petitioner and payment of back wages and other emolument from the date of dismissal cannot be sustained in law and has to be held to be illegal in view of Section 9(2)(b) of the Act. The award (annexure 3) is thus quashed.

In the result both the writ application are allowed. Let appropriate writs issue in both the cases quashing the award of the respective cases. In the circumstances I would make no order as to costs.