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2003 DIGILAW 1022 (JHR)

EMPLOYERS IN RELATION TO BARAREE COKE PLANT OF BHARAT COKING COAL LTD. v. PRESIDING OFFICER

2003-08-20

P.K.BALASUBRAMANYAN, SUDHANSU JYOTI MUKHOPADHAYA, VIKRAMADITYA PRASAD

body2003
Judgment : S. J. MUKHOPADHAYA, J. ( 1 ) THE Workman Dip Lal Singh, Watchman of Bararee Coke Plant was in the services of bararee Coke Co. Ltd. His services were terminated by a Notice dated October 12, 1971 w. e. f.-October 19, 1971. The dispute was raised by the workman after about nine years of termination and after about ten years, the central Government referred the following dispute under Section 10 of the Industrial disputes Act, 1947 (hereinafter referred to as the "i. D. Act, 1947") to the Central government, Industrial Tribunal No. II (hereinafter referred to as the Tribunal ). "whether the action of the management of bararee Coke Plant of Bharat Coking Coal limited, Post Office Kusunda, District dhanbad in terminating the services of Shri dip Lai Singh, Watchman with effect from october 19, 1971 vide Managements notice dated October 12, 1971 is justified? If not, to what relief is the workman concerned entitled? in the Reference Case No. 13 of 1982, though Bharat Coking Coal Ltd. (hereinafter referred to as BCCL) was made a party, Bararee Coke Co. Ltd. was not impleaded as a party. BCCL raised the question of maintainability of reference in absence of the original employer i. e. , bararee Coke Co. Ltd. which terminated the services of the workman Dip Lai Singh. " the Tribunal passed the award on January 12, 1983 and answered the reference in favour of the Workman holding the order of termination as illegal. The Tribunal also directed reinstatement of Workman Dip Lal singh with back wages w. e. f. May 1, 1972, the date from which Coking Coal Mines were placed under BCCL on its nationalisation under the Coking Coal Mines (Nationalisation) Act, 1972. The appellant-Employer in relation to bararee Coke Plant of BCCL Dhanbad challenged the award before the Ranchi Bench of Patna High Court (this Court) in CWJC No. 686 of 1983 (R ). A single Bench of this Court vide its judgment dated July 18, 1989 held that the reference was invalid and the Tribunal could not have held the order terminating the employment of the concerned Workman to be invalid in the absence of the erstwhile employer who had terminated such employment. The writ petition was allowed and the award dated january 12, 1983 passed by the Presiding officer, Central Government. Industrial tribunal, Dhanbad No. II in Reference Case no. The writ petition was allowed and the award dated january 12, 1983 passed by the Presiding officer, Central Government. Industrial tribunal, Dhanbad No. II in Reference Case no. 13 of 1982 was quashed. ( 2 ) THE Workman represented by rashlnya Colliery Mazdoor Sangh, Dhanbad challenged the aforesaid judgment dated July 18, 1989 passed by learned single Judge in cwjc No. 686 of 1983 (R) before the Division bench in LPA No. 96 of 1989 (R ). A Division bench of this Court vide its judgment dated september 21, 1998 held that Bararee Coke co. Ltd. could not have terminated the services of the Workman w. e. f. October 19, 1979 in its own right because it was divested of all its rights and powers of Management in relation to the Coking Coal Mines after enforcement of the Coking Coal Mines (Emergency provisions) Act, 1971 (Act No. 64 of 1971 ). In view of the aforesaid finding, the Division bench further held that the Bararee Coking Co. Ltd. was not a necessary party to the Reference. The case was remanded to the single Bench for a decision of the writ petition in accordance with law. ( 3 ) AFTER the remand, the case was heard by a learned single Judge who by its judgment dated October 7, 1999 upheld the award passed by the Tribunal so far as it relates to termination of services of the concerned workman. However, the learned single Judge held that, in no case, the workman was entitled to back wages and other emoluments w. e. f. May 1, 1972, he having raised the dispute after more than nine years. The learned single Judge further held that the workman, at best, would be entitled to back wages w. e. f. the date of award. The award of the Tribunal was modified to the extent that besides reinstatement, the workman was held to be entitled for back wages w. e. f. the date of award and with such modification, the writ petition, C. W. J. C. No. 686 of 1983 (R) was allowed in part. ( 4 ) IN the present appeal, the appellant has challenged the subsequent judgment of the learned single Judge dated October 7, 1999 passed in C. W. J. C. No. 686 of 1983 (R ). ( 4 ) IN the present appeal, the appellant has challenged the subsequent judgment of the learned single Judge dated October 7, 1999 passed in C. W. J. C. No. 686 of 1983 (R ). It again raised the question of maintainability of reference and the legality of award passed by the Tribunal in absence of the erstwhile employer Bararee Coking Coal Ltd. who had terminated the services of the workman, apart from other grounds. ( 5 ) THE case was earlier heard by a division Bench of this Court which noticed that the Coking Coal Mines (Emergency provisions) Act, 1971 was gazetted on december 23, 1971 and given effect from retrospective date i. e. October 16, 1971. Taking into consideration the other fact, the division Bench was of the prima facie opinion that the Bararee Coke Company Ltd. who was the employer of the workman, had a right to act of their own, till December 22, 1971, i. e. , prior to the promulgation of the Emergency provisions Act, 1971. However, a different finding having been given by the Division bench in the case of the workman in LPA No. 96 of 1989 (R), the case was referred for a decision by a larger Bench to decide the issue and correctness of the finding of the Division bench aforesaid vide order dated July 11, 2002. ( 6 ) IN the present case, the following questions arise for consideration, namely: (A) Whether the Management of Bararee coke Co. Ltd. had a jurisdiction to terminate the services of the workman as on october 19, 1971 or not, the date from which the service of the workman was terminated; (b) Whether the reference was maintainable or not in absence of the original employer of the workman, namely, Bararee Coke Co. Ltd. , who had terminated his service; (c) Whether the issue No. (b) aforesaid can be raised and decided in the present appeal or is barred by the principles of constructive res judicatal and (d) Whether the award dated January 12, 1983 passed by the learned Presiding officer, Central Government Industrial tribunal No. II, Dhanbad in Reference case No. 13 of 1982 is otherwise legal and valid or not. ( 7 ) BEFORE discussion of the principal questions involved in this appeal, it is necessary to say a few words about inter-relation of certain Acts, relating to take over of management of Coal Mines and Coke Oven plants. The Coking Coal Mines (Emergency provisions) Ordinance Act, 1971 was gazetted on October 16, 1971 and came into force from the next date i. e. , October 17, 1971. By virtue of the provisions contained in Section 4 of the emergency Provisions Ordinance 1971, the managements of all the Coking Coal Mines were taken over, pending appointment of custodian. Though the Management of Coal Mines were taken over, the Managements of Coke oven Plants were not taken Over under the said emergency Provisions Ordinance, 1971. The aforesaid Ordinance was followed by act 64 of 1971, the Coking Coal Mines (Emergency Provisions) Act, 1971. It was gazetted on December 23, 1971 and under section 1 (2) came into force from October 16, 1971 i. e. , the day Emergency Provisions ordinance, 1971 was gazetted. Under Section 2 (a) October 17, 1971 was fixed as appointed day. The relevant provision i. e. , sub-section (1) of Section 4 of the Emergency Provisions act, 1971, whereunder the Management of the coking Coal Mines were taken over on and from the appointed day i. e. October 17, 1971, reads as follows : -"chapter II management of Coking Coal Mines 3. . . . . . . . . . . . . . 4. Management of Coking Coal Mines pending the appointment of Custodian.- (1)pending the appointment of a Custodian under Section 5 for any Coking Coal Mine, the person incharge of the management of such mine immediately before the appointed day shall, on and from the appointed day, be incharge of the management of such mine for and on behalf of the Central government; and the management of such mine shall be carried on by such person subject to the provisions contained in subsections (3) and (5) and such directions, if any, as the Central Government may give to him and no other person including the owner, shall, so long as such management continues, exercise any powers of management in relation to the Coking Coal mine. "it has already been mentioned that the Management of Coke Oven Plants were not taken over under the provisions of the Emergency Provisions Ordinance, 1971. "it has already been mentioned that the Management of Coke Oven Plants were not taken over under the provisions of the Emergency Provisions Ordinance, 1971. For the first time, the provision was made under Section 7 (Chapter iii) of Emergency Provisions Act, 1971 to vest the Management of Coke Oven Plants in the central Government on and from the specified date i. e. from such date as the Central Government may, by notified order, specify in this behalf. The relevant provisions are quoted hereunder:-" CHAPTER III management of Coke Oven Plants 7. Management of Coke Oven Plants to vest in the Central Government on the specified date.- On and from such date as the Central government may, by notified order, specify in this behalf (hereinafter, in this Chapter, referred to as the "specified date"), the management of the Coke Oven Plants specified in the Second Schedule shall vest in the Central Government. "the Management of the Bararee Coke plant was taken over by the custodian on december 27, 1971, has been noticed by the division Bench at Paragraph 6 of its judgment dated September 21, 1998 passed in LPA No. 96 of 1989 (R ). Similar was the statement of mw1, Shri Nand Kishore Kumar. From the letter No. : OMCCM-2/71 dated December 27, 1971 issued by the custodian Bhagabandh group (XII) of the Department of Mines, ministry of Steel and Mines, Government of india to the Manager, Bararee Coke Co Ltd. , 4, Golf Road, Calcutta-1 (Ext M/4 before the tribunal), it is clear that the Bararee Coke oven Plant of which the Workman Dip Lal singh was the employee was taken over on december 27, 1971. ( 8 ) THUS, it will be evident that though the managements of Coking Coal Mines were taken over w. e. f. October 17, 1971, the Coke oven Plants were taken over later on, from the different specified date as notified by the central Government. The Management of the bararee Coke Oven Plant where the Workman dip Lai Singh was functioning was taken over on December 27, 1971 i. e. , after about two months from the date of his termination (October 19, 1971 ). The Management of the bararee Coke Oven Plant where the Workman dip Lai Singh was functioning was taken over on December 27, 1971 i. e. , after about two months from the date of his termination (October 19, 1971 ). Admittedly, the date of take over of the Managements of Coking Coal mines is October 17, 1971, has no relevancy in the present case, as the Workman, Dip Lal singh was not an employee of any Coking Coal mines, but was an employee of Bararee Coke oven Plant, the Management of which was taken over under Section 7 of the Emergency provisions Act, 1971, after December 23, 1971, i. e. , after more than two months of termination of his services. The services of the employees of Coking Coal Mines or Coke oven Plants, were taken over later on, w. e. f. May 1, 1972 under Section 17 of the Coking coal Mines (Nationalisation) Act, 1972 (Act no. 36 of 1972), gazetted on August 17, 1972. Thereby services of the workman Dip Lal singh never stood taken over under BCCL. ( 9 ) IN the aforesaid circumstances, there is no difficulty to hold that the Management of bararee Coke Oven Plant had jurisdiction to terminate the services of the workman Dip Lal singh, the reference made by the Central government is invalid and the Tribunal could not have held the order of termination to be invalid, in absence of the erstwhile employer who had terminated such employment. ( 10 ) ). The first and the second questions, as raised i. e. , Issue Nos. (a) and (b) both stand decided in favour of the appellant, and against the workman. ( 11 ) IT was submitted on behalf of the respondent workman that the second issue (Issue No. (b)), as raised, is barred by the principle of constructive res judicata. For determination of such issue, it is pertinent to mention that the present appeal (LPA No. 498 of 1999 (R)), arises out of the same writ petition, CWJC No. 686 of 1983 (R) which gave rise to the earlier appeal (LPA No. 96 of 1983 (R) ). The case had not reached finality, the original writ petition having been remanded to the single Judge for a fresh decision, in accordance with law. The case had not reached finality, the original writ petition having been remanded to the single Judge for a fresh decision, in accordance with law. Further, this Bench is not a Bench of a co-ordinating jurisdiction considering the question (s) later on, but a Bench larger than the earlier Bench which heard the appeal, LPA No. 96 of 1989 (R ). A Division Bench having doubted the correctness of the finding arrived at in the said appeal, on the question of fact, has referred the matter to a larger Bench. ( 12 ) SECTION 11 of the CPC which indicates the general rule of res judicata in so far as it is relevant provides:-"11. No Court shall try any suit or issue in which the matter directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such court. "in the case of Mathura Prasad v. Dossibai air 1971 SC 2355 : 1970 (1) SCC 613 the supreme Court noticed that a question relating to jurisdiction of a Court was finally determined by an erroneous decision of that court. Subsequently, in another case, between the parties the Court below held that such decision between the same parties was binding and cannot be raised in view of general rule of res judicata. The Supreme Court in the said case noticed the decision of Calcutta High court in Tarini Charan Bhattacharyas case air 1928 Cal. 777 and observed as follows :-"a question relating to the jurisdiction of a court cannot be deemed to have been finally determined by an erroneous decision of the court. If by an erroneous interpretation of the statute the Court holds that it has no jurisdiction, the question would not, in our judgment, operate as resjudicata. Similarly by an erroneous decision, if the Court assumes jurisdiction which it does not possess under the statute the question cannot operate as res judicata between the same parties, whether the cause of action in the subsequent litigation is the same or otherwise. Similarly by an erroneous decision, if the Court assumes jurisdiction which it does not possess under the statute the question cannot operate as res judicata between the same parties, whether the cause of action in the subsequent litigation is the same or otherwise. " ( 13 ) IN the present case between the parties, as the jurisdiction of the competent authority to terminate the service of workman dip Lal Singh was determined by the Division bench in LPA No. 96 of 1989 (R) on erroneous interpretation of Statute, i. e. , Section 4 (1) of the Coking Coal Mines (Emergency provisions) Act, 1971, which is not applicable in the case of the workman, he being not an employee of the Coking Coal Mines, but being an employee of a Coke Oven Plant, such erroneous finding and decision would not operate as res judicata for determination of the issue No. (b) in the present appeal, which is in continuity of the earlier case. ( 14 ) THE third question (Issue No. (c)) is, accordingly decided against the workman Dip lal Singh. It has been brought on record that the Bararee Coke Plant was closed w. e. f. July 1, 1970 by its owner, namely, Bararee Coke co. Ltd. and all its workmen were retrenched on account of the closure of the Establishment. The concerned Workmen Dip Lal Singh and two others, however, were retained in service to guard the properties of Bararee Coke Co. Ltd. Thereafter, by reason of an agreement executed on June 14, 1971 between Bararee coke Co. Ltd. and Pandey and Bijoy Krishna sahay, the Management of the Bararee Coke plant was transferred to the aforesaid Pandey and Bijoy Krishna Sahay on June 14, 1971. The new Management having not accepted the liability of the workman of Bararee Coke Co. Ltd. . when assets of Bararee Coke Co. Ltd. were disposed of, it retrenched Dip Lal Singh by Notice dated October 12, 1971 w. e. f. October 19, 1971. The services of other workmen were also terminated. ( 15 ) ACCORDING to the appellant, the pay in lieu of Notice and retrenchment compensation were also paid and the workmen accepted the same without any protest. The Workmen, in question then applied for refund of Provident fund dues on July 3, 1973 and also withdrew the full amount from the Office of the Coal mines Provident Fund Commissioner. ( 15 ) ACCORDING to the appellant, the pay in lieu of Notice and retrenchment compensation were also paid and the workmen accepted the same without any protest. The Workmen, in question then applied for refund of Provident fund dues on July 3, 1973 and also withdrew the full amount from the Office of the Coal mines Provident Fund Commissioner. The present dispute was raised after a lapse of almost nine years which, according to the appellant is motivated and not a genuine dispute. ( 16 ) THE workman raised the dispute and challenged the legality of order of termination on the ground that the pay in lieu of Notice and retrenchment compensation were not paid at the time of retrenchment. The Tribunal accepted the aforesaid plea and held the order of termination illegal since the mandatory provisions and legal procedure envisaged under section 25-F of the Industrial Disputes Act, 1947 was not followed. ( 17 ) ACCORDING to the appellant, the finding of the Tribunal that the provision of Section 25-F of the Industrial Disputes Act, 1947 was not followed is illegal, perverse and has been passed ignoring the relevant evidence on record. ( 18 ) THE counsel for the respondent-workman refuted the allegation and submitted that the High Court cannot sit in appeal. It is true that this Court under Article 226 of the constitution cannot undertake an exercise re-appreciating the evidence, nor can draw conclusion of its own on pure question of fact. The findings of fact recorded by the fact finding authority duly constituted for the purpose and which ordinarily should be considered to have become final, cannot be disturbed for the mere reason of having been based on materials or evidence not sufficient or credible in the opinion of the writ Court to warrant those findings at any rate, as long as they are based upon some materials which are relevant for the purpose. It cannot be interfered even on the ground that there is yet another view which can be reasonably and possibly one can take. It cannot be interfered even on the ground that there is yet another view which can be reasonably and possibly one can take. ( 19 ) HOWEVER, in a case where a judicial or quasi judicial authority has acted in a manner as would reflect on its devotion to duty; if there is a prima facie material to show recklessness in the discharge of statutory powers, in a case where the judicial or quasi judicial authority had acted negligently and omitted the prescribed conditions necessary for the exercise of the statutory power, such finding of fact being perverse, it is always open to the court to interfere with such finding of fact arrived at by the fact finding body. ( 20 ) FROM the impugned award dated january 12, 1983, passed in Reference Case no. 13 of 1982, it will be evident that by Notice dated October 17, 1971, the concerned workman was asked to collect his dues before october 19, 1971. It was signed by the Works manager of Bararee Coke Co. Ltd. M. W. 3. Nar Bahadur another Havildar (Nightguard)deposed before the Tribunal that the retrenchment compensation was paid to the workman in the office of Bararee Coke Plant in his presence. M. W. 2, an old employee of bararee Coke Co. Ltd. deposed that there was only one Works Manager of Bararee Coke plant and Bhulanbari Coke Plant to suggest that the same works Manager used to manage both the Coke Plants. Though the aforesaid evidences were on record, the Tribunal without discarding the evidences i. e. , statement of witnesses of M. W. 3 and M. W. 2, came to a conclusion that no retrenchment compensation was paid, only because there was no documentary evidence on record. ( 21 ) THE Tribunal also failed to take into consideration that the employer Bararee Coke co. Ltd. was only competent person to produce such evidence relating to termination, but the aforesaid Company was impleaded as a party defendant in the Reference Case. ( 22 ) FROM the aforesaid evidences on record, it will be evident that the Tribunal not only failed to appreciate the relevant evidence on record, but also acted negligently against the prescribed conditions necessary for the exercise of statutory powers. Thereby, the finding of the Tribunal can be held to be perverse. ( 22 ) FROM the aforesaid evidences on record, it will be evident that the Tribunal not only failed to appreciate the relevant evidence on record, but also acted negligently against the prescribed conditions necessary for the exercise of statutory powers. Thereby, the finding of the Tribunal can be held to be perverse. ( 23 ) IN view of the aforesaid finding, the award being perverse and having passed negligently without following the prescribed conditions necessary for the exercise, of statutory power i. e. , without discussion and appreciation of evidences, on record, and in absence of necessary party to the reference case, it cannot be upheld. The award dated january 12, 1983 passed in Reference Case No. 13 of 1982 is, accordingly, set aside. ( 24 ) THE 4th question i. e. , Issue No. (d) is also answered in favour of the appellant against the workman. The appeal is allowed. However, there shall be no order as to costs. --- *** --- .