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2008 DIGILAW 1059 (CAL)

Coal India Limited v. Mahadev Banerjee

2008-12-11

PRASENJIT MANDAL

body2008
JUDGMENT:- (1). This second appeal is directed against the Title Appeal No.32 of 1991 passed by the learned Additional District Judge, Durgapur, District -Burdwan in Title Appeal No.32 of 1981 whereby he has dismissed the title appeal and affirmed the judgment and decree dated 23.12.1980 passed by the learned Munsif, First Court, Durgapur in Title Suit No.111 of 1978. (2). The short fact of the case is that the plaintiffs/respondents were appointed teachers of Moira Colliery Junior High School on 03.02.1968 for imparting education to the children of the colliery employees. The said school is situated on the premises of Moira Colliery and was being managed by the colliery authorities through a school committee consisting of the representatives of the management and the employees. The agent or the welfare officer was the ex-officio Secretary of the school committee. The plaintiff No.1 was appointed headmaster of the said school and the plaintiff No.2 was appointed Assistant Teacher and their names were duty recorded in the muster rolls of the said colliery and they were paid their salaries out of the fund of the said colliery. Then Coal Mines (Nationalisation) Act, 1973 was passed vesting the right title and interest of the said colliery in the Government company namely Eastern Coalfields Limited, a subsidiary of Coal India Limited, with effect from 01.05.1973. Thus, the said school building became the property of the said Government Company. The plaintiffs/respondents have been working in the said school after such promulgation of the Act of 1973. But all of a sudden they got a notice that their names had been struck off from the rolls of the company with effect from 14.09.1973. They made several correspondences with the Government Company but could not get any remedy. Ultimately, they filed the Title Suit No.111 of 1978 before the learned Munsif, First Court, Durgapur for declaration that the plaintiffs/ respondents are the direct employees under the defendants and that they have the right to get salaries, decree for cost, etc. (3). Upon consideration of the evidence of both the sides, the learned Munsif decreed the suit on 23.12.1980. Ultimately, they filed the Title Suit No.111 of 1978 before the learned Munsif, First Court, Durgapur for declaration that the plaintiffs/ respondents are the direct employees under the defendants and that they have the right to get salaries, decree for cost, etc. (3). Upon consideration of the evidence of both the sides, the learned Munsif decreed the suit on 23.12.1980. The appellant filed an appeal bearing Title Appeal No. 32 of 1981 against the said judgment and decree and that appeal was dismissed on 28.04.1988 by the learned Additional District Judge, Durgapur, holding inter alia, that the Amendment Act of 1986 deals with substitution and not with amendment and that the plaintiffs/ respondents would be governed by the provision of the unamended Section 14(2) of the Act to become employees of the Government Company. (4). Being aggrieved by the said judgment and decree of the appellate Court, the defendant/appellant has preferred this second appeal. (5). Two substantial questions of law have been formulated by this Honble Court for decision of the second appeal and these are as follows:-(a) "What is the effect of substitution of Section 14 of the Coal Mines (Nationalisation) Act as effected from 1st May, 1973 by the Coal Mines (Nationalisation) Act, 1986 being Act of 57 of 1986? (b) Are the plaintiffs, the teachers of a school of a Junior High School as set up by the erstwhile owner of the Colliery at Pre-nationalisation stage would come within the ambit of Section 14(2) of the unamended section prior to the substitution with retrospective effect from 1st May, 1973." (6). The learned Advocate for the appellant has submitted before me that there is no dispute that in 1968 the plaintiffs/respondents were appointed teachers of Moira Colliery Junior High School by the owner of the said colliery and that Coal Mines (Nationalisation) Act, 1973 had been promulgated effecting vesting the right, title and interest of the Moira Colliery in the Government Company with effect from the appointed day that is on 01.05.1973. He has submitted that according to the said Act of 1973, coal mine, and mine have been defined in Section 2 of the said Act of 1973. According to such definition of coal mine and mine, the Moira Junior High School does not come within the definition of either coal mine or mine. He has submitted that according to the said Act of 1973, coal mine, and mine have been defined in Section 2 of the said Act of 1973. According to such definition of coal mine and mine, the Moira Junior High School does not come within the definition of either coal mine or mine. He has also contended that the plaintiffs/respondents being the teachers of the said school cannot be described as workmen and so they are not entitled to get any protection under the said Act of 1973. In fact, their names have been struck off from the rolls of the company by an order dated 14.09.1973. The Lower Appellate Court has observed that the plaintiffs/respondents are not workmen at all but they cannot be considered as employees of the said colliery because they are not connected in any manner with the coal affairs of the said colliery. He has also contended that the Coal Mines Nationalisation Laws (Amendment) Act.1986 was promulgated and such Act has come into force on 07.10.1986. Section 14 of the unamended Act has been totally deleted and a new section for Section 14 has been incorporated in the said Amendment Act of 1986. So, if for arguments sake, if the plaintiffs/ respondents are considered as employees under Section 14(2) of the Act of 1973 (though not admitted) they cannot be considered as employees at all after deletion of the Section 14 of the Act of 1973 by substitution of. a new section by the Act of 1986. So the plaintiffs/respondents cannot be considered at all as employees of the said colliery. (7). On the other hand, the learned Advocate for the plaintiffs/ respondents has submitted that it is an admitted position that the plaintiffs/ respondents were appointed teachers of the said colliery-school in February, 1968 and after promulgation of the Coal Mines (Nationalisation) Act, 1973, as per Section 3 of the said Act, the right, title and interest of the owners in relation to the said colliery vested absolutely in the Government Company with effect from the appointed date that is on 01.05.1973. He has also contended before me that Moira Colliery Junior High School is situated on the premises of Moira Colliery and is being used for imparting education to the children of the colliery employees and so the building of the said school vested in the Government Company from the appointed date that is on 01.05.1973. Such fact has been established. The fact that the school building is situated on the premises of the Moira Colliery has been established by the plaintiffs by adducing sufficient evidence and no contrary evidence has been adduced on behalf of the defendant/appellant before the trial Court or appellate Court and so the school building should be considered as the property of the Government company with effect from 01.05.1973. If the school teachers are not considered at all as workmen they can well be considered as employees of the said colliery as per Section 14(2) of the Act of 1973. He has also contended that the services of the plaintiffs/respondents have not been terminated with effect from the specified date that is on 01.08.1973 and they continued to work and they got their salaries from the said colliery, provident fund contributions were deducted from their salaries and those were deposited in the provident fund account of the said colliery. The Government Company also contributed their share of the provident fund and so they should be considered as employees of the Government Company after the specified date that is on 01.08.1973. So their names cannot be struck off by an order dated 14.09.1973 at all. Before promulgation of the Amendment Act of 1986, the learned Munsif decreed the suit treating the plaintiffs/respondents as employees of the Government Company. So deletion of the Section 14(2) of the Act of 1973 cannot be considered as termination of service of the plaintiffs/respondents from the said Government Company. He has also contended that the services of the plaintiffs/ respondents were not terminated at all by the order dated 14.09.1973 and their names were simply struck off from the muster rolls of the Government Company in order to deprive them of the facilities which are provided to other employees of the Government Company. He has also contended that the services of the plaintiffs/ respondents were not terminated at all by the order dated 14.09.1973 and their names were simply struck off from the muster rolls of the Government Company in order to deprive them of the facilities which are provided to other employees of the Government Company. In fact, the plaintiffs/ respondents have been working all along in the said school and they are getting their salary within the range of Rs.150-200/- per month out of the fund of the Government Company and so it cannot be said that their services had been terminated. So the plaintiffs/respondents are entitled to get the reliefs sought for in the plaint. The learned Advocate for the plaintiffs/ respondents has also submitted that substitution of a new provision for the existing one does not affect the rights of the parties and in support of his contention he has referred to the decision reported in 2001(4) SCC 236 . So, he has submitted that the plaintiffs/respondents should be treated as employees of the Government Company as per Section 14(2) of the Act of 1973 and they are entitled to get the reliefs as sought for in the plaint. He has also contended that the concurrent findings of the two Lower Courts based on evidence cannot be set aside in the second appeal. (8). Having considered the submissions of the learned Advocate of both the sides and on perusal of the materials-on-record, I find that it is an admitted position that in 1968 the plaintiffs/respondents were appointed teachers in the salid Moira Colliery Junior High School. Upon analysing the evidence adduced by the plaintiffs/respondents, the learned Munsif has observed that the said school is situated on the land of Moira Colliery and that the defendant/appellant has failed to produce any contrary evidence to that. Such findings have been supported by the first appellate Court. Thus, I find that the trial Court and the first appellate Court have come to a concurrent finding that Moira Colliery Junior High School is situated on the land of the Moira Colliery. So, no contrary view can be in the second appeal on this aspect. Now "coal mine" has been defined in the Act of 1973 as a mine in which there exists one or more seems of coal. So, no contrary view can be in the second appeal on this aspect. Now "coal mine" has been defined in the Act of 1973 as a mine in which there exists one or more seems of coal. The said Act also defined mine in Section 2(h) as meaning any excavation where any portion for the purpose of searching for or obtaining minerals has been or is being carried on and includes along with other aspects of all lands and buildings wherever situated if solely used for the location of the management, sale or liaison offices, or for the residence of the officers and staff, of the mine, in different sub-paragraphs from (i) to (xii). Thus, from the definition of words "coal mine" and "mine", I find that the said school falls within the category of property of the Moira Colliery. After promulgation of the Coal Mines (Nationalisation) Act, 1973, the right, title and interest of the owners in relation to coal mines have been vested in the Central Government or Government Company free from all encumbrances with effect from the appointed date that is from 01.05.1973 and so the said school building has become the property of the Government Company that is Eastern Coalfields Limited, a subsidiary of the Coal India Limited. The learned Advocate for the plaintiffs/ respondents has referred to the decision reported in AIR 1997 SC 1599 and 90 CWN 615 in support of his contention that structures adjacent to mine used as office and quarters of staff of mine would vest in Central Government as per Sections 2 (h), 3(3), 20 and 26 of the Coal Mines (Nationalisation) Act, 1973. The decision reported in AIR 1997 SC 1599 is very much applicable in the instant case to decide that school building situated on the land of the colliery meant for the education of the children of the employees of the colliery would come within the definition of mine as per Section 2(h) of the said Act and so the school building has vested in the Government Company. As regards the other ruling that is 90 CWN 615, this lays down that a weighbridge comes within the definition of mine as per Section 2(h). This decision, I hold, is not applicable in the instant situation because school building is altogether different from a weighbridge which is exclusively used for the direct purpose of mine. As regards the other ruling that is 90 CWN 615, this lays down that a weighbridge comes within the definition of mine as per Section 2(h). This decision, I hold, is not applicable in the instant situation because school building is altogether different from a weighbridge which is exclusively used for the direct purpose of mine. So the school building has been vested in the Government Company as per Section 3 of the Act of 1973. (9). In order to protect the workmen and employees of the collieries, certain measures have been provided in Sections 14 and 15 of the said Act of 1973 and Section 14 is one of such section for absorption of the workmen and employees of a coal mine. For conveninece, I am setting below the Section 14 of the said Act: - "14 Employment of certain employees to continue. - (1) Every person who is a workman within the meaning of the Industrial Disputes Act, 1947 (14 of 1947), and has been, immediately before the appointed day, in the employment of a coal mine shall become on and from the appointed day, an employee of the Central Government or, as the case may be, of the Government Company in which the right, title and interest of such mine have vested under this Act, and shall hold office or service in the coal mine with the same rights to pension, gratuity and other matters as would have been admissible to him if the rights in relation to such coal mine had not been transferred to, and vested in, the Central Government or the Government Company, as the case may be, and continue to do so unless and until his employment in such coal mine is duly terminated or until his remuneration, terms and conditions of employment are duly altered by the Central Government or the Government Company. (2) The Central Government or the Government Company in which the right, title and interest in relation to a coal mine have vested, may employ, on mutually acceptable terms and conditions, any person who is not a workman within the meaning of the Industrial Disputes Act, 1947, and who has been immediately before the appointed day, in the employment of a coal mine, and on such employment the said person shall become an employee of the Central Government or the Government Company, as the case may be. (3) Save as otherwise provided in sub-sections (1) and (2) the services of every person employed by the owner or occupier of a coal mine before the appointed day shall stand terminated on and from the specified date." (10). It is not in dispute that the teachers of the school are not at all workmen as defined in the Industrial Disputes Act, 1947. But as per above protection, the teachers were absorbed as employees of the Government Company that is Eastern Coalfields Limited with effect from 01.05.1973 under Section 14(2). Section 14(3) provides for termination of the employees of the coal mine but the plaintiffs/respondents were not terminated at all under Section 14(3) of the Act of 1973. They were paid their salaries from the Government Company and provident fund deduction was made from their salary and the employers also contributed their share of provident fund contribution and those amounts were deposited in the coal mines provident fund of the defendant/appellant. Such system continued up to 14.09.1973 that is beyond the specified date on 01.08.1973 when their services could have been terminated under Section 14(3) of the Act of 1973. When no such measure was taken for termination of the service up to the specified date that is on 01.08.1973, the plaintiffs/ respondents were obviously treated as employees of the Government Company after the specified date. Thereafter, their names were struck off from the rolls of the company only to cut off the benefits which are given to the other employees of the colliery in the same category that is the clerical category of the establishment of the colliery. Such striking of the names of the plaintiffs/respondents from the rolls of the company does not amount to termination at all from service. In fact, the plaintiffs/ respondents have been continuing their work in the said school. So as per Section 14(2) of the unamended Act of 1973 the plaintiffs/respondents became employees of the Government Company. (11). The Coal Mines Nationalisation Laws (Amendement) Act, 1986 substituted Section 14 of the unamended Act of 1973 by the following way: -"14. In fact, the plaintiffs/ respondents have been continuing their work in the said school. So as per Section 14(2) of the unamended Act of 1973 the plaintiffs/respondents became employees of the Government Company. (11). The Coal Mines Nationalisation Laws (Amendement) Act, 1986 substituted Section 14 of the unamended Act of 1973 by the following way: -"14. Liability of officer or other employee of a coal mine for transfer to any other coal mine-Notwithstanding anything contained in the Industrial Disputes Act, 1947 (14 of 1947), or in any other law for the time being in force, the services of any officer or other employee employed in a coal mine shall be liable to be transferred to any other coal mine and such transfer shall not entitle such officer or other employee to any compensation under this Act or any other law for the time being in force and no such claim shall be entertained by any Court, Tribunal or other authority." (12). The learned Advocate for the defendant/appellant has submitted that by the substitution of a new section for Section 14 of the unamended Act of 1973, the provision of Section 14(2) of the unamended Act of 1973 has been deleted and so the plaintiff/respondents cannot be considered as employees at all. He has submitted that such amended Act of 1986 has come into force with effect from 7th October, 1986 and as such the plaintiffs/respondents cannot get any relief at all. With due respect to the learned Advocate for the defendant/appellant, I hold that such submission cannot be accepted at all because I have observed earlier that the plaintiffs/respondents were not terminated at all from their services and they have been working in the said school of, course on, getting a nominal pay within the range of Rs.150-200/- per month without getting other benefits which they are entitled to at par with other employees of the said Government Company. My above observation finds support from the decision in the case of Ramkanali Colliery of BCCL v. Workmen by Secretary, Rashtriya Colliery Mazdoor Sangh and Anr., reported in 2001 (4) SCC 236 . My above observation finds support from the decision in the case of Ramkanali Colliery of BCCL v. Workmen by Secretary, Rashtriya Colliery Mazdoor Sangh and Anr., reported in 2001 (4) SCC 236 . The concluding 5 lines of Paragraph-8 of the said decision lay down as follows: -"If there is a vested right and that right is to be taken away, necessarily the law will have to be retrospective in effect and if such a law retrospectively takes away such a right, it can no longer be contended that the right should be enforced. However, that legal position, in the present case, does not affect the rights of the parties as such." (13). Thus, I find that the status of the plaintiffs/respondents with relation to the Government Company is nothing but employee and employer relationship between the two. Their services were not terminated at all by the Government Company because of promulgation of the Act of 1973.The services of the plaintiffs/respondents have not been broken at all. Thus, they are entitled to get their salary as per norms of salary, wages and other services benefits as admissible to the employees of the Government Company. Therefore, I am of the view that the effect of substitution of Section 14 of the Coal Mines (Nationalisation) Act, 1973 by the Coal Mines Nationalisation Laws (Amendment) Act, 1986 did not affect the rights of the plaintiffs/respondents with regard to their services in the Government Company and that the plaintiffs/respondents would come within the ambit of Section 14(2) of the unamended section prior to the substitution with retrospective effect from 01.05.1973. The substantial questions of law are thus answered, in the result, the concurrent findings as observed by the trial Court and the first appellate Court based on evidence cannot be disturbed at all. (14). The judgment and decree passed by the learned Munsif, Durgapur in Title Suit No.111 of 1978 and the judgment and decree passed by the learned Additional District Judge, Durgapur in Title Appeal No.32 of 1991 are hereby affirmed. The second appeal fails to succeed. It is dismissed. (15). Considering the circumstances, there will be no order as to costs. (16). All interim orders are hereby vacated. Parties are at liberty to take steps in accordance with law against each other, if so advised. The second appeal fails to succeed. It is dismissed. (15). Considering the circumstances, there will be no order as to costs. (16). All interim orders are hereby vacated. Parties are at liberty to take steps in accordance with law against each other, if so advised. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.