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Jharkhand High Court · body

2009 DIGILAW 916 (JHR)

Bharat Coking Coal Limited v. Their Workmen

2009-07-02

N.N.TIWARI

body2009
Judgment Heard the parties. 2. In this writ petition the petitioner has prayed for quashing the award dated 20.2.2001 of the Central Government Industrial Tribunal No. 1, Dhanbad in Reference No. 128/1991, whereby the reference has been answered in favour of workman-respondent No.1 directing the management-petitioner to reinstate the concerned workman Md. Aslam Shadmani, but without back wages. 3. The short fact, in the background, is that the concerned workman was appointed as Security Follower on 7.11.1981. He was then placed as a Junior Watcher in the B.C.C. Ltd. on 20.1.1982 along with other thirteen employees and was regularized as such. Suddenly, by order dated 7.10.1982 the said order of regularization was withdrawn and the said workman was sought to be removed from the service. 4. It is not in dispute that before issuing the said impugned order dated 7.10.1982 no notice was issued to the concerned workman – respondent No. 1 and no notice pay was also given. 5. The concerned workman protested against the sudden removal from service by withdrawing of the order of regularization contrary to the mandatory provision of Section 25 of the Industrial Disputes Act and in violation of principles of natural justice. 6. The concerned workman filed several representations before the management requesting them to re-instate and pay full back wages, but to no effect. 7. When the management did not respond to the petitioner’s representations, he raised the industrial dispute before the Assistant Labour Commissioner (C), Dhanbad. The Assistant Labour Commissioner tried for conciliation, but the same ended in failure. The failure report was submitted by the Assistant Labour Commissioner (C) before the Ministry of Labour, Government of India. The said appropriate Government referred the disputes for adjudication to the Central Government Industrial Tribunal – 1, Dhanbad. The term of the reference was as follows :- “Whether the action of M/s B.C.C. Ltd. was justified in canceling the office order No. BCCL/PA-5/Prom/TR/Watcher/82/7478-388 dated 19/20.1.82 vide their office order No. BCCL//PA-5/Prom-Jr. Watcher-82 dated 7.10.82 regarding placement of Aslam Shadmani and consequently terminating his service is justified ? If so, what relief the concerned workman is entitled ?” 8. The parties appeared before the Industrial Tribunal and filed their respective written statement–cum-rejoinder. The specific claim of the concerned workman was his illegal termination in violation of the provisions of Section 25(F) of the Industrial Disputes Act and principle of natural justice. If so, what relief the concerned workman is entitled ?” 8. The parties appeared before the Industrial Tribunal and filed their respective written statement–cum-rejoinder. The specific claim of the concerned workman was his illegal termination in violation of the provisions of Section 25(F) of the Industrial Disputes Act and principle of natural justice. The management in their written statement contested the claims on the ground that there was inordinate delay in raising the industrial dispute and that the concerned workman did not complete 240 days and as such provision of Section 25(F) of the Industrial Disputes Act is not attracted. Since the regularization of the concerned workman was made contrary to the prescribed rules of the Company, there was no illegality in withdrawing the order of regularization of services of the concerned workman. 9. Both the parties led their evidences in support of their respective claim and also placed reliance on several documents, which were marked exhibits. 10. Learned Tribunal, thereafter, made his award giving his finding that the concerned workman was placed as Junior Watcher by order dated 19/20.1.1982, he had joined the post on 21.1.1982 and he was removed by the impugned order dated 7.10.1982. The concerned workman had admittedly worked for only 8 months and 16 days. The management did not produce any attendance register to show that during that period the concerned workman was absent from his duty. It has been held that it is an admitted position that the management has not followed the procedure prescribed under Section 25(F) of the I.D. Act nor they had given any opportunity of showing cause before canceling the posting of the concerned workman as Junior Watcher. The relationship of employer and employee has been established on the basis of the admitted facts and documents. The Tribunal held that in view of the decision of the Supreme Court only on the ground of delay workman cannot be denied relief available to him under law and the award can be moulded to exclude the period of delay in the matter of giving back wages and other consequential benefits. Learned Tribunal further held that there is no prescribed limitation for raising industrial disputes and when the termination of the concerned workman is illegal, relief of reinstatement cannot be refused. At best the concerned workman will not be entitled for back wages. 11. Learned Tribunal further held that there is no prescribed limitation for raising industrial disputes and when the termination of the concerned workman is illegal, relief of reinstatement cannot be refused. At best the concerned workman will not be entitled for back wages. 11. On the basis of the said finding learned tribunal held in the award that the action of the management of M/s. B.C.C. Ltd. in cancelling the office order No. BCCL/PA-V/Prom/Jt. Watcher/82/3478-388 dated 19/20.1.82 vide office order No. BCCL/PA-V/Prom-Jr. Watcher/82/52502-522 dated 7.10.82 regarding placement of the concerned workman, Md. Aslam Shadmani, and subsequently terminating his service is not justified and he is entitled for reinstatement but without back wages. 12. The petitioner has assailed the said award on three grounds, viz.:- i) The concerned workman has failed to prove that he worked for more than 240 days in one calendar year, onus of which was on him to prove before raising a grievance of non-compliance of the provisions of Section 25(F) of the I.D. Act. ii) The impugned award is bad for not considering the objection of inordinate delay in making the claim, in right perspective. iii) The management by the impugned order dated 7.10.1982 simply withdrew the earlier illegal order and there was no question of violation of natural justice or requirement of giving any notice to the workman in such case. Learned Tribunal could have awarded compensation in lieu of the employment even in the case of the proved violation of mandatory requirement of Section 25(F) of the I.D. Act in view of the long lapse of the period from the date of removal of the concerned workman. 13. Learned counsel relied on the decisions of the Supreme Court in Range Forest Officer Vs. S.T. Hadimani reported in (2002) 3 SCC 25 ; Manager, Reserve Bank of India, Bangalore Vs. S. Mani & Ors [ (2005) 5 SCC 100 ] and Sitaram Thakur Vs. The State of Bihar & Ors. [1993 (2) PLJR 140]. 14. Learned counsel appearing on behalf of the respondents, on the other hand, submitted that the impugned award has been made on proper consideration of the facts, materials and evidences on record and the points which have been raised in this court, have been almost answered by learned Tribunal with sound reason. There is no infirmity and illegality in the award. Learned counsel appearing on behalf of the respondents, on the other hand, submitted that the impugned award has been made on proper consideration of the facts, materials and evidences on record and the points which have been raised in this court, have been almost answered by learned Tribunal with sound reason. There is no infirmity and illegality in the award. Learned counsel submitted that primary onus of proving that he was the workman and he worked for more than 240 days in a calendar year has been discharged by the workman and he has proved prima-facie that he was a workman and he has completed 240 days, the management failed to rebut the same by admissible evidence. Learned counsel submitted that the decision in Range Forest Officer (Supra) (2002) 3 SCC 25 , is not applicable to the facts of the instant case. He has proved that he has worked for more than 240 days by bringing on record the facts and documents of his entry in service on 7.11.1981 and his removal from service by order dated 7.10.1982, which on calculation comes to more than 240 days. Learned counsel referred to and relied on the decision of Supreme Court in Bank of Baroda Vrs. Ghemarbhai Harjibhai Rabari [ (2005) 10 SCC 792 ]. Learned counsel submitted that the decision of the Supreme Court in Range Forest Officer (Supra) has been referred to and considered in the case of Bank of Baroda (Supra). He further submitted that in Haryana Land Reclamation and Development Corporation Ltd. Vs. Nirmal Kumar, reported in (2008) 2 SCC 366 the Apex Court has clearly held that a genuine claim of the workman cannot be rejected only on the ground of raising the dispute belatedly. Learned Tribunal has considered the decisions of the Supreme Court and has rightly held that only on the ground of limitation the violation of the mandatory provisions of Section 25(F) of the I.D. Act and the violation of principles of natural justice cannot be brushed aside and the workman cannot be denied the relief for which he is entitled in law. Learned counsel further submitted that the letter of regularization was issued by the concerned authorities of M/s B.C.C. Ltd. It is not the case that the letter of regularization was an act of fraud or misrepresentation or otherwise nonest and void and in that view the decision in Sitaram Thakur (Supra) has got no application. Since there is no contrary material evidence to rebut the fact established by the petitioner that he entered in the service on 7.11.1981 and he was removed from service on 7.10.1982 and worked about 11 months i.e. more than 240 days. It was mandatory on the part of the management to comply with the requirement of Section 25(F) of the I.D. Act as also the principles of natural justice. 15. I have heard learned counsel for the parties and considered the facts and materials on record. I have perused the respective written statement filed by the parties and award rendered by the Tribunal. It is an admitted case that the petitioner was employed on 7.11.1981 in the B.C.C.L. By letter dated 20.1.1982 services of the petitioner along with others were regularized. Subsequently by order dated 7.10.1982 the order dated 20.1.1982 was withdrawn by the management. It is also admitted that before the withdrawal neither any notice informing the reason was served on the concerned workman nor any notice pay, as required, under Section 25 of the I.D. Act was given to him. Learned Tribunal has based his finding on those admitted facts and documents proving the date of entry and the date of exit of the workman. In view of the said admitted facts and documents the workman had been able to discharge prima-facie onus to prove that he was a workman and that he rendered services for about 11 months, which is more than 240 days, I find no contrary material or evidence of the management on record in rebuttal of the same. The said finding of learned Tribunal is, thus, based on the admitted facts and records. So far as the objection of raising the dispute belatedly is concerned, learned Tribunal has rightly held on the basis of the decision of the Supreme Court that only on the ground of delay the workman cannot be deprived of any relief for which he is entitled under the provisions of law. So far as the objection of raising the dispute belatedly is concerned, learned Tribunal has rightly held on the basis of the decision of the Supreme Court that only on the ground of delay the workman cannot be deprived of any relief for which he is entitled under the provisions of law. So far as the question of compensation in lieu of employment is concerned, the same was not raised before the Tribunal and as such the award cannot be held to be illegal for not giving finding to that regard. Awarding compensation in lieu of service depends on facts and circumstances of each case and there is no straight jacket formula that in all cases of delay in raising dispute the workman has to be given compensation in lieu of employment. 16. In view of the above I find no illegality or infirmity in the impugned award. Learned Tribunal has rendered the impugned award on due discussion and consideration of all the relevant aspects and the findings are based on the facts and evidences on record. 17. I, therefore, find no merit in this writ petition and the same is, accordingly, dismissed. 18. However, there is no order as to cost.