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2018 DIGILAW 212 (JHR)

H. v. Transmissions Ltd. VS State of Jharkhand

2018-01-25

ANUBHA RAWAT CHOUDHARY

body2018
ORDER : Heard Mr. V.P. Singh, learned senior Advocate assisted by Mr. A.K Das, Advocate appearing for the petitioner. 2. Heard Mr. Lalan Kumar Singh, J.C. to G.P.-I appearing for the respondent-State. 3. Heard Mr. Ashutosh Anand, Advocate appearing on behalf of respondent Nos. 3 and 4. 4. In this writ petition, the petitioner has prayed for following reliefs : (a) For quashing the order dated 13.10.2009 issued under Memo No. 989 by the Principal Secretary, Department of Labour, Employment and Training, Government of Jharkhand, as contained in Annexure-5 to the writ petition whereby the concerned authority has been pleased to reject the application filed by the petitioner under Section 87 of the Employees' State Insurance Act, 1948 seeking exemption from applicability of the provisions of the said Act. (b) For a direction upon the concerned authorities to immediately and forthwith grant exemption with effect from 01.11.2004 to the petitioner-company under Section 87 read with Section 91-A of the Employees' State Insurance Act from application of the provision of the said Act to the establishment of the petitioner. Counsel for the petitioner submitted as follows :- (i) Section 1(3) of the Employees' State Insurance Act provides that it shall come into force on such date or dates as the Central Government may by notification in the official gazette appoint and different dates may be appointed for different provisions of the Act and for different States or different parts thereof. It is submitted the Central Government vide notification dated 25.10.2004 had brought the Act into force in the area of the petitioner and also made the same applicable to the different parts of the district of East Singhbhum. (ii) It is submitted that vide letter dated 21.05.2005 issued by the Deputy Director, Employees' State Insurance Corporation, the petitioner company was asked to apply for registration under the Act. The petitioner applied for registration under the Act on 13.01.2005 and on being demanded by the respondents authorities, the petitioner vide letter dated 21.05.2005 had also furnished the list of contractors, who are working under the petitioner's company along with copies of the factory licence. (iii) The petitioner company was earlier part of M/s. Tata Engineering and Locomotive Company Ltd., presently known as M/s. Tata Motors Ltd. Later it separated from M/s. Tata Motors due to various business reasons. (iii) The petitioner company was earlier part of M/s. Tata Engineering and Locomotive Company Ltd., presently known as M/s. Tata Motors Ltd. Later it separated from M/s. Tata Motors due to various business reasons. It is submitted that as the petitioner-company is providing better facilities to its employees than contemplated under the Act and as its employees/workers are not interested in coming to the fold of the respondent Nos. 2 to 4 by leaving their better facilities from the petitioner, therefore, the petitioner company filed an application under Section 87 of the Act for grant of exemption from the applicability of the provisions of the Act to the petitioner-company in the prescribed format, mentioning therein all the details of the benefits, which are being provided to its employees. (iv) It is submitted that since the respondents did not care to provide any relaxation to the petitioner and had been pressing the petitioner hard for compliance of the provisions of the Act and also had threatened to take coercive step against the petitioner-company. As such, the petitioner having no alternative moved before this Court in W.P. (C) No. 5273 of 2008 and this Court, presided over by Hon'ble Mr. Justice D.G.R. Patnaik was pleased to dispose of the said writ application vide order dated 03.04.2009, directing the respondents to decide the application filed by the petitioner under Section 87 of the said Act for grant of exemption within six weeks and till the decision is taken and effectively communicated to the petitioner, the respondents were restrained from taking any coercive step against the petitioner. (v) It is submitted that H. V. Transmission Karamchari Union, which is a recognized trade union in the petitioner-company had also in a representative capacity of its members had represented before the Secretary, Department of Labour, Employment and Training, Government of Jharkhand, on 17.04.2009, requesting him to grant exemption under the Employees' State Insurance Act to the petitioner-company, as the implementation of the said provision of the Act in the petitioner-company would deprive the members of the benefits which they are already availing and may also lead to disturbance in the establishment. Thereafter the concerned respondent by order dated 13.10.2009 as contained in memo No. 998 had rejected the application filed by the petitioner under Section 87 of the Employees' State Insurance Act. 5. Thereafter the concerned respondent by order dated 13.10.2009 as contained in memo No. 998 had rejected the application filed by the petitioner under Section 87 of the Employees' State Insurance Act. 5. Counsel for the petitioner referring to the impugned order as contained in Annexure-5 to the writ petition refers to the following passage :- "The matter was heard by the Special Secretary, Labour, Employment and Training Department, Government of Jharkhand (Principal Secretary was absent on leave) on 20/21.4.2009. The concerned notes of the Special Secretary and the written records on file were perused by the Principal Secretary, Labour, Employment and Training, Government of Jharkhand." 6. Although, number of points have been raised in this writ petition, but counsel for the petitioner has confined his argument as to whether the impugned order could have been passed by some other authority other than the person who heard the matter. The counsel for the petitioner submits that the application for exemption filed by the petitioner was heard by the Special Secretary, Department of Labour, Employment and Training, Government of Jharkhand, but the impugned order has been surprisingly passed by the Principal Secretary, Department of Labour, Employment and Training, Government of Jharkhand who never had any occasion to hear the application for grant of exemption. This aspect of the matter has not been controverted by the respondents. The counsel for the petitioner has submitted that as the matter was heard by the Special Secretary, Department of Labour, Employment and Training, Government of Jharkhand, the impugned order could not have been passed by the Principal Secretary, Department of Labour, Employment and Training, Government of Jharkhand. In support of the contention, counsel for the petitioner has relied upon three judgments reported in (2014) 6 SCC 564 . At paragraph No. 20, the Hon'ble Supreme Court has held thus : "In view of the above, the law on the issue can be summarised to be effect that the very person/officer, who accords the hearing to the objector must also submit the report/take decision on the objection and in case his successor decides the case without giving a fresh hearing, the order would stand vitiated having been passed in violation of the principles of natural justice." 7. Counsel for the petitioner also relied on the judgment reported in (2015) 10 SCC 241 . Counsel for the petitioner also relied on the judgment reported in (2015) 10 SCC 241 . Paragraph No. 9 of the said judgment reads as under :- "The importance of Section 5-A cannot be overemphasised. It is conceived from natural justice and has matured into manhood in the maxim of audi alteram partem i.e. every person likely to be adversely affected by a decision must be granted a meaningful opportunity of being heard. This right cannot be taken away by a side wind, as so powerfully and pellucidly stated in Nandeshwar Prasad v. State of U.P. So stringent is this right that it mandates that the person who heard and considered the objections can alone decide them; and not even his successor is competent to do so even on the basis of materials collected by his predecessor. Furthermore, the decision on the objections should be available in a self-contained, speaking and reasoned order; reasons cannot be added to it later as that would be akin to putting old wine in new bottle. We can do no better than commend a careful perusal of Union of India v. Shiv Raj, on these as well as cognate considerations." 8. The petitioner also refers to the Constitution Bench judgment of Hon'ble the Supreme Court reported in AIR 1959 SC 308 . Paragraph Nos. 30 and 31 of the judgment is quoted hereinbelow for ready reference : "30. But such a hearing given by the Secretary, Transport Department, offends the principle of natural justice that the authority empowered to decide the dispute between the opposing parties must be one without bias, and the proceeding and the hearing given, in violation of that principle are bad. 31. While the Act and the Rules framed thereunder impose a duty on the State Government to give a personal hearing, the procedure prescribed by the Rules impose a duty on the Secretary to hear and the Minister to decide. This divided responsibility is destructive of the concept of judicial hearing. Such a procedure defeats the object of personal hearing. Personal hearing enables the authority concerned to watch the demeanour of the witnesses and clear up his doubts during the course of the arguments, and the party appearing to persuade the authority by reasoned argument to accept his point of view. If one person hears and another decides, then personal hearing becomes an empty formality. Personal hearing enables the authority concerned to watch the demeanour of the witnesses and clear up his doubts during the course of the arguments, and the party appearing to persuade the authority by reasoned argument to accept his point of view. If one person hears and another decides, then personal hearing becomes an empty formality. Therefore the said procedure followed in this case also offends another basis principle of judicial procedure 9. Counsel for the petitioner also relies upon two orders/judgments of this Court passed in W.P. (C) No. 2213 of 2009 and W.P. (C) No. 122 of 2010 disposed of vide order dated 24.11.2011 on the identical issue under similar circumstances, matter was remitted to the Principal Secretary, Department of Labour, Employment and Training, Government of Jharkhand, who in turn was directed to dispose of the application by reasoned order in accordance with law within a stipulated time framed. 10. It is submitted by counsel for the petitioner that the order dated 24.11.2011 passed in W.P. (C) No. 2213 of 2009 and W.P. (C) No. 122 of 2009 has attained finality and the same has not challenged by the respondents. 11. Counsel for the respondent Nos.1 and 2 admits the legal position and submits that instead of entering into the merits of the case, the matter may be remanded to the competent authority to pass fresh order on the point of exemption as claimed by the petitioner after giving an opportunity of hearing to the petitioner. 12. Counsel for the respondent Nos. 3 and 4 submits that so far as impugned order is concerned, there is no provision under the Act to give exemption with retrospective effect in view of Section 91 (A) of the Act. It is submitted by counsel for the respondent Nos. 3 and 4 that this amendment has been carried out in the year 2010 w.e.f. 01.06.2010. 13. 3 and 4 submits that so far as impugned order is concerned, there is no provision under the Act to give exemption with retrospective effect in view of Section 91 (A) of the Act. It is submitted by counsel for the respondent Nos. 3 and 4 that this amendment has been carried out in the year 2010 w.e.f. 01.06.2010. 13. After considering the argument advanced on behalf of the parties and after considering the materials on record, this Court is inclined to set-aside the impugned order dated 13.10.2009 (Annexure-5 to the writ petition) passed under the seal and signature of Principal Secretary, Department of Labour, Employment and Training, Government of Jharkhand and remit the matter to the competent authority for passing fresh order after hearing the petitioner in accordance with law on account of following facts and reasons : (a) It is an admitted fact that the matter was heard and order was reserved by the Special Secretary, Labour, Employment and Training, Government of Jharkhand and the final order was passed by the Principal Secretary, Labour, Employment and Training, Government of Jharkhand without giving any opportunity of hearing before the Principal Secretary Labour, Employment and Training, Government of Jharkhand. (b) It has been held by Hon'ble the Supreme Court in the judgments relied upon by the petitioner that the order should be passed by the person who hears the arguments failing which the order will amount to gross violations of the principles of natural justice and fair play. (c) The petitioner has been highly prejudiced by fact the that the matter was heard and order was reserved by the Special Secretary, Labour, Employment and Training, Government of Jharkhand but the final order was passed by the Principal Secretary, Labour, Employment and Training, Government of Jharkhand as the said authority while passing the impugned order has not considered many vital aspects of the matter. (d) There is no dispute that under similar circumstances W.P. (C) No. 2213 of 2009 and W.P. (C) No. 122 of 2010 disposed of vide order dated 24.11.2011 on the identical issue under similar circumstances, matter was remitted to the Principal Secretary, Department of Labour, Employment and Training, Government of Jharkhand, who in turn was directed to dispose of the application by reasoned order in accordance with law within a stipulated time frame. (e) So far as the contention of the counsel appearing for the respondent Nos. (e) So far as the contention of the counsel appearing for the respondent Nos. 3 and 4 in regards to amendment in Employees' State Insurance Act, 1948 by inserting Section 91-A in Employees' State Insurance Act, 1948 is concerned, this Court is of the considered view that the petitioner is not at fault when the matter was heard by one authority and final order was passed by another authority without any hearing by the authority who had passed the order. The order which may be passed by the authority will not be all order on any fresh application but the same will be passed on the same application and materials which are already on record. (f) Further, counsel for the petitioner has agreed that no further document will be filed before the authority concerned and the case will be decided on the basis of materials available on record after giving opportunity of hearing to the parties. 14. Accordingly, this writ application is allowed and the impugned order dated 13.10.2009 (Annexure-5 to the writ petition) passed under the seal and signature of Principal Secretary, Department of Labour, Employment and Training, Government of Jharkhand is hereby quashed. The matter is remitted back to the competent authority who shall fix a date of hearing in the matter in the month of March and pass a reasoned and speaking order in accordance with law on the basis of materials already available on record within a period of six months thereafter. 15. It is made clear that this Court has not entered into the merits of the case. Petition allowed.