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Thursday, November 24, 2016

first respondent shall in full and final settlement of all the claims and outstandings of the eighty eight workmen concerned in the reference deposit an amount of Rupees four lakhs each per workman-2016 Nov. http://judis.nic.in/supremecourt/imgst.aspx?filename=44321

                                                                  REPORTABLE


IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                      CIVIL APPEAL No.  11003   OF 2016
                 [Arising out of SLP (C) No. 13727 of 2014]



RASHTRIYA COLLIERY MAZDOOR
SANGH, DHANBAD                          .....APPELLANT


                                   VERSUS

EMPLOYERS IN RELATION TO MANAGEMENT
OF KENDUADIH COLLIERY OF M/S BCCL
& ORS                                              .....RESPONDENTS


                               J U D G M E N T

Dr D Y CHANDRACHUD, J

 1    Leave granted.

 2        The dispute in the present case relates to eighty eight workmen
who had worked as ‘Tyndals’ at the Kenduadih Colliery (of the first
respondent).  On 14 May 1993 a Reference was made to the Industrial
Tribunal by the appropriate government under Section 10(1)(d) of the
Industrial Disputes Act, 1947, of the following dispute :
“Whether the demand of Rashtriya Colliery Mazdoor Sangh  for  employment  of
Shri Arjun Paswan and 87 others, as per list attached is justified?   If  so
to what relief the workers are entitled”.



The job description of Tyndals required  these  workmen  to  be  engaged  in
moving engineering stores, drums of  oil  and  grease  and  they  were  also
responsible for setting up and dismantling of structures,  as  well  as  the
installation and withdrawal of machinery.  The Industrial  Tribunal  by  its
Award dated 16 July 1996 held that :

“it is beyond the question that the persons worked under the contractor  are
genuine one who are the present workmen and they  performed  the  job  which
was of permanent and perennial in nature and the person performing the  same
type of job  in  other  collieries  were  regularized  and  so  no  doubt  a
stepmotherly  attitude  was  taken  so  far  these  concerned  workmen   are
concerned”.

The Tribunal directed the management  to  form  a  panel  of  the  concerned
workmen in accordance with  seniority  and  to  absorb  or  regularize  them
either in the work of Tyndal or in any suitable category so  that  the  list
is exhausted within a period of one year.  Backwages were denied.

3     The first respondent filed a writ petition before the  Jharkhand  High
Court to challenge the Award (CWJC 1655 of 1997).  On 18 May 2004 a  learned
Single Judge  of  the  Jharkhand  High  Court  modified  the  Award  of  the
Industrial Tribunal and directed that as and when the management intends  to
employ regular workmen, it shall grant preference to  the  workmen  governed
by the Award if they are otherwise suitable by relaxing the requirements  of
age and academic qualifications.  This order  of  the  High  Court  attained
finality.

4     In 2007 the Union representing  the  workmen  filed  a  writ  petition
before the High Court (WP(L) 4915 of 2007)  seeking  implementation  of  the
order dated 18 May 2004.   While  disposing  of  the  writ  petition  on  24
September 2010 the High Court recorded the statement of the management  that
no vacancy had occurred in the post of Tyndal since the judgment  which  was
rendered on 18 May 2004.  However, the High Court recorded  the  undertaking
of the management that if any vacancy arises  in  future  and  the  post  is
advertised for which the workmen apply, they would  be  considered  for  the
post and that the management would also accommodate  them  if  there  was  a
vacancy under any other category.  Thereafter, a Review Petition  was  filed
before the High Court based on information  which  was  obtained  under  the
Right  to  Information  Act.   The  learned  Single  Judge  held  that   the
employment which was granted by the management between  2004  and  2008  (as
disclosed in the response to the RTI query on 11 September  2008)  indicated
that the appointment was made only on compassionate  grounds.   Once  again,
while disposing of the Review Petition the statement of the  management  was
recorded that if and when  posts  were  advertised,  the  workmen  would  be
entitled to apply and would be considered.   The  rejection  of  the  Review
Petition has led to the filing of these proceedings.

5     The Appellant has relied on certain proceedings which  took  place  in
another distinct reference to the  Industrial  Tribunal,  Reference  204  of
1994.  The reference was  at  the  behest  of  the  Union  representing  the
workmen engaged in one of the collieries of the first respondent.  An  Award
was  made  by  the  Industrial  Tribunal  on  14   August   2000   directing
regularization of seventy workmen in general  mazdoor  category  No.1.   The
Award was confirmed by a learned Single Judge of the High Court on  26  July
2001 while dismissing the writ petition of the management.   However,  in  a
Letters Patent Appeal the Award was modified by directing that as  and  when
the  management  intended  to  appoint  regular  workmen,  it  would   grant
preference to the workmen concerned  in  the  reference,  if  necessary,  by
relaxing the conditions of  age  and  academic  qualifications.   The  Union
filed a Special Leave Petition under Article 136 of the Constitution  before
this Court.  This Court by a Judgment and Order dated 18 November 2009,  set
aside the judgment of the Division Bench of the High Court and restored  the
Award of the Tribunal granting reinstatement without backwages.

6     The above judgment of this  Court  cannot  come  to  the  aid  of  the
Appellant for the simple reason that in that case, the Union had  challenged
the judgment of the Division Bench of the High Court before this Court.   In
the present case,  the  judgment  of  the  High  Court  dated  18  May  2004
modifying the Award of the Industrial Tribunal attained finality.  In  fact,
in their writ petition of 2007 the  workmen  sought  implementation  of  the
judgment rendered on 18 May 2004.  The entitlement that  the  workmen  claim
must hence flow out of the judgment of the High Court by which  the  workmen
were entitled to the grant of a  preference  in  future  employment  by  the
management by relaxing conditions of  age  and  educational  qualifications.
This distinction has, in fact, been noted in a judgment  recently  delivered
by this Court on 3 October 2016, in Workmen Rastriya Colliery Mazdoor  Sangh
v. Bharat  Coking  Coal  Ltd.  (C.A.  13953  of  1015).   This  Court  while
declining to grant reinstatement allowed compensation  to  fourteen  workmen
whose services were in issue, each in the amount  of  Rupees  two  lakhs  in
full and final settlement of all  claims  for  compensation.   The  relevant
part of the judgment rendered by this Court on 3 October 2016  is  extracted
below :

“7 The basic grievance of the workmen is that as a result  of  the  position
which has ensued, the workmen governed by the present  proceedings  of  whom
only 14 are left in the fray, are virtually without any relief or remedy  in
practical terms.  The workmen were engaged between 1987  and  1989.   Nearly
27 years have elapsed since then.  Many of the 14 workmen would  be  on  the
verge of attaining the age of retirement.  There is no occasion  at  present
to grant them reinstatement since in any event, such relief has been  denied
in the judgment of the High Court dated 18  May  2004  which  has  not  been
challenged.   However, the predicament of the workmen is real.  Two sets  of
workmen in the same colliery under the same company  have  received  unequal
treatment.  The present group of workmen has faced attrition in numbers  and
has been left with no practical relief.  This situation should be  remedied,
to the extent that is now permissible in law, having  regard  to  the  above
background. In order to render full, final and complete justice, we  are  of
the view that an order for the payment of compensation in  final  settlement
of all the claims, dues and  outstandings  payable  to  the  14  workmen  in
question would meet the ends of justice.

8 We accordingly direct that the Respondents shall deposit with the  Central
Government Tribunal (No.2) at Dhanbad an  amount  of   Rs.  Two  lakhs  each
towards compensation payable to each one of  the  14  workmen.  This  amount
shall be in full and final satisfaction  of  all  the  claims,  demands  and
outstandings.  Upon deposit of the  amount,  the  Award  of  the  Industrial
Tribunal dated 9 September 1996, as modified by the High  Court  on  18  May
2004 shall be marked  as  satisfied.   The  Respondents  shall  deposit  the
amount as directed hereinabove, within a period of  two  months  from  today
before  the  Central  Government  Industrial  Tribunal  (No.2)  Dhanbad   in
Reference 26 of  1993.   The  amount  shall  be  disbursed  to  the  workmen
concerned  subject  to  due  verification  of  identity  by  the  Industrial
Tribunal”.



7       In the present case,  the  counter  affidavit  filed  by  the  first
respondent before this Court contains a specific admission that  the  eighty
eight workmen governed  by  the  reference  were  working  as  ‘Tyndals’  on
surface as well as in underground mines  through  contractors  at  Kenduadih
Colliery.  The counter affidavit states that the reliance  which  is  sought
to be placed by the workmen  on  replies  to  queries  under  the  Right  to
Information Act is misleading and  that  the  appointments  in  those  cases
were made by the first  respondent  in  category  I  whereas  ‘Tyndals’  are
appointed in category IV.  We may  note  at  this  stage,  that  during  the
pendency of these proceedings an order was passed on  11  December  2015  to
enable the  respondents  to  ascertain  the  position  with  regard  to  the
vacancies in the above category.  A Committee was constituted by  the  first
respondent which by its report dated 2 January 2016 has observed that  there
is no vacancy in the post of  Tyndal,  category  IV  either  in  respect  of
Kenduadih Colliery or the Pootkee  Balihari  area  as  a  whole.   Kenduadih
Colliery is stated to be a  closed  mine.   A  statement  has  been  annexed
indicating the existence of surplus manpower.

8     In the Judgment of this  Court  rendered  on  3  October  2016,  noted
earlier, reasons have been indicated as to why it would not  be  practicable
to grant reinstatement particularly since such  relief  was  denied  in  the
judgment  of  the  High  Court  dated  18  May  2004,  which  has  not  been
challenged.   The  workmen  in  that  case  were  engaged  between1987-1989.
Nearly twenty seven years had elapsed and many of  the  workmen  would  have
been on the verge of retirement.  However, while taking  note  of  the  fact
that two sets of workmen in the same colliery and  under  the  same  company
have received unequal treatment, this Court ordered payment of  compensation
each in the amount of Rupees two lakhs to the workmen.  The workmen in  that
case were employed as general mazdoors.  The workmen  in  the  present  case
belong to the skilled  category  of  Tyndals  which  as  noted  earlier  are
comprised in category IV.  Having  due  regard  to  this  position,  in  the
present case, it would be appropriate to direct that  the  first  respondent
shall in full and final settlement of all the  claims  and  outstandings  of
the eighty eight workmen concerned in the reference  deposit  an  amount  of
Rupees four lakhs each per workman before the Central Government  Industrial
Tribunal (No.2) Dhanbad in Reference  54  of  1993.   The  amount  shall  be
disbursed to the workmen concerned subject  to  due  verification  of  their
identity by the Industrial Tribunal.  This  amount  shall  be  in  full  and
final satisfaction of all claims, demands and outstandings  payable  to  the
workmen.

9     The Civil Appeal shall stand allowed in the above terms.  There  shall
be no orders as to costs.




.........................................CJI
                                                                 [T S
THAKUR]


              …..........................................J
                                                                [Dr D Y
CHANDRACHUD]



..............................................J
                                                           [L NAGESWARA
RAO]

New Delhi
November 21, 2016.

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