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.
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.
