Jharkhand High Court
Eastern Coalfields Limited Etc. vs Sri S.K. Mukhopadhyaya, Arbitrator And ... on 9 July, 2003
Equivalent citations: [2003(3)JCR296(JHR)], (2003)IIILLJ1082JHAR
Author: R.K. Merathia
Bench: P.K. Balasubramanyan, R.K. Merathia
JUDGMENT R.K. Merathia, J.
1. Heard the parties.
Both the connected matters are taken up together and decided by this common judgment. The management has challenged the award whereby and whereunder the management has been directed to give employment to the two workmen (respondent No. 3 and 4), in such post as they were previously employed, whereas CWJC No. 1484 of 1994 (R) the two workmen have challenged the award on the ground that back wages from 18.11.1986 has not been provided in the award.
CWJC No. 754 of 1994(R)
2. Learned counsel for the petitioner submitted that the following facts are un-controverted.
(I) M/s. Oriental Coal Company Limited (Company for short) was the owner of the coal mine, namely Badjna Colliery, which was nationalized under the Coal Mines (Nationalisation) Act, 1973. At the time of taking over of the mine, the said company refused to handover the Barakar Engineering and Foundry Works Limited (BEFW) to the custodian/Central Government, on the ground that the same was a separate establishment and the same has not vested under the Nationalisation Act. The said company, therefore, filed a writ petition before the Hon'ble Calcutta High Court. The company was allowed to function as receiver of BEFW during the pendency of the writ petition.
During the period of receivership, thirty eight workmen including the two workmen who were on casual rolls were retrenched on 29.5.1975 under a settlement, and they received retrenchment compensation. The settlement, infer alia, provided that the management would offer the chance of "first refusal" to all the casual workmen whose services are terminated under the settlement, as and when recruitment of additional hands is under consideration in future.
(II) The said dispute regarding vesting of BEFW was taken to the Supreme Court. The Supreme Court while holding that the Nationalisation Act was constitutionally valid, did not specifically held that BEFW should be handed over to the said company and left the question open for determination as to whether the said workshop was exclusively catering the needs of the said company or others. The said company, however, ultimately on its own handed over the said work shop BEFW to the petitioner on 14th November, 1986, presumably for the reason that the said workshop became junk and it was liability on the said company. There was a lock out from 28.6.1980 continuing for more than six years. The petitioner did not take over any of the liabilities of the erstwhile owners, prior to the date of the take over.
(III) On 25.6.1987, i.e. after about twelve years, the two workmen applied to the petitioner company for their re-employment on the ground that they were facing trouble due to un-employment. By an agreement made on 14.5.1999 between the petitioner and the union representing the two workmen, it was agreed that the following dispute shall be referred under Section 10A of the Industrial Disputes Act, 1947 to the arbitration of Shri S.K. Mukhopadhaya, the then Regional Labour Commissioner (Central), Bombay.
"Whether the demand of Dhanbad Colliery Karamchari Sangh for employment of Shri Bishram Yadav and Rameshwar Yadav in Barakar Karamchari Engineering & Foundry Works of M/s. Oriental Coal Fields Limited is justified? if so to what relief they are entitled?"
(IV) The arbitrator by an award dated 24.11.1993 held that the demand of employment of the two workmen was justified and the management was directed to give them employment within one month from the date of publication of the award.
3. Against the said award, the present writ petition has been filed by the management. By order dated 12.5.1994, the order of reinstatement was stayed by this Court subject to the petitioner paying Rs. 1500/-per month to the two workmen with effect from the date of the award which shall be subject to adjustment, dependent upon the result of this writ application.
4. Learned counsel appearing for the workmen raised a preliminary issue with regard to the maintainability of this writ petition, on the ground that an award passed under Section 10A of the Industrial Disputes Act is an arbitration award and the same cannot be challenged by the management in this writ petition.
5. After hearing the parties at length, and going by the judgment of the Constitution Bench of the Hon'ble Supreme Court, reported in (1976) 2 SCC page 82 Rohtas Industries Limited v. Rohtas Industries Staff Union, and in view of that fact situation emerging in this case, we are of the view that the award deserves our interference under Articles 226 and 227 of the Constitution of India.
6. In Rohtas Industries, case (supra) the Hon'ble Supreme Court, inter alia, held - "but if it appears on the face of the award that the arbitrator has proceeded illegally, as for instance, by deciding on evidence which was not admissible, or on principles of construction which the law does not countenance, there is error in law which may be ground for setting aside the award' "if one finds an erroneous law-as the necessary buckle between the facts found and the conclusions recorded, the award bears its condemnation on its bosom. Not a reference in a narrative but a clear legal nexus between the facts and the finding."
7. In the present case we find that the award is based on no evidence with regard to the jurisdictional fact i.e. whether the management re-employed other persons on regular basis in the posts held by two workmen without giving preference to these two workmen?
8. The workmen requested for re-employment after 12 years of their retrenchment, on the ground that they were facing difficulty due to unemployment and not on the ground that the management has employed other persons in the posts held by them on regular basis, without giving preference to them. However, the workmen, developed their cases before the arbitrator by casually saving that, four workmen namely Shri Braj Gopal Tiwary, Madan Masud, Manik Mandal and Parasu Dhar were re-employed by the management; the management employed several other persons but refused to employ them, under Section 25H of the I.D. Act the management was bound to give preference to them over others, in the matter of re-employment as they had offered for employment.
9. The petitioner denied the said allegation and stated that the management screened the workers, out of the list furnished by the previous owners, and employed persons only to the extent of its requirements, leaving aside those who crossed the age of superannuation etc. The two concerned workmen were not on the rolls of the workshop either on 1.5.1975 i.e. the date of the nationalization or when the workshop was handed over to the petitioner on 14.11.1986. The management further asserted that it had not employed additional hands after taking over the management of the workshop.
10. With regard to the aforesaid four persons, the management's case was that, Braj Gopal Tiwary and Madan Masud were there on the rolls of the workshop in the year 1986 and they were continued after screening, Manik Mandal was employed under the land losers schemes and Parasu Dhar was employed under the scheme of voluntary retirement in place of his father. Therefore, the management contended that it has not made any regular employment and, therefore, there was no occasion to give preference to the two workmen. The management's witness fully supported the aforesaid stand of the management, whereas one of the workmen namely Rameshwar Yadav deposed in a general and casual manner that the management had employed aforesaid four persons out of the thirty eight workmen retrenched as per settlement, excluding the two workmen, who were moulder helper in heavy foundry section of BEFW.
11. The workmen claimed re-employment under Section 25H of the Industrial Disputes Act, 1947 which provides that where any workmen are retrenched, and the employer proposes to take into his employ any persons, he shall give an opportunity to the retrenched workmen to offer themselves for 're-employment', and such retrenched workmen who offered themselves for re-employment, shall have preference over other persons. The judicial pronouncements have further clarified that if the management proposes to employ any person in the 'same category' in which the retrenched workmen were working, then only the retrenched workmen should be given preference.
12. Here in this case, we find that the workmen could not prove the foundational fact to attract Section 25H of the Industrial Disputes Act. It was necessary for them to prove that the management has re-employed persons in the same category in which they were employed. Thus it appears on the face of the award that the arbitrator has illegally directed the management to re-employ the workmen, without establishment of the jurisdictional fact by the union. We further, find that there is no nexus between the facts and the findings.
13. After considering the entire facts and circumstances of this case, we are of the view that the impugned award cannot be sustained in law and has to be set aside.
CWJC No. 1484 of 199414. In this case, the workmen have claimed that while passing the aforesaid award of re-employment, back wages should also have been provided in the award.
15. A retrenched employee is entitled to preference in 're- employment' over other persons, but he cannot claim to be re- instated with full backwages. 'Re-employment' under Section 25H cannot be equated with 're-instatement. Our this view is supported by a case reported in 1992 II LLJ 177, Jaswinder Singh Passi v. Registrar Co-operative Societies.
16. In our view even if the workmen are re-employed under Section 25H, they cannot claim backwages as the Act contemplates only a preferential treatment to the retrenched workmen, if the management proposes to employ other persons in the same category.
17. Thus, we are of the view that this writ petition, claiming back wages has no merit.
18. In view of the aforesaid findings, we are not going into other inconsequential matters raised by the parties regarding the effect of the Nationalisation Act (as amended from time to time), in the present case.
19. In the result, writ petition being CWJC No. 754 of 1994 (R) is allowed and the award dated 25th November, 1993 passed in Arbitration case No. 1/1991 is set aside.
Writ petition being CWJC No. 1484 of 1994 is dismissed. There will be no order as to costs.