Jharkhand High Court
Employers In Relation To The Management ... vs The Presiding Officer, Central ... on 21 July, 2006
Equivalent citations: 2007 LAB IC (NOC) 49 (JHA), 2006 (3) AIR JHAR R 466
Author: Amareshwar Sahay
Bench: Amareshwar Sahay
JUDGMENT Amareshwar Sahay, J.
1. The management of Dhansar Colliery of M/S Bharat Coking Coal Limited (hereinafter referred as H.C.C.L. for the sake of convenience) who is the petitioner, has challenged the award of the Industrial Tribunal dated 12/04/1999 in Ref. Case No. 64/1993 contained in Annexure-5 to this writ application, whereby in terms to the reference under the Industrial Dispute Act the Tribunal ordered for reinstatement of the workman B.K. Singh without any back wages
2. The Government of India, Ministry of Labour in exercise of the powers conferred under Section 10(i)(d) of the Industrial Dispute Act 1947 referred the following dispute to the Industrial Tribunal for adjudication:-
Whether the action of the management of Dhansar Colliery of M/S B.C.C.I,, in denying employment to Sri B.K. Singh is Munshi in Loading Section is justified? If not to what relief the workman is entitled?
3. The case of the petitioner is that Dhansar Colliery of M/S B.C.C.L. is a Coking Coal Mines, which was nationalized on 01/05/1972 on coming into force of the Coking Coal Mines (Nationalisation) Act, 1972 prior to the nationalisation of the (sic) appointed under the Coking Coal Mines (Emergeney) Provisions Act, 1971. Prior to that the Management of the said mines were in the hands of erstwhile colliery owner, who used to maintain the records of the Colliery including the service particulars of all the workmen and they used to maintain the service particulars of the workmen in From-B Register prepared in terms of Section 48 of the Mines Act.
4. It is staled that the petitioner received a letter on 14/01/1992 from the Assistant Labour Commissioner (Central) Dhanbad from which it came to know that an industrial dispute has been raised by the Respondent No. 2 with regard to denial of employment to B.K. Singh of Dhansar Colliery. Conciliation was taken up but it tailed and on receipt of failure report, the Central Government referred the dispute mentioned above for adjudication to the Tribunal.
5. The Respondent No. 2 appeared before the Tribunal and filed his written statement stating therein that the concerned workman B.K. Singh was appointed in the year 1974 as Loader/Despatch Clerk against permanent vacancy by the management of M/S B.C.C.L. but actually he was working as Munshi in the Loading Section. It was further stated in the written statement that: after the nationalisation the workman B.K. Singh was stopped from duty by the management illegally and arbitrarily against which the workman represented and then the local management assured him for favourable decision and advised him to wait and, accordingly, the concerned workman waited patiently on the assurance of the management but after some lime the concerned workman came to know that the management had allowed to join to one different fictitious person as B.K. Singh and thereafter, finding no way the concerned workman approached the union and thereafter Industrial Tribunal. The written statement of the Respondent No. 2 has been annexed as Annexure-1 to this writ application
6. As it appears from Annexure-A to the counter affidavit that subsequently the Respondent No. 2 had filed a petition before the Industrial Tribunal stating therein that due to inadvertent typing mistake in Paragraphs- 1 to 3 of the written statement it was typed as Loader/Despatch Clerk in stead of Loading/Despatch Clerk and the date of appointment as 1974 in stead of 1970. Accordingly the prayer
6. As it appears from Annexure-A to the counter affidavit that subsequently the Respondent No. 2 had filed a petition before the Industrial Tribunal stating therein that due to inadvertent typing mistake in Paragraphs- 1 to 3 of the written statement it was typed as Loader/Despatch Clerk in stead of Loading/Despatch Clerk and the date of appointment as 1974 in stead of 1970. Accordingly the prayer was made to make necessary correction and amendment in the written statement.
7. On the other hand the case of the management petitioner as stated in their written statement cum rejoinder (Annexure-2) interalia was that the reference was not maintainable as there was no relationship of employer employee between the parties and there was no industrial dispute. A rejoinder was also filed before the Tribunal by the union against the written statement filed by the Management denying and controverting the statement made in the written statement of the management. In course of hearing before the Tribunal on behalf of the management one witness namely MW-1 was examined and 3 documents were adduced in evidence, which were marked as Ext.- M-l to M-3.
8. On behalf of Respondent No. 2 the concerned workman was examined as WW-1 and a document, i.e. the certificate was also adduced in evidence and was marked as Ext. W 1.
9. The learned Industrial Tribunal by the impugned award, held that it is true that the concerned workman did not: succeed in producing any paper save and except Ext. W-l to show his service at Dhansar Colliery at the loading section under the erstwhile owner of the colliery but as the management has not produced the original Form-B register to show if the particulars of B.K. Singh were there in the original Form-B register and those of the concerned workman of the Management for not producing the original of Form-B register. It was held that the workman B.K. Singh of the present reference was the person, who was serving in the loading section of Dhansat colliery before nationalisation and in that view of the matter the concerned workman B.K. Singh was held to be entitled to an order for his reinstatement. However, the Tribunal considering the inordinate delay in raising the dispute without any satisfactory cause did not allow the back wages to the concerned workman. The aforesaid award of the Tribunal is under challenge in this writ application.
10. Mr. A.K. Mehta, learned counsel appearing for the petitioner firstly submitted that the finding of the learned Tribunal that the concerned workman was serving in the loading section of Dhansar Colliery before the nationalisation is absolutely wrong and against the weight of the evidence on record as well as the pleading of the respondent itself. In this regard he further submitted that in the original written statement (Annexure 01), the respondent No. 2 had stated that B.K. Singh was originally appointed in the year 1974 as Loader/Despatch Clerk against the permanent vacancy by the management of M/s B.C.C.L., which was subsequently corrected by filing a petition by the respondent No. 2 and in place of 1974 as stated in the written statement the same was corrected as 1970 and in place of Loader it was corrected as Loading.
It is submitted that according to Respondent No. 2 the concerned workman was appointed in the year 1970 by the management of M/S B.C.C.L. as has been stated in its written statement. The question of appointment by M/S B.C.C.L. in the year 1970 cannot and does not arise as Dhansar Colliery was nationalized in the year 1972 only and B.C.C.L. was not in existence in the year 1970. He further submitted that before the Tribunal also the concerned 1970 by the erst while owner of the Colliery and, thereafter in the year 1973 he was slopped by the management of B.C.C.L. from doing duty, This statement of the concerned workman is totally against the pleadings made in the written statement wherein it was specifically stated that the appointment was made by the management of H.C.C.L.
11. Mr. Mehta further submitted that if the statement of the concerned workman is accepted that he was appointed by the erstwhile Colliery owner of Dhansar Colliery in the year 1970 then it ran very well he said that the industrial dispute raised by the concerned workman through union was stale one since it. was raised alter a long lapse of about 15 years therefore, no order for reinstatement could have been made. In support of his submission he relied on a decision of the Supreme Court in the case of Haryana State Coop. Land Development Bank v. Neelam .
12. Mr. Mehta further submitted that the respondent No. 2 or even the concerned workman totally failed to establish the basic fact of the workman that he was appointed by the erstwhile owner of Dhansar Colliery in the year 1970 by producing any chit of paper. II was for the concerned workman to establish the said fact but he totally failed to discharge the onus. In spite of the said fact the Industrial Tribunal wrongly and illegally drawn adverse inference against the management of B.C.C.L. for not producing the original Form-B register. The drawing for adverse inference against the management was not at all justified by the Tribunal since there was no direction of the Tribunal or even there was no request from the workman to "produce the original Form-B register. If such direction would have been issued by the Tribunal or any request would have been made on behalf of the concerned workman and in that, case if the management would nor have produced the same then any adverse inference could have been drawn but not otherwise. In support of this submission Mr. Mehta has relied on a decision of the Supreme Court in the case of Mahendra L. Jain and Ors. v. Indore Development Authority and Ors. .
13. Mr. Mehta has further submitted that the learned Tribunal without any basis and without any cogent reason has ordered for reinstatement of the concerned workman in spite of the fact that in very clear terms the Tribunal itself held in the impugned award that the concerned workman did not produce any paper in support of his service in the Colliery in any capacity before nationalisation. Therefore, the concerned workman or the union failed to discharge the onus of prove which was on him. In support of this submissions he has relied on a decision of the Supreme Court in the case of Range Forest Officer v. S.T. Hadimani .
14. Lastly, Mr. Mehta submitted that though the reference for adjudication was for the employment of the concerned workman B.K. Singh but the Tribunal erroneously has ordered for reinstatement of the concerned workman. Therefore, the order/direction of the Tribunal is not in consonance with the terms of reference. Accordingly, order for reinstatement of the concerned workman was had.
15. On the other hand Mr. S.K. Laik, learned Counsel appearing for the respondent No. 2 submitted that though there is some contradiction in the pleadings (written statement of the workman) and his statement before the Tribunal on oath but the fact remains that the concerned workman was working in Dhansar Colliery since 1970 and, thereafter, since 1973 he was stopped from working of the management of M/S B.C.C.L. and this fact was stated by the concerned workman on oath before the Tribunal. This fact was further proved by By relying on a decision in the case of Ajaib Singh v. Sirhind Cooperative Marketing-cum-Processing Service Society Limited and Anr. Mr. Laik submitted that the Supreme Court has held that employer's plea of delay in seeking reference, unless coupled with the proof of real prejudice to him, has been held, not sufficient to deny relief to the workman. Therefore, on the ground of delay the finding of the Tribunal regarding reinstatement of the concerned workman cannot he challenged.
16. Mr. Laik further submitted that reference has to be determined on the basis of the real issue and not merely on the basis of the words of reference and as have been held by the Supreme Court in the Case of Managing Director, A.P. State Road Transport Corporation v. Presiding Officer, Industrial Tribunal, Ramkote, Hyderabad and Ors. reported in (2001) 2 SCC 695 and, therefore, only on the ground that the wording or reference was different then what was ordered by the Tribunal does not make any difference since the Tribunal decided the real issue in the case and thereby directed for reinstatement of the concerned workman.
17. I have minutely perused the written statement filed by the Respondent No. 2 the union, the written statement filed by the management and also have carefully scrutinized the award of the Industrial Tribunal and have considered the rival contention of the parties and then I have come to the following conclusion:
Apparently there was vital difference between the pleadings and proof of the respondent. In the written statement of Respondent No. 2 it has been stated that the concerned workman was appointed in the year 1970 by the management of M/s B.C.C.L. whereas in his evidence the concerned workman stated on oath that he was appointed in the year 1970 by the erstwhile owner of the colliery variance. At one stage it is stated that the concerned workman was appointed by the management of B.C.C.L. whereas at the other stage it. was stated that he was appointed by the management of erstwhile owner. These two contradictory statements becomes fatal in absence of any document with regard to the appointment of the concerned workman either by the management of the erstwhile owner of the Colliery, or by the management of M/S B.C.C.L. after the nationalisation of the colliery. Even the Industrial Tribunal has held in the impugned award that the concerned workman has not produced any paper in support of his service in the Colliery in any capacity before nationalisation.
I further hold that the Respondent No. 2 or the concerned workman has totally failed to prove/establish the fact that he was at all appointed either by the erstwhile owner of the Colliery prior to nationalisation in the year 1970 and, thereafter, he was stopped by the management of M/S B.C.C.L. from working since 1973, therefore, it was not established by the Respondent No. 2 that B.K. Singh was at all a workman.
18. I further find that since there was no any direction of the Tribunal directing the management to produce the original Form -B register nor any such request was made by the union or the concerned workman in this regard and, therefore, due to non-production of the original Form-B register by the management, the Tribunal has seriously erred in drawing adverse inference against the management. It appears that only on the basis of adverse inference, the Tribunal has passed an award for reinstatement though the concerned workman admittedly, failed to produce any paper in support of his claim of his service in the Colliery in the year 1970.
19. Therefore, in my view, the award passed by the Tribunal is the management the concerned workman could not have been ordered for reinstatement.
20. In view of the discussions and findings above; the award passed by the Industrial Tribunal is hereby set aside and this writ application is allowed. Since this application is allowed on the basis of the above findings and, therefore, it was not necessary to go into the other points. In the facts and circumstances of the case, there shall be no order as to costs.