Jharkhand High Court
M/S.Telco Ltd. Now Tata Motor vs Union Of India & Ors. on 15 September, 2011
Bench: Chief Justice, P.P. Bhatt
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (L) No. 2773 of 2006
M/s Telco Transport Companies Association Vs. Union of India & Ors.
With
W.P(L) No. 2618 of 2006
M/s Tata Engineering & Locomotive Co. Ltd. Vs. Union of India & Ors.
(Now Tata Motors Ltd.)
With
W.P.(L) No. 3484 of 2006
With
M/s Telco Transport Companies Association Vs. Union of India & Ors.
With
W.P. (L) No. 3560 of 2006
M/s Tata Engineering & Locomotive Co. Ltd. Vs. Union of India & Ors.
(Now Tata Motors Ltd.)
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CORAM: HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE P.P. BHATT
- -----
For the T.T.C.A : Mr. Jawahar Lal Gupta, Sr. Adv.,
M/sR.P. Singh, A.K. Sinha, R.K. Singh,
Sweta Singh
For the Tata Motors: M/s K.N. Choubey & V.P. Singh Sr. Advs.
M/s Arun Kr. Singh, A.D. Das,
R.V. Singh Advocates
For R.P.F.C :Mr.P.P.N.Roy, Sr. Adv., Mr. P.A.N. Roy,Adv.
For Res. No. 4: M/s Kalyan Roy & A. Sen
For Res. No. 6 to 14: Mr. Aparesh Kumar Singh
Reportable -------Dated 15th September, 2011
As common question of law is involved in the aforesaid cases,
they have been heard together and are being disposed of by this
common judgment.
2. Heard learned counsel for the parties.
3. The writ petitioners have challenged the order of the Regional
Provident Fund Commissioner dated 18th May, 2006.
4. It is unfortunate that in a matter to decide whether the convoy
drivers are qualified as employees of the company within the meaning
of the Provident Fund Act, a dispute was raised in the year 1981 and
the matter is pending for 30 years and the facts and this order will
reveal that for deciding this issue, yet the parties are at the stage of
cross-examination and leading evidence before the first authority. It
is also relevant to mention here that according to the learned counsel
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for the parties, the issue was considered by the Labour Court under
the provisions of the Industrial Disputes Act, 1947 and on an earlier
occasion also, the matter came up before this Court twice and that
too, before the Division Benches. Learned counsel for the writ
petitioners submitted that this issue has been adjudicated before
various authorities, in addition to the Labour Court and presently
before the authority, i.e., the Regional Provident Fund Commissioner.
The matter came up before this Court twice earlier and the matter
was remanded by the orders of the Division Benches twice to the
Regional Provident Fund Commissioner. Now we are again remanding
the matter to the Regional Provident Fund Commissioner, as we have
no option because the contention of the writ petitioners is that the
order impugned has been passed in gross violation of the principle of
natural justice by denying them the opportunity of hearing as well as
in violation of the directions given in the last order of remand passed
in CWJC Nos. 2356/1997R and 3275/1999R decided by the Division
Bench of this Court presided by the then Chief Justice, vide order
dated 20th May, 2004, wherein the Provident Fund Commissioner was
directed to consider the matter afresh in the light of what has been
stated in the order passed by that Division Bench and to pass a fresh
order in accordance with law and after giving an opportunity of being
heard to all the concerned parties to adduce any evidence that they
may want and after hearing all of them, the Division Bench also
ordered that the Provident Fund Commissioner will expedite the
rendering of a fresh decision.
5. In a matter where the Division Bench of this Court directed the
Provident Fund Commissioner to give opportunity to the parties to
adduce evidence, the evidence of the writ petitioners was closed by
the order dated 27th April, 2006. The order dated 27th April, 2006
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itself speaks loudly of denial of opportunity of hearing to all the
parties. Though the respondents, who won the battle, may not be
aggrieved against that order and the petitioners alone are aggrieved
by the order dated 27th April, 2006 and the respondents would have
the same grievance, if the order would have been against them as the
Provident Fund Commissioner, annoyed with the stand of the writ
petitioners, closed the evidence of not only cross examination of the
witnesses whose cross examination was not done by the petitioners
but closed the evidence of all the parties including the respondents,
who, because of tortuous circumstance of decision being in their
favour, supporting the impugned order which has been passed
without hearing of any of the parties including the respondents. Not
only the evidence of the writ petitioners has been closed but the
entire case proceedings had been closed at the stage when the
evidence of the workmen-claimants was going on. To make the things
clear, we would like to quote the order dated 27th April, 2006, which
is as under:-
"M/s TTCA files correction petition
and it is taken on record.
M/s Tata Motors also files petition in
the similar line.
All the parties ( M/s TTCA, M/s Tata
Motors and other contractors) file a time
petition to grant 15 days time to bring an
appropriate order from the Hon'ble High Court
against the order of the RPFC dated 25.4.06.
Dr. M.K. Akhouri, witness No. 01
submits that he is fully prepared to be cross-
examined.
RPFC has gone through the petitions
of all the parties and is in the sound belief that
their request if accepted to, may avoidably
prolong the proceeding. Therefore, he sets aside
the time petition and request M/s TTCA to cross-
examine witness no. 01.
M/s TTCA still presses with the
petition filed before the RPFC.
Now RPFC requests M/s Tata Motors
to cross-examination witness no. 01.
M/s Tata Motors also takes the same
line of action.
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And all the contractors also follow
the same suit.
It has created a virtual impasse
which warrants intervention by the quasi-judicial
authority.
After this witness no. 01 submits that
whatever he has given in writing has not been
challenged and, therefore, that should be taken
as basis for the order.
Considering the above going facts
and circumstances, especially when the matter
pending since 1991, It is earnestly felt that in
order deliver justice and in the spirit of sound
jurisprudence, the legal rigmarolic way of
handling a case should be done away with. When
witness no. 01 is ready for cross-examination,
the other parties are very much present with the
sound state of mind in the Court of RPFC, RPFC
finds no logical and same reason not to allow the
proceeding to go on.
RPFC, therefore, once again
requests M/s TTCA and all parties to cross-
examine witness no. 01.
To this, all the parties stick to their
own respective stands and request once again to
adjourn the date of hearing.
RPFC has been left no choice and,
therefore, he decides that the case has to come
finality as the opposite party is not ready to go
ahead in the proceeding.
RPFC, therefore, concludes the
hearing and order is reserved to be passed in 15
days time."
We are of the considered opinion that in a case where parties refuse
to cross-examine one witness, the Regional Provident Fund
Commissioner could have closed the cross-examination of that witness
and if, thereafter, the parties would have refused to cross-examine
another witness, cross-examination of that witness could have been
closed, and thereafter, the case should have been posted for other
evidence of the workmen and if the workmen would have closed the
evidence on finding that the closure of the cross-examination of
witness of their side needs no further evidence from their side, then
the matter should have been posted for evidence of the other parties.
Not only this that the evidence of both the parties were closed and the
case was fixed straightway for passing the order that too, without
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hearing the arguments of any of the parties. Unfortunate consequence
of setting aside impugned order cannot be avoided and sympathy for
the workmen cannot justify the manner in which the case was dealt
with by the Regional Provident Fund Commissioner even in the light
of the plea that have been taken by the respondents to justify the
order. The Regional Provident Fund Commissioner also, as a Court,
cannot presume that on closure of cross-examination of evidence of
one or two witnesses of one party necessarily results into non-survival
of any plea of other party against the claim of the claimants and,
therefore, even if the entire evidence of the workmen could have been
closed, then the hearing was must and if, we look into the detailed
order passed by the Regional Provident Fund Commissioner, which
has been passed without hearing the parties but refers the citations,
it smacks of something. The Authorities including the Courts may be
very much disturbed by dilatory tactics of the parties, even then they
may have very limited options and cannot react to the extent of
punishing a party beyond the extent of guilt committed by the parties.
The parties may have their vested personal interest in dilatory tactics
but the Courts have to bear in mind that they are meant only to do
justice by keeping patience and by working calmly. Reactions of
Courts/Tribunals beyond proportion to the misconduct of parties may
result into dispute between Courts/Tribunals, rather than a dispute
between the parties and the Courts/Tribunals may miss the golden
opportunity of remaining emperor to judge who is right and who is
wrong?
6. As we have noticed from the order dated 27.4.2006 as well
as the earlier order dated 25.4.2006 that the writ petitioners have
levelled some allegations against the Provident Fund Commissioner
on the basis of certain statement alleged to have been given by the
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Provident Fund Commissioner to the Press and they sought some
explanation from the Provident Fund Commissioner which may have
annoyed the Provident Fund Commissioner and the writ petitioners
themselves, instead of moving any application for transfer of the case,
may have been ill advised to submit the materials before the same
Authority for its comment and may have the Provident Fund
Commissioner felt itself uncomfortable but on those basis, if the
respondents did not move to get the matter transferred by moving
any application or petition before the competent Court for transfer of
the proceedings, even then we do not find any reason to justify the
closure of evidence of all witnesses as well as denial of opportunity to
lead evidence to the respondents. According to the learned counsel
for the writ petitioners, the materials which were not available as
evidence before the Authority also have been considered for passing
of the order, which clearly indicates that this is a case of gross
violation of the principle of natural justice and creates doubt that the
prejudice was already in the mind of the Provident Fund
Commissioner, therefore, we have no option but to set aside the
order impugned and remand the matter to the Regional Provident
Fund Commissioner in a matter where the dispute was raised in the
year 1981 and was the subject matter before the various Authorities
and as per the learned counsel for the respondents-workmen, some
of the workmen already died. Unless we remand the matter, we will
be violating the directions given by a Co-ordinate Division Bench of
this Court in the judgment dated 20.05.2004, which clearly directed
that the Regional Provident Fund Commissioner shall give
opportunity of hearing to the parties to adduce evidence as well as
there will be opportunity of hearing to the writ petitioners.
7. Learned counsel appearing for the Regional Provident Fund
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Commissioner, who himself has no interest in the litigation and
cannot have interest in litigation, has pointed out from the impugned
order passed by the Regional Provident Fund Commissioner that it
has been mentioned in the impugned order that the writ petitioners
were given 24 opportunities of hearing. We are not impressed by the
literal reading of this that the petitioners were given 24 opportunities
of hearing, which is contrary to the undisputed fact that the
petitioners were not given opportunity to lead evidence even once,
what to say of giving 24 opportunities. Not only this, the petitioners
were not given even an opportunity of hearing, which is clear from
the facts and from the plain and simple reason that by the order
dated 27.4.2006 the case was closed and matter was fixed for orders
and, therefore, there was no occasion for the petitioners to get any
opportunity of hearing.
8. Learned counsel for the respondents submitted that the
order under challenge was appealable. But we are not impressed by
this argument because of the reason that we are of the opinion that
the bar of alternative remedy of appeal is not absolute bar in a case
where there is gross violation of principle of natural justice as is
found in this case.
9. Learned counsel for the petitioners pointed out that the
Division Bench of this Court in this case itself in its order dated
6.4.2010observed that the matter could have been heard by the Single Bench but submitted that it is not an objection about the jurisdiction of this Division Bench hearing the writ petitions rather he also wants the matter be heard and decided because of the reason that the sufferers, according to him, are the workmen and some of them died.
10. In view of the above reasons, we need not to refer all 8 other materials as this Court is impressed by the argument advanced by learned counsel for the petitioners that a case of gross violation principle of natural justice is made out resulting into rendering the impugned order illegal and requiring setting aside of the impugned order by this Court because of the reasons mentioned above.
11. Learned counsel for the writ petitioners submitted that the Authority i.e., the Regional Provident Fund Commissioner initially gave a notice under Section 7 A, copy of which has been placed on record as Annexure 5 dated 22.04.2004, which was the appropriate notice because of the reason that earlier order was passed by Regional Provident Fund Commissioner dated 24.6.1999 was quashed and set aside by the Division Bench of this Court by order dated 20.5.2004 passed in W.P.(L) Nos. 2356 of 1997 R and 3275 of 1999 R and, therefore, the Regional Provident Fund Commissioner had no order for review under Section 7 B of the E.P.F and M.P Act, 1952. Learned counsel for the petitioner invited our attention to another notice given by the Regional Provident Fund Commissioner dated 23.02.2006 which is conveying that Regional Provident Fund Commissioner is enquiring under Section 7 B of the E.P.F Act and M.P. Act, 1952. There is substance in the submission of the learned counsel for the petitioners that after setting aside of the original order dated 24.06.1999, there was no order which could have been the subject matter of review and after remand, the order dated 24.05.2004 passed by Division Bench of this Court, proceedings can continue under Section 7 A of the Act of 1952 only. Therefore, we hold that the proceedings before the Provident Fund Commissioner shall be under section 7A of the Act, 1952.
12. Learned counsel for the respondent-workmen submitted that the interest of the workmen may be safeguarded in view of the fact 9 that the issue is pending since 1981 and the workmen are low paid employees and some of them already died.
13. Learned counsel for the TELCO submitted that they are not liable to pay, yet because of the order passed by this Court in W.P(L) No. 2773 of 2006 dated 13.9.2006, by which they were directed to deposit Rs. 5,00,00000/- (Five Crores) with the Regional Provident Fund Commissioner, they have deposited the said amount. According to him, if the order passed by the Regional Provident Fund Commissioner is set aside, then there is no reason to keep the said amount deposited with the Regional Provident Fund Commissioner and the same may be refunded to the TELCO.
14. We are of the considered opinion that if the petitioners would have preferred an appeal then they had to deposit the amount even for maintaining the appeal and since we are remanding the matter to the Regional Provident Fund Commissioner, the proceedings are in continuation of the original proceedings and, therefore, we do not feel inclined to order for release of the said amount of Rs.5,00,00,000/- (Five Crores), which has been deposited with the Regional Provident Fund Commissioner.
15. Learned counsel for the petitioners also submitted that the said amount of Rs. 5,00,00,000/- (Five Crores) was deposited with the Regional Provident Fund Commissioner and lying there for the last five years, for which, appropriate order may be passed for deposit of the said amount in the Nationalized Bank in the form of fixed deposit. Such prayer should have been made even on 13.09.2006 but now we direct that as the deposit made by the TELCO remained deposited with the Regional Provident Fund Commissioner, the Regional Provident Fund Commissioner is directed to invest this amount along with interest, if the Regional Provident Fund 10 Commissioner itself has invested this amount in any form wherein interest have been accrued, then with interest, in fixed deposit in any Nationalized Bank for one year subject to renewal, if necessary and circumstances require.
16. Regional Provident Fund Commissioner shall be free to disburse this amount in accordance with its final decision without any delay.
17. In view of the reasons mentioned above, the impugned order dated 18th May, 2006, is set aside and the matter is remanded to the Regional Provident Fund Commissioner, Jamshedpur, and we direct both the parties to appear before the Regional Provident Fund Commissioner, Jamshedpur on 11th October, 2011. The Regional Provident Fund Commissioner, Jamshedpur, shall give opportunity to cross examine the witness whose cross-examination had been closed by impugned order and the respondents' counsel submitted that the respondents will also produce the witnesses on that day itself. The petitioners shall cross-examine the witnesses on 11th October, 2011. The contesting parties may be given opportunity to cross-examine the witness. The counsel for the workmen submits that within two week time, they will be in a position to complete their evidence. Learned counsel for the respondents appearing here shall give list of witnesses to be cross-examined to the counsel for the petitioners here within a week from today which can be given to the respective parties by their counsel here. We are making it clear that if the evidence is not completed within two weeks from 11th October, 2011 because of unavoidable reasons, then the Regional Provident Fund Commissioner will make efforts to complete the evidence within a reasonable period after recording the reasons for non-completion of evidence of the workmen. Thereafter i.e., after closure of the 11 evidence of the workmen, the Regional Provident Fund Commissioner shall give opportunity to each of the contesting parties to lead evidence and may conclude the entire proceedings by or before 31st January, 2012. In case the Regional Provident Fund Commissioner is unable to conclude the proceedings by 31st January, 2012, he shall seek permission of this Court for extension of time but on this count, he shall not delay the proceedings and shall continue the proceedings with him in anticipation of extension of time by the High Court. On humanitarian ground also the parties are requested to co-operate with the Regional Provident Fund Commissioner to get the final decision on the issue and avoid unnecessary adjournment, which they could avoid. It is made clear that in case, the Regional Provident Fund Commissioner decides the matter, then the Regional Provident Fund Commissioner shall keep the amount in fixed deposit for 15 days after passing of the order and thereafter he will be free to disburse the amount.
(Prakash Tatia, C J) (P.P. Bhatt, J) Dey/-Alankar/-