Patna High Court
Jyotish And Ors. vs Union Of India (Uoi) And Ors. on 3 September, 1993
Equivalent citations: 1994(42)BLJR507, [1994(68)FLR954], (1994)IILLJ804PAT
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT S.B. Sinha, J.
1. Both these applications involving common questions of law and fact were taken up for hearing together and are being disposed of by this common judgment.
2. In both the applications, petitioners have prayed for issuance of writ of or in the nature of mandamus directing Respondent Nos. 1 to 25 to declare the petitioners as permanent disabled persons in accordance with the opinion of the Medical Board and to enforce para 9.4.3 of the National Coal Wage Agreement No. IV.
3. In C.W.J.C. No. 1720 of 1993(R) there are nine petitioners whereas in C.W.J.C. No. 1719 of 1993(R) there are 47 petitioners. All the petitioners allegedly were examined by the Medical Board. The contention of the petitioners is that a Joint Bipartite Committee for the coal industry has been constituted and a tripartite settlement within the meaning of Section 2C of the Industrial Disputes Act was arrived at which is binding on the Employers.
4. Paragraph 9.4.3. of the said settlement reads as follows:
''Employment to one dependent of a worker. who is permanently disabled in his place : (i) The disablement of the worker concerned should arise from injury or disease, be of a permanent nature resulting into loss of employment and it should be so certified by the Coal Company concerned.
(ii) In case of disablement arising out of general physical debility so certified by Coal Company concerned, not arising out of injury or disease as in para (i) above, the concerned employee will be eligible for the benefit under this clause if the employee is upto the age of 58 years.
(iii) The dependent for this purpose means the wife/husband, as the case may be, unmarried daughter, son and legally adopted son. If no such direct dependent is available for employment, younger brother, widowed doughter/widowed daughter-in-law or son-in-law residing with the employee and almost wholly dependant on the earnings of the employee may be considered.
(iv) The dependant to be considered for em ployment should be physically fit and suit able for employment and aged not more than 35 years provided that the age limit shall not apply in the case of spouse.
It is, thus, evident that the question as to whether a person has become a disabled person or not, would be dependent upon grant of a certificate by the Coal Company concerned, which ; in turn means that it must be satisfied that the person(s) concerned has/have in fact become 'permanently disabled' within the meaning of the aforementioned provision.
5. Petitioners claim that they have become disabled persons and thus in terms of aforesaid settlement their dependants are entitled to obtain employment. According to the petitioners a Medical Board was constituted and the said Medical Board found the petitioners to be permanently disabled. Petitioners, therefore, claimed that in that view of the matter, their wards should be provided with employment in terms of the aforementioned agreement.
6. A counter-affidavit has been filed on behalf of the respondents, wherein it has, inter alia, been contended that although the petitioner, were examined by the Medical Board, the management for some reasons did not put reliance on the recommendations of the said Medical Board and directed that another Medical Board be constituted. The respondents have further stated that the petitioners were issued notices to appear before the newly constituted Medical Board.
7. It has further been submitted that no retrenchment notice has been served upon the petitioners nor they have been directed to be superannuated in terms of paragraph 9.4.3 of the National Coal Wage Agreement. It has further been submitted that no final order has been passed declaring the petitioners to be permanent disabled persons in terms of Clause 9.4.3 of the agreement but merely their names were displayed in the notice board.
8. Sri K. Bahadur, learned Counsel appearing on behalf of the petitioners, submitted that the National Coal Wage Agreement No. IV being a tripartite settlement within the meaning of Section 2(p) of the Industrial Disputes Act, the respondents are bound thereby and thus the respondents were bound to accept the recommendation of the Medical Board and act in terms of Clause 9.4.3 of the agreement.
9. It is true that the National Coal Wage Agreement is a settlement within the meaning of Section 2(p) of the said Act. However, as the respondent-Company is a 'State' within the meaning of Article 12 of the Constitution of India and in my opinion, a writ application does not lie under Article 226 of the Constitution of India for enforcement of right under a settlement. Such a right can be enforced only by raising an industrial dispute. It is now well-known that this writ court cannot convert itself as Industrial Court for the purpose of determining industrial dispute.
Reference in this connection may be made to Basant Kwnar Sarkar and Ors. v. The Eagle Rolling Mills Ltd. and Ors. (1964-II-LLJ-105).
Further it appears that the Medical Board have declared so many persons belonging to one area as permanently disabled.
10. Sri Bahadur, however, when questioned, admitted that no retrenchment notice has been served upon them and the petitioners are still performing their duties. It has been submitted that in case the petitioners are allowed to superannuate, Clause 9.4.3 of the agreement shall cease to have any operation in their cases. Clause 9.4.3 of the agreement has evidently a salutary purpose and the same was to be invoked for giving benefit to those persons who had not in fact been permanently disabled. In this situation, if the management keeping in view that large number of persons have been declared to be permanently disabled and another Medical Board has been directed to be constituted, the action of the management cannot be said to be arbitrary.
11. Unless and until the management's action is held to be arbitrary and thus violative of Article 14 of the Constitution of India, this Court cannot issue any writ in favour of the petitioners in exercise of its jurisdiction under Article 226 of the Constitution of India. I do not see any plausible reason as to why the petitioners are afraid of submitting themselves to the jurisdiction of newly constituted Medical Board, if they really have become permanently disabled.
12. For these reasons also, in my opinion, this Court should not exercise its discretionary jurisdiction under Article 226 of the Constitution of India.
13. For the aforementioned reasons, these applications are dismissed but without any order as to costs.
Narayan Roy, J.
14. I agree.