Bombay High Court
All India Scheduled Castes vs Western Coalfields Limited And Another on 20 December, 2014
Bench: A. B. Chaudhari, P. R. Bora
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
Writ Petition No.2296/1998
1. Lal Zenda Coal Mines Mazdoor Union,
(CITU) through its General Secretary,
Ganjipeth, Ganesh Chowk, Nagpur.
2. Mohd. Tajuddin s/o Late Mohd. Haneef
aged 46 years, Occ. Working in the post
of Welder, Cat. VI GS Department,
WCL Head Quarter/Indora Complex,
R/o B-12, WCL Indora Complex,
Kalpana Nagar, Nagpur-26.
ig ...PETITIONERS
...V E R S U S...
1. Western Coalfields Limited,
through the Chairman-cum-Managing
Director, WCL Head Quarters,
Coal Estate, Civil Lines, Nagpur.
2. Rashtriya Koyala Khadan Mazdoor Sangh
(INTUC), through its President,
Plot No. 603, Girpeth, Nagpur-10.
3. Sanyukta Khadan Mazdoor Santh
(AITUC) through its General Secretary,
Western Coalfields Limited Head Quarter,
Coal Estate, Civil Lines, Nagpur.
4. Akhil Bhartiya Koyala Khadan Mazoor
Sangh (BMS), trough its President,
Dhantoli, Nagpur.
5. Koyala Shramik Sabha (HMS),
through its Working President,
Kharabe Building, Ghat Road, Nagpur.
6. Coal Mines Officers' Association of
India (CMOAI), through President
WCL Head Quarters, Coal Estate,
Civil Lines, Nagpur. ...RESPONDENTS
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None for the petitioners.
Mr. S. C. Mehadia, Advocate for respondent no.1
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AND
Writ Petition No.2249/1998
1. All India Scheduled Castes, Scheduled
Tribes and Backward Classes Employees
Co-ordination Council, having its registered
and Head Office at 309, Bipin Bihari Ganguli
Street, Calcutta - 700 012, and inter alia
Unit at Nagpur.
2. Girdhar Dharmaji Kolhekar,
aged 50 years, Occ. Service, r/o Bezanbag,
Nagpur, Tq. Dist. Nagpur. ...PETITIONERS
...V E R S U S...
1. Union of India, through Secretary,
Ministry of Coal, Koyala Bhavan,
New Delhi.
2. Western Coalfields Limited,
through the Chairman-cum-Managing
Director, WCL Head Quarters,
Coal Estate, Civil Lines, Nagpur.
3. Rashtriya Koyala Khadan Mazdoor Sangh
(INTUC), through its President,
Plot No. 603, Girpeth, Nagpur-10.
4. Sanyukta Khadan Mazdoor Santh
(AITUC) through its General Secretary,
Western Coalfields Limited Head Quarter,
Coal Estate, Civil Lines, Nagpur.
5. Akhil Bhartiya Koyala Khadan Mazoor
Sangh (BMS), trough its President,
Dhantoli, Nagpur.
6. Koyala Shramik Sabha (HMS),
through its Working President,
Kharabe Building, Ghat Road, Nagpur.
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7. Lal Zenda Coal Mines Mazdoor Union,
(CITU) through its General Secretary,
Ganjipeth, Ganesh Chowk, Nagpur.
8. Coal Mines Officers' Association of
India (CMOAI), through President
WCL Head Quarters, Coal Estate,
Civil Lines, Nagpur. ...RESPONDENTS
-------------------------------------------------------------------------------------------
Mr. V. R. Thakur, Advocate for petitioners.
Mr. Rohit Deo, ASGI for respondent no.1.
Mr. S. C. Mehadia, Advocate for respondent no.1
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ig AND
Writ Petition No.1190/1997
1. Indian National Mines Overmen, Sirdars and
Shotfirers Association, registered under the
Trade Unions Act, having its registration No.3887,
with Branch Office at INMOSSA Bhavan,
Pathakheda Area, BETUL (MP)
2. Braj Sunder s/o Murlidhar Panda,
aged 44 years, Occ.Service, r/oBetul (MP) ...PETITIONERS
...V E R S U S...
1. Western Coalfields Limited,
through the Chairman-cum-Managing
Director, WCL Head Quarters,
Coal Estate, Civil Lines, Nagpur.
2. The Director (Personnel)
Western Coalfields Limited, Coal Estate,
Civil Lines, Nagpur. ...RESPONDENTS
-------------------------------------------------------------------------------------------
Mr. B. Lahiri, Advocate for petitioners.
Mr. S. C. Mehadia, Advocate for respondents.
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AND
Writ Petition No.1181/1997
1. All India Scheduled Castes, Scheduled
Tribes and Backward Classes Employees
Co-ordination Council, having its registered
and Head Office at 309, Bipin Bihari Ganguli
Street, Calcutta - 700 012, and inter alia
Unit at Nagpur.
2. Girdhar Dharmaji Kolhekar,
aged 50 years, Occ. Service, r/o Bezanbag,
Nagpur, Tq. Dist. Nagpur. ...PETITIONERS
ig ...V E R S U S...
1. Western Coalfields Limited,
through the Chairman-cum-Managing
Director, WCL Head Quarters,
Coal Estate, Civil Lines, Nagpur.
2. The Director (Personnel)
Western Coalfields Limited, Coal Estate,
Civil Lines, Nagpur.
3. Shri Mohan Singh, President,
Lal Zenda Coal Mines Mazdoor Union,
(CITU) Nagpur.
4. Shri S. Q. Zama, General Secretary,
Rashtriya Koyala Khadan Mazdoor Sangh
(INTUC), Nagpur.
5. Shri Narad Singh, Working President,
Koyala Shramik Sabha (RMS),
Nagpur.
6. Madhya Pradesh Khadan Majdoor Union,
Having registered No. _____ at Palachaurahi,
Opp. Umbada Colliery Office, Tahsil Junnardeo,
Dist. Chhindwara, through its President.
7. Shri G. M. Khode,
President, Rashtriya Koyala Khadan Mazdoor
Sangh (INTC) Nagpur.
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8. Shri M. M. Deshkar,
President, Samykta Koyala Khadan
Mazdoor Sangh (AITUC), Nagpur. ...RESPONDENTS
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Mr. B. Lahiri, Advocate for petitioners.
Mr. S. C. Mehadia, Advocate for respondents-WCL
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CORAM:- A. B. CHAUDHARI &
P. R. BORA, JJ.
DATE :-
10.11.2014/20.12.2014
J U D G M E N T (Per : A. B. Chaudhari, J.)
1. Writ Petition No. 2296/1998 was called out for hearing on 10.11.2014 and none remained present for the petitioner while Mr. S. C. Mehadia, Advocate represented respondent-WCL. The question arising in the petition being of substantial importance, this Court decided writ petition on merit and dismissed it on 10.11.2014 itself, but reasons were to follow.
Thereafter, it was brought to our notice that Writ Petition Nos.1181/1997, 1190/1997 and 2249/1998, in which same question is involved, are also pending for final hearing.
Therefore, we decided to hear these three writ petitions and then record our reasons for deciding all these cases together.
Accordingly, Mr. P. D. Meghe and Mr. B. Lahiri, Advocates for the petitioners, were heard in these three writ petitions on 11.12.2014.
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2. In Writ Petition Nos.2296/1998 and 2249/1998, the petitioner-Lal Zenda Coal Mines Mazdoor Union (CITU) and its General Secretary Mohd. Tajuddin s/o Late Mohd. Haneef-
petitioner no.2 had, challenged the decision at Annexure "A" dated 19.06.1998, Memorandum of Settlement, Anenxure "E" dated 19.06.1996 and Circular Annexure "F" dated 16.07.1998 with a further prayer to prohibit respondent-Western Coalfields Limited (WCL) from effecting deduction of Rs.50/- from Salary/wages of these employees for being transferred to the Prime Minister's National Relief Fund (PMNRF).
FACTS:
3. The facts and grounds in all these petitions are common. CITU is operating in the WCL, Nagpur and petitioner no.2 is employee of the WCL as well as General Secretary of petitioner no.1-Union. On 19.06.1998, the Steering Committee of the WCL in its meeting No. 6/1998 held on 19.06.1998, decided that an amount of Rs.15,00,000/- (Rs. Fifteen Lacs Only) shall be donated immediately for cyclone affected people of Gujarat from the funds available in WCL Relief Fund out of the amount collected from the employees at the rate of Rs.25/- towards relief works/financial assistance to the earthquake affected people of Jabalpur and, thereafter, to collect an amount of Rs. 50/- from all ::: Downloaded on - 20/12/2014 23:46:51 ::: 7 wp2296.2249.98.1181.1190.97.odt the employees from the salary of July, 1998 payable in August, 1998 to credit an amount of Rs.15,00,000/- back in WCL Relief funds which can be reserved for future calamities. The said decision of the Steering Committee was followed by letter dated 19.06.1998 addressed by Chairman-cum-Managing Director of WCL to the Hon'ble Minister for Coal, Government of India, Camp : Nagpur, wherein it was stated that decision was taken to donate Rs.15,00,000/- from the employees of WCL towards PMNRF for assisting cyclone affected people of Gujarat. These minutes/resolution of the Steering Committee as well as letter dated 19.06.1998 are put to challenge in these petitions.
4. In Writ Petition Nos. 1181/97 and 1190/97, decision of the Steering Committee dated 09.04.1997 for deduction of one day's wages from all the employees of the WCL for contributing towards the PMNRF towards Andhra Pradesh Relief Fund for cyclone affected people of Andhra Pradesh is under challenge.
5. It appears that in Writ Petition No.2491/1997, contribution was sought for Jabalpur Earthquake Relief and this Court had stayed the said deduction. The relief sought in all these petitions is that the WCL, which is a Government organization and employer, should not be allowed to deduct any amount without ::: Downloaded on - 20/12/2014 23:46:51 ::: 8 wp2296.2249.98.1181.1190.97.odt written authorisation of each and every employee of the WCL for contributing Rs.50/- or Rs. 25/- to the PMNRF.
6. In support of the writ petitions, Mr. P. D. Meghe and Mr. B. Lahiri, Advocates for petitioners, submitted that the grounds raised in Writ Petition No. 2296/1998, may be considered for decision of these writ petitions also.
7.
The learned counsel for the respondents-WCL submitted that the employer-WCL was justified in asking for contribution of Rs.50/- only, from the employees since the object was to contribute the amount of Rs.15,00,000/- towards the PMNRF for helping the affected brothers and sisters in other States in the country, but this Court granted stay in some petitions.
8. We find that the following are the grounds raised in these writ petitions:
(i) Section 7 (2) (p) of the Payment of Wages Act, 1936 (hereinafter referred to as the "Act") provides for deductions to be made with written authorisation of the employed person for making contribution to Prime Minister's National Relief Fund.
(ii) Also the Certified Standing Orders and in particular Clause 9 and 10 thereof provides for such dedications only upon ::: Downloaded on - 20/12/2014 23:46:51 :::
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(iii) The decision of the Steering Committee dated 19.06.1998 and letter of even date pursuant to the said decision under challenge in the present writ petition is illegal since without written authorisation of each and every employee of the WCL, from whom deduction was sought to be made, no deduction could be made. The WCL could not have endeavored recover contribution without written authorisation of the employees for the said purpose and, therefore, the action of the WCL is not only illegal, it is in violation of Article 14 and 300-A of the Constitution of India.
CONSIDERATION:
9. We have considered these matters in the light of the Constitutional mandate and the provisions of the Act. Section 7 (2) (p) of the Payment of Wages Act reads thus:
"7. Deductions which may be made from wages.--
(1) .....
(2) Deductions from the wages of an
employed person shall be made only in accordance with the provisions of this Act, and may be of the following kinds only, namely--
(a) to (o) .....
(p) deductions, made with the written
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authorisation of the employed person, for contribution to the Prime Minister's National Relief Fund or to such other Fund as the Central Government may, by notification in the Official Gazette, specify.
Perusal of the averments show that Clause 9 of the Certified Standing Order, as it is provided, is on the same line.
The decision was taken by the Steering Committee on 19.06.1998 in the Meeting No. 6/98 insofar as contribution towards the PMNRF for providing assistance to the cyclone affected people of Gujarat. The relevant part of the decision reads thus:
"At the outset, Director (P), WCL explained the objective of holding the emerging meeting. He said the meeting has been convened mainly with a view to contributing some amount towards Prime Minister's Relief Fund for Financial assistance to the Cyclone affected people of Gujarat and in the event of consensus decision to such a proposal, to hand over such financial assistance cheque to the Hon'ble Minister for Coal who was visiting Nagpur on 19.06.1998 at 11.00 A.M."
.....
It was decided that an amount of Rs.15 lakhs shall be given immediately from the Fund available in WCL Relief Fund out of the amount of collected from the employees at the rate of Rs.25/-
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Similarly, letter dated 19.06.1998, Annexure "A" reads thus:
"Western Coalfields Limited, Steering Committee has decided to donate a sum of Rs.15.00 lakhs (Rupees Fifteen Lakhs only) on behalf of the Employees of Western Coalfields Limited towards Prime Ministers Relief Fund for assisting Cyclone Affected People of Gujarat and handed over the same to you, during your visit to Nagpur.
Accordingly, a cheque bearing no. 902692 dated 19.6.1998 for Rs.15.00 lakhs on State Bank of India is presented to you on behalf of W.C.L. Steering Committee."
10. We make it clear that the deduction of Rs.50/- from the salary of the WCL employees for donating to the PMNRF is the only decision of the Steering Committee, which is being considered in these writ petitions. To repeat, in the other writ petitions, the deductions made for setting up of benevolent fund ::: Downloaded on - 20/12/2014 23:46:51 ::: 12 wp2296.2249.98.1181.1190.97.odt for WCL employees cannot be compared with the issue arising in the present writ petitions and that is why, we have repeatedly referred to the decisions in relation to the deductions for making contribution to the PMNRF.
11. What we find from the record is that the petitioner-
Union in Writ Petition No. 2296/98 had issued a letter that these Unions have supported the resolution to render help to the victims of cyclone hit people of Gujarat but the contribution was without consent of each and every employee of the WCL. Such a deduction could not be made even for contributing towards the PMNRF. It was stated in the said letter dated 13.07.1998 as well as on 18.07.1998 that the deductions of Rs. 50/- made from the wages of the employees of the WCL for the aforesaid purpose was illegal and should be stopped. Thus, on one hand the Unions claim that they had a desire to contribute for the cyclone hit people of Gujarat and on the other hand, they did not want to contribute unless written authorisation from each and every employee was obtained. Needless to say that the WCL has the employees numbering about 80,000. Be that as it may, we proceed to decide the contentions raised before us in the light of the Constitutional provisions.
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12. Bharat Ratna Dr. Babasaheb Ambedkar presented the Constitution of India for the People of India with a preamble, which reads thus:
"We, the people of India, having solemnly resolved to constitute India into a sovereign, socialist secular democratic republic and to secure to all its citizens:
JUSTICE, social, economic and political; LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity; and to promote among them all FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;
In our Constituent Assembly this twenty- sixth day of November, 1949, do hereby adopt, enact and give to ourselves this Constitution. "
By Constitution of India Forty Second Amendment Act, 1976, effected on 03.01.1977, the words "unity and integrity of the nation" were inserted. The original word in the preamble "Fraternity" means the "The condition or relation of brotherhood, brotherly affection, pertaining to or befitting a brother, brotherly, of or pertaining to a fraternal order or association."
The Hon'ble Supreme Court in the case of Raghunathrao Ganpatrao ..vs.. Union of India; 1994 Supp (1) SCC 191, observed thus:
::: Downloaded on - 20/12/2014 23:46:51 :::14 wp2296.2249.98.1181.1190.97.odt "One of the objectives of the Preamble of our Constitution is 'fraternity assuring the dignity of the individual and the unity and integrity of the nation.
It will be relevant to cite the explanation given by Dr. Ambedkar for the word 'fraternity' explaining that 'fraternity means a sense of common brotherhood of all Indians'. In a country like ours with so many disruptive forces of regionalism, communalism and linguism, it is necessary to emphasis and reemphasize that the unity and integrity of India can be preserved only by a spirit of brotherhood. India has one common citizenship and every citizen should feel that he is Indian first irrespective of other basis. In this view, any measure at bringing about equality should be welcome."
13. The Preamble is the guiding light to the Constitution of India. In the course of debate of Constituent Assembly, Prof. K. P. Shah, who was the first person to raise the point about insertion of fundamental duties in the Constitution, had said that the Constituent Assembly ought to enter fundamental duties of the citizens in the Constitution and that should be treated as of the same vigour and force as that of the fundamental rights included in the Constitution. The Constituent Assembly, however, did not include his suggestion and it is for the first time under the leadership of Bharat Ratna Late Mrs. Indira Gandhi that ::: Downloaded on - 20/12/2014 23:46:51 ::: 15 wp2296.2249.98.1181.1190.97.odt fundamental duties were inserted as Article 51-A by inserting Part IV-A by the Constitution (Forty-Second Amendment) Act, 1976, Section 11 (w.e.f. 3rd January, 1977). Subsequently, by another Constitution (Eighty-Sixth Amendment) Act, 2002, Section 4 (w.e.f. 1st April, 2010) Item (k) to the List of Fundamental Duties under Article 51-A was added. Thus, Fundamental Duties were inserted in the Constitution for the first time w.e.f. 03.01.1977.
We quote article 51-A of the Constitution of India, which reads thus:
"51A. Fundamental duties It shall be the duty of every citizen of India
(a) to abide by the Constitution and respect its ideals and institutions, the national Flag and the National Anthem;
(b) to cherish and follow the noble ideals which inspired our national struggle for freedom;
(c) to uphold and protect the sovereignty, unity and integrity of India;
(d) to defend the country and render national service when called upon to do so;
(e) to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women;
(f) to value and preserve the rich heritage of our composite culture;::: Downloaded on - 20/12/2014 23:46:51 :::
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14. Upon reading the fundamental duties, it is clear to us that there is emphasis on values, which is clear from words;
cherish, uphold, defend, promote, value, protect, develop, safeguard and strive. These fundamental duties inserted in the Constitution, to our mind, are largely complimentary with 'fraternity', 'unity' and 'integrity' of nation and for creating a bond of the brotherhood amongst the people having different religion, creed, caste, race and language in the various States of the Bharat.
15. Thus, in the light of the Constitutional provisions under Section 51-A and the explanation given by Dr. Ambedkar for the word 'Fraternity' means a sense of common brotherhood of all Indians, we are of the firm opinion that the petitioners in these writ petitions are bound by the aforesaid Constitutional obligation and mandate. It is the fundamental duty of every citizen and the employees of the WCL and the Trade Unions to obey the Constitutional mandate about 'Brotherhood'. These Trade Unions are not above the law or the Constitution. The Unions as well as the employees of the WCL must understand that there is a responsibility on them to help the brothers and sisters in other States, affected because of the floods, cyclone, tsunami and so on so forth. Under the auspices of the Hon'ble Prime Minister of India, the fund is securely managed providing help to the affected ::: Downloaded on - 20/12/2014 23:46:52 ::: 17 wp2296.2249.98.1181.1190.97.odt people in the country. We think, the attitude of the Trade Unions including 'Lal Zenda Coal Mines Mazdoor Union' in these petitions and others who have challenged the decision to contribute to the PMNRF is destructive of fraternity, unity and integrity of the nation, which is expected of them not only to preach but also to practise. A small amount of contribution of Rs.50/- once a while for donating it to the PMNRF would hardly make any difference for the employees, whose salaries and wages have been regularly and handsomely paid.
16. The PMNRF was established in pursuance of an appeal by the then Prime Minister, Pt. Jawaharlal Nehru in January, 1948, with public contributions to assist displaced persons from Pakistan. The resources of the PMNRF are now utilized primarily to render immediate relief to families of those killed in natural calamities like floods, cyclones and earthquakes, tsunami, etc. and to the victims of the major accidents and riots. Assistance from PMNRF is also rendered, to partially defray the expenses for medical treatment like heart surgeries, kidney transplantation, cancer treatment, etc. The fund consists entirely of public contributions and does not get any budgetary support. The corpus of the fund is invested with banks in fixed deposits. Disbursements are made with the approval of the Prime Minister. At the time of ::: Downloaded on - 20/12/2014 23:46:52 ::: 18 wp2296.2249.98.1181.1190.97.odt natural calamity of devastating scale, Prime Minister, makes an appeal for donation to the fund. A very large proportion of the funds stands committed to be utilized in a phased manner for various schemes announced by the Prime Minister. Funds are also earmarked for medical assistance, floods, drought, terrorist violence and other such unforeseen occurrences, with a reserve for emergencies. The PMNRF is primarily utilized to render immediate relief to families of those affected by natural calamities like floods, cyclones and earthquakes etc. and to victims of the major accidents and riots. In addition to this, the PMNRF provides financial assistance to indigent patients for treatment of major diseases at Government/PMNRF empaneled hospitals to partially defray the expenses. It is painful to find that the Trade Unions have been opposing making of contributions because the Payment of Wages Act requires written authorisation of each employee.
The Trade Unions must whither the orthodox attitude of opposing anything by deciphering their fundamental duties and Constitutional obligations from their spirit to demonstrate, but to show patriotic face.
17. Now, coming to the submissions made by the learned counsel for the petitioners that such deductions for making contributions to the PMNRF amount to violation of Section 7 (2) ::: Downloaded on - 20/12/2014 23:46:52 ::: 19 wp2296.2249.98.1181.1190.97.odt
(p) of the Act, we find that the said provision must yield to the aforesaid provisions under the Constitution of India, which we have sufficiently elaborated. That apart, for asking contribution for being made to the PMNRF, to have written authorisation of each and every employee from the large number of organizations, public or private, existing in the country is neither practical nor in the fitness of the things. We, therefore, we hold that the said provision for deduction for making contribution the PMNRF must be held to be subordinate to the Constitution and must yield to the Fundamental Duties and the Constitutional mandate of Fraternity.
After all, the Constitution of India is the supreme law.
18. In that view of the mater, we find that no fault could be found with the impugned action or decision, only in relation to the contribution to the PMNRF for the affected brothers and sisters in Gujarat, Andhra Pradesh or Jabalpur. We, therefore, find no merit in these writ petitions. Hence, we pass the following order.
ORDER
(i) Writ Petition Nos. 2296/98, 2249/98,
1181/97 and 1190/97 are dismissed.
(ii) Rule discharged. No order as to costs.
JUDGE JUDGE
kahale
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