Madhya Pradesh High Court
Abhijit Dutta vs Coal India Ltd. on 3 November, 2016
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
JABALPUR.
SINGLE BENCH: JUSTICE SUJOY PAUL
W. P. No. 201/2014
Abhijit Dutta and Another
Vs.
Coal India Ltd. & others
____________________________________________________________
Shri Naman Nagrath, learned Senior Counsel with Shri Rajesh
Chand, learned counsel for the petitioners.
Shri Greeshm Jain, learned counsel for the respondents-employer.
____________________________________________________________ (Order) 03/11/2016 In this petition filed under Article 226 of the Constitution, the petitioner has challenged the legality, validity and propriety of Clause- 10
(iv) of "New Code for System of Maintenance, Control and Verification of Coal Stock in All Mines of CIL" (hereinafter called as 'New Code').
2. At the outset, it is relevant to note that in the body of petition and in the relief clause, the petitioner has described the said clause as Point No.66
(iv) of New Yellow Book. Shri Greeshm Jain, learned counsel for the respondents fairly submittted that the employer has rightly understood that the petitioner has called in question the validity of Clause 10 (iv) and, therefore, his objection regarding incorrect quoting of clause is a technical one. Since, parties have properly understood the clause which is actually called in question and reproduced in Para 5.3 of the petition, this order will deal with the legality, validity of the said clause reproduced in Para 5.3 aforesaid.
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W.P. No. 201 of 20143. Briefly stated, facts are that the petitioner No.1 is working as Area Surveyor Officer whereas the petitioner No.2 is working as Colliery Surveyor with the respondent No.3.
4. Shri Naman Nagrath, learned Senior Counsel submits that the respondents initially introduced a set of executive instructions namely "Code for Uniform System of Maintenance, Control and Verification of Coal Stocks of All Mines of CIL in January, 1992 (hereinafter called as 'Old Code'). It is submitted that this code remained in operation from January, 1992 to 2012. The New Code (Annexure P/2) has substituted the earlier code. The petitioners submit that as per Clause 66 (iv) of the Old Code, the Manager, Agent and General Manager were responsible for maintenance of stock and were further held responsible for all stock shortage cases. It is submitted that the Surveyors were not included in the old code. However, in the Clause 10 (iv) of the New Code in addition to other officers, the designation of petitioners namely Colliery Surveyor and Area Surveyor Officers were included, which is bad in law.
6. To elaborate, learned Senior Counsel submits that the nature of duties and responsibilities of Surveyors are defined in the Coal Mines Regulations, 1957. As per these statutory regulations, the Surveyors are appointed by invoking Regulation 35. Regulation 49 prescribes the job nomenclature of the Surveyors. By taking this Court to the statutory duties and responsibilities described in Regulation 49, it is contended that, by no stretch of imagination, the petitioners can be held guilty for shortage of stock. Shri Nagrath further contends that the job of the petitioners are like auditors in the accounts department. They only examine the data provided to them and point out the discrepancy in it. Neither in the regulations nor by way of any administrative order, any work was entrusted to them which makes them responsible for shortage of stock. It is submitted that the petitioners cannot be held accountable without fastening responsibility on them. It is submitted that neither the statute nor any administrative order
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W.P. No. 201 of 2014makes it obligatory for the Surveyor to undertake such exercise which may make them responsible for shortage of stock. It is submitted that there is no justifiable reason for including the Colliery Surveyor and Area Surveyor Officer in Clause 10 (iv) of the New Code. Shri Nagrath, learned Senior Counsel further contends that the employer may be well within its jurisdiction in assigning such new duties to the petitioners in future but correctness or justifiability of such action can be examined only when any such duty is actually entrusted to the petitioners. At present, neither by way of regulations or by way of executive order any such duty was entrusted to the petitioners for which they can be held responsible for shortage of stock.
7. Shri Nagrath further submits that the statutory forms (Page 28 to 59 of the petition) shows that at different level, period and situations, the forms are required to be filled up by the employees/officers of the coalfields. These forms are part and parcel of the New Code. By taking this Court to each of the forms, it is contended that these forms are required to be signed by different officers and the designation of the petitioners/Surveyors is not included in any of these forms. In absence thereto, if any discrepancy takes place, the petitioners cannot be held responsible for the same. Shri Nagrath has taken pains to contend that because of arbitrary Clause 10 (iv), the respondents are holding the Surveyors guilty nationwide. They are subjected to disciplinary proceedings and in cases of shortage of coal, Central Bureau of Investigation (C.B.I.) is making them an accused. It is urged that there is no justification in including the designation of the petitioners in Clause 10 (iv) of the New Code.
8. Shri Greeshm Jain, learned counsel for the respondents supported the impugned order. He placed reliance on various clauses of the New Code. By taking this Court to the said provisions, it is submitted that the work of initial survey and levelling, subsequent survey and levelling was entrusted to the petitioners. He relied on various other clauses to show that the work was actually entrusted to the petitioners and, therefore, it cannot be said that
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W.P. No. 201 of 2014they are made accountable without giving any responsibility on them. Shri Jain further submits that in addition to the duties entrusted to the Surveyors as per Regulation 49 aforesaid, certain additional duties and responsibilities were entrusted to the Surveyors. These documents are filed alongwith the rejoinder as Annexure P/6. He relied on said additional duties and submits that as per these duties also, petitioners are required to undertake certain exercises for which they can be held responsible under Clause 10 (iv). Shri Jain also relied on Annexure P/3 i.e. quarterly coal stock measurement for a particular year. It is submitted that these documents are signed by Senior Surveyor. Similarly, reliance is placed on various documents filed with the petition at Page 65, 66, 67, 69, 72 and 73. It is submitted that in all these documents the Surveyors have put their signatures which shows that they are actually involved in the measurement exercise. Thus, if they commit a mistake, they cannot escape from their responsibility.
9. Shri Greeshm Jain placed heavy reliance on Para 7 and 8 of the reply. It is submitted that new code and the impugned clause is an outcome of serious deliberations. The deliberations started pursuant to the concern shown by the Lok Sabha. Various experts committees were constituted. After such expert opinions and due deliberations, the new code came into being. The new code was brought into force to ensure that stock is not subjected to any pilferage, theft etc.
10. Shri Jain further submits that by way of executive instructions or administrative orders, the employer can give additional duties or responsibilities to the petitioners. The petitioners cannot raise their eyebrows against such orders unless the said orders infringe their fundamental right. It is further urged that by way of executive instructions/order, the respondents can provide additional work or duty to the petitioners. Unless those duties run contrary to the statutory regulations, no interference can be made by this Court.
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W.P. No. 201 of 201411. Shri Nagrath, learned Senior Counsel in his rejoinder submission submits that the basic issue, raised by him, is not answered by the respondents. He submits that the prescribed forms mentioned from Page 51 onwards makes it clear that said documents are required to be signed by various officers of respondents except the Surveyors. Regarding other documents (Page 61 with the WP), Shri Nagrath submits that these are quarterly or monthly reports signed by petitioners. The coal is being produced on shift basis which exercise continues for the entire month. The data of actual production is collected by other officers as per the prescribed forms appended with new code and such data is reduced in writing in the shape of Form-A (Page 61) and other documents. Thus, available data is arranged by the petitioners and its correctness is examined. While undertaking this exercise, petitioners cannot be held responsible for shortage of coal. Putting it differently, it is the contention of the petitioners that the signatures mentioned in quarterly or monthly reports, by no stretch of imagination, can be linked with certification of actual production which has taken place at the ground level which is certified by other officers in the prescribed forms appended with new code.
12. Shri Naman Nagrath, learned Senior Counsel also placed reliance on document dated 14-11-2011 (Annexure P/5) filed with I.A. No.2506/14. It is submitted that the General Manager (Production), W.C.L. has written a detailed letter to General Manager (Production), Coal India Ltd. In this letter, it is made clear that in the Form 4 (A) and (B) the Surveyors are not the signatories. By reading the entire letter, it is submitted that the colliery management itself made it clear that at present the petitioners are not signatories to any such document on the strength of which they can be held responsible for shortage of coal. This letter, it is contended, makes it clear that the petitioners were not entrusted with any responsibility which may result into making them liable for shortage of coal.
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W.P. No. 201 of 201413. To clarify this, Shri Greeshm Jain relied on his recent affidavit dated 24-10-2016. By placing reliance on various paragraphs of this affidavit, it is urged that Colliery Surveyors are responsible to the extent of discrepancies in the measurement of coal done by them at the end of the month. If they find any discrepancy between the derived book coal stock and physical coal stock as on the date of measurement, then they have to report the same on the measurement certificate and communicate it to the required authorities. In case they fail to carry out above mentioned duty then they are responsible for the shortage of coal to the extent of discrepancies. It is further urged that Form 4 (A) and (B) of Yellow Book are maintained for the purpose of maintaining statistical data. The data incorporated in these forms are taken from the daily production register maintained at the level of colliery. In every colliery, the measurement of coal stock done by Colliery Surveyor is maintained wherein the signature of Colliery Surveyor is taken. By giving example, it is mentioned as to how actual production is to be ascertained.
14. Parties confined their arguments to the extent indicated hereinabove.
15. I have heard the parties at length and perused the record.
16. The petitioners by placing reliance on Regulation 49 contended that their duties and responsibilities are defined in this provision. However, alongwith rejoinder, petitioners filed document dated 20-12-2006. By way of this executive instructions, certain other duties/responsibilities were entrusted to the petitioners. This is trite law that executive instructions can supplement the statutory rules but it cannot supplant it. It is not the case of the petitioners that by way of instructions dated 20-12-2006, the respondents have supplanted the Regulation 49. Apart from this, the Circular dated 20-12-2006 is also not under challenge. For ready reference Regulation 49 reads as under:-
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"49. Duties and responsibilities of surveyors-(1) The surveyor shall -
(a) make such accurate surveys and levellings, and prepare such plans and sections and tracings thereof, as the manager may direct or as may be required by the Act or by the regulations or orders made thereunder, and shall sign the plans, sections and tracings and date his signature; and
(b) be responsible for the accuracy of any plan and section, or tracings thereof that has been prepared and signed by him.
(2) The surveyor shall record in a bound-paged book kept for the purpose -
(a) the full facts when workings of the mine have approached to about 75 metres from the mine boundary or from disused or waterlogged workings;
(b) any doubts which may exist concerning the accuracy of the plans and sections prepared under these regulations; and
(c) any other matter relating to the preparation of the plans and sections that he may like to bring to the notice of the manager.
Every entry in the book shall be signed and dated by the surveyor and countersigned and dated by the manager :
[Provided that where in any mine two or more surveyors are employed, each of the surveyors shall make the entries aforesaid in respect of the workings in his jurisdiction or of the plans and sections in his charge].
(3) Nothing in sub-regulation (2) shall absolve the owner, agent or manager of his responsibility under the Act and under these regulations or orders made thereunder.
17. Certain more responsibilities were added by order dated 20-12-2006 which reads as under:-
"3) A) Maintaining all the plans as per regulation and to keep them uptodate such as
a) Surface Plan,
b) Underground Plan,
c) Certical Mine Section,
d) A ventilation plan and section,
e) A geological plan of leasehold,
f) Rescue Plan,
g) Electricity Plan,
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h) Water Danger Plan,
i) Stone Dusting Plan,
j) Sampling Plan,
k) Combined Plan for continuous seam,
l) Joint Survey Plan,
m) Manpower Distribution Plan,
n) Abandonment or Discontinuance of working plan,
o) Fire Fighting Plan
p) Any other Plan required by DGMS,
q) Subsidence Plan and Sections.
B) List of Other Plans:
a) Key Plan
b) Manager's, Overman's, Mining Sirdar's hand plan
c) Layout Plan
d) Composite Plan
e) Pithead Plan
f) Plans to accompany applications made under the Regulations
g) Borehole Sections
h) Other Plans as required under Mines Regulation.
4) a) Preparation of sand stowing plan for assistance
b) Preparation of off-set plans at a scale of 1:250 or 1:300 as and when required.
5) Plans already submitted to the office of the DGMS as per Regulation 60 are to be brought back for posting uptodate and resubmitted in duplicate before 31st October of each year.
6) Preparing accident Plans as and when required.
7) Preparation of projection plans as advised by Manager
8) Making necessary hand plans as per Regulation for all section of the mine and for the use of all overman, sirdars, under manager etc. Hand Plans are to be made uptodate atleast once in a week
9) Taking surface levels for subsidence record and plotting sections.
10) Joint surveys with the adjoining collieries will be the responsibility of the surveyors of Area/Sub-Area in which Surveyors of the collieries will be associated.
11) Quarterly survey of the mine working to be carried out, within due time.
12) Monthly coal stock measurement of the linked colliery as well as other collieries as and when directed by Headquarters/General Manager. Monthly measurement of Overburden removal in opencast mines.
13) Updating the colliery plan in pencil twice a week.
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W.P. No. 201 of 201414) Measurement of dykes and faults for posting up on master plan correctly
15) Marking of Grade & Centre lines in drills and galleries as and when necessary
16) Preparation of systematic timbering rule plans
17) Preparation of plans for depillaring permission for submission to Mine Department etc.
18) Preparation of depot contour plan on 1:200 or 1:250 scale for the purpose of measurement of coal stock.
19) Preparation of plan on 1:4000 or other scale showing the surface land with plot no. likely to be affected/already affected by depillaring operations. The plans should also show the co-related workings of the seam concerned.
20) Before starting a new opencast mine/project, the projected area should be properly contoured and based lines are to be established on the permanent pillars to check the quantify of OB removed from time to time under the supervision of the Area Survey Officer.
21) Any other duties regarding surveys and plans assigned at any time by the Manager and Agent/Sub Area Manager etc."
"24. General: a) Colliery Surveyors/Survey Officers should not be engaged in any other non-statutory job which needs to be attended regularly e.g. construction of stopping, air crossing etc.
b) Stalling of Survey Personnel at Colliery level will be as per the guidelines of CMR 1957 and CIL's own norms (both OC and UG mines) All required survey instruments should be made available by the Management and to be kept in working condition by the Colliery Surveyor.
c)It will be responsibility of Manger/Surveyor/Survey Officers to get the instrument calibrated for its accuracy from authorized agency.
d) All jobs of underground civil nature will be estimated, tendered and awarded by Civil Engineer/Civil Overseer/Civil Section.
10. DUTIES AND RESPONSIBILITIES OF SURVEY DEPT OF AGENT/SUB-AREA OFFICE-
1) Shall be responsible for the general supervision of the various jobs carried out by the colliery surveyors.
2) The Survey Officer or Surveyor of the Agent's/Sub-Area Office shall check the field book data of quarterly surveys as well as the plans prepared by Colliery Surveyors and put his signature both in field books and in plans.
3) He will coordinate Monthly coal stock measurement of different collieries.
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W.P. No. 201 of 20144) Establish permanent Bench Marks in relation to Survey of India/Railways B.M. at the pit top, incline mouth and also pit bottom of all the collieries when necessary. All the surface levels and underground spot levels should be related to these Bench Marks and from time to time these Bench Marks are to be extended near the working faces for the facility of work.
5) Carrying out check survey and levelling of workings when it has reached within the 120 M or such other greater distance of water body.
6) Necessary co-relation survey required to be carried out to make accurate joint survey plans under the supervision of Area Survey Officer.
7) Abandoned Mine Plan (AMP) should be prepared by Colliery Surveyor, but they should ensure submission of AMP, as required by the regulations before the working is abandoned or working thereof has been discontinued.
8) He should co-ordinate OB and Coal measurement of the quarries as per CIL Code (yellow book) and maintain the base line.
9) He should associate himself with the monthly sand stowing measurement of the collieries under the jurisdiction of the particular Agent/Sub-Area and also co-ordinate the maintenance of the uptodate stowing plans.
10) To ensure maintenance of:
a) Up to date working and surface plan of each colliery.
b) Seam wise group plan of all seams working in the Agent's jurisdiction and make them uptodate every month.
c) Copies of geological plans.
d) Sections plan of all bore holes and to make it uptodate.
11) Calculation and proper records of coal reserve and extractable coal reserve of all seam which are being worked in collieries and also the virgin seam. These records should be made uptodate atleast once in a year.
12) Preparation of Plans and Charts for five years working projections.
13) Preparation of bar charts and graphs showing production target and actual output of individual collieries.
14) To maintain land use plan showing the Mouza/Khatlan No. etc.
15) Once in a quarter he should check and to ensure preparation and maintenance of correct plans and records as required statutorily for each colliery.
a) Report of every such examination shall be recorded in a bound paged book to be maintained for the purpose duly signed by him and counter-signed by the Manager of the concerned colliery. In case of any discrepancy found, suggestion should be incorporated for removing the same.
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W.P. No. 201 of 2014b) Examine and check up all statutory plans and field books and records and countersigned the same with date.
c) A copy of such report under clause (a) shall be forwarded by the Agent to the GM for attention of Area Survey Officer for necessary action.
16) Staffing pattern may be decided based on the number of mines under the Agent/Sub-Area Offices."
(Emphasis supplied)
18. The return further shows that in reply to a question in Lok Sabha regarding shortage of coal stock, the Ministry of Coal made assurances and decided to engage an outside agency as a Consultant to review the existing system of coal stock measurement. In turn, an outside agency was engaged which submitted its recommendation before Coal India Ltd. (CIL). The CIL in its meeting dated 04-09-2006 approved the recommendations for implementation in all the mines nationwide. It is further averred that the issue of implementation was deliberated in the third meeting of the C.M.Ds. held on 14-12-2006. It was decided to constitute a committee consisting of certain senior officers. The report of the committee was considered by CIL Board on 08-03-2008. The Board, in turn, directed all production units to try the system proposed in the report of consultant agency for one month and come out with difficulties in implementing the same. The difficulties be informed to the Board before the next date of meeting.
19. It is submitted that the report of subsidiary companies were deliberated upon in the 250th meeting of CIL Board held on 18-05-2009. In the meeting of CIL Board held on 01-02-2011, deliberations were made on production, dispatch and coal stock reporting policy of CIL. The Board constituted another Sub Committee consisting of Dr. R.N. Tiwari, Chairman, Shri Kamal R. Gupta, Independent Director, Shri N.C. Jha, Director (Technical) and Shri A.K. Sinha, Director (Finance) as members, G.M. (Production) as Nodal Officer and Company Secretary as Secretary to the committee to study the report of the independent agency and to suggest the points which can be implemented. The committee was advised to submit its report within three months.
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W.P. No. 201 of 201420. In the return, it is further stated that a note was prepared in "Code for Uniform System of Maintenance, Control and Verification of Coal Stock in All Mines of CIL". This was deliberated upon in the 51 st meeting of C.M.Ds. held on 04-04-2011 in which all C.M.Ds. were advised to examine the note and offer their comments and recommendations. Thereafter, a revised report was prepared incorporating the views of subsidiary companies. It is urged that Sub Committee of the Board examined the whole issue including recommendations and inputs received from C.M.Ds. in the meeting held on 04-04-2011. The Sub Committee provided guidelines for preparing a report on Code for Uniform System of Maintenance, Control and Verification of Coal Stock in All Mines of CIL. The report and guidelines were placed before the appropriate Sub Committee which discussed it on 13-05-2011, 25-05-2011 and 03-08-2011. Upon detailed deliberations, the said report was finalized. In the last meeting held on 03-08-2011, the Sub Committee of CIL Board recommended for bringing "New Code". On the basis of this background, the respondents have demonstrated that new code is an outcome of serious concern shown by Lok Sabha and the same is an outcome of expert opinion, deliberations and application of mind.
21. The new code deals with initial and subsequent surveying and levelling. Clause 3 (i)(b) provides that the section in opencast mines is required to be made, based upon surveying and levelling conducted by a committee constituted at area or subsidiary level. It mandates that in every month, surveying shall be carried out for making the new profiles of the opencast mines. In order to arrive at the quantity of correct excavation of coal and over burden. Clause (iv) provided that a register shall be maintained for recording the levels of coal with due date. The plan is required to be signed by Colliery Surveyor. Clause (vii) provides that a benchmark and baseline should be maintained at suitable places and it should be signed by Area Office Surveyors. Clause (v) deals with
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W.P. No. 201 of 2014measurement of coal production in underground mines. Clause (i) provides that weekly survey measurement must be carried out to find out the quantify of coal extracted and the production reported during the previous week. It should be based on actual measurement. Clause (v)(ii) provides periodic survey must be carried out with a view to find out the quantify of coal extracted from the area. The subsequent survey shall be so timed that the quantity of coal left in stocks can be determined before they became unapproachable, due to extension of GOAF. Clause 6 deals with determination of stock. Sub Clause (ii) mentions that at the end of every month, the spot levels on the surface of the coal stock at the same spots, as earlier recorded, will be measured. Any standard method of measurement of stock may be adopted. In no uncertain terms, it is made clear that this recording is to be done at the area by the Area Survey Officer. Clause 6 (ix) makes it obligatory for Colliery Surveyor to prepare quarterly measurement etc. in order to ensure checks and corrective measures.
22. The aforesaid clauses of new code make it clear that further duties/responsibilities/work is entrusted to the Surveyors/petitioners. A combined reading of document dated 20-12-2006 and aforesaid provisions make it clear that the contention of the petitioners that they are held responsible for shortage but no work regarding stock measurement etc. is entrusted to them is factually incorrect.
23. The additional duties entrusted by document dated 20-02-2006 and by way of new code make it clear that petitioners were given various duties which are relating to measurement of coal stock etc. How these duties are to be translated into reality is prerogative of the employer. Apart from this, it is seen that new code came into being after experts study and due deliberations at various levels. The new code came into being in the year 2012. It is also seen that suggestion/comments/recommendations were invited from the various officers working at the ground level. Before bringing the new code, all such points have been considered and on the
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W.P. No. 201 of 2014basis of expert reports and deliberations, the new code is prepared. It can be presumed that the stray suggestion dated 14-11-2011 (Annexure P/5) filed with I.A. No.2506/14 must have been considered by the respondents. Even otherwise, this document dated 14-11-2011 is an opinion of G.M. (Production) of W.C.L. This cannot prevail over the expert opinions and the combined decisions taken at apex level. More so, when such decision is taken after due deliberations on various levels. Thus, this document dated 14-11-2011 is of no help to the petitioners.
24. This is settled in law that the employer is the best judge to decide as to how its activities are to be carried out. The Court can interfere, if any such decision of the employer violates any vested, statutory, fundamental or constitutional rights of the petitioners. The petitioners are unable to show that any such right of theirs is violated by way of impugned provision.
25. The additional affidavit dated 24-10-2016 makes it clear that Surveyors can be held responsible only in the manner mentioned in the said affidavit. This is settled legal position that a provision cannot be set aside on the apprehension that it can be misused. [See Mafatlal Industries Ltd. vs. Union of India (1997) 5 SCC 536, J.K. Industries Ltd. vs. Chief Inspector of Factories and Boilers (1996) 6 SCC 665 and Naraindas Indurkhya vs. State of M.P. (1974) 4 SCC 788]
26. On the basis of foregoing discussion, I am unable to hold that the impugned provision is arbitrary, capricious or unconstitutional. I find no reason to interfere on the said provision in this writ petition.
27. Resultantly, the petition fails and is hereby dismissed. No cost.
(Sujoy Paul) Judge mohsin/