Full Judgment Text
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PETITIONER:
DEJAPADA DAS AND ANR.
Vs.
RESPONDENT:
UNION OF INDIA AND ORS.
DATE OF JUDGMENT11/04/1980
BENCH:
KRISHNAIYER, V.R.
BENCH:
KRISHNAIYER, V.R.
REDDY, O. CHINNAPPA (J)
SEN, A.P. (J)
CITATION:
1980 AIR 2031 1980 SCR (3) 586
1980 SCC (3) 412
ACT:
Coal Mines (Nationalisation Amendment) Act 1976 (Act
No. LXVII of 1976), Sections 3(3) and 4 scope of-Whether
Section 3(3) offends Article 14 of the Constitution in as
much as in regard to Coal Mines where mining is prohibited
by that provision the workmen are left in the cold while in
regard to nationalised coal mines the workmen are taken care
of and benefits assured Private managements whether deemed
custodians under Section 5 of the Coal Mines
Nationalisations Act 1973.
HEADNOTE:
Dismissing the Writ Petitions, the Court,
^
HELD: 1. The provision contained in Section 3(3) of Act
LXVII of 1976 is peremptory and the prohibition is mandatory
because there is punishment provided for contravention of
that provision. Breach of Section 3(3) is made punishable
with imprisonment. The 1976 Act totally prohibits working of
any coal mines by any agency other than those which have
been set out in Section 3(3). Surely, there is no authority
for the managements under whom the present petitioners are
alleged to be workmen to operate coal mines in the face of
the prohibition of the 1976 Act. Even for granting leases
and their renewal by the State itself, the frown and force
of the law stand four square between the mines and
extraction of coal by any but the agencies specified in
section 3(3) of the 1976 Act [589F-G, 591A, B & C]
2. Investigation of the State or intimation by the
private managements are obligatory under the appropriate
legislation and in the absence of any intimation the
presumption is that there are no such coal mines as are set
up before the Court. What apparently has been done, if at
all, is to do what has been described as ’scratching’ that
is surface mining of coal bearing areas, destructive of the
natural resources of the nation without any thought for the
morrow and without any reference to the planned, phased
programme of exploitation of coal for the benefit of the
country in the public sector. The mines, if any, are
illicitly being operated, there being no sanction of the
law. It is precisely to prevent this mischief of slaugter
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mining that s.3(3) was introduced and s.4 was enacted to
make the activity punishable. The proscription is
comprehensive and the penalty makes it imperative. When it
is accepted that it is not permissible to operate these
mines save by those specified in the 1976 statute, it
necessarily follows that workmen, genuine or other, cannot
claim any fundamental right to work these mines. [591D-G]
3. The prohibition of mining as under s. 3(3) of the
1976 Act, is in the public interest and indeed, the scheme
shows that wherever public interest requires exploitation of
coal mines it has been permitted in the public sector and
even in the private sector so far as certain specified
industries, such as iron and steel industries, are
concerned. The ban is part of a national policy, conceived
for conservation of a vital national resource and the wisdom
of the regulation of
587
fuel sources and their planned user is beyond argument.
Therefore, the language of s. 3(3) is express, explicit and
admits of no exception. An aware Court will not relax when
the language is peremptory, the legislation is charged with
a critical purpose and even the commiserative case of
workmen-not wolves in sheep’s clothing, cannot override the
larger cause of the nation. No nation, no workmen. [591G-H,
592A]
4. It is audacious for the dubious managements under
whom the petitioners are supposed to be innocent workmen to
represent to the Court that they are "deemed custodians"
working on behalf of the Central Government. [592D-E]
Under section S, notifications are a sine qua non for
custodianship, actual or deemed and absent such notification
taking over management no private agency can self-style
itself as "deemed custodian". Therefore, the managements
other than those specified in section 3(3) of the 1976 Act,
can not claim to extract coal from any coal mines. If this
be so, no one can claim as a workman, although in public
interest, although it is imperative that such operation
should stop. [593E-F]
5. There is no violation of Article 14 of the
Constitution vis-a-vis the workmen concerned assuming them
to be real workmen. After the dismissal of the management’s
writ petitions, the argument that the Act impugned is ultra
vires vis a vis workmen is a daring legal workmanship. If a
larger Bench of this Court has already upheld the vires of a
statute the discovery of a new argument cannot invalidate
that decision. That proposition will make the binding effect
of precedents, read in the light of Art. 141 a vanishing
cream once a novel thought strikes a legal brain. [593F-H]
The question of discrimination between two classes of
workmen hardly arises because one set of mines has been
closed down validly. If the closure is valid, no one
employed there has a right to force it open on the score of
discrimination. Denial of lay-off or other benefits belong
to a different jurisdiction. If any workmen are really
aggrieved that their interests are not protected and that
their future is in jeopardy, it is certainly open to them to
make representation to the Central Government for
consideration of their lot, and certainly a welfare State
will give due consideration for such representation if it is
satisfied that the grievance is genuine. [594A-B]
6. Section 3(3) of the 1976 Act being mandatory and
having been held constitutional by this Court, it is no
longer permissible for any court in India to appoint a
receiver or otherwise permit extraction of coal or cooling
coal. [594D-E]
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JUDGMENT:
ORIGINAL JURISDICTION: Writ Petition Nos. 1311, 1269-
70, 1113, 1109, 1479-1480, 924-925, 1478, 1250-1251, 1219,
926-927, 1072-1076, 1565, 1652-1654, 1434-1435, 1648, 1306-
1310, 13121314, 1590-1591, 1588-1589 of 1979 and 400, 192,
448 and 462 of 1980.
(Under Article 32 of the Constitution)
A. K. Sen and S. K. Sinha for the Petitioners in WP
Nos. 1306- 1314/79, 1434, 1113, 1109, 1250-1251, 1219, 1072-
1076, 1565, 1652-1654, 1435/79 and 192/80.
588
K. N. Choubey and A. K. Srivastava for the Petitioners
in WP Nos. 1269-1270, 1590-1591, 1588-1589, 924-925, 926-
927/79.
M. P. Jha for the Petitioners in W.P. 1648/79.
A. K. Ganguli, for the Petitioner in W.P. Nos. 1479-
1480/79.
Arun Madan for the Petitioners in W.P. No. 40()/80.
S. N. Jha for the Petitioners in W.P. No. 488/80.
K. N. Choubey and Mukul Mudgal for the Petitioners in
W.P. 462/80.
Lal Narain Sinha Att. Genl., M. K. Banerjee Addl. Sol’.
Genl., and Miss A. Subhashini for the Respondent Union of
India, Central Coal Fields, Easter Coal Field in WP. Nos.
1307, 1310, 1312, 1314 and Respondent 3 in W.P. Nos.
1308,1588, 1589, 1434, 1072-1076/79.
Lal Narain Sinha Att. Genl. and U. P. Singh for the
Respondents, State of Bihar and Its officials in W.P. Nos.
1588-89, 1434, 1109, 924-925, 1250-1251, 926-927, 1219,
1250-1251, 1072, 1290-91, 1648, 1479-80, 1073-1074, 1565/79
and 400, 192, 488 and 462/80.
Lal Narain Sinha Att. Genl. and Rathin Dass for the
Respondents (West of Bengal) in W.P. Nos. 1306-1314, 1073-
1074/79.
P. K. Chatterjee for the State of West Bengal in W.P.
1072/79.
A. K. Srivastava for the Caveator/Respondent No. 4 in
W.P. Nos. 1652-1654 of 1979.
The Judgment of the Court was delivered by
KRISHNA IYER, J. ’Survival after death’ is the
expression that aptly describes these writ petitions
relating to coal mining by private agencies long after a
prohibitory legislation and an order by this Court repelling
the challenges to the vires of that Act. Parliament by the
Coal Mines (Nationalisation) Amendment Act, 1976 (Act No.
LXVII of 1976) (For short, the 1976 Act) totally prohibited
all mining of coal save by instrumentalities set out in s.
3, sub s. (3) which we may excerpt here:
(3) on and from the commencement of Section 3 of
the Coal Mines (Nationalisation) Amendment Act, 1976.-
(a) no person, other than-
(i) the Central Government or a Government
company or a corporation owned, managed
or controlled by the Central Government,
or
589
(ii) a person to whom a sub-lease, referred
to in the proviso to cl. (c), has been
granted by any such Government, company
or corporation, or
(iii) a company engaged in the production of
iron and steel shall carry on coal
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mining operation, in India, in any form;
(b) excepting the mining leases granted before
such commencement in favour of the
Government, company or corporation, referred
to in clause (a), and any sub-lease granted
by any such Government, company or
corporation, all other mining leases and sub-
leases in force immediately before such
commencement, shall, in so far as they relate
to the winning or mining of coal, stand
terminated;
(c) no lease for winning or mining coal shall be
granted in favour of any person other than
the Government, company or corporation,
referred to in clause (a) .
Provided that the Government, company or corporation to
whom a lease for winning or mining coal has been granted may
grant a sublease to any person in any area on such terms and
conditions as may be specified in the instrument granting
the sub-lease, if the Government, company or corporation is
satisfied that-
(i) the reserves of coal in the area are in
isolated small pockets or are not sufficient
for scientific and economical development in
a coordinated and integrated manner, and
(ii) the coal produced by the sub-lease will not
be required to be transported by rail.
It is obvious that the provision is peremptory and the
prohibition is mandatory because there is punishment
provided for contravention of that provision. Section 4(1)
of the 1976 Act makes a breach of s. 3(3) punishable with
imprisonment.
This broad spectrum ban in law arrested the extraction
of coal and was naturally assailed as ultra vires by the
managements themselves in writ petitions under Art. 32. A
bench of seven judges of this court heard erudite and
elaborate arguments, at the end of which the writ petitions
were dismissed. But it is not unusual for many litigants
’even though vanquished, to argue still’. Here, however, the
challenge and challenger are of different colour. For, the
petitioners before us
590
claim to be workmen who are thrown out of employment on
account of the 1976 Act and lament in this Court that they
are discriminated against and on that score the law is
violative of Art. 14 of the Constitution. The plea put
forward is that in regard to nationalised coal mines the
workmen are taken care of and their benefits assured, while
in regard to coal mines where mining is prohibited by s.
3(3) of the 1976 Act the workmen are left in the cold. This
is stated to be discrimination between workmen and workmen,
thus contravening the mandate of equality before the law.
Maybe, the writ missiles of the managements proved damp
squibs but the workers undaunted by that rebuff, want to try
a new weapon of ultra vires. The coal will go to the
employers and the wages to the workers.
The Union of India resists this relief and contends
that the writ petitioners are mere reincarnations of the old
managements which have fought and lost and are masquerading
as workmen so as to facilitate a second challenge. The State
asserts that clandestine coal mining mafia having been
stopped, these racketeers are playing the maricha game
through bogus workers in tears. Without going into the
merits of this averment we may state that every other
conceivable objection to the validity of the 1976 Act and
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other sister enactments had been urged in vain before the
seven judges’ bench. Now the alleged workmen are complaining
of discriminatory denial of benefits to one class of
workers. The Union of India counters this plea as factually
a ruse for clandestine mining operations by management and
legally a second battle after the legal Waterloo, hoping
against hope that there is nothing to lose in a gamble. Even
if a spell of stay were got the gain will outweigh possible
losses in litigation. Indeed, the State’s contention is that
considerable losses to Government and traumatic consequences
on the nation are being daily inflicted by such clandestine
operations. The whole mischief contemplated by the 1976 Act
is being continued under the guise of invalidity of the
legislation and, alternatively, by going to court and
getting receivers appointed so that a legal colour is
imparted to lawless depradations.
It is true that nationalisation of coal, as a policy,
has been evolved over the seventies. In the beginning, the
management of coal mines was taken over and at a later stage
ownership itself vested in the Union of India by virtue of
ownership of all coal mines is the simple and
incontrovertible fact emerging from the bunch of legislation
we have been taken through. We are not going into the catena
of enactments and their sequence covering this question,
because they are being discussed in greater detail and
fuller depth in the comprehensive judgment where reasons
have yet to be given but the result, by way
591
Of brief order, has already been announced. Suffice it to
say that the 1976 Act totally prohibits working of any coal
mines by any agency other than those which have been set out
in s. 3(3). Surely, there is authority for the managements
under whom the present petitioners are alleged to be workmen
to operate coal mines in the face of the prohibition in the
1976 Act. There is a point of dispute raised by the Union of
India that the managements which have come up before this
Court do not have even leases under the Mines and Minerals
(Regulation and Development) Act, 1957. This is controverted
by the other side but we may side-step that issue because it
is not essential for the decision of this case. For one
thing, no such lease is before us. For another, what is
relied on in some cases is hukumnamas which cannot do duty
for leases. Even granting leases and their renewal by the
State itself as is asserted in a few cases, the grown and
force of the law stand four square between the mines and
extraction of coal by any but the agencies specified in
s.3(3) of the 1976 Act.
It is common ground that there is no specification of
the coal mines in question in the schedule to the
nationalisation legislation of 1973, nor is there any
specific notification relating thereto. Investigation by the
State or intimation by the private managements are
obligatory under the appropriate legislation and in the
absence of any intimation-none has been produced before us-
we have to presume that these are no such coal mines as are
set up before us. What apparently has been done, it at all,
is to do what has been described as ’scratching that is
surface mining of coal bearing areas, destructive of the
natural resources of the nation without any thought for the
morrow and without any reference to the planned, phased
programme of exploitation of coal for the benefit of the
country in the public sector. We are satisfied that on the
materials placed before us in all these cases, the mines, if
any, are illicitly being operated, there being no sanction
of the law. It is precisely to prevent this mischief of
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slaughter mining that s. 3(3) was introduced and s. 4 was
enacted to make the activity punishable. The proscription is
comprehensive and the penalty makes it imperative. Once we
accept the position that it is not permissible to operate
these mines save by those specified in the 1976 statute it
necessarily follows that workmen, genuine or other, cannot
claim any fundamental right to work these mines. The
prohibition of mining coal except as under s. 3(3) of the
1976 Act, is in the public interest and indeed, the scheme
shows that wherever public interest requires exploitation of
coal mines it has been permitted in the public sector and
even in the private sector so far as certain specified
industries, such as iron and steel industries, are
concerned. The ban is part of a
592
national policy, conceived for conservation of a vital
national resource and the wisdom of the regulation of fuel
sources and their planned user is beyond argument.
therefore, the language of s. 3(3) is express, explicit and
admits of no exception. An aware court will not relax when
the language is peremptory, the legislation is charged with
a critical purpose and even the commiserative cause of
workmen-not wolves in sheep’s clothing. as is asserted,-
cannot override the larger cause of the nation. No nation no
workmen;
Assuming for a moment that the private managements are,
as Dr. Chitale and Shri A. K. Sen urged, deemed custodians
within the scheme of the legislative take-over, they are
necessarily to operate oh behalf and under the direction of
the Central Government. Here is the Central Government
protesting, as stridently as it can, against the mining
operations by the alleged mine-owners. Both the State and
Central Governments are making common cause and demand that
no deemed custodian need’ work any mine on their behalf. How
can a surrogate custodian exceed the command of the
principal to stop mining ? The whole case of the Union of
India is that a clandestine cluster a sort of coal mafia
which may even have got sham registers of workmen-is defying
Government and extracting coal on the sly. It is audacious
for the dubious managements, under whom the petitioner are
supposed to be innocent workmen, to represent to the court
that they are ’deemed custodians’, working on behalf of the
Central Government.
Nor are we prepared to accept the naive case that the
petitioners’ employers can be regarded as deemed custodians
under s. S. We may read s’. S of the Coal Mines
nationalisation Act, 1973.
5. Power of Central Government to direct vesting
of rights in a Government company:-
(1) Notwithstanding anything contained in Sections
3 and 4, the Central Government may, if it is satisfied
that a Government company is willing to comply, or has
complied, with such terms and conditions as that
Government may think fit to impose, direct, by an order
in writing, the right, title and interest of an owner
in relation to a coal mine referred to in Section 3,
shall; instead of continuing vest in the Central
Government, vest in the Government company either on
the date of publication of the direction or on such
earlier or later date (not being a date earlier than
the appointed day), as may be specified in the
direction.
593
(2) Where the right, title and interest of an
owner in relating to a coal mines vest in a Government
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company under sub-section (1), the Government company
shall on and from the date of such vesting, be deemed
to have become the lessee in relation to such coal mine
as if a mining lease in relation to the coal mine had
been granted to the Government company and the period
of such lease shall be the entire period for which such
lease could have been granted under the Mineral
Concession Rules; and all the rights and liabilities of
the Central Government in relation to such coal mine
shall, on and from the date of such vesting, be deemed
to have become the rights and liabilities,
respectively, of the Government company.
(3) The provisions of sub-section (2) of section 4
shall apply to a lease which vests in a Government
company as they apply to a lease vested in the Central
Government and references therein to the "Central
Government" shall be construed as references to the
Government company. D
The notification required under s. 5 authorising the
mine to be worked, is admittedly absent. No such
notification exists or has been hinted at or is existing. In
the absence of the relevant notification contemplated by s.
5, it is impossible to postulate ’deemed custodianship’.
There are scheduled mines or notified mines, under the
scheme of statutory management in the Management Take-over
Act. Notifications are a sine sua non for custodian-ship,
actual or deemed and absent such notification taking over
management no private agency can self-style itself as deemed
custodian. It follows that on any view of the matter the
managements other than those specified under s. 3(3) of the
1976 Act can claim to extract coal from any coal mines. If
this conclusion is sound, as we have demonstrated it is, the
inference is irresistible that no one can claim to extract
coal as a workman, although in public interest, it is
imperative that such operation should stop. We hold that
there is no violation of Art. 14 of the Constitution, vis-a-
vis is the workmen concerned assuming them to be real
workmen. We have grave doubts about the veracity of this
piece of workmanship that the petitioner and others of their
ilk are actual, not imaginary. Anyway, after the dismissal
of the managements’ writ petitions, the argument that the
Act impugned is ultra vires vis a vis workmen is a daring
legal workmanship. If a larger bench of this Court has
already upheld the vires of a statute the discovery of a new
argument cannot invalidate that decision. That proposition
will make the binding effect of precedents, read in the
light of Art. 141, a vanishing cream once a novel thought
strikes a legal brain.
594
The question of discrimination between two classes of
workmen hardly arises because one set of mines has been
closed down validly. If the closure is valid, no one
employed there has a right to force it open on the score of
discrimination. Denial of lay-off or other benefits belong
to a different jurisdiction. If any workmen are really
aggrieved that their interests are not protected and that
their future is in jeopardy, it is certainly open to them to
make representation to the Central Government for
consideration of their lot, and certainly a welfare State
will give due consideration for such representation if it is
satisfied that he grievance is genuine. We dismiss the Writ
Petition with costs.
It has been mentioned on more than one occasion in this
court that interlocutory orders have been passed, that
Receivers have been appointed by civil courts, including
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High Courts, and that working of mines is licitly going on.
In the face of the all-pervasive statutory prohibition which
is peremptory in language and punishable in consequence, it
is surprising that any Receiver could at all dare to work
mines. While we disapprove of that conduct we make it
perfectly plain that there will be no more sanction for any
receiver or other officer of court to extract coal or coking
coal from any mine in India. Section 3(3) of the 1976 Act
being mandatory and having been held constitutional by this
Court, it is no longer permissible for any court in India to
appoint a receiver or otherwise permit extraction of coal or
cooking coal. We vacate all interim orders forthwith
It may be fair to the learned Attorney General, whose
hunch we share to state that this wealth of "workers" writ
petitions is a kind of litigative puppetry, the illicit mine
exploiters being the puppetteers and those who figure as
worker petitioners being the puppets.
S.R. Petitions dismissed.
595