Full Judgment Text
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CASE NO.:
Appeal (civil) 5797 of 1998
Appeal (civil) 7596 of 1999
PETITIONER:
EMP., MGMT OF RAMKANALI COLL. OF M/S BCCL
Vs.
RESPONDENT:
WORKMEN BY SECY. RASHT. COLL. MAZ. SANGH & ANR.
DATE OF JUDGMENT: 27/03/2001
BENCH:
S.R.Babu, S.N.Variava
JUDGMENT:
RAJENDRA BABU, J. :
L.....I.........T.......T.......T.......T.......T.......T.......J
C.A.No. 5797/98
Four workmen, who claimed to be working from May or July
1972 in the Ramkanali Colliery of the appellant, raised a dispute
that they were stopped from work by the management. The
appellant contended before the Industrial Tribunal to whom this
matter was referred that the non-coking coal mines were taken
over by the Central Government on 31.1.1973 and was nationalized
with effect from 1.5.1973 and none of these workmen were in
employment before the date of take over. After the take over of
the Colliery, a Screening Committee consisting of the
representatives of the employer and the workmen scrutinized the
claim of the workmen and found that the claim of these workmen
was without any basis. The reference made to the Industrial
Tribunal reads as follows :
Whether the demand of the workmen of Ramkanali Colliery of
Messrs. Bharat Coking Coal Limited, Post Office Katrasgarh,
District Dhanbad that Sarvashri Bishundeo Singh, Kanhaiya Prasad
Karan, Attendance Clerks, Ashok Kumar Das, Munshi and Bachu
Singh, Night Guard of West Ramkanali Section should be allowed to
resume duty is justified? If so, to what relief are the workmen
concerned entitled and from what date?
The Tribunal examined the matter in detail and on
consideration of evidence held that the concerned four workmen
were workmen of the Ramkanali Colliery at the time of take over
and they should be allowed to resume duty from the date of take
over. Thereby the management of the appellant was directed to
reinstate the said workmen with continuity of service from the
respective dates of stoppage of their duties. However, the
Tribunal made certain adjustments regarding payment of wages for
the period for which they had not worked. The matter was carried
by way of a writ petition to the High Court. The learned Single
Judge allowed the writ petition and set aside the award and the
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matter was carried by the workmen in letters patent appeal to the
Division Bench which allowed the same and restored the award made
by the Tribunal. Hence this appeal by special leave.
The contention put forth before us is that under Section 14
of the Coal Mines Nationalisation Act, 1973 [hereinafter referred
to as the Act] a workman who was in the employment on the
appointed date, namely, 1.5.1973 alone is entitled to be
protected in employment. On the date when the reference was made
to the Tribunal, provision of Section 14 of the Act stood
substituted with retrospective effect from 1.5.1973 and,
therefore, the Tribunal could not have passed the award in the
year 1987. In the Workmen vs. the Bharat Coking Coal Ltd. &
Ors., 1978 (2) SCC 175, this Court examined the scope and effect
of the provisions of Sections 9 and 17 of the Coking Coal Mines
Nationalisation Act, 1972, which are identical to Sections 7 and
14 of the Act in all respects. This Court held that Section 9
(similar to Section 7 of the Act) granted immunity to the
Government against any award and it has to be read along with
Section 17(1) (similar to Section 14(1) of the Act). So read,
Section 9 does not nullify Section 17 or have a larger operation.
In very felicitous terms, this Court stated the position as
under:
7. Section 9 deals with the topic of prior liabilities of
the previous owner. Section 9(1) speaks of every liability of
the owner prior to the appointed day, shall be the liability
of such owner . and shall be enforceable against him and not
against the Central Government or the Government Company. The
inference is irresistible that Section 9(1) has nothing to do
with wrongful dismissals and awards for reinstatement. Employees
are not a liability (as yet in our country). Section 9(1) deals
with pecuniary and other liabilities and has nothing to do with
workmen. If at all it has anything to do with workmen it is
regarding arrears of wages or other contractual, statutory or
tortious liabilities. Section 9(2) operates only in the area of
Section 9(1) and that is why it starts off by saying for the
removal of doubts it is hereby declared .. So, Section 9(2)
seeks only to remove doubts in the area covered by Section 9(1)
and does not deal with any other topic or subject matter.
Section 9(2)(b) when it refers to awards goes along with the
words decree, or order. By the canon of construction of
noscitur a sociis with expression award must have a restricted
meaning. Moreover, its scope if delimited by Section 9(1). If
back wages before the appointed day have been awarded or other
sums, accrued prior to nationalisation, have been directed to be
paid to any workman by the new owner, Section 9(2)(b) makes such
claims non-enforceable. We do not see any reason to hold that
Section 9(2)(b) nullifies Section 17(1) or has a larger operation
than Section 9(1). We are clear that the whole provision confers
immunity against liability, not a right to jettison workmen under
the employ of the previous owner in the eye of law.
Now the contention put forth before us is that Section 14
of the Act stood substituted by an amendment made to it by
deleting several provisions thereof. Section 14(1) of the Act
provided as follows :
14. Employment of certain employees to continue
(1) Every person who is a workmen within the meaning of the
Industrial Disputes Act, 1947, and has been immediately before
the appointed date, an employee of the Central Government, in
which the right, title and interest of such mine have vested
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under this Act, and shall hold office or service in the coal mine
with the same rights would have been admissible to him if the
rights in relation to such coal mine had not been transferred to,
and vested in, the Central Government or the Government Company,
as the case may be, and continue to do so unless and until his
employment in such Coal Mine is duly terminated or until his
remuneration, terms and conditions of employment are duly altered
by the Central Government or the Government Company.
(Rest of the provisions not extracted since unnecessary)
The said provision stood deleted and substituted by the
following provision:
14. Liability of officer or other employee of a coal mine
for transfer to any other coal mine. Notwithstanding anything
contained in the Industrial Disputes Act, 1947, or in any other
law for the time being in force, the services of any officer or
other employee employed in a coal mine shall be liable to be
transferred to any compensation under this Act or any other law
for the time being in force and no such claim shall be
entertained by any court, tribunal or other authority.
The argument advanced now is that protection available
under Section 14 is no longer available on the date when the
award was made and, therefore, contended that the award is a
nullity. The decision in Bhubaneshwar Singh & Anr. vs. Union
of India & Ors., 1994 (6) SCC 77, is in the context of enactment
of law reviewing the defect pointed out in a judgment and
retrospectively enacting the law so as to render the judgment of
the court ineffective thus enacting a validating provision was
considered. What happened in that case was courts took the view
that the sale price of the stock of extracted coal lying at the
commencement of the appointed date had to be taken into account
for determining the profit and loss during the period of
management of the mine by Central Government. Thereafter, the
Coal Mines Nationalisation Laws (Amendment) Ordinance and Act,
1986 was issued. Section 19(2) of the Principal Act as
introduced by the Amending Act and Section 19 of the Amending Act
providing that the amount payable as compensation shall be deemed
to include and deemed always to have included in the amount
required to be paid to the owner in respect of all coal in stock
on the date immediately before the appointed date. The said
Amending Act was held to be valid as it altered the basis of the
principal Act with retrospective effect as a result of which
court’ judgment was rendered ineffective and, therefore, this
Court upheld the said provision. That decision can have no
application to the present case nor are we concerned with the
validity of the provisions of the enactment in question. What we
are concerned in the present case is the effect of the expression
substituted used in the context of deletion of sub-clauses of
Section 14, as was original enacted. In Bhagat Ram Sharma vs.
Union of India & Ors., 1988 Supp. SCC 30, this Court stated that
it is a matter of legislative practice to provide while enacting
an amending law, that an existing provision shall be deleted and
a new provision substituted. If there is both repeal and
introduction of another provision in place thereof by a single
exercise, the expression substituted is used. Such deletion
has the effect of the repeal of the existing provision and also
provide for introduction of new provision. In our view there is
thus no real distinction between repeal and amendment or
substitution in such cases. If that aspect is borne in mind, we
have to apply the usual principles of finding out the rights of
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the parties flowing from an amendment of a provision. If there
is a vested right and that right is to be taken away, necessarily
the law will have to be retrospective in effect and if such a law
retrospectively takes away such a right, it can no longer be
contended that the right should be enforced. However, that legal
position, in the present case, does not affect the rights of the
parties as such.
The Act came into force on 1.5.1973 and the employees
(including former employees whose services were terminated) will
continue to hold such employment as if nationalisation had not
taken place. In the present case, the finding of the Tribunal is
that the employees in question had not ceased to be employees but
were merely not allowed to do work. This finding of fact arrived
at on appreciation of evidence, cannot be faulted with at all.
Hence, the right enforced by the employees will not attract the
amended provision of the Act which came into force on 15.12.1986.
In that view of the matter, we do not think that the award made
by the Tribunal is in any way wrong particularly, when the
decision has been given on facts that as on the date of the take
over the concerned workmen were employees of the appellant
management. If that is so, they never ceased to be employees.
All that happened was they were prevented from working in the
Colliery, which was set right by the award. We find no substance
in this appeal. The same shall, therefore, stand dismissed. No
costs.
C.A.No. 7596/99
The questions arising for consideration being identical
this appeal is also dismissed.