Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6
PETITIONER:
WORKMEN CONCERNED, REPRESENTED BY THE BIHARCOLLIERY KAMGAR U
Vs.
RESPONDENT:
BHARAT COKING COAL LTD. AND ORS.
DATE OF JUDGMENT10/03/1978
BENCH:
KRISHNAIYER, V.R.
BENCH:
KRISHNAIYER, V.R.
SINGH, JASWANT
CITATION:
1978 AIR 979 1978 SCR (3) 482
1978 SCC (2) 175
ACT:
Coking Coal Mines Nationalisation Act, 1972 Ss. 9 and 17,
interpretation.
HEADNOTE:
The management of the New Dharmaband Colliery dismissed 40
workmen in October, 1969, and an industrial dispute sprung
up and reference followed in October, 1970. During the
pendency of the enquiry by the Industrial Tribunal, the
Colliery war, nationalised with effect from May 1, 1972 as
provided for in the Coking Coal Mines Nationalisation Act,
1972. The New Dharmaband Colliery vested in the Central
Government and thereafter in the Bharat Coking Coal Company
Ltd., that is respondent No. 1. Section 9 of the Coking Coal
Mines Nationalisation Act, 1972 detailed the Central
Government not to be liable for prior liabilities. Section
17(1) enjoined that every employee who is a workman within
the meaning of the Industrial Disputes Act, 1947 and has
been immediately before the appointed day in the employment
of a mine shall become an employee in the Central
Government.
The Industrial Tribunal made an award on July 1, 1972, after
impleading Bharat Coking Coal Company as a party holding
that "the action of the management of New Dharmaband
Colliery in dismissing the forty workmen with effect from
18th October, 1969 was not justified and that the said
workmen should be reinstated with continuity of service by
the management for the time being, namely, Bharat Coking
Coal Company Ltd. and the said company shall be liable to
pay their wages and other emoluments with effect from 1st
May, 1972. . . .. The Management of New Dharmaband Colliery
and Bharat Coking Coal Co. Ltd. are jointly and severally
liable to pay the sum to the work-men concerned." The Bharat
Coking Coal Company aggrieved by the directions invoked the
Writ Jurisdiction of the High Court, which quashed the
award.
Allowing the appeal by special leave and restoring the award
of the Industrial Tribunal, the Court
HELD : 1. Section 17 of Coking Coal Mines Nationalisation
Act, 1972 is a special provision relating to workmen and
their continuance in service notwithstanding the transfer
from private ownership in the Central Government or
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6
Government Company. This is statutory protection for the
workmen and is express, explicit and mandatory. Every
person who is a workman within the meaning of Industrial
Disputes Act, 1947, and has been immediately before the
appointed day in the employment of a mine, shall become an
employee of the Government or the Government Company and
continue to do so Is laid down in Section 17. A "workman"
is defined in the Industrial Disputes Act to mean any person
employed in any industry and include, any such person who
has been dismissed and whose dismissal has led to a
dispute".
In the instant case, the forty workmen who were dismissed
and whose dismissal led to the industrial dispute are
workmen within the meaning of s. 17 (1) of the Act. It is
not open to any one to contend that because they have been
wrongfully dismissed and, therefore, are not physically on
the rolls on the date of the take over, they are not legally
workmen under the new owner. [485 D-C]
2. The subtle eye of the law transcends existence on the
grass-level. The statutory continuity of service cannot be
breached by the wrongful dismissal of the prior employer,
What matters is not physical presence on the rolls but the
continuance in service in law because the dismissal in non
est. The dismissal
483
has been set aside and the award expressly directs
reinstatement with continuity of the service by the
management for the time-being, namely, the Bharat Coking
Coal Company Ltd. The finding that the dismissal was
wrongful has not been challenged, therefore, must stand.
[485 G-H, 486 D]
Bihar State Road Transport Corporation v., The State of
Bihar, [1970] 3 SCR 708 at p. 714, applied.
3. Section 9(1) has nothing to do with wrongful dismissal
and awards for reinstatement. Employees are not a
liability. Section 9(1) deals with pecuniary and other
liabilities and has nothing to do with workman. If at all
it has anything to do with workman it is regarding arrears
of wages or other contractual, statutory or tortuous
liabilities. [486 F-G]
4. Section 9(2) operates only in the area of section 9(1)
and starts off by saying "for the removal of doubts it is
hereby declared.. .." Section 9(2) seeks only to remove
doubts in the area covered by s. 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 word "decree?. or
’order. By the canon of construction of noscitura sociis
the expression "award" must have a restricted meaning.
Moreover, its scope is delimited by s. 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. Section 9(2)(b) does not
nullify a. 17(1) as they operate indifferent fields. The
whole provision confers immunity against liability, not a
right to jettison workman under the employ of the previous
owner in the eye of law. [486 G-H 487 A-B]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2775 of
1977.
(Appeal by Special Leave from the Judgment and Order dated
20-2-1976 of the Patna High Court in S.W.J.C. No. 1314 of
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6
1972).
Somnath Chatterjee, D. P. Mukherjee & .4. K. Ganguly for the
Appellant.
Sarjoo Prasad,M. L. Varma for Respondent No. 1.
The Judgment of the Court was delivered by
KRISHNA IYER, J.-The correct interpretation of section 9 of
the Coking Coal Mines Nationalisation Act,1972, (for short,
the Act), read along with Section 17 settles the fate of
this appeal by special leave. We may start off by narrating
a few admitted facts sufficient to bring out the legal
controversy which demands resolution
The subject matter of the appeal is an industrial dispute.
The management of the New Dharmaband (Colliery dismissed 40
workmen in October, 1969, and an industrial dispute sprung
up and reference followed in October, 1970. The Industrial
Tribunal held an elaborate enquiry into the dispute and made
an award on July 1, 1972.
In the meanwhile, the Colliery was nationalised with effect
from May 1, 1972, as provided for in the fact. The New
Dharmaband Colliery ’vested in the Central Government and
thereafter in the Bharat Coking Coal Company Ltd.
Apparently by order of the Tribunal dated 24th March, 1972,
the successor Company namely, the Bharat Coking Coal Ltd.
(the respondent) was impleaded as a party. Thus,
484
with the previous owner of the colliery and the nationalised
industry namely, the Bharat Coking Coal Ltd, on record, the
Tribunal made the following award
"The action of the management of New
Dharmaband Colliery in dismissing the forty
workmen mentioned in the Scheme with
effect from the 18th October, 1969 is not
justified. The said workmen are to be
reinstated with continuity of service by the
management for the time being, namely, the
Bharat Coking Coal Co. Ltd., and the said
company shall be liable to pay their wages and
other, emoluments with effect from the 1st of
May, 1972the management of the New
Dharmaband Collieryand Bharat Coking Coal
Co. Ltd. are jointly and severliable to pay
the same to the workmen concerned."
The first respondent was made liable for,back wages with
effect from the date of nationalisation when the right,
title and interest in the Colliery vested in it. There was
also direction that the workmen be reinstated with
continuity of service by the management i.e., the first
respondent, for the time being. Aggrieved by both these
directions, the Bharat Coking Coal Company successfully
invoked the Writ Jurisdiction of the High Court, which
quashed the award. Thereupon the workmen came up to this
Court challenging the soundness of the legal position which
appealed to the High Court.
Section 9 of the Act deserves to be reproduced at this stage
"9. Central Government not to be liable for prior liabi-
lities
9(1) Every liability of the owner agent, manager, or
managing contractor of a coking coal mine or coke oven
plant, in relation to any period prior to the appointed day,
shall be the liability of such owner, agent, manager or
managing Contractor, as the case may be, and shall be
enforceable against him and not against the Central
Government or the Government company.
9 (2) For the removal of doubts, it is hereby declared that-
(a) save as otherwise provided elsewhere in this act, no
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6
claim for wages bonus, royalty, rate, rent, taxes, provident
fund, pension, gratuity or any other dues in relation to a
coking coal mine or coke oven plant in respect of any period
prior to the appointed day, shall be enforceable against the
Central or the Government Company.
(b)......................
(c)......................".
485
Side by side we may also read section 17(1) :
"17(1) Every person who is a workman within
the meaning of the industrial Disputes Act,
1947, and has been, immediately before the
appointed day, in the employment of a coking
coal mine or coke oven Plant, shall become on
and from the appointed day, an employee of the
Central Government, or, as the case may be, of
the Government company in which the right,
title and interest of such mine or plant have
vested under this Act, and shall hold office
or service in the coking coal mine or coke
oven plant, as the, case may be, on the same
terms and conditions and with the same rights
to pension, gratuity and other matters as
would have been admissible to him if the
rights in relation to such coking coal mine or
coke oven plant had not been transferred to
and vested in the- Central Government or
Government company, as the case may be, and
continue to do so unless and until his
employment in such coking coal mine or coke
oven plant is duly terminated or until his
remuneration, terms and conditions of em
-
ployment are duly altered, by the Central
Government or the Government company."
Section 17 is a special provision relating to workmen and
their continuance in service notwithstanding the transfer
from private ownership to the Central Government or
Government company. This is the -statutory protection for
the workmen and is express, explicit and mandatory. Every
person who is a Workman within the meaning of the Industrial
Disputes Act, 1947, and has been, immediately before the
appointed day, in the employment of a mine, shall become an
employee of the Government or the Government company and
continue to do so as laid down in Section 17. A ’workman is
defined in the Industrial Disputes Act to mean any person
employed in any industry (we omit the unnecessary words) and
includes, any such person who has been dismissed and whose
dismissal has led to a dispute. It is Perfectly Plain that
the 40 workmen who were dismissed and whose ,dismissal led
to the industrial dispute are ’workmen’ within the meaning
of section 17(1) of the Act. Irrefutably follows the
inference that they are workmen entitled to continuance in
service as provided for in Section 17. It is not open to
any lone to contend that because they had been wrongfully
dismissed, and therefore, are not physically on the rolls on
the date of the takeover, they are not legally workmen under
the new owner. The subtle eye of the law transcends,
existence on the grass level. The statutory continuity of
service cannot. be breached by the wrongful dismissal of
the. prior employer. It is important that dismissed has
been set aside and the award expressly directs reinstatement
"with continuity of service by the management for the time
being namely, the Bhamt Coking Coal Company Ltd." The
finding that the dismissal was wrongful has not been
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6
challenged and, therefore, must stand. The Court in Bihar
State Road Transport
486
"Corporation(1) had to deal with a wrongful dismissal a
direction for instatement by an award and a transfer of
ownership from a private operator to a State Transport
Corporation. Shelat J, observed
"The argument, however, was that the true
meaning of the said averment was that only
those of the employees of the Rajya Transport
Authority who were actually on its rolls were
taken over and not those who were deemed to be
on its rolls. It is difficult to understand
the distinction sought to be made between
those whose names were actually on the rolls
and those whose names, though not physically
on the rolls, were deemed in law to be on the
rolls. If respondent 3 continued in law to be
in the service, it makes little difference
whether his name actually figured in the rolls
or not. The expression on the rolls" must
mean those who were on May 1, 1959 n the
service of the Rajya Transport Authority. By
reason of the Order discharging him from
service being illegal, respondent 3 was and
must be regarded to be in the service of the
said Authority, and therefore, he would be one
of those whose services were taken over by the
appellant corporation."
The present one is a fortiori case. We have not the
slighest doubt hat what matters is not the physical presence
on the rolls but the continuance in service in law because
the dismissal is non est.
Sri Sarjoo Prasad pressed into service section 9(2) of the
Act to repel the contention of the workmen set out above.It
is true that section 9(2)..... (b) declares that "no Award
of any Tribunal passed after the appointed day, but in
relation to, any dispute which arose before that day, shall
be enforce able against the Central Government or the
Government company". Superficially read and torn out of
context, there may be some re......semblance of substance in
the submission.A closer look at section 9....as a whole,
contradicts this conclusion.
Section 9 deals with the topic of Prior liabilities of the
previous owner. Section 9(1) speaks of "every liability of
the owner......to the, appointed day, shall be the liability
of such owner..........Prior shall be enforceable against
him and not against the Central Government or the
Government Company. The inference isirresistible 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 precuinary and
liabilities and has nothing to do with workmen at all it
has anything to do with workmen it is regarding arrears of
wages or other contractual, statutory or tortuous
liabilities. Section 9(2) operates only in the area of
section 9(1) and that is why it starts off by saying ’for
the," ’Section 9(2) removal of doubts it is hereby declare
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
(1) [1970] (3) S.C.R. 708 at p. 714.
487
9 (2) (b) when it refers to ’awards’, goes along with the
words ’decree’, or ’Order. By the canon of construction of
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6
noscitur a sociis the expression ’award’ must have a
restricted meaning. Moreover, its scope is 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
workmen 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.
We hold that the High Court fell into an error in following
a different line of reasoning. The appeal deserves to be
and is hereby allowed and the award of the Industrial
Tribunal restored. The, appellants shall receive costs.
from the first respondent, which we quantify at Rs. 2000/’-.
S. R. Appeal allowed.
488