Bombay High Court
Indian National Mines Overmen, ... vs Western Coalfields Limited And ... on 20 December, 2014
Bench: A.B. Chaudhari
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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
-------------------------------------------------------------------------------------------
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
-------------------------------------------------------------------------------------------
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
-------------------------------------------------------------------------------------------
Mr. B. Lahiri, Advocate for petitioners.
Mr. S. C. Mehadia, Advocate for respondents-WCL
-------------------------------------------------------------------------------------------
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
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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
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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
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written authorisation of the employe concerned.
(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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towards relief work/financial assistance to the
Earthquake affected people of Jabalpur and,
thereafter, collected an amount of Rs.50/- from all
employees from the salary of July '98 payable in
August '98 to credit an amount of Rs.15 lakhs back
in the WCL Relief Fund and the balance amount can
be reserved for future donation on such situation of
natural calamities."
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
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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:
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"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
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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;
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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
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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
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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)
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(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
