Employers In Relation To The ... vs Their Workman Represented By ...
2023 Latest Caselaw 3256 Jhar

         IN THE HIGH COURT OF JHARKHAND AT RANCHI
                   (Letters Patent Appellate Jurisdiction)

                                  L.P.A. No. 273 of 2020

   Employers in relation to the Management of Ena Colliery of Kustore Area
   of M/s Bharat Coking Coal Limited, P.O. - Kustore, P.S. - Kenduadih,
   District - Dhanbad, a Company incorporated under the Companies Act,
   having its head office at Koyla Bhawan, P.O. & P.S. Koyla Nagar,
   District - Dhanbad, Jharkhand through its General Manager (P)/Legal Sri
   Santosh Kumar Singh, aged about 59 years, Son of Late Ramayan Singh,
   residing at Manas Kunj, Sarvodaya Nagar, Chiragora P.O. & P.S. District
   - Dhanbad (Jharkhand) Pin - 828117 ... ...           Petitioner/Appellant
                                        Versus
   Their workman represented by Secretary, Koyla Inspat Mazdoor
   Panchayat, P.O. P.S. Jharia, District - Dhanbad Pin - 828111
                                 ...         ...     Respondent/ Respondent
                                 ---
CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
         HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
                                 ---
       For the Appellant         : Mr. Amit Kumar Das, Advocate
                                 : Mrs. Swati Shalini, Advocate
       For the Respondent        :
                                 ---
                                            Order No. 07/30th August 2023

   Per Anubha Rawat Choudhary, J.

I.A. No.11129 of 2022

1. Heard the learned counsel for the appellant.

2. This petition has been filed for condonation of delay of 325 days in filing this Appeal.

3. The learned counsel for the appellant has referred to paragraph nos. 9 to 11 of the interlocutory application.

4. Being satisfied with the cause shown, the delay in filing this Letters Patent Appeal is hereby condoned.

5. I.A. No.11129 of 2022 is allowed.

        L.P.A. No. 273 of 2020
   6.   This     Appeal     has     been     filed   against   the   judgment

dated 14th August 2019 passed by learned writ Court in W.P.(L). No.5398 of 2005 whereby the writ petition has been dismissed.

7. The learned writ Court has refused to interfere with the award dated 07th April 2005 passed by Central Government Industrial Tribunal (No. II), Dhanbad (hereinafter referred to as "the Industrial Tribunal") in

Reference Case No.228 of 1998. The reference was answered in favour of the applicant who was claiming compassionate appointment. The Industrial Tribunal has directed the management to give employment to Sagar Bauri, the son of the deceased employee namely, Kisto Bauri on compassionate ground under Clause 9.4.2 of the National Coal Wage Agreement IV (hereinafter referred to as "the NCWA IV").

8. The learned counsel for the appellant (hereinafter referred to as "the management") has submitted that the award passed by the Industrial Tribunal is perverse and the learned writ Court has erred in refusing to interfere with the award. The learned counsel has further submitted that the deceased workman was working as badli worker and, therefore, his dependent was not entitled to any relief under the NCWA IV.

9. A reference was made to the Industrial Tribunal by the Government of India, Ministry of Labour under section 10 (1) (d) of the Industrial Disputes Act, 1947 dated 01st December 1998. The terms of reference contained in the schedule to the order of reference are as under:

"Whether the action of the management in denying the employment of the dependant son of Late Kisto Bauri Ex-Fitter-Helper of Ena Colliery under para 9.4.2 of NCWA-IV is justified? If not, to what relief the dependant son of the deceased employee is entitled to?"

10. The dependent of the deceased workman was represented by the respondent union.

11. The specific case of the respondent before the Industrial Tribunal was that Kisto Bauri was the permanent employee under the management. He died on 03rd August 1994 while in service and when he was only 47 years old. The workman died leaving behind his wife and his son namely Sagar Bauri (hereinafter referred to as the "claimant") who filed an application for his employment on compassionate ground under clause 9.4.2 of NCWA IV after getting no objection from his mother. But the management regretted the employment on the ground that the deceased employee was a badli employee. The said decision of the management was an issue before the Industrial Tribunal. The management filed a written statement by stating that Kisto Bauri, the deceased employee was not a permanent employee and at the time of his death, he was on badli roll of the company.

12. Before the Industrial Tribunal, the respondent examined one witness and relied on certain documents which were marked as W-1 to W-3 and the management examined two witnesses MW-1 and MW-2. The Industrial

Tribunal considered the evidences placed before it and the submission of the management that the management had imposed major punishment upon the deceased workman under sub-clause (ii) (b) of clause 29.1 of NCWA and that by way of punishment the deceased workman was given the status of a badli worker who could get back his original post on putting his attendance for 240 days in a year.

13. The Industrial Tribunal considered the various punishments which could be imposed upon a workman and recorded that the clause under which punishment was imposed on the deceased workman was absolutely silent to the effect that the worker punished under the said clause can get back his original post on putting his attendance for 240 days in a year and observed that therefore, it was for the management to establish such a fact.

14. The Industrial Tribunal also recorded that in spite of getting ample opportunity, the management failed to produce any such provision within the four corners of the Certified Standing Order and NCWA, that until and unless a worker is able to prove that he has put in 240 days attendance his claim for getting back his original post shall not be considered. The management also failed to establish before the Industrial Tribunal that the workman was placed as badli worker and on putting 240 days in a year, he would have come back in his regular post. On the basis of materials on record, the Industrial Tribunal recorded a finding that there was reason to believe that the management by taking the plea which they failed to establish ignored the claim of the claimant for his appointment on compassionate appointment.

15. The Industrial Tribunal further recorded that if clause 9.3.2 of NCWA is considered, it will be demonstrable that there is no such bar to reject the claim of the legal heir of the deceased employee taking the ground that the deceased workman was a badli worker.

16. With that background, the Industrial Tribunal decided the reference in favour of the claimant, the dependent of the ex-employee. The findings of the Industrial Tribunal are as follows:

"Considering submissions of the management it has been expsed that management imposed major punishment upon the workman now deceased as per sub clause 'b' of clause 29.1(ii) of N.C.W.A. The clause is absolutely silent to the effect that a worker punished under that clause will get back his original post. On putting his attendance of 240 days in a year. Therefore, onus is on the management to establish such fact. It is seen that inspite of getting ample opportunity management have failed to produce any such provision within the four corners of Certified Standing Order and N.C.W.A. that until and unless a worker is able to prove that he has given 240 days attendance he

claim for getting back his original post will not be considered. Therefore, there is reason to believe that management by taking that plea which they have failed to establish ignored the claim of the petitioner for his employment on compassionate ground.

Again if clause 9.3.2 of N.C.W.A. is considered it will expose no such bar to reject the claim of the legal heir of the deceased taking the ground that the deceased worker was a 'badly worker'. Therefore, entire burden was on the management to establish their claim but I find no hesitation to say that excepting taking that plea that have lamentably failed to substantiate their claim.

It is admitted fact that Kisto Bauri, deceased worker was a permanent 'Fitter helper'. As for committing misconduct management by way of imposing punishment reduce him to a lower post there is no reason to hold that his right to claim as permanent worker was lost. The claim of the management is that as the said worker was a 'Badli worker' there is a bar to provide employment to his dependent on compassionate ground. Considering their submission it is clear that they have created an ambiguity in rejecting the claim of the petitioner. It is to be borne into mind that concerned workman was not a 'badli' worker by virtue of his fresh appointment. He was a permanent Fitter helper and as part of punishment for committing misconduct his designation was reduced only. Therefore, designation of 'badli worker' which that worker got as a result of punishment and the designation of 'badli worker' by virtue of fresh appointment cannot be equaled together.

As the designation of Kisto Bauri was reduced by order of the management he can not be treated as a Badli worker like that of a fresh appointee and should be debarred from all benefits which he so far enjoyed before imposing that punishment untill and unless any such specific order was issued by the management. It is seen that management outrightly rejected the claim of the petitioner taking the plea that his father was a badli worker but failed to produce a scrap of paper to show that the said worker, i.e. Kisto Bauri shall be debarred from enjoying all the benefits as permanent worker which he accrued by way of rendering long years of service to the management. Moreover clause 9.3.2 of N.C.W.A. is absolutely silent in this regard. Therefore, on careful consideration of all the facts and circumstances discussed above I hold that knowing fully well that Kisto Bouri was a permanent staff of the management illegally, arbitrarily and violating the principle of natural justice refused to consider employment of the petitioner who happened to be the only son of Kisto Bauri on compassionate ground under clause 9.3.2 of N.C.W.A. Just taking the plea that he was a 'badli worker'. In the result the following award is rendered 1-

That the action of the management in denying employment of the dependant son of Late Kisto Bauri, Ex-fitter helper of Ena colliery under clause 9.4.2 of N.C.W.A.-IV was not justified. Management is directed to provide employment to the deceased son of Kisto Bauri, i.e. Sagar Bauri on compassionate ground under clause 9.4.2 of N.C.W.A - IV within three months from the date of publication of this award in the Gazette of India if he is not declared unfit as per employment rules of the company."

17. Upon perusal of the impugned order passed by the learned writ Court, this Court finds that the learned writ Court has recorded that for denying the claim of the claimant, the management had taken a plea that the concerned workman was proceeded departmentally for unauthorized absence and he was found guilty of the charges and, accordingly, by way of punishment, his status was converted from permanent to badli worker vide order dated 06th September 1993 and till the death of the employee

i.e. 03rd August 1994, the ex-employee had not completed 240 days of work and as such, his status remained badli worker and being a badli worker, his son was not entitled for compassionate appointment.

18. The learned writ Court has considered that even if the contention of the management is accepted, the status of the workman as badli worker would not have made any difference as the definition of worker as provided under clause 7.1 of the Standing Order contains badli worker also. This Court finds that the learned writ Court ultimately refused to interfere with the award.

19. This Court finds that the Industrial Tribunal has recorded that the plea which was raised by the management could not be ultimately established by the management on account of want of necessary documents which were required to be filed by the management. The Industrial Tribunal has also taken into consideration that the management failed to establish its claim and, that the deceased employee who was a permanent "fitter helper" could not have been reduced to a lower post by imposing punishment and lost his rights as a permanent employee.

20. This Court finds that the learned writ Court after scrutinizing the award and the materials has found no infirmity with the award impugned and has dismissed the writ petition. The scope of interference in the matter of award passed by the Industrial Tribunal is very limited. The writ Courts do not exercise appellate jurisdiction nor can they re-appreciate the evidences and record their finding on contentious points under writ jurisdiction. Only in cases of serious error of law in recording the findings or when the findings suffer from perversity or apparent error of record, the writ Court can interfere with the award.

21. Para 15 and 16 of the judgment passed by Hon'ble Supreme Court reported in Iswarlal Mohanlal Thakkar v. Paschim Gujarat Vij Co. Ltd. (2014) 6 SCC 434 are quoted as under which deals with the scope of interference in the award passed by Industrial Tribunal which are otherwise well reasoned and based on facts and evidences on record:

"15. We find the judgment and award of the Labour Court well reasoned and based on facts and evidence on record. The High Court has erred in its exercise of power under Article 227 of the Constitution of India to annul the findings of the Labour Court in its award as it is well settled law that the High Court cannot exercise its power under Article 227 of the Constitution as an appellate court or reappreciate evidence and record its findings on the contentious points. Only if there is a serious error of law or the findings recorded suffer from error apparent on record, can the High Court quash the order of a lower court. The Labour Court in the present

case has satisfactorily exercised its original jurisdiction and properly appreciated the facts and legal evidence on record and given a well reasoned order and answered the points of dispute in favour of the appellant. The High Court had no reason to interfere with the same as the award of the Labour Court was based on sound and cogent reasoning, which has served the ends of justice.

16. It is relevant to mention that in Shalini Shyam Shetty v. Rajendra Shankar Patil [(2010) 8 SCC 329 : (2010) 3 SCC (Civ) 338] , with regard to the limitations of the High Court to exercise its jurisdiction under Article 227, it was held in para 49 that: (SCC p. 348) "49. (m) ... The power of interference under [Article 227] is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court."

It was also held that: (SCC p. 347, para 49) "49. (c) High Courts cannot, at the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or courts inferior to it. Nor can it, in exercise of this power, act as a court of appeal over the orders of the court or tribunal subordinate to it." Thus, it is clear, that the High Court has to exercise its power under Article 227 of the Constitution judiciously and to further the ends of justice."

22. In view of the limited scope of interference by the writ Court in the matter of award passed by the Industrial Tribunal and having not found any error in the impugned order passed by the learned writ Court, no ground for interference is made out.

23. At this stage, the learned counsel for the appellant has submitted that much time has elapsed from the date of passing of the award and the claimant must be around 47 years of age and as per National Coal Wage Agreement, the outer age limit for granting appointment on compassionate ground is only 35 years. The said plea which has been raised by the management at this stage to call upon this Court to interfere with the award is hereby rejected on account of the fact that the award was passed in favour of the claimant as back as in the year 2005; the writ petition was admitted by this Court on 07th December 2005 whereby notice was issued and it was also observed that till appearance of the officers of the respondents, operation of the award shall remain stayed. Order dated 07th December 2005 is quoted as under:

"This application will be heard.

Issue notice to the respondents in the admission matter for which requisite etc. by registered post must be filed within one week.

Till appearance of the officers of the respondents, operation of the Award shall remain stayed."

24. The record also indicates that a counter-affidavit was filed in the writ petition as back as on 18th January 2006, but the matter remained pending.

The record does not reflect any endeavor made by the management to pursue the writ petition and when the matter was taken up on 15th July 2019, the writ petition was adjourned at the request of the management. Thereafter, the matter was taken up on 14th August 2019 when the writ petition was ultimately dismissed.

25. This Court finds that the award was passed in favour of the claimant as back as in the year 2005 and there has been no delay or laches so far as the claimant is concerned. In such circumstances, the benefit of the award passed in the year 2005 cannot be denied to the claimant on the ground that he has crossed the maximum age for grant of compassionate appointment i.e. 35 years. The right to get compassionate appointment stood crystalized in favour of the claimant as back as in the year 2005 which cannot be denied merely by efflux of time.

26. There being no merits in this appeal, this Letters Patent Appeal is hereby dismissed.

27. Pending I.A, if any, is closed.

(Shree Chandrashekhar, J.)

(Anubha Rawat Choudhary, J.) Saurav/Pankaj