Bharat Coking Coal Limited vs Smt. Shail Kumari Devi
2023 Latest Caselaw 2195 Jhar

                 IN THE HIGH COURT OF JHARKHAND AT RANCHI
                                 W. P. (L) No. 6969 of 2017
          Bharat Coking Coal Limited, 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 Project
          Officer, Vishnu Kumar Goel son of B.L. Goel, P.B. Project, South
          Balihari Colliery, P.O. & P.S.- Kusunda, District Dhanbad,
          (Jharkhand)                                  ...    ...       Petitioner
                                         -Versus-
          1. Smt. Shail Kumari Devi, wife of Late Lal Bachan Singh, residing at
             Jagjiban Nagar, Saraidhela, Block-9, Qtr No. 102, behind C.H.D.,
             P.O. & P.S.- Koyla Nagar, District- Dhanbad (Jharkhand)
                                                       ...    ... Respondent
          2. The General Manager, Bharat Coking Coal Limited, P.B. Area,
             P.O. & P.S. Kusunda, District- Dhanbad (Jharkhand)
                                          ...      ...     Proforma Respondent
                                    ---

CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

---

                 For the Petitioner       : Mr. A. K. Das, Advocate
                 For the Respondent       : Mr. Manoj Kr. Sinha, Advocate
                                    ---
   07/19.06.2023

1. Learned counsel for the parties are present.

2. This writ petition has been filed for the following reliefs: -

"a) For issuance of appropriate writ(s)/order(s)/direction(s) for setting the judgment dated 02.05.2017 (Annexure-4) passed by learned Presiding Officer, Labour Court, Dhanbad in M.J. Case No. 28 of 2016, whereby and whereunder he has been pleased to allow the application filed by the Respondent No.1 under Section 33-C(2) of the Industrial Disputes Act, 1947 and direct the petitioner to pay Rs. 5,00,000/- with simple interest @ 6% per annum from the date of death of the deceased i.e. 16.05.2009 till the date of actual payment, within 60 days from the date of the order failing which the petitioner would be liable to pay simple interest @ 9% from expiry of said 60 days till the date of actual payment and also to pay lump sum cost of litigation to the respondent to the tune of Rs.3,000/-.

b) Any other relief or reliefs as Your Lordships may deem fit and proper for which the petitioner is very much entitled under the fact and circumstances of the case and in the interest of justice."

Arguments on behalf of the petitioner

3. On the merits of the case, the learned counsel for the petitioner placed the impugned order and submitted as under: -

(a) The impugned order has been passed merely by referring to the fact that the private respondent was granted workman compensation under the provisions of Workmen's

Compensation Act on account of death of her husband and therefore, it has been held that the petitioner was estopped from arguing that the claim of the private respondent for ex-gratia payment was not payable.

(b) The adjudication and payment arising out of Workmen's Compensation Act will have no bearing on the applicability of the provisions of 9.2.7 of NCWA-VIII.

(c) Death in mine by itself does not mean that death was arising out of any mine accident. He submitted that the distinction between death in mine and death arising out of mine accident was required to be borne in mind by the learned court below while passing the impugned order and therefore, the impugned order cannot be sustained in the eyes of law.

(d) In case of any dispute regarding entitlement, the provision of Section 33C (2) is not applicable. The learned counsel relied upon the judgment passed by this Court in L.P.A. No. 379/2012 and has referred to the decision with regard to Point No.(a) in the judgment.

(e) The learned court has also erred in law in directing payment of interest @ 6% per annum from the date of death of the deceased i.e. 16.05.2009 till the date of actual payment within 60 days from the date of the order. It has also been directed that upon failure to pay the amount within the stipulated time, the petitioner (Management) has to pay simple interest @ 9% from expiry of 60 days till the date of actual payment. He submitted that the direction to pay interest is also not sustainable in the eyes of law.

4. The learned counsel for the petitioner submitted that on account of the aforesaid submissions, the impugned order is perverse and cannot be sustained in the eyes of law.

Arguments on behalf of the respondent

5. The learned counsel appearing on behalf of the private respondent submitted that there is no illegality or perversity in the impugned order. He also submitted that once it was already determined that the compensation was payable in terms of Workmen's

Compensation Act, there was no doubt that the accident had taken place in course of employment and admittedly, the husband of the private respondent was in the mine in course of employment and fell into the mine. The learned counsel submitted that a detailed order has been passed by the learned court below by referring to the circular and the circular itself mentions that it applies in event of death or permanent disability in any mine accident arising out of and in course of employment.

6. The learned counsel further submitted that the provision of Rule 9(3)2 of Coal Mines Regulations, 1957 has also been taken into consideration and in terms of Sub-rule 2 of Rule 9(3), it was neither pleaded, nor any chit of paper was brought by the Management to show that any information or intimation was given by .the Management giving the details of the occurrence of death of the deceased describing it as a natural death and therefore, the plea which was raised by the Management before the learned court below was also rejected. The learned counsel submitted that the payment of ex- gratia amount is incidental and closely connected to the payment of Workmen's Compensation Act and therefore, the impugned order has been passed within the permissible limit of jurisdiction under Section 33-C(2) of the Industrial Disputes Act.

7. The learned counsel further submitted that so far as the payment of interest is concerned, the delay in making payment is not disputed and therefore, the interest has rightly been directed to be paid in equity.

Findings of this Court

8. Before dealing with the facts of the case, it is important to deal with the nature and scope of a proceeding under Section 33-C(2) of the Industrial Disputes Act, 1947.

9. In the judgment passed in the case of Central Bank of India Ltd. -vs- P.S. Rajagopalan etc. reported in AIR 1964 SC 743, the Hon'ble Supreme Court while considering the scope of a proceeding under Section 33-C(2) of Industrial Disputes Act, 1947, in Para-18, held that there can be no doubt that when the Labour Court is given the power to allow an individual workman to execute or implement his

existing individual rights, it is virtually exercising execution powers in some cases, and it is well settled that it is open to the executing court to interpret the decree for the purpose of execution. It is, of course, true that the executing court cannot go behind the decree, nor can it add to or subtract from the provision of the decree. These limitations apply also to the Labour Court, but like the executing court, the Labour Court would also be competent to interpret the award or settlement on which a workman bases his claim under Section 33-C(2) of the Act. Therefore, the Hon'ble Supreme Court held that they felt no difficulty in holding that for the purpose of making the necessary determination under Section 33-C(2), it would, in appropriate cases, be open to the Labour Court to interpret the award or settlement on which the workman's right rests. The aforesaid judgment does not apply to the facts of this case as the very applicability of the Implementation Instruction No.26 dated 23.04.1984 for the persons like the Respondent No.1 has been seriously disputed by the appellant. This Court is of the considered view that the same requires full- fledged adjudication. This Court refrains from saying any further on the applicability of the said instruction on the Respondent No.1 as any finding by this Court on the point may prejudice the case of either party, if any such industrial dispute is raised by the Respondent No.1.

10. In the judgment passed in the case of Municipal Corporation of Delhi vs. Ganesh Razak & Another reported in (1995) 1 SCC 235, it has been held that where the very basis of the claim or the entitlement of the workmen to a certain benefit is disputed, there being no earlier adjudication or recognition thereof by the employer, the dispute relating to entitlement is not incidental to the benefit claimed and is, therefore, clearly outside the scope of a proceeding under Section 33-C(2) of the Act, the Labour Court has no jurisdiction to first decide the workmen's entitlement and then proceed to compare the benefit so adjudicated on that basis in exercise of its power under Section 33-C(2) of the Act. It is only when the entitlement has been earlier adjudicated or recognized by the employer and thereafter for the purpose of implementation or enforcement thereof some ambiguity requires interpretation, that the interpretation is treated as incidental to

the Labour Court's power under Section 33-C(2) like that of the Executing Court's power to interpret the decree for the purpose of its execution.

11. This provision was subject matter of consideration in a recent judgment passed by the Hon'ble Supreme Court in Civil Appeal No. 813 of 2022 decided on 04.02.2022 (Bombay Chemical Industries - versus- Deputy Labour Commissioner) reported in 2022 LiveLaw (SC) 130 wherein the judgment passed in the case of Municipal Corporation of Delhi vs. Ganesh Razak & Another reported in (1995) 1 SCC 235 and also the judgment passed in the case of Union of India -vs- Kankuben reported in (2006) 9 SCC 292 have been considered and it has been observed that it is not open to the court to adjudicate dispute of entitlement or the basis of the claim of workmen. It can only interpret the award or the settlement on which the claim is based. It has been observed as under: -

".........As per the settled proposition of law, in an application under Section 33(C)(2) of the Industrial Disputes Act, the Labour Court has no jurisdiction and cannot adjudicate dispute of entitlement or the basis of the claim of workmen. It can only interpret the award or settlement on which the claim is based. As held by this Court in the case of Ganesh Razak and Anr. (supra), the labour court's jurisdiction under Section 33(C)(2) of the Industrial Disputes Act is like that of an executing court. As per the settled preposition of law without prior adjudication or recognition of the disputed claim of the workmen, proceeding for computation of the arrears of wages and/or difference of wages claimed by the workmen shall not be maintainable under Section 33(C)(2) of the Industrial Disputes Act. (See Municipal Corporation of Delhi vs. Ganesh Razak and Anr. (1995) 1 SCC 235).

In Kankuben (supra), it is observed and held that whatever a workman is entitled to receive from his employer any money or any benefit which is capable of being computed in terms of money and which he is entitled to receive from his employer and is denied of such benefit can approach Labour Court under Section 33-C(2) of the ID Act. It is further observed that the benefit sought to be enforced under Section 33C (2) of the ID Act is necessarily a preexisting benefit or one flowing from a preexisting right. The difference between a preexisting right or benefit on one hand and the right or benefit, which is considered just and fair on the other hand is vital. The former falls within jurisdiction of Labour Court exercising powers under Section 33-C(2) of the ID Act while the latter does not."

12. The wife of the workman i.e. the Respondent No.1 filed a case before the Presiding Officer, Labour Court, Dhanbad under Section 33-C(2) of the Industrial Disputes Act, 1947 being M.J. Case No. 28/2016 stating that her husband who was a permanent employee of the BCCL was on duty on 16.05.2009 in the second shift (from 4:00 p.m. to 12:00 p.m.) and when he was performing his duty at underground mine, he suddenly fell down and died at the work place, but the BCCL refused to pay compensation. Consequently, workmen compensation case was instituted stating that the husband of the private respondent had died arising out of and in course of employment and ultimately compensation was fixed and was also paid/realized and the fresh case involved in the present case was filed being M.J. Case No. 28/2016 for recovery of ex-gratia amount of Rs.5,00,000/- in terms of Clause 9.2.7 of the National Coal Wage Agreement VIII.

13. The Management filed the written statement (Annexure-2). As per Annexure-2, it was the specific case of BCCL (Management) before the learned court below that the deceased workman and co- worker of the shift had left the duty place and had gone near pit bottom to catch the cage for coming out of the underground to surface and the workman fell down just a few yards of the cage on his own and expired and there was no injury caused to him by way of any accident arising out of and in course of employment. When the workman brought out of the surface, he was declared dead. On this ground, the BCCL opposed the claim for payment of ex-gratia amount of Rs.5,00,000/- by stating that no accident had occurred and that no payment was earlier claimed under the provisions of NCWA/Policy of the company.

14. Thus, the case of the management was that the employee fell in the mine when he had gone near pit bottom to catch the cage for coming out of the underground to surface, but he fell on his own and suffered no injury and therefore, it was argued that such incident cannot be said to be an accident and it was also argued that the death was a natural death.

15. The learned court below framed the following two issues for consideration:-

(i) Whether the instant case is maintainable u/s 33-C(2) of the Industrial Dispute Act, 1947 in the absence of pre-existing right?

(ii) Whether claim of the applicant for ex-gratia as per provision of 9.2.7 of the NCWA-VIII read with circular to the tune of Rs.5,00,000/- with interest is genuine?

16. It was an admitted fact on record before the learned court below and it was also admitted by the learned counsel appearing on behalf of the management before the learned court below that arising out of the same incident, the management disputed the entitlement under the provisions of Workmen's Compensation Act which was ultimately disposed of in favour of the Respondent No.1 in Workmen Compensation Case No. 18/2011 vide order dated 14.07.2015 and that the compensation with interest was already paid to the applicant.

17. Inspite of such final adjudication under Workmen's Compensation Act, it was the specific case of the Management before the learned court below that the claim under the provisions of 9.2.7 of the NCWA-VIII read with circular was not yet adjudicated and therefore, the learned court below had no jurisdiction to compute the benefits under Section 33-C(2) of the Act.

18. With regard to the jurisdiction, the learned court below recorded its findings at Para-7 and held that the benefits of ex-gratia was on the basis of settled and agreed formula under the provisions of NCWA. The entitlement in case of death of an employee was already declared by NCWA and virtually it was a matter of computation / calculation of dues in question as well as a matter of interpretation regarding applicability of provisions of NCWA and circulars issued thereunder. With this finding, the learned court below held that the proceeding under Section 33-C(2) of the Act was maintainable.

19. Thereafter, the learned court below decided Issue No.(ii) by referring to the provisions of NCWA dealing with Workmen's Compensation Benefits under Clause 9.2.0, relevant at 9.2.7, wherein it has been recorded that on Coal Indian Foundation Day on 01.11.2007, at Kolkata, it was announced by the Hon'ble Minister of

State for Coal that an amount of Rs.5,00,000/- shall be paid to the next of kin of any employee dying out of fatal mine accident. The circular dated 14.11.2007 issued by the Coal India Limited was also quoted which deals with payment of ex-gratia amount of Rs. 5,00,000/- to the dependent of employee, who dies or is permanently disable in any mine accident arising out and in course of employment and the same would be in addition to the amount payable under Workmen's Compensation Act, 1923.

20. This Court finds that Clause 9.2.7 and the circular dated 14.11.2007 has been considered and interpreted by the learned court below and it has been held that fatal accident means an accident- causing death. The learned court below held that once the compensation was fixed under the provisions of Workmen's Compensation Act, the Management could not argue that there was no accident. The plea of the Management that the death was a natural death was rejected.

21. The learned court below, upon interpretation of the provision of NCWA and the circular governing fatal accident in mine, recorded specific finding that such accidental death arising out of and in course of employment caused in the premises of mine has to be treated to be a mine accident and directed for payment of Rs.5,00,000/- ex-gratia with interest @ 6% per annum from the date of death of the deceased i.e. 16.05.2009 till the date of actual payment.

22. It would be relevant to reproduce the relevant provisions of NCWA VIII and the excerpt of circular-in-question dated 14.11.2007 issued by Coal India Ltd. Welfare Division, Kolkata. It reads as follows: -

Chapter-IX of NCWA VIII Social Security 9.2.0 Workmen's Compensation Benefits.

It is agreed that -

9.2.1 The employees covered by this Agreement shall be entitled to the benefits admissible under the Workmen's Compensation Act, 1923.

9.2.2 The benefits under the Workmen's Compensation Act will not be affected adversely on account of the revision of wages by this agreement.

9.2.7 As announced by the Hon'ble Minister of State for Coal on Coal India Foundation Day on 1.11.2017 at Kolkata, an amount of Rs.5 lakhs shall be paid to the next of kin of any employee dying out of fatal mine accident.

Circular dated 14.11.07 issued by CIL "OFFICE MEMORANDUM Sub: Payment of Special Relief/ex-gratia of Rs.5 Lakhs to the direct dependant of employee who dies or is permanently disabled in any mine accident arising out and in the course of employment.

The above-mentioned matter has been discussed at the 235th meeting of Board of Director of Coal India Ltd. (Item No.235:4 (X)) held on 25th September, 2007 at New Delhi which has been communicated by CGM (Finance)/Company Secretary, CIL vide letter No.CIL/XI (D): 04008:1727:2007 dated 09.10.2007.

The Board after detailed deliberation approved the proposal as under: -

i.) The payment of Special Relief/Ex-gratia of Rs.5 Lakhs to the direct dependant of the employee who dies or become permanently disabled in any Mine Accident arising out of and in the course of employment, which would be in addition to the amount payable under Workmen's Compensation Act, 1923."

23. This Court finds that as per the provision of NCWA and the circular quoted above, it has been specifically provided that in any mine accident arising out and in course of employment, ex-gratia amount of Rs.5 lakhs would be payable in addition to the amount payable under Workmen's Compensation Act, 1923. Admittedly, in the instant case, the workman had fell into the mine and before he could come out of the underground mine, he was brought dead back to the surface. This Court is of the considered view that once the entitlement under the Workmen's Compensation Act was found payable for the death of the employee which occurred in the mine on account of falling into the mine, the payment of additional ex-gratia amount stood crystallized and payable and could have been directed to be paid by passing an order under Section 33-C(2) of the Industrial Disputes Act, 1947. The impugned order is in consonance with the law laid down by the Hon'ble Supreme Court as discussed above.

24. So far as the judgment relied upon by the petitioner in LPA No. 379 of 2012 is concerned, it is apparent from Para- 26 and 27 of the

said judgment that there was a serious dispute regarding applicability of the implementation circular, as in the said case the bone of contention was as to whether the piece rated employees would be treated at par with time rated employees. It was held by this Court that the rival contentions required adjudication of inter-se rights and liabilities of the parties and it could not be said that the right arising out of the circular was arising out of pre-existing right or settled for implementation. The said judgment passed in the LPA does not apply to the aforesaid admitted facts and circumstances of this case where the deceased employee, before he could come out of mine through cage, had fallen in the mine and died inside the mine which was certainly arising out of and in course of employment for which entitlement under Workmen's Compensation Act was already adjudicated, determined and paid and the payment of ex-gratia amount of Rs.5 lakhs was just an additional payment over and above the amount payable under Workmen's Compensation Act, 1923 in terms of NCWA and the aforesaid circular which has been accordingly interpreted by the learned court below and direction has been issued for payment of amount of Rs.5 lakhs under Section 33-C(2) of the Industrial Disputes Act, 1947.

25. This Court finds that the learned court below has rightly exercised its jurisdiction to interpret the provision of NCWA and the circular. Such exercise of power was incidental to the power of the Labour Court exercising power under Section 33-C(2) of the Industrial Disputes Act, 1947 who has the power to interpret the award or settlement like that of the executing court's power to interpret the decree for the purpose of execution. This Court finds that the entitlement of ex-gratia amount of Rs.5,00,000/- in case of any mine accident arising out of and in course of employment has been clearly stated to be in addition to the amount payable under Workmen's Compensation Act, 1923. Meaning thereby, a person who is found entitled for compensation under Workmen's Compensation Act, 1923 would be entitled for additional ex-gratia amount of Rs.5,00,000/- in terms of the aforesaid circular dated 14.11.2007 issued by the Coal India Limited read with the aforesaid Clause 9.2.7 of NCWA-VIII.

26. In view of the aforesaid circumstances, this Court finds that the jurisdiction exercised by the learned court below in interpreting the provisions of NCWA and the circular and the term 'fatal accident' was within the scope contemplated under Section 33-C(2) of the Industrial Disputes Act, when read in the light of the ratio of the judgments passed by the Hon'ble Supreme Court mentioned above.

27. So far as the payment of interest is concerned, the learned court below has directed for payment of simple interest @ 6% from the date of death till the date of actual payment within 60 days from the date of the order and on default interest @ 9% has been directed to be paid from the date of expiry of 60 days. As per the provisions of Industrial Disputes Act, Section 33C deals with recovery of money from an employer which becomes due from the employer under a settlement or under an award. Such provision is without prejudice to any other mode of recovery and if the appropriate government is satisfied that the money is so due, a certificate is to be issued for the amount to the Collector who is to proceed to recover the amount in the same manner as an arrear of land revenue. Sub-Section 2 of Section 33C of the Act further provides that if a question arises as to the amount of money due or as to the amount at which such benefit should be computed, then the question is to be decided by the labour court. This Court finds that provisions of Section 33C deals with recovery of money which has already been quantified or if so required, capable of being computed by the labour court and is in the nature of execution proceedings.

28. This Court is of the considered view that there is no scope for passing an order for payment of interest over and above whatever is due under the settlement or over and above whatever is due as per the award. If the settlement or award provides for payment of interest, the same would be computed in terms of Section 33C, but the court would have no jurisdiction to direct payment of any amount over and above whatever is computed as per the settlement or as per the award.

29. The award of interest by the learned labour court in the instant case is not arising out of any settlement or award and even as per the learned counsel for the Respondent No.1, interest has been awarded

only as a part of equitable relief. This court is of the considered view that the learned court below had no jurisdiction to award any interest in equity as it was bound to determine and quantify payable amount only in terms of the pre-existing right on the basis of any award or settlement. In absence of any such pre-existing right to claim any interest on ex-gratia amount of Rs.5 lakhs in terms of the aforesaid provisions of National Coal Wage Agreement and the circular, which is the basis of the claim, the award of interest by the learned court below on payment of ex-gratia amount of Rs.5 lakhs is wholly without jurisdiction and is accordingly not sustainable in the eyes of law. Accordingly, the impugned order directing payment of interest in ex- gratia amount of Rs.5 lakhs is set-aside. However, in case the computed amount is sought to be recovered through any certificate proceedings, the statutory interest, as applicable to the certificate proceedings will be payable in accordance with law.

30. This writ petition is accordingly partly allowed in the aforesaid terms.

31. Pending interlocutory application, if any, is closed.

(Anubha Rawat Choudhary, J.) Mukul