1 Leave granted. JUDGMENT
2 The dispute in the present case relates to eighty eight workmen who had
worked as ‘Tyndals’ at the Kenduadih Colliery (of the first respondent). On
14 May 1993 a Reference was made to the Industrial Tribunal by the
appropriate government under Section 10(1)(d) of the Industrial Disputes
Act, 1947, of the following dispute :
“Whether the demand of Rashtriya Colliery Mazdoor
Sangh for employment of Shri Arjun Paswan and 87
others, as per list attached is justified? If so to what
relief the workers are entitled”.
The job description of Tyndals required these workmen to be engaged in
moving engineering stores, drums of oil and grease and they were also
responsible for setting up and dismantling of structures, as well as the
installation and withdrawal of machinery. The Industrial Tribunal by its
Award dated 16 July 1996 held that :
“it is beyond the question that the persons worked
under the contractor are genuine one who are the
present workmen and they performed the job which
was of permanent and perennial in nature and the
person performing the same type of job in other
collieries were regularized and so no doubt a
stepmotherly attitude was taken so far these concerned
workmen are concerned”.
The Tribunal directed the management to form a panel of the concerned JUDGMENT workmen in accordance with seniority and to absorb or regularize them either
in the work of Tyndal or in any suitable category so that the list is exhausted
within a period of one year. Backwages were denied.
3 The first respondent filed a writ petition before the Jharkhand High
Court to challenge the Award (CWJC 1655 of 1997). On 18 May 2004 a
learned Single Judge of the Jharkhand High Court modified the Award of the
Industrial Tribunal and directed that as and when the management intends to
employ regular workmen, it shall grant preference to the workmen governed
by the Award if they are otherwise suitable by relaxing the requirements of
age and academic qualifications. This order of the High Court attained
finality.
4 In 2007 the Union representing the workmen filed a writ petition before
the High Court (WP(L) 4915 of 2007) seeking implementation of the order
dated 18 May 2004. While disposing of the writ petition on 24 September
2010 the High Court recorded the statement of the management that no
vacancy had occurred in the post of Tyndal since the judgment which was
rendered on 18 May 2004. However, the High Court recorded the
undertaking of the management that if any vacancy arises in future and the JUDGMENT post is advertised for which the workmen apply, they would be considered for
the post and that the management would also accommodate them if there was
a vacancy under any other category. Thereafter, a Review Petition was filed
before the High Court based on information which was obtained under the
Right to Information Act. The learned Single Judge held that the
employment which was granted by the management between 2004 and 2008
(as disclosed in the response to the RTI query on 11 September 2008)
indicated that the appointment was made only on compassionate grounds.
Once again, while disposing of the Review Petition the statement of the
management was recorded that if and when posts were advertised, the
workmen would be entitled to apply and would be considered. The rejection
of the Review Petition has led to the filing of these proceedings.
5 The Appellant has relied on certain proceedings which took place in
another distinct reference to the Industrial Tribunal, Reference 204 of 1994.
The reference was at the behest of the Union representing the workmen
engaged in one of the collieries of the first respondent. An Award was made
by the Industrial Tribunal on 14 August 2000 directing regularization of
seventy workmen in general mazdoor category No.1. The Award was JUDGMENT confirmed by a learned Single Judge of the High Court on 26 July 2001 while
dismissing the writ petition of the management. However, in a Letters Patent
Appeal the Award was modified by directing that as and when the
management intended to appoint regular workmen, it would grant preference
to the workmen concerned in the reference, if necessary, by relaxing the
conditions of age and academic qualifications. The Union filed a Special
Leave Petition under Article 136 of the Constitution before this Court. This
Court by a Judgment and Order dated 18 November 2009, set aside the
judgment of the Division Bench of the High Court and restored the Award of
the Tribunal granting reinstatement without backwages.
6 The above judgment of this Court cannot come to the aid of the
Appellant for the simple reason that in that case, the Union had challenged
the judgment of the Division Bench of the High Court before this Court. In
the present case, the judgment of the High Court dated 18 May 2004
modifying the Award of the Industrial Tribunal attained finality. In fact, in
their writ petition of 2007 the workmen sought implementation of the
judgment rendered on 18 May 2004. The entitlement that the workmen claim
must hence flow out of the judgment of the High Court by which the JUDGMENT workmen were entitled to the grant of a preference in future employment by
the management by relaxing conditions of age and educational qualifications.
This distinction has, in fact, been noted in a judgment recently delivered by
this Court on 3 October 2016, in Workmen Rastriya Colliery Mazdoor
Sangh v. Bharat Coking Coal Ltd. (C.A. 13953 of 1015). This Court while
declining to grant reinstatement allowed compensation to fourteen workmen
whose services were in issue, each in the amount of Rupees two lakhs in full
and final settlement of all claims for compensation. The relevant part of the
judgment rendered by this Court on 3 October 2016 is extracted below :
“7 The basic grievance of the workmen is that as a
result of the position which has ensued, the workmen
governed by the present proceedings of whom only 14
are left in the fray, are virtually without any relief or
remedy in practical terms. The workmen were
engaged between 1987 and 1989. Nearly 27 years
have elapsed since then. Many of the 14 workmen
would be on the verge of attaining the age of
retirement. There is no occasion at present to grant
them reinstatement since in any event, such relief has
been denied in the judgment of the High Court dated
18 May 2004 which has not been challenged.
However, the predicament of the workmen is real.
Two sets of workmen in the same colliery under the
same company have received unequal treatment. The
present group of workmen has faced attrition in
numbers and has been left with no practical relief.
This situation should be remedied, to the extent that is now permissible in law, having regard to the above
background. In order to render full, final and complete
justice, we are of the view that an order for the
payment of compensation in final settlement of all the
claims, dues and outstandings payable to the 14
workmen in question would meet the ends of justice.
8 We accordingly direct that the Respondents shall
deposit with the Central Government Tribunal (No.2)
at Dhanbad an amount of Rs. Two lakhs each towards
compensation payable to each one of the 14 workmen.
This amount shall be in full and final satisfaction of all
the claims, demands and outstandings. Upon deposit
of the amount, the Award of the Industrial Tribunal
dated 9 September 1996, as modified by the High
Court on 18 May 2004 shall be marked as satisfied.
The Respondents shall deposit the amount as directed
hereinabove, within a period of two months from today
before the Central Government Industrial Tribunal
(No.2) Dhanbad in Reference 26 of 1993. The amount
shall be disbursed to the workmen concerned subject to
due verification of identity by the Industrial Tribunal”.
7 In the present case, the counter affidavit filed by the first respondent
before this Court contains a specific admission that the eighty eight workmen
governed by the reference were working as ‘Tyndals’ on surface as well as in
underground mines through contractors at Kenduadih Colliery. The counter
affidavit states that the reliance which is sought to be placed by the workmen
on replies to queries under the Right to Information Act is misleading and
that the appointments in those cases were made by the first respondent in
category I whereas ‘Tyndals’ are appointed in category IV. We may note at JUDGMENT this stage, that during the pendency of these proceedings an order was passed
on 11 December 2015 to enable the respondents to ascertain the position with
regard to the vacancies in the above category. A Committee was constituted
by the first respondent which by its report dated 2 January 2016 has observed
that there is no vacancy in the post of Tyndal, category IV either in respect of
Kenduadih Colliery or the Pootkee Balihari area as a whole. Kenduadih
Colliery is stated to be a closed mine. A statement has been annexed
indicating the existence of surplus manpower.
8 In the Judgment of this Court rendered on 3 October 2016, noted
earlier, reasons have been indicated as to why it would not be practicable to
grant reinstatement particularly since such relief was denied in the judgment
of the High Court dated 18 May 2004, which has not been challenged. The
workmen in that case were engaged between1987-1989. Nearly twenty seven
years had elapsed and many of the workmen would have been on the verge of
retirement. However, while taking note of the fact that two sets of workmen
in the same colliery and under the same company have received unequal
treatment, this Court ordered payment of compensation each in the amount of
Rupees two lakhs to the workmen. The workmen in that case were employed
as general mazdoors. The workmen in the present case belong to the skilled JUDGMENT category of Tyndals which as noted earlier are comprised in category IV.
Having due regard to this position, in the present case, it would be
appropriate to direct that the first respondent shall in full and final settlement
of all the claims and outstandings of the eighty eight workmen concerned in
the reference deposit an amount of Rupees four lakhs each per workman
before the Central Government Industrial Tribunal (No.2) Dhanbad in
Reference 54 of 1993. The amount shall be disbursed to the workmen
concerned subject to due verification of their identity by the Industrial
Tribunal. This amount shall be in full and final satisfaction of all claims,
demands and outstandings payable to the workmen.
9 The Civil Appeal shall stand allowed in the above terms. There shall
be no orders as to costs.
New Delhi November 21, 2016.