^^. j^ .—-. @S1 ^ ' 4 IN THE HGK. HIGH CGURff OF JUDICATCRB M^HYA PR^)ESHs JABALPUR Wrt*;-petl;tlQn-No._Slf O ^ ©f.2000 petitioBer^tl.soutte Eastem Coal-fields Lireited, throi3Qh_lts Ghairman&Qum-Managing Director, Seepat Rbad, Bilaspyr, District BilaspurM^P< 2oChtef Geaeral Mecager, South Eastem Coal-.fields Limited, Hesd^^ Area^ D^sty^ct Korea M,p» ^&rsus RespQRdentss l.The Gweral Seeretary, M.p» Koyla Mazdoor Sabhe, South jhagrakhaaa colltery, District Korea M»p. 2»Singhi^Gollierrles Educatton Society, South Jhagrakhana Colltery, Dlstrict Korea M,p« throiagh its prineipel. 3<.Re©ionalLabour CwiBatssioner (Central)^ Jabelpur^ - — ,-—-.—.,» District jabalpur M.P« WRIT PETITI^ ®N©ERARTS. 226/227 OF CCa?STITUTI nfr INDIA -f u-7' •^•) c c,. HIGH COURT OF JUDICATURE CHHATTISGARH: BILASPUR ^^ Division Bench: Hon'ble Shri Sunil Kumar Sinha, J. & Hon'bleShri Satish K. Agnihotri, J. WRIT PETITION N0.3409 OF 2000 ORDER FOR CONSIDERATION Sd/- JUDGE 12 .11.2005 HON'BLE SHRI SUNIL KUMAR SINHA. J J a^yt^ Sd/- Sunil Kumar Sinha Judge Post it for: Z2-.11.2QQ5 Sd/- SatishK.Agnihotri Judge -?<?,\9 HIGH COURT OF JUDICATURE CHHATTISGARH: BILASPUR Division Bench: Hon'ble Shri SunH Kumar Sinha, J. & Hon'bte Shri Satish K. Agnihotri, J. WRIT PETITION N0.3409 OF 2000 South Eastern Coalfields Limited & another Versus The General Secretary, M.P. Koyla Mazdoor Sabha &others Present: Shri P.S. Nair, Sr. Advocate with Shri Wvek Rusia and Shri P.S. Koshy, Advocates, for <he petitionere. Shri Manindra Shrivastava, Sr. Advocate with Shri Alok Bakshi, Advocate for responderrt No.1 . Smt. Renu Kochar, ^tvocate, for respondent No. 2. ORDER (Passed on^ of November, 2005) The following Order ofthe Court was passed by Satish K. Agnihotri, J : - The present petition filed under Article 226/227 of the Constitution of India impugns the order dated 29.03.2000 (Annexure-P/14) passed by the Regional Labour Commissioner (Central), Jabalpur and Competent Authority under Section 33-C(1) of the Industrial Disputes Act, 1947 (Respondent No.3) and the revenue recovery certificate dated 10.05.2000 (Annexure-P/17) issued by the Regional Labour Commjssioner (Central), Jabalpur. ^ 2. The facts of the case in brief are that the petiUoners - South Eastem Coalfields Ltd., a Public Limited Company, registered underthe Companies Act is a subsidiary of Coal India Ltd. The Colliery Teachere Association, through Shri L.K. Sharma, General Secretaiy, South Jhagraldiand Colliery, P.0. South Jhagraldiand Colliery, District Sarguja and one Shri LX. Sharma, Lecturer, Higher Secondary School, Jhagrakhand ColHery filed a wrft petition being M.P. No.3536 of 1993 in the High Court of Madhya Pradesh at Jabalpur uncter Article 226/227 of the Constitution of India praying that ttie South Eastem Coalfields Ltd, ( for short "SECL") be directed to treat the Teachers (respondent No.1 in the present peUtion) as employees of SECL and to pay their wages as being paid to ttie teachws employed by SECL. Altematively. it was prayed that th®teachere emptoyed by Singhi Colliery Educatfon Sociefy. Jhagrakhand CoBfery be paid the same wages as being paid to the school run by DAV Coltege, Delhi or Central Board of Educatton. Leamed DMsfon Bench ofthe High Court of Madhya Pradesh at Jabalpur white admitting the petition by order dated 13.09.1993 direded the respondents (petitioners herein) to see that the arrears of salary due to the petjtioners thereln and other teachere employed in the schools financed by the present petittoners -SECL was paid without any delay. Leamed DMsion Bench of the High Court of Madhya Pradesh vide order dated 18.02.1994 dedined to vacate the interim/stay order passed on 13.09.1993. The SECL fited a Speclal Leaw Petitfon in the Supreme Court against the order dated 18.02.1994 passed by the leamed Division Bench of the High Court of Madhya Pradesh in M.P. No.3536 of 1993 and the Supreme Court dismissed the Speciat Leave Petition. Thereafter, a contempt petition was filed by the petitioners in M.P. hto.3536 of 1993 in the High Court of Madhya Pradesh at Jabalpur for •^o non-compliance ofthe interim order dated 13.09.1993, passedby the High Court of Madhya Practesh in M.P. No.3536 of 1993. During the penctency of the contempt petition a proposal by way of note-sheet dated 06.12.1994 was initiated by the petiBoners - SECL. Thereafter. a setttement between the SECL and the petitioners in M.P. No.3536 of 1993 was executed as follows: "(1) At present there are surplus staff, who shall be removed on fte following basis :- O) The Teachere emptoyed in B- Seam Primary School which is ctosed will be deemed to hav^ been remowd from the date of ctosure of the School and will not be taken backonduty; (ii) Persons who are canying other business in addiUon to the teaching duties will ateo be removed from services after enquiry is made by a CommMtee constituUng of the Principal and the representative of the Management, nominated by Chief General Manager; Hasdeo Area. (iii) All those teachers who has ghwn poor performance, i.e. in view of the result tess Ihan 50% in the past three yeare in Board examinatfons will also be removed on the recommendation ofthe above Committee: (iv) 70% cf difierence of wages and aljowanoe between what is paid to them and what is due under the State Government Scale from time to time to all those deserving teachers will be paid within 15 days of signing the settlement. This benefit will be availabte to onty those who accept this settlement. (v) In case there is subsequent need of appointment of teachers, preference will be gwen to those Teachers who were employed in B-Seam, Primary School and have removed due to closure of School, subjecl to the condition that their performance and Conduct while in service have been good. •iMl—nna—B—a—iBi ^ (vi) The Principal being head of the Instihition wlll exercise all disciplinary powers induding terminatton from service. suspension ete. and shall have the powere for appointment of vacant posts on the recommendation of a committee having at least one member nominated by the ChiefGeneral Manager, Hasdeo Area. (vii) The Rincipal on the recommendatfon of the Committee constituted with the approval of the Chief General Manager, and the School is entitted to increase payment of fees of students. The Principal and Vhe Teaching slaff shaU make all efforts to bring a good result and a better education. (viii) The Management as a measure of goodwill, and as a measure of Welfare acthnties shall to pay ditference between receipt on the basis of increased fees and expendfture in connection with the payment of salary and other allowances as admissibte under ttie Cireular of Stato Government from time to time including 5% contingency. fix) The Unton and the teachers will uncondttionally withdraw the contempt pefition i.e. MCC No.344^4 as well as M.P. No.3536/93. (x) Copy of this Memorandum of Understanding witl be sent to the R^ional Labour Commissioner (Central), Jabalpur before whom the case Is pending, with a requesk by both the parties to close the case keeping a copy of th® setUement on record. Both the parties will sincerety and fatthfully imptement the setUement and shalt not raise any ob|ection. REPRESENTtNG MANAGEMENT Sd/. (K.C.Nandkeolyar) D(P),SECL Sd/. (S.K. Misra) CGM (P&A) Sd/. (N.Jha) GM(A&IR) REPRESENTING TEACHERS - Sd/. (NathulalPandey) GS,MPKMS(HMS) 0>^Z 3. Thereafter, Minutes of Uncteretanding (hereinafter referred to as "MOU") between SECL and the General Secretary, M.P. Koyla Mazdoor Sabha (HMS) Union & L.K. Sharma, representing teachere woridng in Singhi Collieries Education Society was executed in the following terms : "(1) The management of SECL wilt pay a sum of Rs.20,95,632.50 (Rupees twenty lakhs Ninety five thousand sb( hundred thirty Iwo and paise fifty onty) as ex-gratia payment on account of wages to the teachere from 01.08.1989to31.01.1995. The arrears will only be pakl to ttiose teachere whose performance is considered satisfactory and who accept the setUement. The perfbrmance will be examined by a Committee consisting of the Prtncipal and representative of ChiefGeneral Manager. (2) Primary School, B- Seam stands closed with effect from August, 1993 due to non-recognition by the State Govemment inspite of all efforts macte for tts recogniUon. The surplus staff cannot be retained in service. tt is decided that only those teachers whose perf'ormance and servfce record is not satisfactory and invoh/es in other business other than teaching will be terminated after giving them opportunity for hearing by a Committee consisting of Principal and the representative of Chief General Manager. Actron in this respect will be taken before318t March 1995 tiU then they will continue in servtee. and the payment to such teachere and stafftill march, 1995 will be made in old rate. While examining the performance, the Committee wilt especially take into consjderation ttie result of ttie B<»rd Examination for the last three years. (3) The benefrt of this understandlng will only be given to those teachers who signs the memorandum of understanding subject to their satisfactory perfonnance to be judged by the School CommHtee. It is noted that as per the MOU arrived at on 6th December, 1994, the Union and the 6 ^.,3 teachere unconditionalty withdraw the Contwnpt Petifion i.e. M.C.C. No.344^4 as well as M.P. No.3536^3. (4) Hike in donation at the rate of minimum Rs.2(V- per month per student will be effected with effect from the coming session i.e. with effect from Ist July, 1995, The Management, however. as a measure of goodwill and part of welfare activities, shall pay Ihe difference between the recdpt of the Schoot by way of donation, receipt and expenditure towards the payment of salary and other altowances admissible under the relevant drcular of the State Govemment from time to time. tn any case, amount will not exceed Rs.13 lakhs 70 thousand per year. (5) The Management will arrar^e fw making ttie payment to the teachjng and non-tea6hing staff in accordance with the MOU and the details referred to herein on or before 31st March, 1995. The salary from 1st February, 1995 onwards will be in accordance witti the existing revised rates on regular basis, but onty in respect of Teachers and Non-teaching stsrfy who accept the settlement and are eligibte as per the criteria laid down in this settlement. (6) In case the financial asstetance from the Management is sought for an amount exceeding Rs.13 lakhs 70 thousand will be decided by the Management in consultation with the Union and the Principal. (7) The Prindpal being the Head of the Institution will exercise all disciplinary powers in respect of teaching and non-teaching staff working in the Schools of the Singhi Colliery Education Society, Hasdeo Area, with the approval of the Chief General Manager/Chairman of the Managing Committee. (8) The Singhi Collieries Education Society is iwt effectively functioning. This society has t& be re-organised and established regularty. Aff concemed shall co-operate in this respwt. ^ ...-a ^,,..;^.,.;.,^j ^ (S.K. MISRA) (NATHULAL PANDEY) CHIEF GENERAL MANAGER(P&A) GENERAL ECRETARY SECL, BILASPUR (MP) MPKMS(HMS) UNION" (N. JHA) (L.K. SHARMA) GENERAL MANAGER (A& IR) LECTURER SECL, BILASPUR (MP) REPRESENTING TEACHERS - It was agreed between ttie parties that the contempt petifion as well as M.P.No.3536 of 1993 would be withdrawn unconditionalty. Accordingly. M.P. No.3536 of 1993 and contempt petition i.e. MCC No.344 of 1994 were dismissed as withdrawn by order dated 07.04.1995. 4. Being aggrieved, M.P. Koyla Mazdoor Sabha (HMS), respondent No.1 herein filed an applicaUon in Form K (2) under Section 33 -C(1) ofthe Industrial Disputes Act. 1947 ( for short" I.D. Act,") for recovery of the due wages to the teachers of Singhi Collieries Education Society, SECL, Hasdeo area, on 14.05.1996 (Annexure-R/1(13). The peUUoners -SECL filed their reply on 21.05.1996 stata'ng that under the MOU dated 29.03.1995, it was agreed that an amount of Rs.20,95,632.50 was payabte to Uie teachers of Singhi Collieries Education Society as Ex-gratta t^yment for the period from 01.03.89 to 31.01.95. It was further stated that the Principal of the school had not comptied with point No.2 of MOU whfch provided that the teachers and the staff including teachers of Primary School B'Seam and other teachers whose performance and servic®records were not found satisfcictory and invoh/ed in ottier business would be terminated after hearing by the Committee. Point No.3 that the benefit of understanding would be given to those teachers, who had signed MOU, had already been implemented. The petitioners-SECL further stated that the Management was prepared to arrange the fund in terms of the MOU. 8 Accordingly, it was submitted that the applicsrtion dated 14.05.1996 be rejected. The Regional Labour Commissioner (Central), (hereinafter referred to as "RLC"), Jabalpur passed the order on 04.06.1996 holding that SECL was liable to pay the amount of Rs.23,97,547/- to 38 employees as per the terms of settlement. Subsequently, by order dated 16.12.96 in review confirmed the order dated 04.06.96 passed by the RLC. 5. Being aggrieved, Itie petitioners-SECL filed a petition being W.P. No.349 of 1997 chaltenging the legality of the orders dated 04.06.1996 and 16.12.1^6 passed by RLC as being without jurisdiction and contrary to law. Learned Division Bench of the High Court of Madhya Pradesh at Jabalpur by order dated 02.05.1997 directed RLC to record the necessary evidence and give finding after hearing the parties, as to whether fce relation of the Master and servant existe between the petittonere on one hand and the schools run by the society on tiie other hand. RLC submitted his report on 08.01.1998 holding that since Singhi Colliery Education Society is under the control of the management of SECL, Hasdeo Area, the employees employed by the Singhi Society i.e. teachers and steff are also employees of the management of SECL. With respect, learned Division Bench of the High Court of Madhya Pradesh without examining the report submitted by RLC and without examining the fact as to whether the petitioners (teachers) are workers under flie definition of <he I.D. Act to claim relief of recovery of dues, if any, under the provisions of Section 33- C(1) of the I.D. Act, disposed of the petition i.e. W.P. No.349 of 1997 on 18.02.1999 with a direction that the understandings dated 06.12.1994 and 29.03.1995 be implemented in letter and spirit within a period of two mpnths. The leamed Division Bench further observed that "if the 9 ^ understandings are implemented perhaps the occasion for setting aside the order ofthe Regional Labour Officer would not arise at all." 6. The present controversy arose from the order dated 29.03.2000 passed by RLC - respondent No.3 directing the petitioners to pay a sum of Rs.78,28,810/- to the respondents 1 and 2 towards payment to the teachers of respondent No.2- Society as difference ofsalary. Respondent No.1 filed an application under Section 33-C (1) of the I.D. Act on behalf of the teachers working in a school run and owned by respondent No.2 claimjng an amount of Rs.78,28,809.83 on 30.08.99. 7. RLC - respondent No.3 passed the order on 29.03.2000 (Annexure- P/14) holding ftat RLC was satisfied about ttie genuineness of the claim and in exercise of power conferred upon him under Seclion 33-C (1) ofthe I.D. Act directed the management to deposit an amount of Rs.78,28,810/- for payment to 47 teaching and non-teaching staff of the Singhi Collieries Education Society in terms of the agreements dated 06.12.94 and 29.03.95. RLC further issued the impugned revenue recovery certificate on 10/05/2000 addressed to the District Collector, Korea for recovery of the amount awarded under the order dated 29.03.2000. 8. During the course of the arguments, the petitjoners filed an application (I.A. No.9136/2005) on 25.10.2005 seeking amendment of the petition and relief to the exlent that the chaltenge of the petitioners with respect to the order dated 08.01.1998 be deleted. The said application was allowed on 27.10.2005. Accordingly, the chaltenge of the petitioners confined to the impugned order dated 29.03.2000 and the revenue recovery cert'ficate dated 10.05.2000. 10 ^^ 9. Shri P.S. Nair, leamed Sr. counsel with Shri Wvek Rusia and Shri P.S. Koshy. leamed counsel for the petitionere submitted that the impugned order dated 29.03.2000 and revenue recovery certificate dated 10.05.2000 passed/issued by RLC-respondent No.3 are witbout jurisdicUon as RLC - respondent No.3 has power to entertain the application under Secta'on 33- C(1) of the I.D. Act onfy on the grounds that the applicant must be a workman; there must be employer and employee retationship; there must be a setUement, award or benefit under Chapter V-A or V-B of the I.D. Act; ttie application must be filed within the period of limitation i.e. one year; the applicant must be duly authorized person; and the amount whteh is sought to be recovered should be pre-adjudicated and ascertained by a competent authority. Leamed counsel submitted that the petitioners were not afforded reasonable opportunity of placing their case and there was no application of mind before passing the impugned orders as RLC - respondent No.3 has not satisfied himseff before granting the relief claimed under the application. 10. Learned counsel for the petitioners further submitted that the applicants representing the case of the teachers are not the authorized persons as under Section 33-C(1) of the I.D. Act the applicah'on has to be moved by a workman where any money is due to a workman from his employer. Leamed counsel further submitted that ft is well settled by catena of decisfons of the Supreme Court and other High Courtsthat the teachers are not workmen under the provisions of the I.D. Act. Leamed counsel submitted that money due to a workman from an employer must be under the setUement or an award or under the provisions of Chapter V-A or Chapter V-B. Learned counsel further submitted that in the present case, there was no setUement or award as contemplated under the provisions of the I.D. Act and the money is also not claimed under the provisions of ftUUitefiii ia 11 '7^ Chapter V-A or Chapter V-B. The alleged setUement between the management and the union dated 06.12.1994 cteariy provides ttiat none of the schools were owned by SECL and the SECL has nothing to cto wtth the schools or the teachers or other employees. The said setUement was executed as a measure of goodwill and weWare activities to pay the difference between receipt and on the basis of increase fee and expenditure in connection with ttie payment of salary and ottier altowances admissible under the circular of the State Govemment from time to time. The alleged settlementdated 06.12.1994 was further darified by MOU dated 29.03.1995 reiterating that the management of SECL was not concerned with the Society of the teachers and as a matter of goodwill and keeping in view the wetfare activities of the company, it was decided to pay the difference between receipt and on the basis of increase fee and expenditure in connection with the payment of salary and other altowances admissible under the relevant circular of the State Govemment from time to time. It was further agreed that, in any case, the amount would not exceed Rs.13,70,000/- per year. The IW3U dated 29.03.1995 further provided that in case more finandal assistance from the management is necessary for an amount exceeding Rs.13,70,000/-, the same would be decided by the management in consultation with the union and the Principal. It was submitted that Uie petitioners are complying with the provis'ions of the settlement dated 06.12.1994 and MOU dated 29.03.1995 in Hs tetter and spirit by making payment of Rs.13.70.000/- per year. Learned counsel further submitted that respondent No.1 had not approached the management for enhancing the financial assistance exceeding Rs.13,70,000/- in any year, as such the present applicatfon ffled under Section 33-C(1) of the I.D. Act was not maintainable as there was no 12 ^ adjudication with regard to the status ofthe teachers as workmenand there was no money due under any setUement or under any award. 11. Learned counsel for the petitionere next submttted that even otherwise, ttie application filed by respondent No.1 for recovery of dues under Section 33-C(1) of the I.D. Act was not maintainabte as the first proviso to Section 33-C (1) of the I.D. Act deariy provides that the application be made within one year from the date on which the money became due to the workman from Uie employer. In the present case, respondent No.1 is claiming recovery of money due for the period from 01.02.1995 to 31.07.1999 under the setUement dated 06.12.94 and MOU dated 29.03.1995 which is beyond the period of one year from 01.02.1995. Leamed counsel further submits that the amount of Rs.78,28,809.83 claimed to be due from the employer is not an ascertained and pre- adjudicated amount as per the settlement dated 06.12.1994 and MOU dated 29.03.1995. Leamed counsel further submitted that the petitionere are liable to pay Rs.13,70,0007- per year and for any other excessh/e amount there must be a setttement between the parties. 12. Learned counsel for the petitioners next submitted that the petitioners were not given sufficient opportunity before the impugned orders was passed and the impugned revenue recovery certificate was issued. Learned counsel further submitted that a notice was issued to SECL to furnish reply to the application dated 30.08.99 and to attend the hearing on 04.09.1999. Learned counsel submitted that on 02.09.1999, the General Manager (IR) SECL by letter dated 02.09.1999 prayed fbr time stating that the application dated 30.08.99 was not received by them. Leamed counsel further submitted that on 04.09.1999, Shri C.K. Prasad, Personnel 13 % h4anager. SECL submHted an application before RLC stating that mutual discussion has been fbced with the applicant-union and prayed for adjournment. Inspite of the prayer made by the SECL for adjoumment, Shri C.K. Prasad, Personnel Manager was pressurized to appear and RLC by note-sheet dated 04.09.1999 issued certain directtons and the foltowing remarks were also made: " The non-applicants are therefore, directed to get the matter mutually resolved within a period of one month and fite tetter from applicant to ttie effect that the matter has been finally settled and payment made, failing which RRC will be issued without any further notice. " Learned counsel submitted that the General Manager filed a detailed reply on 09.09.1999 complaining about the proceedings dated 04.09.1999. In the said reply, it was also steted ttiat the General Manager along wfth Director (P) would like to meet RLC about the implication of both the issues personally and requested RLC to proceed only after accepting the submission ofthe management. Thereafter a notice was issued to Genera! Manager on 04.02.2000 and on 10.12.2000, SECL intimated RLC that the Law OfRcer was on training and the information to attend the hearing on 11.02.2CXK) was received only on 09.02.2000 and prayed that at teast 3-4 days advance notice be given. Even otherwise no decree or order can be passed on the basis of the averments made in the application without satisfying himself and the applicants have heavy burden to prove each and every averment made in the application, before any order adverse to the other-side is passed. Finally, leamed counsel prays for setBng aside the impugned order (Missed and the impugned revenue recovery certificate issued, by respondent No.3-RLC as being without jurisdiction, perverse and illegal. 14 13. Shri Manindra Shrivastava. leamed Sr. counsel wifli Shri Alok Bakshi, leamed counsel appearing for respondent No.1 didnot dispute the submission of the petitioners with regard to requirement for filing an application under Section 33-C(1) ofthe I.D. Act. However.supporting the impugned order passed and the impugned revenue recovery certificate issued, by respondent No.3" RLC, prayed for dismissal of the vwit petition on the ground that the conduct of the petitioners was most un-constitutional, arbitrary, discriminatory and unbecoming of a public sector company of Govemment of India. Leaned counsel submitted that the challenge of the petitioners that the application under Section 33-C (1) of the I.D. Act was not maintainable, was a technical objecUon and this Court in exerdse of exlra-ordinary jurisdiction under Article 226 of the Constitution of India should dismiss the writ petition. Learned counsel ftirther submitted that M.P. No.3536 of 1993 and the Contempt Petffion i.e. M.C.C.No.344 of 1994 were withdrawn ctearly on the understanding that the petitioners were bound by the interim order dated 13.09.1993 wherein the petitioners were directed to pay ttie arrears of salary due to the petitioners and other teachers employed in ttie schools financed by respondent No.1 therein (SECL). According to respondent No.1 , the teachers employed by Singhi Collieries Education Society were paid salary at par with the salary of the