Case: Workmen represented by Akhil Bhartiya Koyla Kamgar Union Vs. Employers in relation to the Management of Industry Colliery of M/s. Bharat Coking Coal Ltd. &amp; Ors

may not be physically on the rolls on the appointed day of the take over, it cannot be contended that they were not legally workmen under the new owner. The statutory continuity of service will have to be taken note of and on that basis this Court proceeded to hold that a dismissed workmen also is a `workman under the Government Company. While interpreting Section 9 of the Nationalisation Act it was stated that the liability of the owner prior to the appointed day shall not be enforceable against the Central Government or the Government company but only against the previous owner. It was stated in very emphatic terms that "employees are not a liability as yet in our country". Section 9 deals with pecuniary and other contractual liabilities and has nothing to do with workmen. If at all it has anything to do with workmen, it is regarding arrears of wages and other contractual, statutory or tortuous liabilities. Section 9(2) operates only in the area of Section 9(1) and that is why provision is being made for removal of certain doubts and the whole provision confers immunity against liability not a right to jettison workmen under the employment of the previous owner in the eye of law. 6. Bearing these principles in mind if we examine the scope of the Nationalisation Act, we may notice that in respect of properties that vested in the Central Government, as provided under Sections 8 an d9, the Nationalisation Act provides immunity to the Central Government or its company from prior liabilities. Chapter III of the Nationalisation Act provides for payment of amount under that Chapter. Chapter VI provides for appointment of Commissioner of Payments who has an obligation to deal with the claims made under Section 23 of the said Act to persons who make a claim before the Commissioner within 30 days from the specified date. On examination of the provisions thereof, we may relate all those items that have been mentioned in Section 9 to Section 23 of the Nationalisation Act. They all pertain to pecuniary or commercial obligations and not to other matters. The claim made in the present case is one relating to employment under Section 25-H of the Act which merely creates an obligation that a retrenched workmen will have preference when fresh appointments are made and an opportunity will have to be given to them to offer themselves for re-employment. Such an obligation does not fall within the scope of Section 9 of the Nationalisation Act. 7. Shri Ajit Kumar Sinha, the learned Counsel for the respondents, relying upon the decision of this Court in Anakapalle Co-operative Agricultural and Industrial Society Ltd. v. Workmen and others, AIR 1963 SC 1489 , contended that the respondents are not successor-in-interest and, therefore, have no obligation to give effect to Section 25-H of the Act in respect of workmen in question; that since both rights and obligations have not been taken over by the respondents and only certain properties have been vested in the respondent-Company without any obligation in terms of sections 8 and 9 of the Nationalisation Act, the contention of the appellant for re-employment has to be rejected. 8. We have already adverted to the decision of this Court in The Workmen v. The Bharat Coking Coal Limited and others (supra) which examines the scope of Section 9 of the Nationalisation Act and the liability contemplated therein. It is necessary to understand the obligation of employer as such contemplated in Section 25-H of the Act as stated in clear terms by this Court in that decision. Unlike civil law, industrial law takes a different view with regard to as to who is the successor who runs the said industry subsequently. Where there is transfer of business from one owner to another, the rights and obligations which existed between the old management and their workers continue to exist vis-a-vis the new management after the date of the transfer provided there is continuity of service and identity of business. For purpose of continuity of service Section 17 makes the necessary provisions. Thus a person on such transfer becomes the owner of the concern and the employer of the employees of the establishment, and as long as there is identity of business itself and retains its identity, it must be held that the respondent is also a successor-in-interest to that extent. This Court in Anakapalle Co-operative Agricultural and Industrial Society Ltd. (supra) took this view after considering several relevant factors into consideration. 9. Shri Sinha submitted that as soon as transfer has been effected under Section 25-FF of the Act all the employees became entitled to claim compensation and thus who had been paid such compensations will not be entitled to claim re-employment under Section 25-H of the Act as the same would result in double benefit in the form of payment of compensation and immediate re-employment and, therefore, fair justice means that such workmen will not be entitled to such conferment of double benefit. It is not doubt true that this argument sounds good, but there has been no retrenchment as contemplated under Section 25-FF of the Act in the present case. The workmen in question have been retrenched long before the colliery was taken over by the respondents and, therefore, the principles stated in Anakapalle Co-operative Agricultural and Industrial Society Ltd. (supra) in this regard cannot be applied at all. The workmen had been paid compensation only under Section 25-F and not under Section 25-FF of the Act on transfer of the colliery to the present management. That case has not been pleaded or established. Hence, we do not think that the line upon which the High Court has proceeded is correct. The order made by the High Court deserves to be set aside and the award made by the Tribunal will have to be restored. 10. The appeal shall stand allowed accordingly. However, in the circumstances of the case, there shall be no order as to costs.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]8. We have already adverted to the decision of this Court in The Workmen v. The Bharat Coking Coal Limited and others (supra) which examines the scope of Section 9 of the Nationalisation Act and the liability contemplated therein. It is necessary to understand the obligation of employer as such contemplated in Section 25-H of the Act as stated in clear terms by this Court in that decision. Unlike civil law, industrial law takes a different view with regard to as to who is the successor who runs the said industry subsequently. Where there is transfer of business from one owner to another, the rights and obligations which existed between the old management and their workers continue to exist vis-a-vis the new management after the date of the transfer provided there is continuity of service and identity of business. For purpose of continuity of service Section 17 makes the necessary provisions. Thus a person on such transfer becomes the owner of the concern and the employer of the employees of the establishment, and as long as there is identity of business itself and retains its identity, it must be held that the respondent is also a successor-in-interest to that extent. This Court in Anakapalle Co-operative Agricultural and Industrial Society Ltd. (supra) took this view after considering several relevant factors into consideration.Shri Sinha submitted that as soon as transfer has been effected under Section 25-FF of the Act all the employees became entitled to claim compensation and thus who had been paid such compensations will not be entitled to claim re-employment under Section 25-H of the Act as the same would result in double benefit in the form of payment of compensation and immediate re-employment and, therefore, fair justice means that such workmen will not be entitled to such conferment of double benefit. It is not doubt true that this argument sounds good, but there has been no retrenchment as contemplated under Section 25-FF of the Act in the present case. The workmen in question have been retrenched long before the colliery was taken over by the respondents and, therefore, the principles stated in Anakapalle Co-operative Agricultural and Industrial Society Ltd. (supra) in this regard cannot be applied at all. The workmen had been paid compensation only under Section 25-F and not under Section 25-FF of the Act on transfer of the colliery to the present management. That case has not been pleaded or established. Hence, we do not think that the line upon which the High Court has proceeded is correct. The order made by the High Court deserves to be set aside and the award made by the Tribunal will have to be restored.