Case: Workmen Concerned, Represented By The Biharcolliery Kamgar Vs. Bharat Coking Coal Ltd. And Ors

We may start off by narrating a few admitted facts sufficient to bring out the legal controversy which demandssubject matter of the appeal is an industrial dispute. The management of the New Dharmaband (Colliery dismissed 40 workmen in October, 1969, and an industrial dispute sprung up and reference followed in October, 1970. The Industrial Tribunal held an elaborate enquiry into the dispute and made an award on July 1,the meanwhile, the Colliery was nationalised with effect from May 1, 1972, as provided for in the fact. The New Dharmaband Colliery vested in the Central Government and thereafter in the Bharat Coking Coal Company Ltd. Apparently b y order of the Tribunal dated 24th March, 1972, the successor Company namely, the Bharat Coking Coal Ltd. (the respondent) was impleaded as a party. Thus, with the previous owner of the colliery and the nationalised industry namely, the Bharat Coking Coal Ltd, on record, the Tribunal made the followingaction of the management of New Dharmaband Colliery in dismissing the forty workmen mentioned in the Scheme with effect from the 18th October, 1969 is not justified. The said workmen are to be reinstated with continuity of service by the management for the time being, namely, the Bharat Coking Coal Co. Ltd., and the said company shall be liable to pay their wages and other, emoluments with effect from the 1st of May, 1972the management of the New Dharmaband Collieryand Bharat Coking Coal Co. Ltd. are jointly and severliable to pay the same to the workmenfirst respondent was made liable for, back wages with effect from the date of nationalisation when the right, title an d interest in the Colliery vested in it. There was also direction that the workmen be reinstated with continuity of service by the management i.e., the first respondent, for the time being. Aggrieved by both these directions, the Bharat Coking Coal Company successfully invoked the Writ Jurisdiction of the High Court, which quashed the award. Thereupon the workmen came up to this Court challenging the soundness of the legal position which appealed to the High Court.

Reasoning: Section 17 is a special provision relating to workmen and their continuance in service notwithstanding the transfer from private ownership to the Central Government or Government company. This is thestatutory protection for the workmen and is express, explicit and mandatory. Every person who is a Workman within the meaning of the Industrial Disputes Act, 1947, and has been, immediately before the appointed day, in the employment of a mine, shall become an employee of the Government or the Government company and continue to do so as laid down in Section 17. A workman is defined in the Industrial Disputes Act to mean any person employed in any industry (we omit the unnecessary words) and includes, any such person who has been dismissed and whose dismissal has led to a dispute. It is Perfectly Plain that the 40 workmen who were dismissed and whose , dismissal led to the industrial dispute are workmen within the meaning of section 17(1) of the Act. Irrefutably follows the inference that they are workmen entitled to continuance in service as provided for in Section 17. It is not open to any lone to contend that because they had been wrongfully dismissed, and therefore, are not physically on the rolls on the date of the takeover, they are not legally workmen under the new owner. The subtle eye of the law transcends, existence on the grass level. The statutory continuity of service cannot. be breached by the wrongful dismissal of the. prior employer. It is important that dismissed has been set aside and the award expressly directs reinstatement "with continuity of service by the management for the time being namely, the Bhamt Coking Coal Company Ltd." The finding that the dismissal was wrongful has not been challenged and, therefore, must stand. The Court in Bihar State Road Transport "Corporation([1970] (3) S.C.R. 708 at p. 714.) had to deal with a wrongful dismissal a direction for instatement by an award and a transfer of ownership from a private operator to a State Transport Corporation. Shelat J, observed"The argument, however, was that the true meaning of the said averment was that only those of the employees of the Rajya Transport Authority who were actually on its rolls were taken over and not those who were deemed to be on its rolls. It is difficult to understand the distinction sought to be made between those whose names were actually on the rolls and those whose names, though not physically on the rolls, were deemed in law to be on the rolls. If respondent 3 continued in law to be in the service, it makes little difference whether his name actually figured in the rolls or not. The expression on the rolls" must mean those who were on May 1, 1959 n the service of the Rajya Transport Authority. By reason of the Order discharging him from service being illegal, respondent 3 was and must be regarded to be in the service of the said Authority, and therefore, he would be one of those whose services were taken over by the appellant corporation."The present one is a fortiori case. We have not the slighest doubt hat what matters is not the physical presence on t he rolls but the continuance in service in law because the dismissal is nonis true that section 9(2)..... (b) declares that "n o Award of any Tribunal passed after the appointed day, but in relation to, any dispute which arose before that day, shall be enforce able against the Central Government or the Government company". Superficially read and torn out of con text, there may be some re......semblance of substance in the submission. A closer look at section 9....as a whole, contradicts this9 deals with the topic of Prior liabilities of the previous owner. Section 9(1) speaks of "every liability of the owner......to the, appointed day, shall be the liability of such owner..........Prior shall be enforceable against him and not against the Central Government or the Government Company. The inference is irresistible that Section 9(1) has nothing to do with wrongful dismissals and awards for reinstatement. Employees are not a liability (as yet in our country). Section 9(1) deals with precuinary and liabilities and has nothing to do with workmen at all it has anything to do with workmen it is regarding arrears of wages or other contractual, statutory or tortuous liabilities. Section 9(2) operates only in the area of section 9(1) and that is why it starts off by saying for the, " Section 9(2) removal of doubts it is hereby declare seeks only to remove doubts in the area covered by section 9(1) and does not deal with any other topic or subject matter. Section 9 (2) (b) when it refers to awards, goes along with the words decree, or Order. By the canon of construction of noscitur a sociis the expression award must have a restricted meaning. Moreover, its scope is delimited by section 9(1). If back wages before the appointed day have been awarded or other sums, accrued prior to nationalisation, have been directed to be paid to any workmen by the new owner, section 9(2)(b) makes such claims