482 • f,···~

WORKMEN CONCERNED, REPRESENTED BY THE BIHAR

COLLIERY KAMGAR UNION

BHARAT COKING COAL LTD. AND ORS.

March 10, 1978

[V. R. KRISHNA IYER AND JASWANT SINGH, JJ.]

Coking Coal Mines Nationalisation Act, 1972 Ss. 9 and 17, interpretation.

The management of the New Dharmaband Colliery dismissed 40 workmen in October, 1969, and an industrial dispute sprung up and refere1.1ce followed in October, 1970. During the pendency of the enquiry by the Industrial Tr~ bunal, the Colliery was nationabsed with effect from May 1, 1972 as provided for in the Coking Coal Mines Nationalisation Act, 1972. The New Dharmaband Colliery vested in the Central Government and thereafter in the Bharat Olking Coal Company Ltd., that is respondent No. l. Section 9 of the Coking Coal Mines Nationalisation Act, 1972 detailed the Central Government not to be liable for prior liabilities. Section 17(1) enjoined that every employee who is

a workman within the meaning of the Industrial Disputes Act, 1947 and ha• been immediately before the appointed day in the employment of a mine shall become an employee in the Central Government.

The Industrial Tribunal made an award on July 1, 1972, after impleading Bharat Coking Coal Company as a party holding that "the action of the management of New Dharmaband Colliery in dismissing the forty workmen with effect from 18th October, 1969 was not justified and that the •aid workmen should be reinstated with continuity of service by the mana, gement for the time

being, na1nely, Bharat Coking Coal Company Ltd. and the said company shall be liable to pay their wages and other emoluments with effect from 1st May,

1972. . ... The Management of New Dharmaband Colliery and Bharat Coking CC>al Co. Ltd. are jointly and severally liable to pay the sum to the workmen

coocerned." The Bharat Coking Coal Company aggrieved by the directions invoked the Writ Jurisdiction of the High Court, which quashed tbe award.

Allowing the appeal by special leave and restoring tho award of the Industrial Tribunal, the Court

HE.LD:

1. Section 17 of Coking Coal Mines Nationalisation Act. 1972 is a special provision relating to workmen and their continuance in -service not

withstanding the transfer from private ownership in the Central Government or Government Company. This is statutory protection for the workmen and is

express, explicit and mandatory.

Every person who is a workman withion the meaning of lnduotrial Disputes Act, 1947, and bas been immediately before the appointed day in the employment of a mine, shall become an employee of the Government or the Government Company ad continue to do so as laid down in Section 17. A "workman" is defined in the Industrial Disputes Act to mean "y person employed in any industry and include, any such person \Vho bas been dis1nissed and whose dismissal has led to a dispute".

In the instant case, the forty workmen who were dismissed and whose dis missal led to the industrial dispute are workmen within the meaning of s. 17

(1) of the Act. It is not open to MlY one to contood that because they have been wrongfully dismissed and, therefore, are not physically on the rolls on the date of the take over, they are not legally workmen under the new owner.

[485 D-GJ H

2. The subtle eye of the law transcends existence on the gras~leveJ. The statutory continuity of service cannot be breached by the wrongful dismissal of the prior employer, What matters is not physical presence on the rolls but the continuance in service in la.w because the dismissal in non est.

The dismissal

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BIHAR COLLIERY WORKMEN V. BHARAT COKING COAL483

(Krishna Iyer, l.)

has been set aside and the award expressly directs reinstatement wlth con1inity A of the service by the management for the time-being, nan1ely, the Bharat Coking Coal Company Ltd. The finding that the dismissal was wrongful has not been challenged, therefore, must stand.

[485 G-H, 486 DJ

Bihar State Road Transport Corporation v. The State of Bihar, 11970] 3 SCH. 708 at p. 714, applied .

3. Section 9(1) has nothing to do with wrongful dismissal aind awards.for B reinstatement. Employees are not a liability. Section 9 ( 1) dea.!s with pec:un1ary and other liabilities and has nothing to do with workman. If at alt tt has anything to do with workman it is regarding arrears of wages or other contractual, statutory or tortiow liabilities. [486 F-G]

4. Section 9(2) operates only in the area of section 9(1) and tarts off by saying "for the removal of doubts it is hereby declared .... " Sec41on 9(2) ieeks only w remove doubts in the area covered by s. 9(1) and does not deal with any other topi_c or subject matter. &.,;:ction 9(2) (b) when it refers to C 'awards' goes along wi, th the word "decre'e''r or 'order'. By the cano1~ of construction of noscitura sociis the expression "award" must have a restncted meani.,1g.

Moreover, its scope is delimited bys. 9(1). If bac~ wages be.fore _the appointed day have been awarded or other sums, µccrucd pnor to nauonah.satiou, have been directed to be paid -to any workman by the new owner, secti.on 9(2)(b) makes such claims non-enforceable. Section 9(2)(b) does not nulbfy s. 17 (1) ais they operate in different fields.

The whole provision confers immunity against liability, not a right to jettison workman under the employ of the previous owner in the eye of law. [486 G-H, 437 A-B] D

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2775 of 1977.

(Appeal by Special Leave from the Judgment and Order dated 20-2-1976 of the Patna High Court in S.W.J.C. No. 1314 of 1972).

Somnath Chatterjee, D. P. Mukherjee & A. K. Ganguly for the Appellant.

Sarjoo Prasad, M. L. Varrna for Respondent No. 1.

The Judgment of the Coun was delivered by

KRISHNA IYER, J.-The correct interpretation of section 9 of the Coking Coal Mines Nationalisation Act, 1972, (for short the Act) read along with Section 17 settles the fate of this appe; I by speciai leave.

We may start off by narrating a few admitted facts sufficient to bring out the legal controversy which demands resolntion.

The subject matter of the appeal is an industrial dispnte.

The

anagement of the New Dharmaband Colliery dismissed 40 workmen m Octobr, 1969, and an indnstrial dispnte sprung np and reference followed m October, 1970.

The Industrial Tribnnal held an elaborate enquiry into the dispute and made an award on Jnly 1, 197] .

In the meanwhile, the Colliery was nationalised with effect from Ma)'. 1, 1972, .as provided for in the Act. The New Dhannaband

Collery vested m the Central Government and thereafter in the Bharat Coking Coal Company Ltd.

Apparently by order of the Tribunal date? 24th March, 1972, the snccessor Company namely, the Bharat Cokmg 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 following award :

"The action of the management of New Dharmaband Colliery in dismissing the forty workmen mentioned in the Schedule 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, 1972. . . . . . the management of the New Dharmaband Colliery and Bharat Coking Coal Co. Ltd. are jointly and severally liable to pay the same to the workmen concerned."

The first respondent was made liable for back wages with effect from the date of nationalisation when the right, title and interest in tl1e 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.

Section 9 of the Act deserves to be reproduced at this stage :

"9. Central Government not to be liable for prior liabilities :

9(1) Every liability of the owner, agent, manager, or managing contractor of a coking coal mine or coke oven plant, in relation to any period prior to the appointed day, shall be the liability of such owner, agent, manager or managing contractor, as the case may be, and shall be enforceable against him and not against the Central Government or the Government company.

9(2) For the removal of doubts, it is hereby declared that-

(a) save as otherwise provided elsewhere in this act, no claim for wages, bonus, royalty, rate, rent, taxes, provident fund, pension, gratuity or any other dues in relation to a coking coal mine or coke oven plant in respect of any period prior to the appointed day, shall be enforceable against the Central or the Government Company.

(b) ....... .

(c) ........ ".

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BIHAR COLLIERY WORKMEN v. BHARAT COKING COAL 485 . (Krishna Iyer,!.) Side by side we may also read section 17 ( 1) :

"17 ( 1) 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 coking coal mine or coke oven plant, shall become on and from the appointed day, an employee of the Central Government, or, as the case may be, of the Govermnent comP_any in which !lie right, title and interest of such mme or plant hve vested under this Act, and shall hold office or service in the coking coal mine or coke oven plant, as the case may be, on the same terms and conditions and with the same rights to pension, gratuity and other matters as would have been admissible to him if the rights in relation to such coking coal mine or coke oven plant had not been transferred to .and vested in the Central Govermnent or Government company, as the case may be, and continue to do so unless and nntil his employment in such coking coal mine or coke oven plant is duly terminated or until his remuneration, terms and conditions of employment are duly altered, by the Central Government or the Government company."

Section 17 is a special provision relating to workmen and their cont!- nuance in service notwithstanding the transfer from private ownership to the Central Government or Government company.

This is a statutory 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 indnstrial 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 one to contend that because they bad 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 that dismissal has been set aside and the award expressly directs reinstatement "with continuity of service by the management for the time being namely, the Bharat 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

C?rporation(') had to deal with a wrongfuf dismissal, a direction for remstatement by an award and a transfer of ownership from a private operator to a State Transport Corporation. Shela! 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 Jaw to be on the rolls. 1f respondent 3 continned 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 in the service of the Rajya Transport Authority.

By reason of the order discharging him from service being illegal, respondent 3 was and mnst 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 that what matters is not the physical presence on the rolls but the continuance in service in Jaw because the dismiss~! is non est.

Sri Sarjoo Prasad pressed into service section 9(2) of the Act to repel the contention of the workmen set out above. It is true that section 9(2) (b) declares that "no Award ........ of any ....... .

Tribunal ........ passed after the appointed day, but in relation to any . . . . . . . . dispute which arose before that day, shall be enforceable against the Central Government or the Government company".

Superficially read and torn out of context, there may be some resemblance of substance in the submission. A closer look at section 9 as a whole, contradicts this conclusion.

Section 9 deals with the topic of prior liabilities of the previous owner. Section 9(1) speaks of "every liability of the owner ..... . prior to th~. appoinbw day, shall be the liability of such owner ..... . and 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 pecnniary and other lia_timties and has nothing to do with workmen.

If at all it has anythit1g to do with workmen it is regarding arrears of wages or other contractual. statutory or tortious liabilities.

Section 9(2) operates only in the area of section 9 (1) and that is whv it starts off hy saying "For the removal of doubts it is hereby declared ........ ". Section 9(?,) seeks only to remove doubts in the area covered bv section 9(1) and does not deal with any other topic or subject matter.

Sectiorr

(I) [1970) (3) S.C.R. 708 at p. 714.

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BIHAR COLLIERY WORKMEN V. BHARAT COKING COAL 487 (Krishna Iyer,/.) 9(2) (.b) when it refers to 'awards', goes along with the words 'decree', A or 'order'. By the canon of construction of noscitur a sociis the eK

pression 'award' must have a restricted meaning. Moreover, its scope is delimited by section 9 ( 1). If back wages before the appointee\ 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 non-enforceable. We do not see any reason to hold that section 9(2)(b) nullifies section 17(1) B or has a larger operation than section 9 (1). We are clear that the whole provision confers immunity against liability, not a right to jettison workmen under the employ of the previous owner in the eye of law.

We held that the High Court fell into an error in following a different line of reasoning. The appeal deserves to be and is hereby allowed and the award of the Industrial Tribunal restored. The appellants shall receive cost' from the first respondent, which we quantify at Rs. 2000/-.

S. R.

Appeal allowed.