BIRA KISllORE NAIK v. roAL INDIA LTD. & <XlS.

MAY 7, 1986

(0. CHINNAPPA REDDY AND K.N. SINGH, JJ,]

Coal Mines (Nationalisation) Act, 1973 - S.14 - Benefit of - When available.

Coal Mines (Taking Over of Management) Act, 1973 - -1s.3(2) proviso - Notification by Central Government - Whether existence of a coal mine on the appointed day as defined by s.2(b) essential pre-requisite - Whether acquisition of knowledge by Central Government about existence of coal mine l enough - Burden of proof that co.nditions for issuance of " notification satisfied on whom - Nature of proof required.

Respondent No. 4 obtained a composite lease for mining coal and fire coal and other minerals in respect of certain area comprising Natundihi Pahariabera Colliery from the Government of West Bengal. According to the petitioner, respondent No.4 after obtaining permission from the authorities coDlllE!nced the extraction of coal from the mine in 1973 and in that connection he eqiloyed the petitioner and 700 workmen. Respondent No. 4 was prevented from working the coal A mine in view of the nationalisation of the coal mines under the Coal Mines (Nationalisation) Act, 1973. After the closure of the coal mine the petitioner and 700 workmen were rendered uneP1ployed and in spite of several representations to the Government of West Bengal, the Coal India and Central Government nothing was done to alleviate their hardship.

The petitioner invoked the jurisdiction of this Court f. under Art. 32 of the Constitution purporting to do so on behalf of 700 workmen claiming relief for issue of a writ of mandaD11s directing the respondent to declare that the said colliery has vested in the Central Government and in the alternative directing the Union of India to take over the colliery under the Nationalisation Act and treat the petitioner and other workmen as workmen of the Central Government and to work the colliery by employing the workmen and to pay them arrears of their wages with effect from April, 1980.

In support of the petition it was contended: (i) that they have been thrown out of emolovment although under s. 14

B.K. NAIK v. COAL INDIA LTD. 1045

of the Nationalisation Act they continue to be the employees -f of the Central Government and are entitled to their wages; and

(ii) that the said colliery was a coal mine as defined by s.2(b) of the Coal Mines (Taking Over of Management) Act 1973 on the appointed day, namely, 31st January, 1973, but the same was not specified in the Schedule to the Act due to some error and that since the Central Government had acquired knowledge about the existence of the mine it was under a legal duty to issue a notified order making declaration about the existence -t of such mine and to take over its management.

On behalf of the respondent No.2 (Coal India - a Government company) it was contended: (i) that respondent No.4 had obtained lease for extracting coal in the said colliery but he

~- never extracted coal and there was no coal mine in existence either on the date of enforcement of the Management Act or on 1 the date when the Nationalisation Act came into force; (ii) that on receipt of information that respondent No.4 was indulging in extracting coal illegally, action was taken against him, and after the enforcement of the Coal Mines Nationalisation (Amendment) Act, 1976 coal mine leases including that of respondent No.4 stood terminated and thereafter he was not entitled to carry on any coal mine, (iii) that since on the appointed day no coal mine existed, there was no ,;, question of taking over of the mine either under the Management Act or under the Nationalisation Act; and (iv) that the petitioner and other workmen who may have been employed by respondent No.4 have no right to be the eloyees of the Central Government or the Government company.

•''V Dismissing the petition,

l llEIJ>: 1. Section 14 of the Coal Mines (Nationalisation) 1 Act, 1973, protects the interest of those workmen who may have been working in a coal mine, specified in the Schedule to the Act. 'nte employees of a private owner even though working in a coal mine are not entitled to be treated employees of the Central Government unless the coal mine is nationalised and specified in the Schedule to that Act. Since the colliery in question was not specified in the Schedule to the Nationalisai tion Act, the workmen which may have been under the employment of the respondent No.4 are not entitled to the benefit of s. 14 of the Nationalisation Act. [1054 E-G]

2. The Coal Mines (Taking Over of Management) Act, 1973

and the Nationalisation Act both form part of an integral + scheme to nationalise coal mines with a view to prevent slaughtering of coal mines and to provide for the co-ordinated development of coal production in a scientific manner and also to conserve the coal deposits.

The Management Act was pre-cursor of the Nationalisation Act. [1051 F-{;]

3. There is no provision under the Management Act like s.14 of the Nationalisation Act protecting the interest of the +- existing employees or conferring right on them to be treated as employees of the Central Government. [1052 D]

4. Proviso to s.3(2) of the Management Act, pre-supposes J the existence of the coal mine as defined by s.2(b) of the 1" Management Act on the appointed day, namely, January 31, 1973. The legal duty cast on the Central Government to issue a notified order about a coal mine for the purpose of including the same to the Schedule under the Management Act would arise if such coal mine as defined by the Management Act existed on the appointed day. No such legal obligation would be on the Central Government to issue any notified Order making declaration as contemplated by s.3(2) of the Management Act even though the Central Government may have acquired knowledge about the existence of coal mine. The said colliery was not A

specified either in the Schedule to the Management Act or in the Schedule to the Nationalisation Act, the management of the colliery of respondent No.4 was neither taken over by the Central Government nor was it nationalised under the Nationalisation Act. In the absence of nationalisation of the said colliery, the petitioner and other employees, even if, they had been working in the said colliery could not get benefit of s.14 of the Nationalisation Act. [1055 B-D; 1054 D-E] f

y--.

5. If in reality respondent No.4 had carried on mining operations then there could be conclusive proof in his possession, including the appointment of a Manager to carry on mining operations as required by s.17 of the Mines Act, 1952, periodical inspection reports of the Inspector appointed under the Mines Act, 1952, co111111nication of the actual date of opening of the mine to the Regional Labour Colllllissioner in the 'r prescribed form as required by Payment of Wages (Mines) Rules 1956 read with s. 2-A(l) of the Mines Act, 1952, assessment of

B.'K. NAIK v. COAL INDIA LTD. 1047

payment of royalty on coal, annual returns required to be -+ filed with the Labour Enforcement Officer, Register of wages etc. None of these documents have been produced before the Court. (1056 C-F]

6. The burden of establishing that the owner of the colliery had carried on mining operations on the relevant date was on the respondent No. 4 and the wor...nien clailling relief, but they have failed to discharge that burden. On the contrary material on record shows that no llining operations were .+ carried on by respondent No.4 on or before the appointed day.

This conclusion was further supported by the circumstance that respondent No.4. did not give any intimation to the Central Government as stipulated by s. 3(5) of the Management Act. The Kanagellll!nt Act and the Nationalisation Act both provide for

~ paJ'lll!nt of amounts as compensation to the owners of coal mines

whose rights are taken over. In the normal course of human 1 affairs, particularly business affairs, it is difficult to conceive that the owner of a coal mine would not bring to the notice of the Central Governllll!nt the existence of his coal mine when such coal mine was not included in the Schedule to the Manag1!81!nt Act or the Nationalisation Act. Absence of such intimation indicates that in fact no coal mine existed.

(1056 H; 1057 A-DJ

7. No mining operation is permissible by any person ;., other than those mentioned in s.3(3) of the Nationalisation

Act. Under the Coal Mines (Nationalisation) Amendment Act, 1976 all leases of mines including that of Uespondent No.4 stood terminated. If respondent No.4 was carrying on mining of coal in 1978, it was wholly unauthorised and illegal, therefore no declaration can be made under the Managellll!nt Act • .--y [ 1057 E-<;]

8, The said colliery was not a coal mine on the l appointed day and neither its management nor its ownership 1 ever vested in the Central Government. The petitioner and other workmen are, therefore, not entitled to the protection of s.14 of the Nationalisation Act and no manda1111s as claimed by the Petitioner directing the Central Government to treat the petitioner and other employees as employees of the Central Government can be issued. The Central Government cannot be forced to operate the said colliery as the starting of a coal 1 mine would depend upon a number of factors. The petitioner is, therefore, not entitled to the manda1111s directing the Central Goverllllent to work the colliery by empfoying the petitioner and other workmen. The Central Government is not under any legal obligation to pay arrears of wages as claimed by the petitioner. [1057 F-H; 1058 A-C]

Central Coal Fields Ltd. v. Blmbaneswar Singh, [ 1984) 4 s.c.c. 429; and Tara Prasad Singlr etc. etc. v. Union of India t & Ors., {1980) 3 s.c.R. 1042, referred to.

ORIGINAL JURISDICTION : Writ Petition No. 12591 of 1983.

Under Article 32 of the Constitution of India.

B Govind Mukhoty, N. R. Choudhary and S. K. Sinha for the

Petitioner. L.N. Sinha, Tapas Roy, N.C. Talukdar, Shankar Ghosh, C, V, Subba Rao, R.N. Sachthey, Anip Sachthey, Miss M. Arora, Parijat Sinha, J.R. Das, D.K. Sinha, D. Goburdhan and B.P.

Singh for the Respondents.

The Judgment of the Court was delivered by

SINGR, J. By means of this petition under Art. 32 of the Constitution, the petitioner has invoked the jurisdiction of this Court purporting to do so on behalf of 700 workmen claiming relief for issue of a writ of mandamus directing the respondents to declare that Natundihi Pahariabera Colliery has vested in the Central Government and in the alternative directing the Union of India to take over the colliery under the Coal Mines (Nationalisation) Act, 1973 and treat the peti- A tioner and other workmen as workmen of the Central Government and to work the colliery by employing the workmen and to pay them arrears of their wages with effect from April, 1980.

Subodhchandra Mondal, respondent No.4 obtained a composite lease for mining coal and fire clay and other minerals y-. for a period of 30 years in respect of an area of 344.44 acres comprising Natundihi Pahariabera Colliery from the Government l of West Bengal. According to the petitioner Subodhchandra T Mondal after obtaining permission from the authorities commenced the extraction of coal from the mine in 1973 and in that connection he employed the petitioner and 700 workmen.

Subodhchandra Mondal was prevented from working the coal mirie in view of the nationalisation of the coal mines under the provisions of the Coal Mines (Nationalisation) Act, 1973 (hereinafter referred to as the Nationalisation Act). After the closure of the coal mine the petitioner and 700 workmen were rendered unemployed and in spite of several representations to the Government of West Bengal, the Coal India and the Central Government nothing was done to alleviate their hardship. The petitioner has asserted that they have been thrown

out of employment although under sec. 14 of the Nationalisaj tion Act they continue to be the employees of the Central Government and are entitled to their wages. On behalf of Coal India respondent No. 2 a Government Co11"any, counter affidavit has been filed disputing the petitioner's claim. It ls asserted that although Subodhchandra Mondal had obtained lease for extracting coal in the Natundihl Pahariabera in the State of West Bengal but he never extracted coal and there was no coal mine in existence either on the enforcement of the Coal Mines

~ (Taking over of Management Act) 1973 or on the date when the Nationalisation Act came into force. It is averred that in March, 1978 the Director General of Mines received information that Subodhchandra Mondal was indulging in extracting coal . illegally, action was taken against him. After the enforcement of the Coal Mines Nationalisation (Amendment) Act 1976 all mine leases including that of Subodhchandra Mondal stood ter-

~ mlnated with effect from 29th April, 1976 and thereafter Subodhchandra Mondal was not entitled to carry on any coal mine. It ls further asserted that since on the appointed day no coal mine existed, there was no question of taking over of the mine either under the Management Act or under the Nationalisation Act. Petitioner and other workmen who may have been employed by Subodhchandra Mondal have no right to be the employees of the Central Government or of the Government A Company.

The Coal Mines (Taking Over of Management) Act, 1973 was enacted to provide for the taking over of the Management of coal mines, "pending nationalisation of such mines with a view to ensuring rational and co-ordinated development of coal production and for promoting optinum utilisation of the coal .->y resources consistent with the growing requirements of the country, and for matters connected therewith or incidental l thereto. t1 Section 2(b) of the Act defines a coal mine to mean 1 tla mine in which there exist one or more seams of coal. t1

Section 3(1) provides that on and from the appointee! day (i.e.

January 31, 1973) the management of all coal mines shall vest in the Central Government. Section 3(2) provides that the management of coal mines specified in the Schedule shall be deemed to vest in the Central Government. Proviso to section 3(2) lays down that if after the appointed day, the existence -{ of any other coal mine comes to the knowledge of the Central Government, it shall by a notified Order 1111:.ke a declaration about the existence of such mine, whereupon the management of such coal .11ine shall vest in the Central Government and the provisions of the Act would apply to it. Section 3(5) of the Act provides that if any coal mine ls not included in the Scllelulel' evyv rspn tnfhfrye of a coal mine shall within 30

days from the enforcement of the Act intimate to the Central 't

Government.the name and location of such mine giving the names and addresses of the owner thereof. Section 6 empowers the Central Government to appoint Custodians for the purpose of taking over of the management. Section 7 provides for payment of cash amount as compensation for vesting of management.

Section 16 vests power in the Custodians to terminate contract of employment entered into by the owner or agent of the coal mine, any time before the appointed day by giving one month'stnotlce to the employees concerned or by giving one month's salary in lieu thereof. The Coal Mines (Nationalisation) Act (Act No. 26) of 1973 was enacted by the Parliament to provide for the acquisition and transfer of the right, title and interest of the oWners of the coal mines specified in the i Schedule. Section 2(b) to the Nationalisation Act defines a coal mine in the same way as the corresponding provision of the Management Act.

Section 3(1) provides that on the appointed day i.e. May 1, 1973 the right, title and interest of the owners in relation to the coal mines specified in the Schedule to the Act shall stand transferred to, and vest absolutely in the Central Government free from all incumbrances. The Schedule to the Act specified the names of coal mines which stood vested in the Central Government Section 3(2) provides that if after the appointed day~ existence of any other coal mine comes to the knowledge of the Central Government, the provisions of Coal Mines (Taking Over of Management) Act, 1973 shall apply to such mines until that mine is nationalised by an appropriate legislation. Section

3(3) as amended by the Coal Mines Nationalisation (Amendment) Act, 1976 provides that on and from the c01mnencement of the Y· Amendment Act (i.e. 29th April, 1976) no person, other than -

(i) the Central Government or a Government company f or a corporation owned, managed or controlled by the Central Government, or

(ii) a person to whom a sub-lease, referred to in the proviso to cl. (c), has been granted by any

such Government, company or corporation, or

'I'

(iii) a company engaged in the production of iron and steel, shall carry on coal mining operation, in India, in any form.

ll.K. Ni\IK v. COi\L INDii\ LTD.

[SINGH, J,] 1051

j It further provides that excepting the mining leases granted before the commencement of the Amendment i\ct in favour of the Government companv or corporation or any sub-lease granted by any such Government, company or corporation, all other mining leases and sub-leases in force immediately before the commencement of the Amending i\ct (i.e. 29th April, 1976) shall stand terminated. Section 5(1) empowers the Central Government to direct by an order in writing that the rights, -+ title and interest of an owner in relation to a coal mine shall instead of continuing to vest in the Central Government, shall vest in the Government company, whereupon such company shall be lessee of the coal mine. Section 7 provides that the Central Government or the Government company shall not be liable to discharge any liability of the owner, agent, manager or managing contractor of a coal mine in respect of any period 1 prior to the appointed day (i.e. May 1, 1973). Section 11 provides that the general superintendence, direction, control and management of the affairs and business of a coal mine, the right, title and interest of an owner in respect of a coal mine vested in the Central Government under sec. 3 in relation to a coal mine in respect of which Central Government has issued direction under sec. 5(1) of the i\ct shall vest in the Government company and in case of coal mine lo relation to

~ such no direction has been made it shall vest in one or more custodians appointed by the Government. Section 14 provides that every person who is workman within the meaning of Industrial Disputes i\ct, 1947 or even if he is not a workllldn and who has been in the employment i!l'1lediately before the appointed day (i.e. May 1, 1973) shall become employee of the 1 Central Government or of the Government coq>11ny as the case may be, and shall hold office or service in the coal mine with i the same right to pension gratuity and other benefits.

The Managment i\ct and the Nationalisation i\ct both form part of an integral scheme to nationalise coal mines with a view to prevent slaughtering of coal mines and to provide for the co-ordinated development of coal production in a scientific manner and also to consrve the coal deposits. The Management i\ct was pre-cursor of the Nationalisation i\ct.

~ Under that i\ct the right, title and interest in the coal mine was not acquired. Instead only the management of the coal mine as specified in the Scedule to the i\ct was taken over pending nationalisation of the same• e management of the coal mines

which existed on the appointed day namely, January 31, 1973 ;. was taken over and custodians were appointed by the Government to carry on the management of the coal mines, but the ownership and title in the coal mine continued to vest in the owners. The employees who were working in the coal mine also continued to be the employees of the owner and the custodian appointed by the Central Government was entitled to carry on the management and exercise control over the employees but the employees could not and did not become the employees of the custodian or the Central Government. The Central Government did not enjoy the right of the owner and the employees employed by the manager on behalf of the owner did not become the personal employees of the manager. They continued to be _j_. the employees of the owner. The management was carried out at i the cost and for the benefits of the owner as was held by this Court in Central Coal Fields Ltd. v. Bhubaneswar Singh, [1984] 4 s.c.c. 429. There is no provision under the management act like sec. 14 of the Nationalisation Act protecting the interest of the existing employees or conferring right on them to be treated as employees of the Central Government. The Management Act does not contain any provision protecting the interest of the employees of the coal mines specified in the Schedule.

The Nationalisation Act was enacted "for the acquisition and transfer of the right, title and interest of the owners in respect of the coal mines specified in the Schedule with a view to re-organising and re-constructing coal mines so as to ensure the rational, co-ordinated and scientific development and utilisation of coal resources consistent with the growing requirements of the country, in order that the ownership and control of such resources are vested i.n the State and thereby .l so distributed as best to subserve Che ColllDOn good and for r matters connected therewith or incidental thereto." The Act came into effect on May l, 1973. Under Sec. 3 of the Nationalisation Act the right, title and interest of the owners in relation to only those coal .mines stood transferred and vested in the Central Government which were specified in the Schedule attached to the Act. The coal mines which were not" specified in the Schedule were not acquired and the 'r owners' right, title and interest in relation to such coal mines remBined unaffected. It appears that even after the n'\tionalisation of coal mines a number of persons holding coal

1 mine leases unauthorlsedly started mlnlng of coal ln reckless and unscientific manner without regard to consideration of conservation of coal, safety and welfare of workers. They were resorting to slaughter mlning by superficial working• of outcrops and thereby destroying a valuable national asset and creating various problems.

In various areas illegal and unauthorised operations were carried on without any assessment of reservations in regard to quality and quantity of coal --t consequently no scientific exploitation could be undertaken.

It was therefore considered that it would not be appropriate either to nationalise these unauthorisedly worked mines after taking them over under the Coal Mines (Taking Over of Management) Act, 1973 or to get the concerned minlng leases t prematurely terminated and regranted to Government Companies under the Mining and Minerals (Regulation and Development) .; Act, 1957. In order to achleve this purpose the Coal Mines (Nationalisation) Amendment Ordinance was promulgated on April 29, 1976 providing that no person other than the Central Government or a Government Company or a Corporation owned, managed or controlled by the Central Government, or a person to whom a sub-lease has been given by any such Government, company or a Corporation or a company engaged in the production of iron and steel, shall carry on coal mining in any ;., form. It further provided that all mining leases granted to any person excepting the mining leases granted in favour of a Government Company or a Corporation shall stand terminated in so far as they relate, to winning or minlng of coal. The purpose of the Amending Act was to put an end to the unauthorised coal mining and to terminate the leases existing in favour of ~1 the private persons. The Ordinance was converted into the Coal Mines (Nationalisation) Amendment Act 67 of 1976. The validity J of the Amending Act was challenged by the owners of the Coal

~Mines before this Court. In Tara Prasad Singh Etc. Etc. v.

Union of India & Ors., [1980] 3 S.C.R. 1042 a Constitution Bench of this Court upheld its validity.

At the outset of the hearing of the petition Shri L. N.

Sinha, learned counsel appearing on behalf of respondent nos. 1 and 2 raised a preliminary objection relating to the i'maintainability of the petition under Art. 32 of the , Constitution of India. According to his submissions the

qustions raised in the petition relate to employment which do not involve enforce!llE!nt of any fundamental right under the

Constitution as such petition under Art. 32 is not\ maintainable. Sri Govind l>fukhoty learned counsel for the petitioner vehemently contested the preliminary objection and urged that Art. 21 of the Constitution guarantees right to life, which right would be meaningless unless the citizen has a right to live with dignity. According to him right to get employment is implicit in the right to life and as such petition under Art. 32 is maintainable. lie referred to a number of decisions of this Court in support of hlst submissions.

We do not consider it necessary either to elaborate points raised by the learned counsel for the parties or to discuss the authorities cited by them as we do not consider it necessary to express any opinion on the preliminary objection since the petition is bound to fail on i merits.

Mmittedly Natundlhi Pahariabera Col Uery was not specified either in the Schedule to the Management Act or in the Schedule to the Nationalisation Act, the management of the colliery of Subodhchandra Mondal, respondent no.4 was neither taken over by the Central Government nor was it nationalised under the Nationalisation Act.

In the absence of nationalisation of the said colliery, the petitioner and other employees, even if, they had been working in the said co\liery A could not get benefit of sec. 14 of the Nationalisation Act as sec. 14 protects the interes~ of those workmen who may have been working in a coal mine, specified in the Schedule to the Nationalisation Act. The employees of a private owner even though working in a coal mine are not entitled to be treated employees of the Central Government unless the coal mine is 'f ' nationalised and specified in the Schedule to the Nationalisation Act.

Since Natundihi Paharlabera Colliery was not i specified in the Schedule to the Nationalisation Act the r workmen which may have been under the employment of Sdbodhchandra Mondal are not entitled to the benefit of sec. 14 of the Nationalisation Act. Faced with this situation counsel for the petitioner urged that Natundihi Pahariabera Colliery was a coal mine as defined by sec. 2(b) of the Management Act on the appointed day, but the same was not specified in the Schedule to the Act due to some error. lie forther urged that since the 'r Central Government had acquired knowledge about the existence of the mine it was under a legal duty to issue a notified

order making declaration about the existence of such mine and 1 to take over its management. Proviso to sec. 3(2) of the Management Act conferq power on the Central Government to make declaration about the exiqtence of a coal mine for the purpose of taking over of its management if the existence of such coal mine comes to its knowledge after the appointed day. This provision pre-supposes the existence of the coal mine as defined by sec. 2(b) of the Management Act on the appointed day nemely, January 31, 1973. The legal duty cast on the -1-Central Government to issue a notified Order about a coal mine for the purpose of including the same to the Schedule under the Management Act would arise if such coal mine as defined by the Management Act existed on the appointed day, no such legal l-obligation would be on the Central Government to issue any T notified Order making declaration aq contemplated by sec. 3(2) of the Act even though the Central Government may have acquir-

~ ed knowledge about the existence of coal mine.

The pre-requisite for the exercise of the power is the existence of a coal mine on the appointed day as defined by sec. 2(b) of the Act. There is a qerious dispute about the existence of Natundihi Pahariabera Colliery on t.he appointed day namely January 31, 1973. Since this question is a question of fact we would determine this question on appraisal of the material on record.

The petitioner has aqserted that Natundihi Pahariabera Colliery was a coal mine within the meaning of sec. 2(b) of • the Management Act e><isting on the appointed day namely, January 31, 1973. Subodhch-andra Mondal, respondent no. 4 the

~-rowner of the said colliery has filed his own affidavit supporting the petitioner's claim. Subodhchandra Mondal has asserted that he started extracting coal after giving i information to the authorities of the mining department, in support of this assertion he referred to a letter of the Director of Mines Safety date 2.12. 72 copy of which has been annexed to his affidavit. On a perusal of the same we find that Subodhchandra Mondal had given a notice in Form A to the Director General, Mines Safety, Burdwan on 2.11.72 giving .-· intimtion about his intention to open the mine wtth effect from 1st January, 1973. In reply to that notice the Joint '{ Director of Mines Safety observed that the relevant area \ belonged to the category of gassiness and as such steps were required to be taken for statutory precaution under the Coal

Mines Regulation 1957 relating to working of gaseous mines before opening the mine. The Joint Director directed Subodh- ~

chandra Mondal to conduct gas survey and to submit a report of the survey to the Directorate before opening the coal mine. No material has been placed before the Court either by the petitioner or by Subodhchandra Monda! to show that the directions issued by the Joint Director relating to the safety were complied and the extracting of coal had actually conmenced on or before January 31, 1973.

On behalf of the petitioner a register of employees maintained by Subodhchandra Mondal was-tproduced before us, containing endorsement of the Labour Enforcement Officer dt. 29th November, 1979. The register relates to the year 1979 and it does not relate to year 1973.

The employees register does not by any stretch of imagination_J support the petitioners plea that the coal mine was in r existence on January 31, 1973. If in reality Subodhchandra Monda! had carried on mining operations then there could be~ conclusive proof in his possession, including the appointment of a Manager to carry on mining operations as required by sec. 17 of the Mines Act, 1952, periodical inspection reports of the Inspector appointed under the Mines Act 1952, co1mmmication of the actual date of opening of the mine to the Regional Labour Commissioner in the prescribed form as required by Payment of Wages (Mines) Rules 1956 read with sec. 2-A(l) of the Mines Act, 1952, assessment of payment of royalty on coal, A annual returns required to be filed with the Labour Enforcement Officer, Register of wages etc. None of these documents have been produced before the Court, although Subodhchandra Mondal,. owner of the Colliery soould in normal course be in possession of copies of these documents who is supporting thei-~ petitioner's case. Absence of these documents indicates that ' no mining operations had been carried on or before the appointed day. r

As against this the Coal India has asserted that there was no coal mine either on January 31, 1973 or on May 1, 1973 G or on April 28, 1976 when the Coal (Nationalisation) Amendment Act, 1976 was enforced. An Affidavit has been filed on behalf of the State of West Bengal asserting that there had been no ,., mining operations till April 28, 1976 on the entire property, and since no mining was carried on, Subodhchandra Mondal never r paid any royalty, instead he paid <>nly the dead rent. The 1 H burden of estabHshing that Subodhchandra Mondal had carried

on mining operations on the relevant date was on the ..i petitioner and respondent no.4, they have miserably failed to discharge that burden. On the contrary on the material on record we are driven to irresistible conclusion that no mining operations were carried on by Subodhchandra Mondal on or before the appointed day. 'niis conclusion is further supported by the circumstance that Subodhchandra Mondal did not give any intimation to the Central Government as stipulated by sec. 3(5) of the Management Act. Had there been any Coal mine in _.existence on the appointed day as defined by the Management Act Subodhchandra Mondal would have in normal course given intimation to the Central Government. The Management Act and the Nationalisation Act both provide for pant of amounts as compensation to the owners of coal mines whose rights were t taken over.

In the normal course of human affairs, particularly business affairs, it is difficult to conceive ' 4that the owner of a coal mine would not bring to the notice of the Central Government the existence of his coal mine when such coal mine was not included in the Schedule to the Management Act or the Nationalisation Act. Absence of such intimation indicates that in fact no coal mine existed.

Learned counsel for the petitioner then urged that Central Government is under a legal duty to issue a

E -

._declaration for taking over the management of Natundihi Pahariabera Colliery, even at this stage, and this Court should issue a mandamus directing the Central Government to issue a notified order to that effect. As already noted no mining operations is permissible by any person other than those mentioned in sec. 3(3) of the Nationalisation Act and

urther as under the Amendment Act 1976 all leases of mines including that of Subodhchandra Monual stood terminated. If

ubodhchandra Mondal was carrying on mining of coal in 1978,

i:t was wholly unauthorised and illegal, therefore no declaration can be made under the Management Act. No mandamus as claimed by the petitioner can be granted.

In view of the above discussion there is no escape from the conclusion that Natundihi Pahariabera Colliery was not a

,,_ coal mine on the appointed day and neither its management nor

its ownership ever vested in the Central Government. 'nie

\petitioner and other workmen are therefore not entitled to the protection of sec.14 of the Nationalisation Act and no H

mandamus as claimed by the petitioner directing the Central Government to treat the petitioner and other employees as \ employees of the Central Government can be issued. The Central Government cannot be forced to operate the Natundihi Pahariabera Colliery ao the starting of a coal mine would depend upon a number of factors. The petitioner is therefore not entitled to the mandamus directing the Central Government to work the colliery by employing the petitioner and other workmen.

The Central Government is not under any legal obligation to pay arr2ars of wages as claimed by the~ petitioner. The petitioner is not entitled to any of the reliefs claimed by him. We cannot avoid a feeling that the Writ Petition is really inspired by Subodhchandra Mondal. The petition falls and is accordingly dismissed but there will be~J. no order as to costs. r

A .. P. J.

Petition dismissed.