M/s Bharat Coking Coal Limited through Shri Soumen Chatterjee, aged about 57 years, son v. …
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (L) No. 524 of 2020 M/s Bharat Coking Coal Limited through Shri Soumen Chatterjee, aged about 57 years, son of Sri Govinda Chatterjee, General Manager, Bastacolla Area of M/s Bharat Coking Coal Limited, resident of G.M’s Bunglow, Near Jorapokhar Thana, P.O. Jorapokhar, P.S. Jharia, District Dhanbad Versus … … Petitioner 1. The Union of India through the Assistant Labour Commissioner (Central), Dhanbad – II and I/c Dhanbad III, Shram Bhawan, New Colony, Jagjivan Nagar, Dhanbad, P.O. Jagjivan Nagar, P.S. Saraidhella, District Dhanbad 2. Their Workman being represented by the Secretary, Rastriya Mazdoor Union, At and P.O. Bhowra, P.S. Bhowra, District Dhanbad … … Respondents CORAM: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY --- For the Petitioner For the U.O.I. For the Resp. No. 2 10/19th June 2024 --- ---
Legal Reasoning
: Mr. Amit Kumar Sinha, Advocate : Ms. Nitu Sinha, Advocate : Mr. Avishek Chandra, Advocate 1. 2. Heard the learned counsel for the parties. This writ petition has been filed for the following reliefs: - “for issuance of a writ in the nature of certiorari for quashing the letter/notice dated 15.01.2020 (Annexure-7) issued under the signature of the Assistant Labour Commissioner (Central), Dhanbad II and I/c Dhanbad III whereby and where under he has called upon the officers of the petitioner company to show cause as to why legal action should not be taken against them as also the management provided under section 29 of the Industrial Disputes Act, 1947 for non-implementation of the Award passed in Ref. No. 01/2016 dated 21.12.2017. Pass such other order/orders as Your Lordships may deem fit and proper for doing justice to the petitioner.” AND/OR 3. Learned counsel for the petitioner submits that the matter arises out of implementation of the award dated 21.12.2017 passed in Reference Case No. 01 of 2016 by the Central Government Industrial Tribunal No. 1, Dhanbad wherein a direction was issued to the petitioner to take the concerned workman 1 into job as Underground General Mazdoor, Category-I scale as a fresh employee according to service excerpt and date of birth to be verified from Form-B and service excerpt. 4. The learned counsel submits that since the petitioner decided to implement the award and consequently the workman was required to be taken into job as Underground General Mazdoor, Category-I. He submits that in terms of the provisions of Mines Rules 1955, the medical examination of the concerned workman was to be conducted in accordance with Rule 29B (2) and consequently the workman was examined on 20.02.2019 and was found to be “temporary unfit” and again examined on 09.05.2019 and was found to be “unfit”. He submits that the examination was done by the Medical Board. 5. He submits that since the workman was found unfit, the award dated 21.12.2017 could not be implemented as there was a direction to employ the workman as Underground General Mazdoor, Category-I and if the petitioner had implemented the award, the petitioner would have violated the provisions of Mines Rules, 1955. 6. The learned counsel submits that the workman had a remedy in connection with his medical examination by filing an appeal in terms of Rule 29J of the Mines Rules, 1955 but the workman never availed the remedy of appeal. He submits that it is still open to the workman to avail the remedy of appeal and at the appellate stage, the workman would be examined by the fresh Medical Board. 7. The learned counsel submits that the fact that the workman was found unfit was brought to the notice of the concerned authority vide letter dated 18.12.2019 but the concerned authority issued notice dated 15.01.2020 asking the petitioner to show cause as to why action be not initiated in terms of Section 29 of the Industrial Disputes Act, 1947. 8. He submits that while issuing the notice the authority has referred to another medical fitness certificate of the workman issued by the Medical Officer of Patliputra Medical College and Hospital, Dhanbad said to have been submitted before the Management of BCCL. He submits that once the medical 2 examination was done by the Medical Board appointed by the petitioner, the only remedy which was available to the petitioner was to avail the remedy of appeal and contrary report by the doctor of Patliputra Medical College and Hospital, Dhanbad was not acceptable. He submits that considering this aspect of the matter, the show cause dated 15.01.2020 be set-aside and the concerned workman may still avail his remedy of appeal against the medical examination conducted by the Medical Board constituted by the petitioner. 9. Learned counsel appearing on behalf of the Union of India has submitted that the doctor of the petitioner had observed the workman as 'unfit' on flimsy ground and therefore the medical fitness certificate of the doctor from the Patliputra Medical College and Hospital, Dhanbad was required to be considered. She has referred to clause 29C of the Mines Rules, 1955 to submit that the medical examination report of any State or Central Government medical officer not below the rank of an Assistant Civil Surgeon is also admissible. 10. The learned counsel appearing on behalf of the concerned workman has submitted that a circular has now been issued by the Coal India Limited indicating the parameters with regard to the medical fitness of the employees to be inducted. He submits that the workman confirms to the said parameters. A copy of the said circular dated 03.08.2022 is placed on record. 11. In response, the learned counsel for the petitioner submits that the said circular dated 03.08.2022 may not be taken into consideration to interpret the medical examination report which was conducted way back in the year 2019 and it is not clear from the said circular as to whether the same would apply under the provisions of Mines Rules, 1955 or not. 12. After hearing the learned counsel for the parties and considering the facts and circumstances of this case, the operative portion of the award passed by the learned Central Government Industrial Tribunal No. 1, Dhanbad in Reference Case No. 01/2016 dated 21.12.2017 is as under: - “5. Considering the facts and circumstances of this case, I hold that he be taken into job as under ground General Mazdoor cat-I scale a fresh employee according to service excerpt, and Date of birth is verified from form “B” and service excerpt. But the workman be kept under probation 3 for a period of two years. Therefore the question of granting back wages does not arise at all.” 13. Admittedly, the concerned workman was to be taken into job as Underground General Mazdoor, Category-I scale and it is not in dispute that his induction would certainly be governed by the provisions of the Mines Rules, 1955. One of the main conditions as per the Mines Rules is that the person to be inducted should be medically fit. Rule 29B, 29C and 29J of the Mines Rules, 1955 is quoted as under: - “29B. Initial and periodical medical examinations - After such date or dates as the Central Government may by notification in the Official Gazette appoint in this behalf, the owner, agent or manager of every mine shall make arrangements- (a)(i) for the initial medical examination of every person employed in the mine, within a period of five years of the date so notified and the said examination shall be so arranged over a period of five years that one- fifth of the persons employed at the mine undergo the examination every year; Provided that in the case of a mine where a system of carrying out of such medical examination (of a comparable standard as determined by the Chief Inspector) is already in existence before the date aforesaid, a person who has undergone a medical examination under such a system on a date not earlier than five years before the date aforesaid, shall be deemed to have undergone an initial medical examination under this sub clause and the last date of his medical examination under the said system shall be taken to be the date of his initial medical examination under these rules; (ii) for the initial medical examination of every person seeking employment in a mine, unless such person has already undergone, within the preceding five years, a medical examination under these rules while in employment at another mine; and (b) for the periodical medical examination thereafter of every person employed in the mine at intervals of not more than five years. [Provided that for the persons who are engaged in the process of mining or milling of asbestos ore, periodic medical examination shall be done at least once in every twelve months and every such examination shall include all the tests in Form “P” of the First Schedule except the X- Ray examination, which shall be carried out once in every three years. Provided further that the periodic medical examination or the X Ray examination or both, shall be conducted at more frequent intervals if the examining authority deems it necessary to confirm a suspected case of a dust related disease.] 29C. Examining authorities - The medical examination aforesaid shall be carried out by a Medical Officer appointed for the mine or a Medical Officer in the employment of the owner of the mine, if any, or by any Medical Officer employed in the Coal Mines Welfare Fund Organisation or any other mines welfare organisation, failing which by any State or Central Government medical officer not below the rank of an Assistant Civil Surgeon. 4 29J. Appeal for re-examination - (1) Where as a result of an initial medical examination under clause (a), or of periodical medical examination under clause (b) of rule 29B, a person has been declared unfit for employment in mines or in a particular category of mine or in any specified operations in mine, he may, within thirty days of the receipt by him of a copy of the Certificate referred to in sub-rule(2) of rule 29-F, file an appeal with the manager of the mine against the declaration aforesaid, and request for a medical re-examination by an Appellate Medical Board constituted under rule 29-K. (2)(a) The manager shall arrange to have the appellant medically re- examined by the Appellate Medical Board within thirty days of the receipt of the Appeal, and shall give to the Appellant fifteen days’ prior notice of the medical re-examination by the Appellate Medical Board in Form Q. (b) A person who, for any reasonable cause, fails to submit himself for a medical re-examination in accordance with the notice given to him under clause (a), shall be given another notice in Form R in similar manner. (c) A person who, without reasonable cause, fails to submit himself for a medical re-examination in accordance with a notice given to him under clause (b) shall cease to be in employment at the mine or in a particular category of mines or in any specified operations in mine, as the case may be, after the expiry of thirty days from the last date notified for his medical re-examination. (3) In respect of every medical re-examination by the Appellate Medical Board, the appellant shall pay such fees and the medical examination shall be conducted in such manner as may be determined by the Appellate Medical Board. In case the Appellate Medical Board finds him fit for employment in mines, the fees shall be reimbursed in full to the appellant by the owner of the mine where he is employed.” 14. This Court finds that the petitioner had decided to implement the award and the concerned workman was subjected to medical examination in terms of Rule 29B (a) (ii) of the Mines Rules, 1955 and was found to be medically unfit. The concerned workman ultimately did not prefer appeal against the said report and when notice was issued to the petitioner in connection with non- implementation of the award, the petitioner brought to the notice of the concerned authority that the workman has been found unfit. However, the concerned authority relied upon a medical report of medical officer of Patliputra Medical College and Hospital, Dhanbad and issued a show cause to the petitioner under Section 29 read with Section 32 of the Industrial Disputes Act, 1947 on the ground of non-implementation of the award. 15. This Court is of the considered view that once the concerned workman was medically examined and was found unfit, the remedy available to the concerned workman was to file an appeal in terms of Rule 29J and production 5 of a contrary report by another doctor is not permissible in the eyes of law. The concerned workman having not filed the appeal, the impugned show cause issued by the authority by relying upon a contrary medical report cannot be sustained in the eyes of law and accordingly, the same is hereby quashed and set-aside. 16. However, as submitted by the learned counsel for the petitioner , it is observed that the concerned workman may still prefer appeal against his medical examination report dated 09.05.2019 where he was declared unfit. 17. It appears that a circular has been issued by the Coal India Limited with regard to parameters of medical fitness dealing with blood sugar, blood pressure and colour blindness, but it is not clear from the said circular whether those parameters would be applicable in terms of Mines Rules, 1955. It is sufficient to observe that if the appellate authority examines the concerned workman by constituting a fresh Medical Board, then the applicability of the said circular dated 03.08.2022 be also considered if it is found applicable to the petitioner in terms of Mines Rules, 1955. 18. The appeal be filed within a period of 45 days from today and the needful be done by the concerned authority within a period of two months thereafter. 19. This writ petition is accordingly disposed of in the aforesaid terms. 20. Pending I.A., if any, is closed. Mukul (Anubha Rawat Choudhary, J.) 6