The High Court · 2024
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (L) No. 5260 of 2019 Bihar Colliery Kamgar Union through its Secretary, Sri D. Mukherjee aged about 72 years, Son of Late S.S. Mukherjee, resident of Jharnapara, Hirapur, P.O., P.S. & District Dhanbad Petitioner … … Versus 1. Union of India through its Section Officer, Ministry of Labour/Shram Mantralaya, New Delhi, P.O., P.S. & District New Delhi 2. Employer in relation to the Management of M/s. B.C.C.L., through its General Manager, Lodhna Area, P.O. & P.S. Bhaga, District Dhanbad --- … … Respondents CORAM: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY For the Petitioner For the BCCL For the U.O.I. 06/13th March 2024 --- ---
Legal Reasoning
: Mr. S. K. Laik, Advocate : Mr. A. K. Das, Advocate Ms. Swati Shalini, Advocate : Mrs. Nitu Sinha, Advocate 1. 2. Learned counsel for the parties are present. This writ petition has been filed for the following reliefs: - “for issuance of an appropriate Writ/Order/Direction from this Hon’ble Court for quashing Office Order dated 05.3.2019 (Annexure-5) passed by Respondent no. 1 whereby and where under the prayer made by the petitioner for adjudication of the dispute has been refused; And An appropriate writ/order/direction commanding upon the respondent no. 1 to immediately and forthwith make a reference of the dispute raised by the petitioner in relation to illegal and arbitrary dismissal of Satilal Manjhi and denial of dependent employment by the Management of Joyrampur Colliery of M/s. B.C.C.L. to an appropriate Industrial Tribunal for adjudication. And For any other relief/reliefs as your Lordships may deem fit and proper.” 3. The learned counsel for the petitioner while challenging the impugned order as contained in Annexure – 5 has submitted that the industrial dispute was raised by the petitioner union challenging the order of dismissal of the ex- employee namely Shantilal Manjhi who was dismissed in the year 2010 and expired in the year 2016 and consequently had also raised the dispute regarding denial of dependent employment by the respondent-Management. 4. The learned counsel submits that the Central Government has exceeded the jurisdiction by adjudicating the dispute while refusing to refer the dispute 2 for adjudication by industrial tribunal and therefore the impugned order calls for interference. 5. The learned counsel has relied upon the judgments passed by the Hon'ble Supreme Court in the case of Telco Convoy Drivers Mazdoor Sangh and another Vs. State of Bihar and others reported in (1989) 3 SCC 271 para 11 and 13 and also orders passed by this Court reported in 2010 (4) JLJR 693 (Sri Ram Ratan Ram Vs. Union of India and another) wherein the aforesaid judgment passed by the Hon'ble Supreme Court has been followed and has also relied upon the judgment passed by the Hon'ble Supreme Court reported in (2009) 11 SCC 609 (Sarva Shramik Sangh Vs. Indian Oil Corporation Ltd.) and 2015 (2) JLJR 95 (Bihar Colliery Kamgar Union Vs. Union of India). 6. The learned counsel for the respondents on the other hand has opposed the prayer and has submitted that the impugned order does not call for any interference; he submits that the claim is a stale claim. He submits that the ex- employee was dismissed in the year 2010 and expired in the year 2016 and the Union raised the dispute at the instance of the son of the ex-employee who claimed compassionate appointment after death of his father. 7. The learned counsel has relied upon the judgment passed by the Hon'ble Supreme Court reported in (2015) 15 SCC 1 (Prabhakar Vs. Joint Director and another) para 12 and 42 and judgment reported in (2000) 3 SCC 93 (Secretary, Indian Tea Association Vs. Ajit Kumar Barat and others) para 7.1, 10 and 11 and has reiterated that the claim is a stale claim. He has also submitted that no industrial dispute exists or is apprehended for the reason that the ex-employee never challenged his order of dismissal for 6 years and the cause of action does not revive after his death. 8. After hearing the learned counsel for the parties and considering the facts and circumstances of this case, this Court finds that an industrial dispute was raised by the petitioner-Union challenging the order of dismissal of the ex- employee, namely, Shantilal Manjhi who was dismissed in the year 2010 and expired in the year 2016 and consequently had also raised the dispute regarding denial of dependent employment by the respondent management. 9. The impugned order refusing to refer the dispute is contained in
Decision
Annexure-5 of the writ petition which is quoted as under: - “To, 1. The General Manager, Lodna Area of M/s. BCCL, 3 P.O. Bhaga, Dhanbad (Jharkhand) - 828115 2. The Secretary, Bihar Colliery Kamgar Union, Jharnapara, Hirapur, Dhanbad (Jharkhand) - 826001 Subject: ID over alleged illegal and arbitrary dismissal of Santilal Manjhi and denial of dependent employment by the management of Joyrampur Colliery of M/s. BCCL. Sir, I am directed to refer to the Failure of Conciliation Report No. 1/(53)/2016 E.S. dated 09/01/2019 from the ALC Dhanbad (Jharkhand) received in this Ministry on 25/01/2019 on the above mentioned subject and to say that, prima facie, this Ministry does not consider this dispute fit for adjudication for the following reasons: “Shri Shekhar Hansda, the dependent son of Late Santilal Manjhi is not entitled for compassionate employment under the provision of NCWA (clause 9.4.0) as the provisions are applicable to those who expires or permanently disabled during the service period, whereas his father expired in the year 2016, who was dismissed by the company in 2010.” Yours faithfully Sd/- (M. K. Singh) Section Officer, T.No.-23473148 Email-Singh,[email protected]” 10. The petitioner-Union had raised an industrial dispute vide letter dated 23.08.2016 alleging illegal dismissal of Shantilal Manjhi vide order dated 18.01.2010. It was alleged that he was dismissed from service after conducting invalid and irregular enquiry and that the concerned workman died on February, 2016 due to poverty and denial of medical facilities and after his death, the dependent son was seeking compassionate appointment. The dispute was raised challenging the order of dismissal and upon setting-aside the order of dismissal, the dispute was also in connection with compassionate appointment of the son. 11. Before the concerned authority, the respondent opposed the prayer to refer the dispute before the Assistant Labour Commissioner (Central) by stating that the ex-employee after dismissal in the year 2010 died in the month of February, 2016 and there was no provision to provide employment of dependent of dismissed employee. 12. A rejoinder to the stand taken by the Management was filed before the concerned authority by stating that the alleged dismissal letter was never received by Late Shantilal Manjhi. The stand of the respective parties were 4 recorded vide order dated 09.01.2019 whereby the Assistant Labour Commissioner (Central), Dhanbad-III submitted a failure report and recorded as under: “The dispute was jointly discussed on 07.09.2016 which was adjourned to various dates and finally on 12.07.2018, when both the parties were present, the dispute was seized into conciliation and the Conciliation Officer suggested for arbitration but the parties did not agree for the same as according to them they prefer adjudication rather than arbitration. In view of the same the proceedings have been concluded as conciliation failed.” 13. Upon receipt of such report, the impugned order dated 05.03.2019 whose text has been quoted above has been passed. 14. From the perusal of the impugned order, it appears that the Ministry did not agree to refer the dispute for adjudication by stating that the ex-employee Shantilal Manjhi had expired in 2016 and was dismissed earlier in 2010 and therefore his son is not entitled for compassionate appointment. 15. This Court finds that a plea was raised by the petitioner in rejoinder that the letter of dismissal was never received by Late Shantilal Manjhi and upon perusal of the impugned order dated 05.03.2019, this court finds that the refusal for reference is not on account of delay rather the refusal is by recording that the ex-employee was dismissed in 2010 and had expired in 2016. 16. This Court is of the considered view that in the judgment passed by the Hon’ble Supreme Court reported in (2015) 15 SCC 1 (supra) numerous judgments have been considered including the judgment reported in (2000) 2 SCC 455 (Nedungadi Bank Ltd. vs. K.P. Madhavankutty & Others) and it has been held in paragraph 28 that the law of limitation does not apply to proceedings under Industrial Disputes Act, 1947 and the word “at any time” used in Section 10 would support that there is no period of limitation in making the order of reference, but at the same time, the appropriate Government has to keep in mind as to whether the dispute is still existing / live dispute and has not become a stale claim and if that is so, the reference can be refused. It has also been held that the point as to whether a dispute is alive or it has become stale/non-existent at the time when the workman approaches the appropriate Government is an aspect which would depend upon the facts and circumstances of each case and there cannot be any hard-and-fast rule regarding the time for making the order of reference. 5 17. Further in the judgment passed by the Hon’ble Supreme Court reported in (2000) 3 SCC 93 (supra), the prerequisites for making a reference under Section 10 of the Industrial Disputes Act has been considered, which are (i) forming an opinion as to whether the employee concerned was a workman, and (ii) considering as to whether an industrial dispute existed or was apprehended and the scope of judicial review has also been considered in the said judgment. 18. In the judgment passed by the Hon’ble Supreme Court reported in (1989) 3 SCC 271 (supra), it has been held in paragraph Nos. 11 and 13 as under: - “11. It is true that in considering the question of making a reference under section 10(1), the Government is entitled to form an opinion as to whether an industrial dispute "exists or is apprehended", as urged by Mr. Shanti Bhusan. The formation of opinion as to whether an industrial dispute "exists or is apprehended" is not the same thing as to adjudicate the dispute itself on its merits. In the instant case, as already stated, the dispute is as to whether the convoy drivers are employees or workmen of TELCO, that is to say, whether there is relationship of employer and employees between TELCO and the convoy drivers. In considering the question whether a reference should be made or not, the Deputy Labour Commissioner and/or the Government have held that the convoy drivers are not workmen and, accordingly, no reference can be made. Thus, the dispute has been decided by the Government which is undoubtedly, not permissible. 13. Attractive though the contention is, we regret, we are unable to accept the same. It is now well settled that, while exercising power under section 10(1) of the appropriate Government is an administrative function and not a judicial or quasi- judicial function, and that in performing this administrative function the Government cannot delve into the merits of the dispute and take upon itself the determination of the lis, which would certainly be in excess of the power conferred on it by section 10 of the Act. See Ram Avtar Sharma v. State of Haryana; M.P. Irrigation Kararnchari Sangh v. The State of M.P.; Shambhu Nath Goyal v. Bank of Baroda, Jullundur. function of the Act, the 19. In another judgment passed by the Hon’ble Supreme Court reported in (1994) 1 SCC 292 (Shri Rameshwar Manjhi vs. Management of Sangramgarh Colliery & Others), it has been held that on the death of the workman, even when the reference is of an individual dispute under Section 2- A of the Act, the Tribunal does not become functus officio or the reference does not abate merely because, pending adjudication, the workman concerned dies. It is open to the heirs and legal representatives of the deceased workman to have the matter agitated and decided. It has also been held that by and large the industrial disputes under Section 2-A of the Act relate to the termination of services of the concerned workman and final determination of the issue may result in certain benefits as successors of the deceased workman. 20. The stand which was taken by the respondents before the Assistant Labour Commissioner does not reflect that any such stand was taken with 6 regard to the dispute being stale or that the ex-employee had accepted the order of dismissal and thereby abundant his right to challenge the order of dismissal. The gap between the order of dismissal and the date on which the industrial dispute was raised was six years. 21. This Court finds that the dispute which is sought to be raised in the present case is after the death of the ex-employee who was dismissed in 2010 and expired in 2016. The dispute was raised in 2016. The dispute was not only in connection with the termination of the ex-employee but also regarding a benefit of compassionate appointment which was claimed to be arising as per law. This court is of the considered view that merely because the ex-employee had expired in 2016 that by itself is not sufficient to hold that the reference itself will not be maintainable as has been held vide Annexure-5 which is impugned in the present case. There could also be other benefits like family pension etc in case the dismissal of the ex-employee is found to be illegal. The cause of action does not extinguish merely by virtue of the death of the ex- employee. 22. Considering the aforesaid stand which has been taken by the petitioner in the rejoinder as contained in Annexure-3 dated 12.07.2018 filed before the Assistant Labour Commissioner (Central), Dhanbad, the communication of the order of dismissal is itself an important aspect as a specific stand has been taken that the order of dismissal was never communicated to the ex-employee. Such aspect of the matter is required to be adjudicated before holding that the ex-employee had accepted his order of dismissal for one or the other reason. 23. In the aforesaid circumstances, this court is of the considered view that the reference could not have been denied merely because the ex-employee had expired in 2016 and was earlier dismissed in 2010. The right of the legal heir to question the legality and validity of termination way back in the year 2010 does not extinguish by virtue of death of the ex-employee in 2016 and the point as to whether the order of dismissal was communicated to the ex-employee and whether it was accepted by the ex-employee requires adjudication. The issue as to whether the ex-employee had abundant his right to challenge the order of termination is itself a matter of evidence which is required to be considered through proper adjudication and the denial of reference vide Annexure-5 cannot be sustained in the eyes of law. 7 24. In view of the aforesaid facts and circumstances, the impugned order as contained in Annexure-5 cannot be sustained in the eyes of law which is accordingly set-aside. 25. The matter is remanded back to the respondent No. 1 for fresh consideration and pass appropriate order in the light of the observations made by this Court. 26. This writ petition is accordingly disposed of with the aforesaid observations and directions. 27. Pending I.A., if any, is closed. Mukul (Anubha Rawat Choudhary, J.)