Allowed

General Manager Ms Bharat Coking Coal Ltd. v. Their Workman Being Represented by the Vice President

Jharkhand HC20 Feb 2024WPC/4627/2014

Case brief

AI extract

What is this about?

Management challenged a tribunal award granting a dismissed workman compensation or reinstatement for non-compliance with Section 25-F. The High Court held that dismissal by way of disciplinary action falls outside the definition of retrenchment under Section 2(oo), so Section 25-F did not apply, and quashed the award.

What did the court decide?

Impugned tribunal award dated 30.08.2013 in Reference No.283 of 1999 quashed and set aside; writ petition allowed.

General Manager Ms Bharat Coking Coal Ltd… — Labour and Industrial Disputes | Jharkhand HC (2024)

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W.P.(L) No.4627 of 2014

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IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(L) No.4627 of 2014

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General Manager, Sijua Area of M/s Bharat Coking Coal Ltd. P.O.Sijua, P.S. Jogta, Dist. Dhanbad through Sri Jai Prakash Gupta, S/OSri B.R. Gupta, General Manager, Sijua area, At Present resident of G.M. Bungalow at Kenduadih, P.O. Kusunda, P.S. Kenduadih, Dist. Dhanbad … Petitioner

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Versus

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Their workman, being represented by The Vice-President, Rastriya Colliery Mazdoor Sangh, Rajendra Path, Dhanbad, P.O., P.S. and … Dist. Dhanbad Respondent

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For the Petitioner : Mr. Anoop Kumar Mehta, Advocate For the Respondent : None

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P R E S E N T

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HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

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By the Court:- Heard the learned counsel for the petitioner.

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No one turns up on behalf of the respondent in spite of repeated calls.

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This Writ Petition has been filed under Article 226 of the Constitution of India inter alia with a prayer to quash the award dated 30.08.2013 passed by the Learned Presiding Officer, Central Government Industrial Tribunal No.2, Dhanbad in Reference No.283 of 1999, the copy of which has been kept at Annexure-1 of this Writ Petition.

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The brief facts of the case is that the Government of India, Ministry of Labour, in exercise of the powers conferred upon it under Section 10 (1) (d) of the Industrial Disputes Act, 1947 referred the following dispute for adjudication to the Central Government Industrial Tribunal No.2, Dhanbad:-

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“Whether the action of the management of Nichitpur Colliery of Sijua Area of M/s B.C.C.L. in dismissing

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W.P.(L) No.4627 of 2014

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the service of Shri Jhari Das .w.e.f., 25.4.1997 is proper, legal and justified? If not, what relief the workman is entitled to?”

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The case of the workmen through his sponsoring union is that the workman suddenly fell ill at his native village when he had gone to see his ailing mother. But after conducting an enquiry, the workman was dismissed from the service contrary to the rule of natural justice as he was neither informed of the charge-sheet nor allowed full chance for his defence. It was contended on behalf of the workman that the termination from the service of the respondent-workman was on the basis of perverse enquiry against the law of the land and the punishment should be proportionate to the gravity of the misconduct established. The Management on the other hand, replied in its written-statement that the workman- Sri Jhari Das was absent from duty from 25.06.1993 to 17.10.1993 and again from 27.09.1997 without leave for which he was warned and thereafter he again unauthorizedly absented from 19.10.1996 for which he was issued charge-sheet dated 31.01.1997 under 26.1.1. of the Standing Order of the Colliery applicable to the workman. As the reply of the workman was found not satisfactory, the domestic enquiry was held against him by the Enquiry Officer concerned following the Rules of Natural Justice in which the workman fully participated. The Enquiry Officer found the charges fully proved against the workman and submitted the enquiry report to the Project Officer, Nichitpur Colliery who after perusal of it recommended to the General Manager for dismissal of the workman. The General Manager after going through the enquiry report approved the dismissal order dated 28.03.1997 and accordingly, the workman was dismissed from service by the management of the colliery as per the order dated 25.04.1997.

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W.P.(L) No.4627 of 2014

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The Presiding Officer, Central Government Industrial Tribunal No.2, Dhanbad though in para-7 of the impugned award has observed that undoubtedly the workman appears to be a habitual unauthorized absentee; accordingly he was dismissed by the competent authority from service with immediate effect from 29.03.1997 but his sudden termination from service without compliance to the mandatory provisions of Section 25-F of the Industrial Disputes Act, 1947 appears to be quite unfair and illegal and went on to answer the award in the affirmative and by holding that the termination of service of Sri Jhari Das by the Management of Nichitpur Colliery of Sijua Area, BCCL is neither just nor proper nor legal and the workman shall be entitled to compensation equivalent to fifteen days average pay for every completed year of his continuous service on any part thereof in excess of six months, if not superannuated, otherwise he would be entitled to re-instatement without back wages.

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Mr. Anoop Kumar Mehta- learned counsel for the petitioner submits that Section 25-F of the Industrial Disputes Act, 1947 provides for condition precedent to retrenchment of workman. Drawing attention of the Court to Section 2 (oo) of the Industrial Disputes Act, 1947 which reads as under:-

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2. (oo) “retrenchment” means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include—

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(a) voluntary retirement of the workman; or

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(b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or

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[(bb) termination of the service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or]

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(c) termination of the service of a workman on the ground of

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W.P.(L) No.4627 of 2014

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continued ill-health;” (emphasis supplied)

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it is submitted that the termination of service of a workman by the employer as a punishment inflicted by way of disciplinary action, does not come within with purview of retrenchment and as undisputedly in this case, the respondent-workman was dismissed from the service as a punishment inflicted by way of disciplinary action, so the dismissal of the petitioner cannot be termed as retrenchment and as the respondent-workman was not retrenched, the condition precedent as is applicable for retrenchment of the workman, is not required to be complied with by the management and the Central Government Industrial Tribunal No.2, Dhanbad committed a grave error and perversity by overlooking the fact that the dismissal of the respondent-workman was by way of punishment being not retrenchment, the management was not required to follow the provisions of Section 25-F of the Industrial Disputes Act, 1947. Hence, it is submitted that the impugned award dated 30.08.2013 passed by the Learned Presiding Officer, Central Government Industrial Tribunal No.2, Dhanbad in Reference No.283 of 1999, be quashed and set aside.

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Having heard the submission of the learned counsel for the petitioner and after going through the materials available in the record, this Court finds force in the submission of the learned counsel for the petitioner. It is needless to mention that the condition precedent, as envisaged in Section 25-F of the Industrial Disputes Act, 1947 is attracted only in case of retrenchment of a workman and as already mentioned above as is evident from the definition of retrenchment as mentioned in Section 2 (oo) of the Industrial Disputes Act, 1947; the plain reading of the same reveals that termination of the services of

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W.P.(L) No.4627 of 2014

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the workman as a punishment inflicted by way of a disciplinary action, does not come within the scope of the definition of retrenchment, as provided for in Section 2 (oo) of the Industrial Disputes Act, 1947.

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Hence, certainly the Central Government Industrial Tribunal No.2, Dhanbad committed a perversity by ignoring the fact that since the petitioner was dismissed not by way of retrenchment so, the management was not required to follow the condition precedent as provided for in Section 25-F of the Industrial Disputes Act, 1947. Hence, the impugned award dated 30.08.2013 passed by the Learned Presiding Officer, Central Government Industrial Tribunal No.2, Dhanbad in Reference No.283 of 1999 being a perverse one, is not sustainable and has been passed in erroneous application of law. Hence, the same is liable to be quashed and set aside.

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Accordingly, the award dated 30.08.2013 passed by the Learned Presiding Officer, Central Government Industrial Tribunal No.2, Dhanbad in Reference No.283 of 1999 is quashed and set aside.

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In the result, this Writ Petition stands allowed.

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(Anil Kumar Choudhary, J . )

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High Court of Jharkhand, Ranchi Dated the 20^th of February, 2024 AFR/ Animesh

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General Manager Ms Bharat Coking Coal Ltd. v. Their Workman Being Represented by the Vice President

Case brief

What is this about?

What did the court decide?

General Manager Ms Bharat Coking Coal Ltd. v. Their Workman Being Represented by the Vice President

Case brief

What is this about?

What did the court decide?

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