Supreme Court of India
BIRA KISHORE NAIKversusCOAL INDIA LTD. & ORS.
- Citation
- 1986 INSC 111
- Decided
- 7 May 1986
- Disposal
- Dismissed
- Bench
- O CHINNAPPA REDDY
Holding
Natundihi Pahariabera Colliery was not a coal mine on the appointed day, was not listed in the Schedule of the Nationalisation Act, and therefore Section 14 does not apply; consequently, no mandamus can be issued directing the Central Government to treat the petitioners as its employees.
Summary
The petition filed by B.K. Naik and 700 workmen sought a writ of mandamus directing the Central Government to declare that Natundihi Pahariabera Colliery had vested in it and to treat the petitioners as its employees with back wages under Section 14 of the Coal Mines (Nationalisation) Act, 1973. The Court examined whether the colliery qualified as a “coal mine” under Section 2(b) of the Coal Mines (Taking Over of Management) Act, 1973 on the appointed day of 31 January 1973 and whether it was listed in the Schedule of the Nationalisation Act. It found no evidence of mining operations on that date, noted the lease‑holder’s failure to give the statutory notice, and observed that the colliery was not included in either Schedule. Consequently, Section 14 did not apply and the Central Government had no duty to issue a notification under the proviso to Section 3(2) of the Management Act because the pre‑condition of a mine’s existence on the appointed day was not satisfied. The petition for mandamus and the claim for arrears of wages were therefore dismissed. The judgment reaffirmed that protection under Section 14 is limited to mines specified in the Schedule and that the burden of proving a mine’s existence lies on the claimant.
Issues considered
- The applicability of Section 14 of the Coal Mines (Nationalisation) Act, 1973 to workmen employed in a mine not specified in the Schedule.
- Whether Natundihi Pahariabera Colliery qualified as a ‘coal mine’ under Section 2(b) of the Coal Mines (Taking Over of Management) Act, 1973 on the appointed day (31 January 1973).
- The existence of a legal duty on the Central Government to issue a notified order under the proviso to Section 3(2) of the Management Act when it had knowledge of the mine’s existence.
- The allocation of the burden of proof to establish the existence of a coal mine on the appointed day.
- The propriety of granting a writ of mandamus directing the Central Government to take over the colliery and treat the petitioners as its employees.
- The entitlement of the petitioners to arrears of wages under Section 14 of the Nationalisation Act.
Legislation cited
- Coal Mines (Nationalisation) Act, 1973s. 14, s. 2(b), s. 3(2) proviso, s. 3(3) (as amended), s. 3(5), s. 5(1)
- Coal Mines (Nationalisation) Amendment Act, 1976s. 3(3)
- Coal Mines (Taking Over of Management) Act, 1973s. 14, s. 16, s. 2(b), s. 3(1), s. 3(2), s. 3(5), s. 6, s. 7
- Industrial Disputes Act, 1947
- Mines Act, 1952s. 17
- Payment of Wages (Mines) Rules, 1956s. 2-A(1)
Subjects
Coal Mines (Nationalisation) ActCoal Mines (Taking Over of Management) ActSection 14Writ of MandamusEmployment rightsBurden of proofSchedule of ActNationalisationArticle 32WorkmenLease termination
Judgment
1044
BIRA KISllORE NAIK
A v.
roAL INDIA LTD. & <XlS.
MAY 7, 1986
(0. CHINNAPPA REDDY AND K.N. SINGH, JJ,]
E Coal Mines (Nationalisation) Act, 1973 - S.14 - Benefit
of - When available.
Coal Mines (Taking Over of Management) Act, 1973 - -1-
s.3(2) proviso - Notification by Central Government - Whether
existence of a coal mine on the appointed day as defined by
c 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
D
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
E
workmen. Respondent No. 4 was prevented from working the coal A
mine in view of the nationalisation of the coal mines under
F
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
G 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 Govern-
ment and to work the colliery by employing the workmen and to ~
pay them arrears of their wages with effect from April, 1980.
H
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 A
-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 B
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 Govern-
ment company) it was contended: (i) that respondent No.4 had
obtained lease for extracting coal in the said colliery but he c
~- 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 D
Nationalisation (Amendment) Act, 1976 coal mine leases includ-
ing 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 Manage-
ment Act or under the Nationalisation Act; and (iv) that the E
-
petitioner and other workmen who may have been employed by
respondent No.4 have no right to be the e~loyees 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 G
specified in the Schedule to that Act. Since the colliery in
question was not specified in the Schedule to the Nationalisa-
i 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]
H
1046 SUPREME COURT REPORTS [1986] 2 s.c.R.
A 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-{;]
B
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]
c 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
D 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 declara-
tion 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
E 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 y--.
said colliery, the petitioner and other employees, even if,
-
F they had been working in the said colliery could not get bene-
fit of s.14 of the Nationalisation Act. [1055 B-D; 1054 D-E] f
5. If in reality respondent No.4 had carried on mining
operations then there could be conclusive proof in his posses-
sion, including the appointment of a Manager to carry on min-
G ing 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 open-
ing 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
H
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 A
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 B
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 c
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 D
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-<;]
E
8, The said colliery was not a coal mine on the
l appointed day and neither its management nor its ownership F
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 G
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 H
petitioner. [1057 F-H; 1058 A-C]
1048 SUPREME COURT REPORTS [1986) 2 s.c.R.
Central Coal Fields Ltd. v. Blmbaneswar Singh, [ 1984) 4
A 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.
c
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
D 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
E 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 compo-
site 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
F comprising Natundihi Pahariabera Colliery from the Government l
of West Bengal. According to the petitioner Subodhchandra T
Mondal after obtaining permission from the authorities com-
menced 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
G 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 representa-
tions to the Government of West Bengal, the Coal India and the
H Central Government nothing was done to alleviate their hard-
ship. The petitioner has asserted that they have been thrown
B.K. NAIK v. COAL INDIA LTD. [SINGH, J.] 1049
out of employment although under sec. 14 of the Nationalisa-
j tion Act they continue to be the employees of the Central A
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 assert-
ed 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 B
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 c
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 D
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
E
country, and for matters connected therewith or incidental
l thereto. t1 Section 2(b) of the Act defines a coal mine to mean
F
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
G
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 H
Scllelulel' evyv ~rspn tnfhfrye of a coal mine shall within 30
1050 SUPREME COURT REPORTS [1986] 2 S.C.R.
A 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
B of employment entered into by the owner or agent of the coal
mine, any time before the appointed day by giving one month'st-
notlce 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
c 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
D 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
-
E 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 -
F
(i) the Central Government or a Government company
or a corporation owned, managed or controlled by
f
the Central Government, or
(ii) a person to whom a sub-lease, referred to in
G 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
'r
and steel, shall carry on coal mining operation, in
India, in any form.
H
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 1l
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,
J
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 c
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 D
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 E
-- 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. F
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 cons~rve the coal deposits. The G
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 Sc~edule to the i\ct was taken over pending
nationalisation of the same• ~e management of the coal mines
H
1052 SUPREME COURT REPORTS [1986] 2 s.c.R.
A
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
B 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
c 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
D 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.
E 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
-
F 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
G 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
H n'\tionalisation of coal mines a number of persons holding coal
B.K. NAIK v. COAL INDIA LTD. [SINGH, J.] 1053
A
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 c
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, D
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 produc-
tion 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
-
E
Government Company or a Corporation shall stand terminated in
so far as they relate,to winning or minlng of coal. The pur-
pose 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 F
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. G
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
I
, Constitution of India. According to his submissions the
qu~stions raised in the petition relate to employment which do
not involve enforce!llE!nt of any fundamental right under the
H
1054 SUPREME COURT REPORTS [1986] 2 s.c.R.
..
A
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
B 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 hls~t
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
c 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
D 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
-
E
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 '
F nationalised and specified in the Schedule to the Nationalisa-
tion 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 Sdbodh-
chandra Mondal are not entitled to the benefit of sec. 14 of
the Nationalisation Act. Faced with this situation counsel for
G
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
H
B.K. NAIK v. COAL INDIA LTD. [SINGH, J,] 1055
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 B
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 c
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 D
the Act. There is a qerious dispute about the existence of
j 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.
A
E
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 F
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 G
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
H
1056 SUPREME COURT REPORTS [1986] 2 S.C.R.
A
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 direc-
B tions 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-t-
produced before us, containing endorsement of the Labour
Enforcement Officer dt. 29th November, 1979. The register
c 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
D 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, co1mmmica-
tion 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
E the Mines Act, 1952, assessment of payment of royalty on coal, A
annual returns required to be filed with the Labour Enforce-
ment 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-~
F 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
B.K. NAIK v. COAL INDIA LTD. [SINGH, J.) 1057
A
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 B
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
I intimation to the Central Government. The Management Act and
the Nationalisation Act both provide for pa~nt of amounts as c
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 Manage- D
ment Act or the Nationalisation Act. Absence of such intima-
tion 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
._declaration for taking over the management of Natundihi E
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 F
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.
G
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
1058 SUPREME COURT REPORTS [1986] 2 S.C.R.
A
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
B 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
c
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.
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