EMPLOYERS IN RELATION TO THE MANAGEMENT OF BHALGORA AREA (NOW KUSTORE AREA) OF M/S BHARAT COKING COAL LTD.versusWORKMEN BEING REPRESENTED BY JANTA MAZDOOR SANGH

                         [2021] 6 S.C.R. 77                            77


    EMPLOYERS IN RELATION TO THE MANAGEMENT                            A
     OF BHALGORA AREA (NOW KUSTORE AREA) OF
           M/S BHARAT COKING COAL LTD.
                                 v.
            WORKMEN BEING REPRESENTED BY
               JANTA MAZDOOR SANGH                                     B

                  (Civil Appeal No. 4901 of 2021)
                      SEPTEMBER 07, 2021
  [SANJAY KISHAN KAUL AND HRISHIKESH ROY, JJ.]
                                                                       C
       Labour Laws – Appointment – Illegal practices –
Management of a Government undertaking terminated 38 workmen
on the ground that they, in connivance with a Personnel Manager
and a Dealing Assistant, dishonestly secured appointments –
Industrial Tribunal concluded that the Management failed to
substantiate the charge of manipulated appointment – Concerned         D
workmen were directed to be reinstated with 50% back wages –
Single Bench of High Court allowed writ petition in favour of the
Management – LPA – Division Bench however decided in favour
of the workmen – On appeal, held: The appointees did not figure
in either of the lists, sponsored by the jurisdictional Employment
                                                                       E
Exchange and were beneficiaries of a fraudulent process –
Moreover, the contradictory stand of the workmen at different
stages would suggest that they were conscious and aware of being
appointed through a non-bonafide process – In any case, the
appointments were contrary to the requirements of the 1959 Act –
Fraudulent practice to gain public employment cannot be                F
countenanced to be permitted by a Court of law – The sanctity of
public employment, as a measure of social welfare and a significant
source of social mobility, must be protected against such fraudulent
process which manipulates and corrupts the selection process –
The Courts as sentinel of justice must strive to ensure that
                                                                       G
employment programmes are not manipulated by deceitful
middlemen, thereby setting up a parallel mechanism of Faustian
Bargain – One cannot condone false projections so as to
circumvent the statutorily prescribed procedure for appointments
– Such illegal practices must be interdicted by the Courts –
                                                                       H
                                77
78           SUPREME COURT REPORTS                      [2021] 6 S.C.R.


A    Employment Exchange (Compulsory Notification of Vacancies) Act,
     1959.
           Allowing the appeal, the Court
            HELD:1. The Single Judge of the High Court should not
     have been overruled by the impugned judgment by ignoring the
B    key fact that the appointees did not figure in either of the lists,
     sponsored by the jurisdictional Employment Exchange and that
     they were beneficiaries of a fraudulent process. Enough materials
     were presented to the Tribunal to justify the action against the
     illegally appointed workmen, and as such the appellants cannot
C    be made to suffer the consequence of the misconduct of their
     two errant employees against whom, disciplinary actions were
     taken by the Management. Moreover, the contradictory stand
     of the workmen at different stages would suggest that they were
     conscious and aware of being appointed through a non-bonafide
     process. In any case, the appointments were contrary to the
D
     requirements of the the Employment Exchange (Compulsory
     Notification of Vacancies) Act, 1959. [Para 14][83-H; 84-A-B]
            2. Fraudulent practice to gain public employment cannot
     be countenanced to be permitted by a Court of law. The
     workmen here, having hoodwinked the Government
E    Undertaking in a fraudulent manner, must be prevented from
     enjoying the fruits of their illgotten advantage. The sanctity of
     public employment, as a measure of social welfare and a
     significant source of social mobility, must be protected against
     such fraudulent process which manipulates and corrupts the
F    selection process. Employment schemes floated by the State for
     targeted groups, can absorb a finite number of workmen. To
     abuse the legitimate process therefore would mean deprivation
     of employment benefits to rightful beneficiaries. The Courts as
     sentinel of justice must strive to ensure that such employment
     programmes are not manipulated by deceitful middlemen,
G
     thereby setting up a parallel mechanism of Faustian Bargain.
     Often, desperate job aspirants’ resort to such measures to
     compete for limited vacancies, but this Court cannot condone
     false projections so as to circumvent the statutorily prescribed
     procedure for appointments. Such illegal practices must be
H    interdicted by the Courts. [Para 17][85-E-H; 86-A]
EMPLOYERS OF M/S BHARAT COKING COAL LTD. v. WORKMEN                    79
        BEING REP. BY JANTA MAZDOOR SANGH

     3. The reversal of the well-reasoned order of the Single          A
Judge is found to be unjustified. The LPA judgment is set aside
and the decision of the Single Judge is restored. [Para 18][86-
B]
      Union of India v. M.Bhaskaran, (1995) Supp. 4 SCC
      100 : [1995] 4 Suppl. SCR 526 and Chairman and                   B
      Managing Director, Food Corporation of India & Ors.
      v. Jagdish Balram Bahira & Ors., (2017) 8 SCC
      670 : [2017] 11 SCR 271 – relied on.
                      Case Law Reference
[1995] 4 Suppl. SCR 526          relied on             Para 15         C
[2017] 11 SCR 271                 relied on            Para 16
      CIVIL APPELLATE JURISDICTION : Civil Appeal No.4901
of 2021.
      From the Judgment and Order dated 11.02.2016 of the High
Court of Jharkhand at Ranchi in Letter Patent Appeal Being L.P.A.      D
No.334 of 2008.
     Anupam Lal Das, Sr. Adv., Amit Sharma, Ms. Pallavi Barua,
Ms. Anisha Upadhyay, Nishant Kumar, Advs. for the appearing parties.
      The Judgment of the Court was delivered by
                                                                       E
      HRISHIKESH ROY, J.
      1. Leave granted. This appeal has been preferred by the
Management against the judgement dated 11.02.2016 in the L.P.A.
No.334/2008 whereby, the Division Bench of the High Court of
Jharkhand had set aside the order passed by the learned Single         F
Judge and restored the Award dated 28.09.2005 passed by the
Central Government Industrial Tribunal No.1 Dhanbad whereby, the
workmen-respondents were directed to be reinstated with 50% back
wages.
      2. We have heard Mr. Anupam Lal Das, learned Sr. counsel
appearing for the Management. The respondent-Union who were            G
espousing the interest of the discharged workmen, is represented by
Ms. Anisha Upadhyay, the learned counsel.
     3. The appellants are the Management of Bhalgora Area of
M/s Bharat Coking Coal Limited (‘BCCL’ for short), a Central
Government Undertaking within the meaning of Section 617 of the        H
80            SUPREME COURT REPORTS                         [2021] 6 S.C.R.


A    Companies Act, 1956. By virtue of their status, the BCCL is required
     to process their recruitment, by notifying the vacancies and
     requisitioning names from the jurisdictional Employment Exchange,
     under the provisions of the Employment Exchange (Compulsory
     Notification of Vacancies) Act, 1959 (for short, ‘the 1959 Act’)
B            4. In 1986, the BCCL decided to recruit Scheduled Castes/
     Scheduled Tribes candidates in vacancies of miners/loaders.
     Accordingly, the Management of BCCL made requisition from the
     Employment Exchange on the basis whereof, list of eligible SC/ST
     candidates for appointment was prepared. As a matter of fact, such
     list did not contain the names of any of the 38 workmen whose case is
C
     represented by the respondent-Trade Union. The allegation is that those
     38 job aspirants, in connivance with a Dealing Assistant and a Personnel
     Manager of the Bhalgora Area of BCCL, dishonestly secured
     appointments. When such fraudulent appointments was detected,
     disciplinary proceedings were drawn up against the concerned Dealing
D    Assistant and the Personnel Manager and eventually both were
     removed from service. Parallelly, Charge Memo was issued against the
     concerned miners/loaders and following the adverse finding in the
     departmental inquiry, the beneficiaries of the fraudulent appointment
     process were terminated from service.
E           5. The case of the 38 workmen was taken up by the
     respondent-Trade Union and in the Reference Case No.98 of 1994, the
     Central Government Industrial Tribunal No.1 Dhanbad (hereinafter
     referred to as, ‘the Tribunal’ for short) concluded that the Management
     failed to substantiate the charge of manipulated appointment as the
F    concerned witness i.e. the dealing clerk Jitendra Kumar Adeshra and
     the Personnel Manager PM Prasad, were not examined to prove the
     charge of unmerited appointment being secured by the workmen, in
     connivance with the said two employees of the Organization. For the
     perceived failure of the Management to justify their action, the
     termination orders were interdicted by the Tribunal and the concerned
G    workmen were directed to be reinstated with 50% back wages.
           6. Aggrieved by the Tribunal’s Award dated 28.09.2005, the
     Management filed the W.P.(L) No.1916 of 2006, challenging the finding
     and the direction of the Tribunal. The learned Single Judge noted that
     the specific case of some of the workmen in their reply to the charge-
H    memo was that their names figured in the Employment Exchange
EMPLOYERS OF M/S BHARAT COKING COAL LTD. v. WORKMEN                           81
BEING REP. BY JANTA MAZDOOR SANGH [HRISHIKESH ROY, J.]

sponsored list, sent from Bhowra area to Bhalgora area and in this way,       A
they tried to show that they were legally appointed. But in their Written
Statement filed before the Tribunal in a clear departure from their earlier
stand, the workmen on the second occasion contended that their
appointments were made by the General Manager of the Bhalgora area
independently and this was not related to the Employment Exchange
                                                                              B
sponsored panel, prepared by the Bhalgora area in 1986. While analyzing
such contradictory stand, the Writ Court found that the lists sent from
the Employment Exchange to the Bhowra area (marked as Exbt.M-3
to M-3/3) and the list sent from Bhowra area to Bhalgora area (marked
as Exbt.M-4/1 to M-4/4) were available on record before the Tribunal.
The names in the lists were verified and it was found that the litigating     C
workmen did not figure in those lists. The disciplinary action taken
against the Dealing Clerk and the Personnel Manager on the charge
of facilitating fraudulent employment for the 38 workmen, was also
noted by the learned Judge. In consequence, having regard to the
materials on record, it was concluded that the Tribunal erroneously
                                                                              D
answered the reference against the Management. It was accordingly
held that the reinstatement order for the workmen, was unmerited.
Adverting to the contradictory stand of the workmen to lend legitimacy
to their appointment, the Court’s conclusion was that the Tribunal
misdirected itself in allowing the workmen to depart from the earlier
stand on the premises that the workmen were appointed by the General          E
Manager independently and without reference to the lists sent from the
Employment Exchange. On this aspect, it must be observed that the
legitimacy of the appointment cannot be tested on the touchstone of
two contradictory projections. If either one is accepted, the next one
has to be discarded. Thus, it is reasonable to hold that the appointees
                                                                              F
failed to establish that their appointments were legitimate and should
therefore, be immune from interference.
      7. It is also relevant to record herein that the Management
witness Ram Janam Sigh (M-1), who was the Deputy Personnel
Manager in Bhowra area at the relevant time, while proving the Exbt.
M-3 series and M-4 series had pointedly testified that the M-3 series         G
Exbts. were the lists received from the Employment Exchange from
which, few were appointed in Bhowra area and the remaining persons
whose names find place in M-4 series Exbts, were then appointed in
the Bhalgora area. From the materials the Court formulated that the
main question to be examined is whether the names of the workmen              H
82            SUPREME COURT REPORTS                          [2021] 6 S.C.R.


A    figured in the Employment Exchange sponsored lists. It was then found
     that they did not. The learned Judge accordingly held that the
     Management has proved that it is a case of unmerited appointment and
     the workmen were the beneficiaries of a fraudulent process.
           8. The Court was also of the view that the burden was on the
B    Union to establish that the workmen were lawfully appointed but since
     such onus was not discharged by the Union, the Writ Petition was
     allowed in favour of the Management, and against the workmen.
            9. Aggrieved by the decision of the learned Single Judge, the
     Union filed the LPA No.334 of 2008 before the High Court. The
C    Division Bench, on the perceived failure of the Management to adduce
     material to justify the termination orders, decided in favour of the
     appointees. In this way, the fraudulent process through which the
     workmen secured appointment was not given due weightage by the
     Division Bench. The fact that the names of the workmen did not figure
     in the lists sponsored by the Employment Exchange and as a corollary,
D
     the appointments would be contrary to the prescription in the 1959 Act,
     was also significantly overlooked, in the LPA proceeding. The names
     of the workmen did not as a matter of fact, figure in the Exbt.M-3 series
     and Exbt.M-4 series and yet, without regard for this most relevant
     aspect, the Division Bench erroneously concluded that the Management
E    failed to adduce requisite evidence on un-merited appointment, secured
     by the workmen.
            10. At this stage it would be relevant to state that the records of
     the domestic enquiry leading to the termination orders were made
     available by the Management to the Tribunal. All the exhibits from page
F    1 to page 454, including the approval of the General Manager for the
     discharge of the workmen on the recommendation of the Project
     Officer, the Exbt.M-2 chargesheets, as also the domestic enquiry
     proceedings were all presented to the Tribunal by the Management.
     To claim legitimacy for their appointment, few of the workmen in their
     response to the chargesheet as noted earlier, claimed that their names
G
     figured in the lists sponsored by the Employment Exchange. But in their
     Written Statement, the workmen pleaded differently and claimed that
     they were appointed by the General Manager of the Bhalgora area,
     independently and without reference to the lists from the Employment
     Exchange. Such diametrically opposite stand of the workmen on how
H    they secured appointment, (predicated on two versions which naturally
EMPLOYERS OF M/S BHARAT COKING COAL LTD. v. WORKMEN                            83
BEING REP. BY JANTA MAZDOOR SANGH [HRISHIKESH ROY, J.]

can not stand together), should have in our view, persuaded both the           A
Tribunal as also the Division Bench to answer the reference in favour
of the Management.
        11. In the present case, the Management’s consistent stand has
been that it was a case of fraudulent appointment in connivance with
the Dealing Assistant and Personnel Manager, who faced disciplinary            B
action for facilitating wrongful appointment. It is also noteworthy that
the appellant as a Government Undertaking, is under a statutory
obligation under the 1959 Act, to make appointments only through the
Employment Exchange. But this was not done in this case for the 38
litigating workmen. The names of the respondent-workmen, as earlier
noted, did not figure in either of the two lists relatable to the Employment   C
Exchange. Moreover, the workmen, as can be seen, failed to discharge
their burden and took the contradictory stand in a desperate attempt to
convey legitimacy to their appointment.
       12. We must also be conscious of the fact that departmental
action was taken by the appellant against the errant Personnel Manager         D
and the Dealing Assistant, for their misconduct in facilitating unmerited
appointment to the 38 workmen through a fraudulent process. In this
regard, usefully it can be noted that the Dealing Assistant and the
Personnel Manager were dismissed for their misconduct. For the
record, the Dealing Assistant’s dismissal was upheld by the Tribunal           E
on 13.06.2000 in the Reference No.5/97. The dismissal order against
the Personnel Manager was although interfered by the High Court but
on appeal by the Management, the case was remanded to the High
Court for fresh adjudication. Since then, the Personnel Manager has
reached the age of superannuation. These would suggest that the
appellant pursued the issue of unmerited appointment, both against the         F
facilitators and also the beneficiaries.
      13. In the above perspective, the reference in our opinion, was
erroneously answered by the Tribunal, against the Management. In the
process, the steps taken by the Management to undo the wrong done
by the two delinquent employees to facilitate unmerited appointment,           G
was undeservedly interdicted by the Tribunal.
      14. The learned Single Judge should not have been overruled by
the impugned judgment by ignoring the key fact that the appointees did
not figure in either of the lists, sponsored by the jurisdictional
Employment Exchange and that they were beneficiaries of a fraudulent           H
84               SUPREME COURT REPORTS                         [2021] 6 S.C.R.


A    process. Enough materials were presented to the Tribunal to justify
     the action against the illegally appointed workmen, and as such the
     appellants cannot be made to suffer the consequence of the misconduct
     of their two errant employees against whom, disciplinary actions were
     taken by the Management. Moreover, the contradictory stand of the
     workmen at different stage would suggest that they were conscious
B    and aware of being appointed through a non-bonafide process. In any
     case, the appointments were contrary to the requirements of the 1959
     Act.
           15. In Union of India Vs. M.Bhaskaran1, on similar facts of
     fraudulent appointment, Justice S.B. Majumdar writing for a Division
C    Bench rightly expressed the following,
              “6. …the concerned railway employees, respondents herein have
              admittedly snatched employment in Railway service, may be of
              a casual nature, by relying upon forged or bogus casual labourer
              cards. The unauthenticity of the service cards on the basis of
D             which they got employment is clearly established on record of
              the departmental enquiry held against the concerned employees.
              Consequently, it has to be held that respondents were guilty of
              misrepresentation and fraud perpetrated on the appellant
              employer while getting employed in Railway service and had
              Snatched such employment which would not have been made
E             available to them if they were not armed with such bogus and
              forged labourer cards. It was clearly a case of fraud on the
              appellant-employer. If once such fraud is detected, the
              appointment orders themselves which were found to be tainted
              and vitiated by fraud and acts of cheating on the part of
              employees, were liable to be recalled and were at least voidable
F
              at the option of the employer concerned. This is precisely what
              has happened in the present case. Once the fraud of the
              respondents in getting such employment was detected the
              respondents were proceeded against in departmental enquiries
              and were called upon to have their say and thereafter have been
G             removed from service. Such orders of removal would amount
              to recalling of fraudulently obtained erroneous appointment orders
              which were avoided by the employer- appellant after following
              the due procedure of law and complying with the principles of
              natural justice.”
     1
H        (1995) Supp. 4 SCC 100
    EMPLOYERS OF M/S BHARAT COKING COAL LTD. v. WORKMEN                             85
    BEING REP. BY JANTA MAZDOOR SANGH [HRISHIKESH ROY, J.]

      16. We also endorse the opinion of Justice D.Y. Chandrachud,                  A
writing for a three judges’ Bench in Chairman and Managing
Director, Food Corporation of India & Ors. Vs. Jagdish Balram
Bahira & Ors.2, where the Court has noted the responsibility of Courts
to guard against fraudulent employment, especially when such
appointment is obtained by perpetuating fraud upon the authorities,
                                                                                    B
         “4. …Public employment is a significant source of social mobility.
         Access to education opens the doors to secure futures. As a
         matter of principle, in the exercise of its constitutional jurisdiction,
         the court must weigh against an interpretation which will protect
         unjust claims over the just, fraud over legality and expediency
         over principle. As the nation evolves, the role of the court must          C
         be as an institution which abides by constitutional principle,
         enforces the rule of law and reaffirms the belief that claims based
         upon fraud, expediency and subterfuge will not be recognised.
         Once these parameters are established with a clear judicial
         formulation individual cases should pose no problem. Usurpation            D
         of constitutional benefits by persons who are not entitled to them
         must be answered by the court in the only way permissible for
         an institution which has to uphold the rule of law. Unless the
         courts were to do so, it would leave open a path of incentives
         for claims based on fraud to survive legal gambits and the
         creativity of the disingenuous.”                                           E
        17. Fraudulent practice to gain public employment cannot be
countenanced to be permitted by a Court of law. The workmen here,
having hoodwinked the Government Undertaking in a fraudulent
manner, must be prevented from enjoying the fruits of their ill-gotten
advantage. The sanctity of public employment, as a measure of social                F
welfare and a significant source of social mobility, must be protected
against such fraudulent process which manipulates and corrupts the
selection process. Employment schemes floated by the State for
targeted groups, can absorb a finite number of workmen. To abuse the
legitimate process therefore would mean deprivation of employment
                                                                                    G
benefits to rightful beneficiaries. The Courts as sentinel of justice must
strive to ensure that such employment programmes are not manipulated
by deceitful middlemen, thereby setting up a parallel mechanism of
Faustian Bargain. Often, desperate job aspirants’ resort to such
2
    (2017) 8 SCC 670                                                                H
86             SUPREME COURT REPORTS                        [2021] 6 S.C.R.


A    measures to compete for limited vacancies, but this Court cannot
     condone false projections so as to circumvent the statutorily prescribed
     procedure for appointments. Such illegal practices must be interdicted
     by the Courts.
            18. For the aforesaid reasons, the reversal of the well-reasoned
B    order of the learned Single Judge is found to be unjustified. The appeal
     accordingly stands allowed by setting aside the LPA judgment and
     restoring the decision of the learned Single Judge. It is ordered
     accordingly. The parties to bear their own cost.


C    Bibhuti Bhushan Bose                                       Appeal allowed.




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E




F




G




H