RASHTRIYA COLLIERY MAZDOOR SANGH, DHANBADversusEMPLOYERS IN RELATION TO MANAGEMENT OF KENDUADIH COLLIERY OF MIS BCCL & ORS.

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                                                        f:
                                  [2016] 9 S.C.R. ~~O


      A      RASHTRIYA COLLIERY MAZDOOR SANGH, DHANBAD
                                            v.
               EMPLOYERS IN RELATION TO MANAGEMENT OF
                KENDUADIH COLLIERY OF MIS BCCL & ORS.

      B                     (Civil Appeal No. I I 003 of20! 6)
                                 NOVEMBER 21, 2016
              [T. S. THAKUR, CJI, DR. D.Y. CHANDRACHUD AND
                          L. NAGESWARA RAO, JJ.]
              Industrial Dispute - Absorption or regularization - 88
      c
        workmen worked as Tyndals at Colliery - Industrial dispute seeking
        employment - Modified award. by the Industrial Tribunal wherein
        issuance of direction to the management that as and when they intend
        to employ regular workmen, preference ·would be given to these
        workmen - Said order attained finality - Thereafter, workmen sought
      D implementation of order passed by the High Court - However, no
        vacancy had arisen ever since the order of the High Court -
        Undertaking by the management that if vacancy arises in future
        and post is advertised, for which workmen apply, they would be
        considered- On appeal, held: Judgment of the High C<Jurt nwdifying
        the award by the tribunal attained finality and the workmen sought
      E
        its implementatiOn in the writ - Entitlement that the workmen claim
        must flow out of the judgment <Jf the High C<Jurt by which the
        workmen were entitled to the grant <Jf a preference in future
        employment by the management - Reliance by appellant on certain
        proceedings by Union of one of the collieries of the first respondent,
      F wherein the Supreme Court, set aside the order of Division Bench
        and restored the m11ard of the tribunal granti(ig reinstatement without
        backwages, not correct - Further, report by a Committee that there
        was no vacancy in the post of Tyndal, in which 88 workmen were
        working - In view thereof. direction issued to first respondent to
      G pay compensation of Rs. Four lakhs each to 88 workmen being of
        skilled category of Tyndals, in full and final settlement of all their
        claims.
                 Eighty eight workmen worked as Tyndals at the Colliery of the
          first respondent. Colliery Mazdoor Sangh raised an Industrial dispute
          seeking employment of88 workmen. The tribunal passed an award.
      H
                                           220
RASHTRIYA COLLIERY MAZDOOR SANGH, DHANBAD v. EMPLOYERS 221
            OF KENDUADIH COLLIERY OF MIS BCCL


The management was directed to form a panel of the workmen in . A
accordance with seniority and to absorb or regularize them either in the
work of Tyndal/suitable category within one year. The first respondent
filed a writ petition. The High Court modified the award, directing the
management that as and when they intend to employ regular workmen,
preference would be given to these workmen. The said order attained
                                                                           B
finality. Thereafter, the Union representing workmen filed a writ petition
seeking implementation of order passed by the High Court. The High
Court disposed of the writ petition as no vacancy had arisen ever since
the last order. The management gave an undertaking that if vacancy
arises in future and post is .advertised, for which workmen apply, they
would be considered for the post. Thereafter, Review petition was also c
disposed of on similar terms. Hence the present appeal.
      Allowing the appeal, the Court
      HELD: 1.1 Appellant has relied on certain proceedings
which took place in another distinct reference to the Industrial
Tribunal, at the behest of the Union representing the workmen             D
engaged in one of the collieries of the first respondent, wherein
an Award was passed directing regularization of seventy workmen
in general mazdoor category No.I. This Court set aside the
judgment of the Division Bench of the High Court and restored
the Award of the Tribunal granting reinstatement without                  E
backwages. The above judgment of this Court cannot come to
the aid of the Appellant for the simple reason that in that case,
the Union had challenged the judgment of the Division Bench of
the High Court before this Court. In the instant case, the judgment
of the High Court dated 18.05.2004 modifying the Award of the
Tribunal attained finality. The entitlement that the workmen claim        F
must hence flow out of the judgment of the High Court by which
the workmen were entitled to the grant of a preference in future
employment by the management. [Paras 5, 6) (224-B-C, D-G)
      1.2 A Committee was constituted by the first respondent
which by its report observed that there is no vacancy in the post         G
of Tyndal, category IV either in respect of Kenduadih Colliery or
the Pootkee Balihari area as a whole. Kenduadih Colliery is stated
to be a closed mine. In the Judgment of this Court Workmen
Rastriya Colliery Mazdoor Sangh v Bharat Coking Coal Ltd. CA
13953 of 2015 dated 3 October 2016, reasons were indicated as             H
222            SUPREME COURT REPORTS                        [2016] 9 S.C.R.


A   to why it would not be practicable to grant reinstatement
     particularly since such relief was denied in the judgment of the
  · High Court dated 18 May 2004, which bas not been challenged.
    This Court while declining to grant reinstatement ordered
   . payment of compensation of Rupees two lakhs each to the
     workmen. However, while taking note of the fact that two sets of
8
    workmen in the same colliery and under the same company have
     received unequal treatment, the workmen in that case were
     employed as general mazdoors and in the instant case belong to
     the skilled category of Tyndals which are comprised in category
     IV. Having due regard to this position, it would be appropriate to
c direct that the first respondent shall in full and final settlement of
     all the claims and outstandings of the eighty eight workmen
     concerned in the reference deposit an amount of Rupees four
     lakhs each per workman before the Central Government
     Industrial Tribunal (No.2). [Paras 7, 8] [226-C-G]
 D          Workmen Rastriya Colliery Mazdoor Sangh v Bharat
            Coking Coal Ltd. CA 13953 of 2015 dated October 3,
            2016 - relied on.
           CIVIL APPELLATE JURISDICTION : Civil Appeal No. 11003
      of2016.
 E          From the Judgment and Order dated 31.07.2013 of the High Court
      of Jharkhand at Ranchi in Civil Review No. 118 of20 I 0.
            R. Dash, Sr. Adv., Kautabh Shukla, Yinodh Kanna B., Advs. with
      him for the Appellant.
            Ms. Madhumita Bhattacharjee, Adv. for the Respondents.
 F          The Judgment of the Comt was delivered by
            DR. D. Y. CHANDRACHUD, J. 1. Leave granted.
            2. The dispute in the present case relates to eighty eight workmen
      who had worked as 'Tyndals' at the Kenduadih Colliery (of the first
      respondent). On 14 May 1993 a Reference was made to the Industrial
 G    Tribunal by the appropriate government under Section 10(.l)(d) of the
      Industrial Disputes Act, 194 7, of the following dispute:
            "Whether the demand of Rashtriya Colliery Mazdoor Sangh for
            employment ofShri Arjun Paswan and 87 others, as per list attached
            is justified? If so to what relief the workers are entitled".
 H
RASHTRIYACOLLIERYMAZDOORSANGH,DHANBAD v. EMPLOYERS 223
OF KENDUADIH COLLIERY OF M'S BCCL [DR. D. Y. CHANDRACHUD, J.]


The job description ofTyndals required these workmen to be engaged in         A
moving engineering stores, drums of oil and grease and they were also
responsible for setting up and dismantling of structures, as well as the
installation and withdrawal of machinery. The Industrial Tribunal by its
Award dated 16 July 1996 held that:
      "it is beyond the question that the persons worked under the            8
      contractor are genuine one who are the present workmen and
      they performed the job which was of permanent and perennial in
      nature and the person performing the same type of job in other
      collieries were regularized and so no doubt a stepmotherly attitude
      was taken so far these concerned workmen are concerned".
                                                                              c
The Tribunal directed the management to form a panel of the concerned
workmen in accordance with seniority and to absorb or regularize them
either in the work ofTyndal or in any suitable category so that the list is
exhausted within a period of one year. Backwages were denied.
       3. The first respondent filed a writ petition before the Jharkhand     D
High Court to challenge the Award (CWJC 1655 of 1997). On 18 May
2004 a learned Single Judge of the Jharkhand High Court modified the
Award of the Industrial Tribunal and directed that as and when the
management intends to employ regular workmen, it shall grant preference
to the workmen governed by the Award if they are otherwise suitable by
relaxing the requirements ofage and academic qualifications. This order       E
of the High Court attained finality.
       4. In 2007 the Union representing the workmen filed a writ petition
before the High Court (WP(L) 4915 of2007) seeking implementation of
the order dated 18 May 2004. While disposing of the writ petition on 24
September 20 I 0 the High Court recorded the statement of the                 F
management that no vacancy had occurred in the post of Tyndal since
the judgment which was rendered on 18 May 2004. However, the High
Court recorded the undertaking of the management that if any vacancy
arises in future and the post is advertised for which the workmen apply,
they would be considered for the post and that the management would           G
also accommodate them ifthere was a vacancy under any other category.
Thereafter, a Review Petition was filed before the High Court based on
information which was obtained under the Right to Information Act.
The learned Single Judge held that the employment which was granted
by the management between 2004 and 2008 (as disclosed in the response
to the RTI query on 11 September 2008) indicated that the appointment         H
    224            SUPREME COURT REPORTS                           [2016] 9 S.C.R.



    A     was made only on compassionate grounds. Once again, while disposing
          of the Review Petition the statement of the management was recorded
          that if and when posts were advertised, the workmen would be entitled
          to apply and would be considered. The rejection of the Review Petition
          has led to the filing of these proceedings.
     B           5. The Appellant has relied on certain proceedings which took
          place in another distinct reference to the Industrial Tribunal, Reference
          204of1994. The reference was atthe behest of the Union representing
          the workmen engaged in one of the collieries of the first respondent. An
          Award was made by the Industrial Tribunal on 14 August 2000 directing
r         regularization of seventy workmen in general mazdoor category No. I.
    c     The Award was confirmed by a learned Single Judge of the High Court
          on 26 July 200 I while dismissing the writ petition of the management.
          However, in a Letters Patent Appeal the Award was modified by directing
          that as and when the management intended to appoint regular workmen,
          it would grant preference to the workmen concerned in the reference, if
    D     necessary, by relaxing the conditions of age and academic qualifications.
          The Union filed a Special Leave Petition under Article 136 of the
          Constitution before this Court. This Court by a Judgment and Order
          dated 18 November 2009, set aside the judgment of the Division Bench
          of the High Court and restored the Award of the Tribunal granting
          reinstatement without backwages.
    E
                 6. The above judgment of this Court cannot come to the aid of the
          Appellant for the simple reason that in that case, the Union had challenged
          the judgment of the Division Bench of the High Court before this Court.
          In the present case, the judgment of the High Court dated 18 May 2004
          modifying the Award of the Industrial Tribunal attained finality. In fact,
     F    in their writ petition of2007 the workmen sought implementation of the
          judgment rendered on 18 May 2004. The entitlement that the workmen
          claim must hence flow out of the judgment of the High Court by which
          the workmen were entitled to the grant of a preference in future
          employment by the management by relaxing conditions of age and
    G     educational qualifications. This distinction has, in fact, been noted in a
          judgment recently delivered by this Court on 3 October 2016, in
          Workmen Rastriya Colliery Mazdoor Sangh v. Bharat Coking Coal
          Ltd. (C.A. 13953 of 1015). This Court while declining to grant
          reinstatement allowed compensation to fourteen workmen whose services
          were in issue, each in the amount of Rupees two lakhs in full and final
    H
RASHTRIYACOLUERYMAZDOORSANGH,DHANBAD v. EMPLOYERS 225
OF KENDUADIH COLLIERY OF MIS BCCL [DR. D. Y. CHANDRACHUD, J.]


settlement of all claims for compensation. The relevant part of the            A
judgment rendered by this Court on JOctober 2016 is extracted below :
      "7 The basic grievance of the workmen is that as a result of the
      position which has ensued, the workmen governed by the present
      proceedings of whom only 14 are left in the fray, are virtually
      without any relief or remedy in practical terms. 'The workmen            B
      were engaged between 1987 and 1989. Nearly 27 years have
      elapsed since then. Many of the 14 workmen would be on the
      verge of attaining the age of retirement. There is no occasion at
      present to grant them reinstatement since in any event, such relief
      has been denied in the judgment of the High Court dated 18 May
      2004 which has not been challenged. However, the predicamt';nt           c
      of the workmen is real. Two sets of workmen in the same colliery
      under the same company have received unequal treatment. The
      present group of workmeri has faced attrition in numbers and has
      been left with no practical relief. This situation should be remedied,
      to the extent that is now permissible in law, having regard to the       D
      above background. In order to render full, final and complete
      justice, we are of the view that an order for the payment of
      compensation in final settlement of all the claims, dues and
      outstandings payable to the 14 workmen in question would meet
      the ends of justice.
                                                                               E
      8 We accordingly direct that the Respondents shall deposit with
      the Central Government Tribunal (No.2) at Dhanbad an amount
      of Rs. Two lakhs each towards compensation payable to each
      one of the 14 workmen. This amount shall be in full and final
      satisfaction of all the claims, demands and outstandings. Upon
      deposit of the amount, the Award of the Industrial Tribunal dated        F
      9 September 1996, as modified by the High Court on 18 May
      2004 shall be marked as satisfied. The Respondents shall deposit
      the amount as directed hereinabove, within a period of two months
      from today before the Central Government Industrial Tribunal
      (No.2) Dhanbad in Reference 26of1993. The amount shall be
                                                                               G
      disbursed to the workmen concerned subject to due verification
      of identity by the Industrial Tribunal".
      7. In the present case, the counter affidavit filed by the first
respondent before this Court contains a specific admission that the eighty
eight workmen governed by the reference were working as 'Tyndals'
                                                                               H
226                SUPREME COURT REPORTS                       [2016] 9 S.C.R.



A     on surface as well as in underground mines through contractors at
      Kenduadih Colliery. The counter affidavit states that the reliance which
      is sought to be placed by the workmen on replies to queries under the
      Right to Infonnation Act is misleading and that the appointments in those
      cases were made by the first respondent in category I whereas 'Tyndals'
      are appointed in category IV. We may note at this stage, that during the
 B
      pendency of these proceedings an order was passed on 11 December
      2015 to enable the respondents to ascertain the position with regard to
      the vacancies in the above category. A Committee was constituted by
      the first respondent which by its report dated 2 January 2016 has observed
      that there is no vacancy in the post of Tyndal, category IV either in
 c    respect of Kenduadih Colliery or the Pootkee Balihari area as a whole ..
      Kenduadih Colliery is stated to be a closed mine. A statement has been
      annexed indicating the existence of surplus manpower.
             8. In the Judgment of this Court rendered on 3 October 2016,
      noted earlier, reasons have been indicated as to why it would not be
 D    practicable to grant reinstatement particularly since such relief was denied
      in the judgment of the High Court dated 18 May 2004, which has not
      been challenged. The workmen in that case were engaged between 1987-
      1989. Nearly twenty seven years had elapsed and many of the workll:len
      would have been on the verge of retirement. However, while taking
      note of the fact that two sets of workmen in the same colliery and under
 E    the same company have received unequal treatment, this Court ordered
      payment of compensation each in the amount of Rupees two Jakhs to
      the workmen. The workmen in that case were employed as general
      mazdoors. The workmen in the present case belong to the skilled
      category of Tyndals which as noted earlier are comprised in category
 F    IV. Having due regard to this position, in the present case, it would be
      appropriate to direct that the first respondent shall in full and final
      settlement of all the claims and outstandings of the eighty eight workmen
      concerned in the reference deposit an amount of Rupees four lakhs
      each per workman before the Central Government Industrial Tribunal
      (No.2) Dhanbad in Reference 54of1993. The amount shall be disbursed
 G    to the workmen concerned subject to due verification of their identity by
      the Industrial Tribunal. This amount shall be in full and final satisfaction
      of all claims, demands and outstandings payable to the workmen.
             9. The Civil Appeal shall stand allowed in the above terms. There
      shall be no orders as to costs .
.H    Nidhi Jain                                                    Appeal allowed.