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Judgment
D.G.R. Patnaik, J.—Heard.
The petitioner, being the management of Sumadih area of M/s BCCL in Eastern Jharia Area, has in this writ application challenged award dated 20.05.2003 passed by the Central Government Industrial Tribunal No. 2, Dhanbad, in reference case No. 23/1996 whereby, while answering the reference in favour of the workman, the Tribunal had directed the management to allow the concerned workman to resume his duty and to pay him 50% back wages with effect from 1978.
The terms of reference of the dispute as made by the Central Government to the Tribunal for adjudication is as follows:
Whether the Union is justified in demanding from the management of Pathardih Colliery of BCCL resumption of his services retrospectively with effect from 1978 of Sri Umapada Thakur, Explosives Carrier? If so, to what benefit the concerned workman is entitled and from which date?
The case of the workman is pleaded by him before the Tribunal was that being employed as an Explosive Carrier at the Pathardih colliery of the Respondent-BCCL and ever since the date of his appointment, he had rendered his continuous service by putting in 240 days attendance continuously in each calender year. However, with effect from 1978, he was stopped from working without assigning any reason and without complying the mandatory provisions of notice as per Section 25F of the Industrial Dispute Act.
He submitted his representation before the management praying for allowing him to resume his duty and the filial decision on his prayer continued to be postponed on one pretext or tine other. Ultimately, by letter dated 26/27.03.1993, he was asked to report for his duty at Pathardih Washery, on the ground that his services was already transferred from the Colliery to the Washery.
When as per the direction, he reported for his duty at the Pathardih Coal Washery, he was informed that his name was struck of from the rolls.
Being aggrieved, he raised an industrial dispute before the Assistant Labour Commissioner (C), Dhanbad, for conciliation. The conciliation having failed, the matter was referred to the Appropriate Government for referring the industrial dispute for adjudication, but only on the ground of delay, the Appropriate Government had refused to refer the dispute for adjudication. The workman thereafter, filed a writ application before this Court, vide C.W.J.C. No. 3677/1995. By order dated 15.12.1995, the writ application was disposed of with a direction to the Appropriate Government to refer the dispute for adjudication. It was in pursuance to the directions of the Court that the Appropriate Government had referred the dispute for adjudication to the Tribunal.
On the other hand, the case of the management as advanced before the Tribunal is that admittedly, the concerned workman was a permanent employee of Pathardih Colliery, but he was transferred to the Pathardih coal Washery under the same area in the month of February 1978 and upon his transfer, he was released from the roll of Colliery simultaneously. This was followed by forwarding his last pay certificate by the Colliery to the Washeiy on 26.04.1978. Despite the intimation of his transfer and also the intimation of forwarding of his last pay certificate, the concerned workman did not report for duty at Pathardih Coal Washeiy and neither did he express his difficulty for rendering his services in the Washery. Upon his continuous failure to report for duty, it was treated that he has abandoned his service and thereafter, his name was struck of from the rolls.
The further stand taken by the management is that though he was transferred in February 1978, but the workman had appeared for the first time after a lapse of more than 15 years, in 1993. He did not assign any satisfactory reason for the inordinate delay in raising the industrial dispute. His claim is, therefore, barred by the Law of Limitation.
Before the Tribunal, while the management had adduced the evidence of one witness, the workman in his turn, had also adduced his evidence.
On the basis of the rival pleadings, the Tribunal framed the relevant issues including the issue relating to the ground of limitation. The Tribunal recorded its finding that on the basis of the evidences and the other associated facts, the case was not barred by limitation and further, that the refusal of the management to allow the concerned workman to resume his duty and striking out his name from the employees'' roll was arbitrary and illegal.
Assailing the impugned Award, Shri A.K. Mehta, learned Counsel for the petitioner/management raises the following grounds:
(i) The Award to the Tribunal is based upon error of record and error of law and is also perverse. The Tribunal has erred in recording its finding that the management did not inform the concerned workman about the order of transfer from the Colliery to the Washery. In fact, even as it appears from the letter (Ext. W-1), upon which the workman had relied, it contains a communication about the transfer of the workman. Even the workman in his pleadings has accepted that on receipt of his order of transfer, he went to join at the Washery, but was not allowed to join. This clearly indicates mat the concerned workman was aware of the order of transfer from the Colliery to the Washery.
(ii) In absence of any material to show that he had submitted his joining at the transferred place of posting, the Tribunal ought not to have directed the management to allow resumption of the workman''s duty retrospectively with effect from 1978 with 50% back wages.
Counsel for the Respondent/Workman, on the other hand, would submit arguments in support of the finding recorded in the impugned Award. Learned counsel would inform that the stand taken by the management that the workman was transferred from the Colliery to the Washery and that such: order of transfer was communicated to the workman and that communication was also made to him of the forwarding of his last pay certificate to the Washery, is totally false and misleading. Learned counsel explains that it was for the first time, in 1993 when, during his regular visits at the Colliery for joining duties, that the management had given him the letter (Ext. W-1) directing him to report for duty at the Washery.
From the rival submissions, the admitted facts are that the concerned workmen was a permanent employee and his services was taken till February 1978. Thereafter, he was refused from performing his duty at the Colliery. The management had taken the stand that the workman was transferred from the Colliery to the Washery and the order of transfer was communicated to him. This has been denied by the workman.
Two aspects in this regard are worth noting. Though the management has taken the specific plea that the workman was transferred from the Colliery to the Washery in 1978, but before the Tribunal, it did not produce any document in support of its claim. Supportive Evidence from the side of the management was expected in view of the specific denial of the workman of having received any order of transfer in 1978. The other aspect which is equally significant, as pointed out by the counsel for the Respondent/Workman, is that even as per the evidence of the management witness adduced before the Tribunal, in the year 1978, the Colliery and the Washery were two different establishments under different managements and the employees of the Colliery could not possibly be transferred to the Washery and vice versa. If this was so, then it is for the management to explain as to how the workman was transferred from the Colliery to the Washery, since even if his transfer was possible, it could be done only with the consent of the workman.
As it appears from the impugned Award, the Tribunal had taken note of the evidence of the workman that ever since the date when he was refused to resume duties in February 1978, he has been consistently submitting his representations before the management for allowing him to resume duties and it was for the first time, by the letter dated 27.03.1993, that he was informed about his transfer to the Coal Washery. If the contention of the petitioner/management is that in 1978, the Pathardih Colliery and the Pathardih Coal Washery were under the same establishment and under the same management, then there could be no occasion to strike out the name of the workman from the employees'' roll of the Colliery immediately upon his purported transfer from the Colliery to the Washery. The stand of the management that the name of the workman was struck of from the employees'' roll at the Colliery due to his long absence, would be contradictory to their pleadings. The management has not informed as to whether upon the purported transfer or the workman to the Washery, his name was entered in the employees'' roll at the Washery and if so, whether any information was conveyed to the workman by the Washery about his being enrolled as an employee of the Washery and what was the date on which his name entered if any, in the employees'' roll at the Washery, was struck of.
The Tribunal has rightly recorded its finding that the workman being (sic) employee the termination of his service could (sic) accordance with the compliance of the (sic) of Section 25F of the Industrial Dispute Act (sic)pon appreciating the evidence adduced by the (sic) note of the facts and circumstances of the case; has inferred that the workman, being a permanent employee cannot be accused of abandoning his duties, has to give a reason to the employer to strike off his nan(sic)e on the employee roll.
Counsel for petitioner is tried'' to raise an issue on the plea that the workman is not (sic) as to why even if, in absence of an(sic) of his service, he did not raise any dispute for no payment of salary during the entire period of more man 15 years.
Even such conduct on the part of the workman may suggest a lapse on his part and a reason to dispute his claim for allowing him to resume duty after a delay of 15 years, but it cannot be ignored that the issues relating to the long delay in raising the industrial dispute, was considered by this Court in the earlier writ application filed by the workman and after considering the explanations offered, this Court had directed the Appropriate Government to refer the dispute for adjudication, ignoring the delay in raising the industrial dispute and pursuant to the directions the Industrial dispute was referred for adjudication. The Tribunal has rightly recorded its finding on this issue by holding that the claim of the petitioner cannot be said to be state.
Upon considering the rival submissions of the counsel for the parties and upon going through the impugned Award, I do not find any impropriety or perversity in the findings recorded by the Tribunal concerning the termination of the petitioner''s service. There is no convincing ground offered by the petitioner to interfere with the findings of the Tribunal or with the directions contained in the Award.
I do not find any merit in this writ application. As such, this writ application is dismissed. The interim order or stay of operation of the impugned Award is hereby vacated.