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Judgment
Heard learned counsel for the appellant and learned counsel for the respondent.
The appellant Management is aggrieved by the impugned Award dated 20.05.2003, passed by the Central Government Industrial Tribunal No.2, Dhanbad, (hereinafter referred to as the 'Tribunal'), in Reference Case No. 23 of 1996, whereby, while answering the reference in favour of the workman, who was not in the active service in the colliery since the year 1978, the Tribunal directed his reinstatement with 50% back wages with effect from the year 1978 itself. The appellant Management is also aggrieved by the Judgment dated 25.02.2010, passed by the Hon'ble Single Judge, in W.P. (L) No. 3945 of 2004, whereby, the writ application challenging the said Award was dismissed by the Writ Court.
The terms of reference of the industrial dispute, as made by the Central Government to the Tribunal, was as follows:-
"Whether the Union is justified in demanding from the management of Pathardih Colliery of M/s 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 was that being employed as Explosive Carrier at the Pathardih Colliery of M/s BCCL, he had worked for more than 240 days in each calendar year. However, with effect from 1978, he was stopped from working without assigning any reason and without complying with the mandatory provisions of Section 25(F) of the Industrial Disputes Act. According to the workman's case, he had always given his representation to the Management for allowing him to work, but no decision was taken by the Management, and ultimately, by letter dated 26/27.03.1993, which was proved as Ext.-1 before the Tribunal, he was asked to report for his duty at Pathardih Coal Washery, on the ground that his services had already been transferred from Colliery to the Washery in the year 1978. When he reported for his duty at Pathardih Coal Washery, he was informed that his name was struck off from the rolls. Accordingly, industrial dispute was raised, but initially no reference was made by the appropriate Government, which ultimately, was made by the appropriate Government, after intervention by the High Court.
On the other hand, the case of the Management was that the concerned workman was an employee of Pathardih Colliery, and he was transferred to Pathardih Coal Washery under the same area in the month of February 1978 and his last pay certificate (LPC) was also sent to the Pathardih Coal Washery. Thereafter, he never reported for duty and ultimately after more than 15 years, in the year 1993, he reported for duty and by that time his name was struck off from the rolls, due to his prolonged absence.
On the basis of the evidence brought on record, the Tribunal had given the finding that in the year 1978 Pathardih Colliery and Pathardih Coal Washery had two managements, inasmuch as, one was under the BCCL, whereas the other was under the Central Coal Washery Organisation, and as such, there was no occasion for transfer of the workman. The managements were merged only in the year 1994. The Tribunal had also given the finding that after being stopped from working from the colliery, the workman had been consistently submitting his representations before the Management for allowing him to resume his duty, and it was for the first time by letter dated 27.03.1993, he was informed of his transfer to Pathardih Coal Washery. The Tribunal has held that the Management had not informed the workman about his transfer, and in that view of the matter, the workman had been wrongly terminated from his service without complying the mandatory provisions of Section 25(F) of the Industrial Disputes Act. In view of the aforesaid findings, the Tribunal had answered the reference allowing resumption of the duties to the concerned workman with 50% back wages and other consequential relief with effect from the year 1978 itself. The Hon'ble Single Judge has held that there is no illegality in the impugned Award and dismissed the writ application. Aggrieved thereby, the appellant Management has preferred the present appeal.
Learned counsel for the appellant submitted that the impugned Award passed by the Tribunal as well as the impugned Judgment passed by the Hon'ble Single Judge, cannot be sustained in the eyes of law, inasmuch as, admittedly the concerned workman was out of service from the year 1978 itself. It is submitted by the learned counsel for the appellant Management that without there being any cogent evidence on record, the findings have been given by the Tribunal, and also accepted by the Hon'ble Single Judge, that the concerned workman had always given representations for resumption of his duty, which was not being accepted by the Management. Learned counsel also submitted that the concerned workman had attained the age of superannuation of 60 years in the year 2008 itself, and in view of the interim orders passed in the writ application as well as in the LPA, the Award has not been implemented. Learned counsel for the appellant Management accordingly, submitted that since there is no cogent evidence to show that the concerned workman was giving representations consistently during the period of 15 years, either the Award passed by the Tribunal or the Judgment passed by the Writ Court cannot be sustained in the eyes of law.
On the other hand, learned counsel for the respondent workman has opposed the prayer, and has also drawn our attention towards the evidence led before the Tribunal by the Management as well as concerned workman. The witness examined on behalf of the Management in his evidence has stated that the concerned workman was transferred to Pathardih Coal Washery from Pathardih Colliery in the year 1978 and his name was deleted from the rolls, but he was never terminated by Pathardih Colliery, but in his cross-examination, this witness has admitted that he had not seen the order of transfer and he has also admitted the fact that in the year 1978, Pathardih Colliery and Pathardih Coal Washery had two managements, inasmuch as, one was under the BCCL whereas the other was under the Central Coal Washery Organisation.
The evidence of the concerned workman has also been brought on record, in which he had stated that he was stopped from working in the colliery from 1978 and he represented before the Management for such stoppage and was informed by the Management that all his papers in connection with his service from the time of previous owner, were sent to the Head Office and his case would be considered on receiving those papers. He also stated that he received the letter from the Management in the year 1993 which was marked as Ext.-1, by which he was directed to join at Pathardih Coal Washery. He reported at Pathardih Coal Washery, but the authority demanded transfer order, which the Management had never issued. In his cross-examination, this witness also stated that he was a member of a Trade Union, viz., Bihar Colliery Kamgar Union, but he never informed the said Trade Union about the stoppage from duty. He has also stated that he submitted representation in writing to the Management, but no such representation was proved by him. He has stated that he had not retained the copies of those letters. Learned counsel, on the basis of the evidence on record has submitted that there is no illegality in the findings given by the Tribunal, as affirmed by the Hon'ble Single Judge, confirming the Award passed by the Tribunal. Learned counsel for the respondent workman, placing reliance upon the decisions of the Hon'ble Apex Court in the cases of Management of Madurantakam Coop. Sugal Mills Ltd. Vs. S. Viswanathan reported in (2005) 3 SCC 193, as also in Prem Narain Vs. M/s. Swadeshi Cotton Mills, Juhi and Anr., reported in AIR 2016 SC 1248, wherein the back wages of 50% in the cases of superannuated workmen, were allowed by the Hon'ble Apex Court, submitted that in the present case, the Award directing the concerned workman for resumption of his duty with 50% back wages is perfectly justified.
Having heard learned counsels for both the sides and upon going through the record, we find that admittedly the concerned workman had not worked in the colliery after the year 1978. Thereafter, he claims to have received the letter for the first time in the year 1993, i.e., after more than 15 years. Though the concerned workman claimed that he had consistently given representations / letters to the Management, but not a chit of paper had been proved by him to show that he ever gave any representation / letters to the Management during that period. It is merely his ipse dixit, on the basis of which the Tribunal had given the finding that the workman had been consistently giving representations to the Management during the period of fifteen long years of his absence.
In the facts and circumstances of the case, we are of the considered view that without proving any representation / letter which the workman claimed to have given to the Management, only on the basis of his ipse dixit that he had given such representation, the aforesaid finding could not have been arrived at. This apart, the workman has also stated that he was a member of a Trade Union, but he did not give any information to the Union regarding the action of the Management for not allowing him to work in the colliery. This clearly demolishes the entire case of the concerned workman, as it just cannot be believed that a workman, if not allowed to resume his duties, and is kept without wages, shall not approach the Trade Union, of which he is a member, for fifteen long years. This clearly shows that the prolonged absence by the workman was voluntary in nature. We are of the considered view that if the case of the workman was entirely based upon the documents, i.e. representations / letters, which he claimed to have given to the Management, and he failed to prove any document before the Tribunal, the finding arrived at by the Tribunal only on the basis if the ipse dixit of the workman, is just perverse and misconceived, as no prudent Court / Tribunal could have given such a finding in absence of any such representation being proved. Admittedly, the workman was not having any document, as clearly admitted by him in his cross-examination. In such a situation, the absence of the concerned workman for more than 15 years in the colliery could not have been held to be justified only the basis of his ipse dixit.
Since on the basis of materials on record, we find that the concerned workman could not prove any justification for his long absence from duty for more than fifteen years, we are of the considered view that his absence from duty was voluntary in nature, and action of the Management in striking off his name from the rolls, in view of his prolonged unauthorised absence, was perfectly justified. In the facts of this case, we find that no relief could be granted to the respondent workman, including the relief of back wages of 50%.
For the foregoing reasons, we find that the findings arrived at by the Tribunal are absolutely perverse and misconceived, and thus, the impugned Award dated 20.05.2003 passed by the Central Government Industrial Tribunal No.2, Dhanbad, in Reference Case No. 23 of 1996, as also the impugned Judgment dated 25.02.2010, passed by the Hon'ble Single Judge, in W.P. (L) No. 3945 of 2004, cannot be sustained in the eyes of law, which are accordingly, hereby, set aside.
This appeal is accordingly, allowed. There shall however, be no order as to costs.