Gangaram vs South Eastern Coalfields Limited

In this batch of writ appeals, common question of law and fact is involved, therefore, they have been clubbed together, heard together and are being disposed of by this common order.

(For the sake of convenience, WA No.594/2022 is taken as lead case).

The case of the petitioner / appellant herein is that appellant was working as General Majdoor, Category-I under the National Coal Wages Agreement (NCWA). The appellant was given appointment in lieu of compulsory acquisition of land belonging to the ancestors of the appellant. Subsequently, an inquiry was conducted by the respondent authorities with respect to legal heir certificate submitted by the appellant and found it to be forged and thus terminated the appellant from service vide order dated 26.07.2012. Thereafter, appellant has filed Writ Petition No.2669/2011 against the order of termination, which was disposed of vide order dated 05.01.2016 directing the petitioner / appellant herein to prefer appeal as per Clause 30 of the Certified Standing Order of the company. In pursuance of the order of this Court passed on 05.01.2016, the petitioner / appellant herein has preferred appeal before the Appellate Authority and the same was rejected vide order dated 18.04.2016 against which the appellant preferred WP(S) No.1154/2017 before this Court which was also dismissed by order of this Court dated 09.09.2022 on the ground of existence of alternative remedy.

Learned counsel for the appellants submits that impugned orders passed by the learned Single Judge are absolutely unjustified, arbitrary and against the provision of law. He further submits that the legal heir certificates of the petitioners / appellants herein are genuine and not forged which has been upheld by the competent authority. He further submits that availability of alternative remedy is not a bar in exercising the writ jurisdiction and, therefore, impugned order dated 09.09.2022 and termination order deserve to be set aside and appellant is directed to be reinstated in job with all consequential benefits including back wages.

Learned counsel for the SECL submits that there is no provision under NCWA to grant appointment to the persons whose property has been acquired but as per the prevailing Rehabilitation Policy, the land oustess have been given employment in the SECL. He further submits that the petitioners / appellants herein have alternate efficacious remedy of raising industrial dispute and the Central Government Industrial Tribunal-cum-Labour Court (CGIT) is competent authority to decide the grievance of the petitioners / appellants herein.

We have heard learned counsel for the parties, considered their rival submissions made herein-above and perused the records with utmost circumspection.

The present intra Court appeal has been filed against the order dated 09.09.2022 passed by the learned Single Judge, whereby the writ petition of the petitioner / appellant herein is disposed off by holding as under:-

“8. It is not in dispute that the petitioner has alternate efficacious remedy available to him. It is also not in dispute that disputed finding of facts are involved in the case which cannot be adjudicated by this Court. It is also not in dispute that service of the petitioner has been terminated on count of forged certificates. The examination of evidence and materials on record are required which can be ascertained only by the CGIT. The question with regard to maintainability of the writ petition under the Labour Law where disputed facts are involved has come up for consideration before the Hon’ble Supreme Court in case of Hindustan Steel Works Construction Ltd. And Another vs. Hindustan Steel Works Construction Ltd. Employees Union (2005) 6 SCC 725 has held in paragraph 8, 9 and 14 as under:-

In U.P. State Bridge Corporation Ltd. and Ors. v. U.P. Rajya Setu Nigam S. Karamchari Sangh (2004 (4) SCC 268), it was held that when the dispute relates to enforcement of a right or obligation under the statute and specific remedy is, therefore, provided under the statute, the High Court should not deviate from the general view and interfere under Article 226 except when a very strong case is made out for making a departure. The person who insists upon such remedy can avail of the process as provided under the statute. To same effect are the decisions in Premier Automobiles Ltd. v. Kamlekar Shantarum Wadke (1976 (1) SCC 496), Rajasthan SRTC v. Krishna Kant (1995 (5) SCC 75), Chandrakant Tukaram Nikam v. Muncipal Corporation of Ahmedabad and Anr. (2002) (2) SCC 542) and in Scooters India and Ors. v. Vijai V. Eldred.

In Premier Automobiles Ltd. case (Supra) it was observed as follows:

"A speedy, inexpensive and effective forum for resolution of disputes arising between workmen and their employers. The idea has been to ensure that the workmen do not get caught in the labyrinth of civil courts with their layers upon layers of appeals and revisions and the elaborate procedural laws, which the workmen can ill afford. The procedure followed by civil courts, it was thought, would not facilitate a prompt and effective disposal of these disputes. As against this, the courts and tribunals created by the Industrial Disputes Act are not shackled by these procedural laws nor is their award subject to any appeals or revisions. Because of their informality, the workmen and their representatives can themselves prosecute or defend their cases. These forums are empowered to grant such relief as they think just and appropriate. They can even substitute the punishment in many cases. They can make and re-make the contracts, settlement, wage structures and what not. Their awards are no doubt amenable to jurisdiction of the High Court under Article 226 as also to the jurisdiction of this Court under Article 32, but they are extraordinary remedies subject to several self-imposed constraints. It is, therefore, always in the interest of the workmen that disputes concerning them are adjudicated in the forums created by the Act and not in a civil court. That is the entire policy underlying the vast array of enactments concerning workmen. This legislative policy and intendment should necessarily weigh with the courts in interpreting these enactments and the disputes arising under them".

...

The inevitable conclusion, therefore, is that both learned Single Judge and the Division Bench have failed to consider the basic issues. In the normal course we would have left it to the respondent to avail appropriate remedy under the Act.

Therefore, the present writ petition is not maintainable in view of alternate statutory remedy available under the Industrial Dispute Act, 1947 and on the count disputed facts are involved which can be very well ascertained by the learned Central Government Industrial Tribunal after appreciating the evidence, material on record.

10.Since the services of the petitioner have been terminated on account of securing employment on the basis of forged record and termination/dismissal from service is industrial dispute as defined in the Section 2(k) of the Act of 1947 and Section 2(A) of the Industrial Disputes Act provides that dismissal is an industrial dispute. Section 2(k) and 2(A) read as under:-

2(k)" industrial dispute" means any dispute or difference between employers and employers or between employers and workmen, or between workmen and workmen, which is connected with the employment or non- employment or the terms of employment or with the conditions of labour, of any person;

2A. Dismissal, etc., of an individual workman to be deemed to be an industrial dispute.--

(1) Where any employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman, any dispute or difference between that workman and his employer connected with, or arising out of, such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workmen is a party to the dispute.

(2) Notwithstanding anything contained in section 10, any such workman as is specified in sub-section (1) may, make an application direct to the Labour Court or Tribunal for adjudication of the dispute referred to therein after the expiry of forty-five days from the date he has made the application to the Conciliation Officer of the appropriate Government for conciliation of the dispute, and in receipt of such application the Labour Court or Tribunal shall have powers and jurisdiction to adjudicate upon the dispute, as if it were a dispute referred to it by the appropriate Government in accordance with the provisions of this Act and all the provisions of this Act shall apply in relation to such adjudication as they apply in relation to an industrial dispute referred to it by the appropriate Government.

(3) The application referred to in sub-section (2) shall be made to the Labour Court or Tribunal before the expiry of three years from the date of discharge, dismissal, retrenchment or otherwise termination of service as specified in sub-section (1).

11.Learned counsel for the petitioner would further submit that as per the Section 2A(3) of the Industrial Disputes Act as amended on 15.09.2010 the application referred to in Subsection 2 shall be made to the Labour Court or Tribunal before the expiry of 3 years from the date of discharge, dismissal, retrenchment or otherwise termination of service as specified in Subsection 1.

12.From the record it is quite vivid that the petitioner has preferred writ petition assailing his dismissal from service in the year 2012 immediately dismissal from service on 28.07.2012 and the matter was pending before this Court and finally this Court has passed the order on 05.01.2016 with liberty to the petitioner to file appeal before the appellate authority. The petitioner preferred appeal which was decided on 20.04.2016, thereafter the present petition has been filed by the petitioner on 01.03.2017 within the time period provided under the Act of 1947 as amended on 15.09.2010. Therefore, period spent before this Court is deserves to be excluded from computing the period of three years. As such it is directed that in the eventuality of filing of application before the Assistant Labour Commissioner (Central)-cum-Conciliation Officer, Bilaspur within 60 days from the date of the receipt of copy of this order, the Conciliation Officer in turn will initiate the proceedings of conciliation without insisting for delay as this Court has condoned the delay and on account of pedency of the case before this Court. Thereafter, the matter be referred by the Central Government for adjudication to the Central Government Industrial Tribunal for deciding the same in accordance with law on its own merits without insisting for limitation in raising industrial dispute in terms of the observation made by this Court in foregoing paragraphs within six months from the date of report send by the Conciliator i.e. Assistant Labour Commissioner (Central), Bilaspur. It is made clear that this Court has not expressed anything on departmental enquiry against the petitioner. On reference made by the Central Government, learned CGIT will examine the case purely on its own merits without being influenced by any of the observations made by this Court.

13.With the aforesaid observation, the petitions are finally disposed off.”

A careful perusal of the aforesaid order passed by the learned Single Judge would show that the appellants have alternate efficacious remedy available under the Industrial Dispute Act, 1947 and the disputed facts are involved in the case which can be very well ascertained by the CGIT and, as such, the impugned order passed by the learned Single Judge is absolutely justified and in accordance with law and we do not find any merit in the instant appeals and consequently, they are dismissed. However, the appellants herein are at liberty to proceed as stated in para 12 of the impugned order dated 09.09.2022.