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CASE NO.: Appeal (civil) 5797  of  1998 Appeal (civil)  7596     of  1999

PETITIONER: EMP., MGMT OF RAMKANALI COLL.  OF M/S BCCL

       Vs.

RESPONDENT: WORKMEN BY SECY.  RASHT.  COLL.  MAZ.  SANGH & ANR.

DATE OF JUDGMENT:       27/03/2001

BENCH: S.R.Babu, S.N.Variava

JUDGMENT:

RAJENDRA BABU, J.  : L.....I.........T.......T.......T.......T.......T.......T.......J

     C.A.No.  5797/98

     Four  workmen,  who claimed to be working from May or  July 1972 in the Ramkanali Colliery of the appellant, raised a dispute that  they  were  stopped  from  work  by  the  management.   The appellant  contended before the Industrial Tribunal to whom  this matter  was  referred that the non-coking coal mines  were  taken over  by the Central Government on 31.1.1973 and was nationalized with  effect  from  1.5.1973 and none of these  workmen  were  in employment  before the date of take over.  After the take over of the   Colliery,   a  Screening   Committee  consisting   of   the representatives  of the employer and the workmen scrutinized  the claim  of  the workmen and found that the claim of these  workmen was  without  any  basis.  The reference made to  the  Industrial Tribunal reads as follows :

     Whether the demand of the workmen of Ramkanali Colliery of Messrs.   Bharat  Coking  Coal Limited, Post  Office  Katrasgarh, District  Dhanbad that Sarvashri Bishundeo Singh, Kanhaiya Prasad Karan,  Attendance  Clerks,  Ashok Kumar Das,  Munshi  and  Bachu Singh, Night Guard of West Ramkanali Section should be allowed to resume  duty is justified?  If so, to what relief are the workmen concerned entitled and from what date?

     The  Tribunal  examined  the  matter   in  detail  and   on consideration  of  evidence held that the concerned four  workmen were  workmen of the Ramkanali Colliery at the time of take  over and  they should be allowed to resume duty from the date of  take over.   Thereby  the management of the appellant was directed  to reinstate  the  said workmen with continuity of service from  the respective  dates  of  stoppage of their  duties.   However,  the Tribunal  made certain adjustments regarding payment of wages for the period for which they had not worked.  The matter was carried by  way of a writ petition to the High Court.  The learned Single Judge  allowed the writ petition and set aside the award and  the

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matter was carried by the workmen in letters patent appeal to the Division Bench which allowed the same and restored the award made by the Tribunal.  Hence this appeal by special leave.

     The contention put forth before us is that under Section 14 of the Coal Mines Nationalisation Act, 1973 [hereinafter referred to  as  the  Act] a workman who was in the  employment  on  the appointed  date,  namely,  1.5.1973  alone   is  entitled  to  be protected in employment.  On the date when the reference was made to  the  Tribunal,  provision  of Section 14  of  the  Act  stood substituted   with  retrospective  effect   from  1.5.1973   and, therefore,  the  Tribunal could not have passed the award in  the year  1987.   In the Workmen vs.  the Bharat Coking Coal Ltd.   & Ors.,  1978 (2) SCC 175, this Court examined the scope and effect of  the provisions of Sections 9 and 17 of the Coking Coal  Mines Nationalisation  Act, 1972, which are identical to Sections 7 and 14  of  the Act in all respects.  This Court held that Section  9 (similar  to  Section  7  of the Act)  granted  immunity  to  the Government  against  any award and it has to be read  along  with Section  17(1)  (similar to Section 14(1) of the Act).  So  read, Section 9 does not nullify Section 17 or have a larger operation. In  very  felicitous  terms, this Court stated  the  position  as under:

     7.  Section 9 deals with the topic of prior liabilities of the  previous owner.  Section 9(1) speaks of every liability  of the  owner  prior to the appointed day, shall be the  liability of  such owner .  and shall be enforceable against him and  not against  the Central Government or the Government Company.   The inference  is  irresistible that Section 9(1) has nothing  to  do with wrongful dismissals and awards for reinstatement.  Employees are  not a liability (as yet in our country).  Section 9(1) deals with  pecuniary and other liabilities and has nothing to do  with workmen.   If  at  all it has anything to do with workmen  it  is regarding  arrears  of wages or other contractual,  statutory  or tortious  liabilities.  Section 9(2) operates only in the area of Section  9(1)  and that is why it starts off by saying  for  the removal  of doubts it is hereby declared ..  So, Section  9(2) seeks  only to remove doubts in the area covered by Section  9(1) and  does  not  deal  with any other  topic  or  subject  matter. Section  9(2)(b)  when it refers to awards goes along with  the words  decree,  or  order.  By the canon of  construction  of noscitur  a sociis with expression award must have a restricted meaning.   Moreover, its scope if delimited by Section 9(1).   If back  wages  before the appointed day have been awarded or  other sums,  accrued prior to nationalisation, have been directed to be paid  to any workman by the new owner, Section 9(2)(b) makes such claims  non-enforceable.   We do not see any reason to hold  that Section 9(2)(b) nullifies Section 17(1) or has a larger operation than Section 9(1).  We are clear that the whole provision confers immunity against liability, not a right to jettison workmen under the employ of the previous owner in the eye of law.

     Now  the contention put forth before us is that Section  14 of  the  Act  stood  substituted by an amendment made  to  it  by deleting  several  provisions thereof.  Section 14(1) of the  Act provided as follows :

     14.  Employment of certain employees to continue

     (1) Every person who is a workmen within the meaning of the Industrial  Disputes  Act, 1947, and has been immediately  before the  appointed  date, an employee of the Central  Government,  in which  the  right,  title and interest of such mine  have  vested

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under this Act, and shall hold office or service in the coal mine with  the  same rights would have been admissible to him  if  the rights in relation to such coal mine had not been transferred to, and  vested in, the Central Government or the Government Company, as  the  case may be, and continue to do so unless and until  his employment  in  such  Coal Mine is duly terminated or  until  his remuneration, terms and conditions of employment are duly altered by the Central Government or the Government Company.

     (Rest of the provisions not extracted since unnecessary)

     The  said  provision stood deleted and substituted  by  the following provision:

     14.  Liability of officer or other employee of a coal mine for  transfer  to any other coal mine.  Notwithstanding  anything contained  in the Industrial Disputes Act, 1947, or in any  other law  for the time being in force, the services of any officer  or other  employee  employed  in a coal mine shall be liable  to  be transferred  to any compensation under this Act or any other  law for  the  time  being  in  force  and  no  such  claim  shall  be entertained by any court, tribunal or other authority.

     The  argument  advanced  now is that  protection  available under  Section  14  is no longer available on the date  when  the award  was  made  and, therefore, contended that the award  is  a nullity.   The decision in Bhubaneshwar Singh & Anr.  vs.   Union of  India & Ors., 1994 (6) SCC 77, is in the context of enactment of  law  reviewing  the  defect pointed out  in  a  judgment  and retrospectively  enacting the law so as to render the judgment of the  court  ineffective thus enacting a validating provision  was considered.   What happened in that case was courts took the view that  the sale price of the stock of extracted coal lying at  the commencement  of the appointed date had to be taken into  account for  determining  the  profit  and  loss  during  the  period  of management  of  the mine by Central Government.  Thereafter,  the Coal  Mines  Nationalisation Laws (Amendment) Ordinance and  Act, 1986  was  issued.   Section  19(2)  of  the  Principal  Act   as introduced by the Amending Act and Section 19 of the Amending Act providing that the amount payable as compensation shall be deemed to  include  and  deemed always to have included  in  the  amount required  to be paid to the owner in respect of all coal in stock on  the  date  immediately before the appointed date.   The  said Amending  Act was held to be valid as it altered the basis of the principal  Act  with  retrospective effect as a result  of  which court’  judgment  was rendered ineffective and, therefore,  this Court  upheld  the  said provision.  That decision  can  have  no application  to  the present case nor are we concerned  with  the validity of the provisions of the enactment in question.  What we are concerned in the present case is the effect of the expression substituted  used in the context of deletion of sub-clauses  of Section  14,  as was original enacted.  In Bhagat Ram Sharma  vs. Union of India & Ors., 1988 Supp.  SCC 30, this Court stated that it  is a matter of legislative practice to provide while enacting an  amending law, that an existing provision shall be deleted and a  new  provision  substituted.   If there  is  both  repeal  and introduction  of  another provision in place thereof by a  single exercise,  the  expression substituted is used.  Such  deletion has  the effect of the repeal of the existing provision and  also provide  for introduction of new provision.  In our view there is thus  no  real  distinction  between   repeal  and  amendment  or substitution  in such cases.  If that aspect is borne in mind, we have  to apply the usual principles of finding out the rights  of

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the  parties flowing from an amendment of a provision.  If  there is a vested right and that right is to be taken away, necessarily the law will have to be retrospective in effect and if such a law retrospectively  takes  away  such a right, it can no  longer  be contended that the right should be enforced.  However, that legal position,  in the present case, does not affect the rights of the parties as such.

     The  Act  came  into force on 1.5.1973  and  the  employees (including  former employees whose services were terminated) will continue  to  hold such employment as if nationalisation had  not taken place.  In the present case, the finding of the Tribunal is that the employees in question had not ceased to be employees but were merely not allowed to do work.  This finding of fact arrived at  on  appreciation of evidence, cannot be faulted with at  all. Hence,  the right enforced by the employees will not attract  the amended provision of the Act which came into force on 15.12.1986. In  that view of the matter, we do not think that the award  made by  the  Tribunal  is  in any way wrong  particularly,  when  the decision  has been given on facts that as on the date of the take over  the  concerned  workmen  were employees  of  the  appellant management.   If  that is so, they never ceased to be  employees. All  that  happened was they were prevented from working  in  the Colliery, which was set right by the award.  We find no substance in  this appeal.  The same shall, therefore, stand dismissed.  No costs.

     C.A.No.  7596/99

     The  questions  arising for consideration  being  identical this appeal is also dismissed.