1 WP. No 8368/2013 HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT JABALPUR SB: Hon'ble Shri Justice Sujoy Paul Writ Petition No.8368/2013 South Eastern Coal Field Ltd. Versus Union of India Writ Petition No.14975/2012 N.P. Sahu Versus Union of India & Others. Writ Petition No.19276/2012 S. Nagachari Versus Union of India & Others Writ Petition No.19376/2012 R.K. Kasliwal Versus Union of India & Anr. Writ Petition No.19476/2012 B.A. Prasad Versus Union of India & Others Writ Petition No.19598/2012 R.N. Verma Versus Union of India & Others. Writ Petition No.19600/2012 P.R. Tripathi Versus Union of India & Others 2 WP. No 8368/2013 Writ Petition No.19603/2012 Gurukripal Singh Jolly Versus Union of India & Others Writ Petition No.19794/2012 Sanjay Kumar Versus Union of India & Another Writ Petition No.4156/2013 R.K. Acharya Versus Union of India & Others Writ Petition No.4326/2013 Sanjay Kumar Mishra Versus Union of India & Another Writ Petition No.12379/2013 South Eastern Coal Fields Ltd. Versus Union of India Writ Petition No.41791/2013 Western Coal Fields Limited Versus Union of India & Others Writ Petition No.20017/2012 Shri P. Srikrishna Versus Union of India & Others Writ Petition No.20020/2012 Sayeed Ghori Versus Union of India & Others Writ Petition No.20041/2012 Pankaj Kumar 3 WP. No 8368/2013 Versus Union of India & Others Writ Petition No.20043/2012 Surendra Prasad Yadav Versus Union of India & Others Writ Petition No.20350/2012 Pramod Kumar Shrivastava Versus Union of India & Others Writ Petition No.20351/2012 Krishna Kumar Purohit Versus Union of India & another Writ Petition No.21806/2012 Nitin Philip Versus Union of India & Others Writ Petition No.21812/2012 R.P. Saha Versus Union of India & Others Writ Petition No.21813/2012 M.K. Hanifi Versus Union of India & Others Writ Petition No.18991/2012 B. Ramarao Versus Union of India & Others Writ Petition No.19075/2012 S.K. Singh 4 WP. No 8368/2013 Versus Union of India & Others Writ Petition No.19078/2012 C.B. Tiwari Versus Union of India & Others Writ Petition No.19081/2012 R.P. Singh Versus Union of India & Others Writ Petition No.19166/2012 Sapan Shrivastava Versus Union of India & Others Writ Petition No.19167/2012 Umashankar Singh Versus Union of India & Others Writ Petition No.19273/2012 Somnath Bakshi Versus Union of India & Others Writ Petition No.19274/2012 Upendra Kumar Versus Union of India & Others Writ Petition No.1813/2013 J.S. Parihar Versus Union of India & Others 5 WP. No 8368/2013 Writ Petition No.16152/2012 Anil Kumar Mittal Versus Union of India & Others Writ Petition No.16889/2012 Ravikesh Raju Versus Union of India & Others Writ Petition No.16892/2012 Bihari Lal Shukla Versus Union of India & Others Writ Petition No.16895/2012 Narendra Kumar Versus Union of India & Others Writ Petition No.16896/2012 B.N.Jha Versus Union of India & Others Writ Petition No.16897/2012 V.K. Katharia Versus Union of India & Others Writ Petition No.17030/2012 B. Pathak Versus Union of India & Others Writ Petition No.17032/2012 Sudheer Kumar 6 WP. No 8368/2013 Versus Union of India & Others Writ Petition No.17035/2012 B.S. Nishad Versus Union of India & Others Writ Petition No.17041/2012 Uditya Singh Versus Union of India & Others Writ Petition No.17046/2012 B.P.Singh Versus Union of India & Others Writ Petition No.17053/2012 S.G. Wairagade Versus Union of India & Others Writ Petition No.17138/2012 R.B. Shukla Versus Union of India & Others Writ Petition No.17868/2012 Rajendra Prasad Pandey Versus Union of India & Others Writ Petition No.18750/2012 Dhanraj Z. Akhare Versus Union of India & Others --------------------------------------------------------------------------------------------- Mrs. Indira Nair, Senior Advocate with Shri Rajas Pohankar, Advocate for the petitioner. Shri O.P. Namdeo, Senior Advocate with Shri Praveen Namdeo, Advocate for the respondent. 7 WP. No 8368/2013 --------------------------------------------------------------------------------------------- ORDER
( 20 /09/2013) These batch of petitions are analogously heard on the joint request of parties. Since similar question of facts and law are involved, the matters are decided by this common order. The facts are taken from WP No. 8368/2013-
2. By filing these petitions under Article 226 of the Constitution the petitioner has called in question the legality, validity and correctness of the order dated 20th March, 2013 (Annexure P/1). By this order, the request of Coal India Limited for exemption from requirement of formation of works committee was rejected by the Ministry of Labour and Employment.
3. The case of the petitioner is that Coal India Ltd. has multilevel redressal mechanism. In this mechanism, prevailing since time immemorial, workmen can get their grievances redressed. Leaned senior counsel Mrs. Nair contended that a Joint Bipartite Committee for Coal Industry (JBCCI) was constituted way back on 11.12.1974. Five Central trade unions viz. INTUC, BMS, HMS, AITUC and CITU are the members of JBCCI. The grievances of the workmen are redressed in the meeting of JBCCI. Attention of this Court is drawn on another committee, namely, Joint Consultative Committee (JCC) . It is contended that JCC exists at unit level, area level and headquarter level. Issues which remains unaddressed at unit level are brought to area level and then to the Headquarter. JCC consists of trade unions, leaders of all recognized trade unions as well as representatives from management. After due deliberation in session, the disputes are resolved in in-house mechanism. It is further contended that their exists a Welfare Board having representation of members of central trade unions and Coal Company comprising of CMD, Functional Directors and HOD of concerned department. This forum decides the budget, allocation of fund, fixing priority of expenditure with reference to needs of the employees, sets target for medical, housing, constructions and repairing etc.
4. In addition to aforesaid, it is contended that industrial relation 8 WP. No 8368/2013 meetings are held in regular intervals between the management and central trade unions at the area and unit level. The meetings are regularly convened to redress the grievances of workmen. Mrs. Nair, learned senior counsel submits that there exists a unique feature of of alternative effective institutional mechanism for redressal of grievances in Coal India which is not available in various other industries including BSNL and railways. It is contended that a bare perusal of the Code of Conduct Annexure P/3 makes it crystal clear that decision was taken to strengthen and develop participation system and continue it at all levels. It is contended that a minute reading of code of conduct makes it clear that all possible industrial disputes can be taken care of and resolved in the aforesaid mechanism.
5. The respondent issued the order dated 23.12.1994 (Annexure R/1A. The respondents directed to constitute the works committee under section 3 of Industrial Disputes Act, 1947 (ID Act). The Coal India Ltd. preferred a representation seeking exemption under section 36 (B) of the ID Act from constituting works committee. The said representation was rejected on 24.02.2000 (Annexure R/4). Thereafter WP No. 18574/2010 was filed by Jan Shakti Koyla Mazdoor Sangh. This Court disposed of the said petition on 12.01.2011 and directed the respondent No.6 to decide the representation seeking formation of works committee. The Coal India Ltd. filed review petition No. 323/2011 seeking review of that order . This Court rejected the said review petition on 15.07.2011 by holding that this Court has not expressed any opinion on the merits and merely directed to decide the representation. There is no error apparent on the face of the record which needs review.
6. The grievance of the petitioner is that after that the statutory officers of respondent department started action under section 34 of the ID Act. Criminal proceedings were lodged against the statutory officers of the petitioner company. Thereafter Coal India preferred another representation seeking exemption from constituting works committee in CIL and its subsidiary companies. This Court in WP No. 3564/2013 passed an order dated 13.03.2013 (Annexure P/19). By 9 WP. No 8368/2013 the said order, the petition was disposed of with the direction to the respondent No.1, Ministry of Labour, to decide the representation preferred on behalf of the CIL seeking exemption from the applicability of section 3 of the ID Act within stipulated period. Till such decision is taken, show cause notices were directed to be kept in abeyance. By the impugned order, application seeking exemption under Section 36B is rejected by the respondent. This order is called in question in four writ petitions which are WP No. 8368/2013, WP No. 12379/2012, WP No. 14791/2013 and WP No. 15657/2013.
7. Criticizing the impugned order, Mrs. Nair submits that in the order it is mentioned that works committee is a statutory requirement and such requirement cannot be substituted by bipartite committee or welfare committee. She submitted that reasons assigned are not in consonance with the relevant considerations mentioned in section 36 (B) of the ID Act. By taking this Court to various documents i.e. memo of agreement Annexure P/2 dated 11th December, 1974, code of conduct dated 03.08.1994 and joint resolution of office bearers of all Central Trade Union Annexure P/7 it is contended that there exists effective institutional alternative redressal mechanism in CIL and therefore respondents should have granted exemption to the petitioner.
8. Per Contra Shri O.P. Namdeo, learned counsel for the respondent submits that section 3 of ID Act is a mandatory provision. The petitioner is under a statutory obligation to constitute a works committee and there is no infirmity in the impugned order inasmuch as other bodies like bipartite or welfare committee cannot substitute the statutory functionary of works committee. He further submits that exemption was earlier rejected on 24.02.2000 (Annexure R/4) There is no illegality in proceeding against the officer of the petitioner company because they have not followed mandatory provision of ID Act. Criminal proceedings can be initiated because of said violation. He placed reliance on section 34 of ID Act in this regard. He further submits that in WP No. 18547/2010 direction was issued to decide the representation and according to that the officers of respondents proceeded against the statutory officers of the petitioner for not 10 WP. No 8368/2013 following the mandate of section (3) of the Act. At the cost of repetition, Shri Namdeo placed heavy reliance on section 3 of the ID Act. He submits that it is mandatory in nature and petitioner cannot escape from the constitution of said statutory committee. By drawing attention of this Court on para 17 of the return, it is contended that these are the reasons on which the representation of the petitioner was rejected by Annexure P/1.
No other point is raised by learned counsel for the parties.
9. I have heard learned counsel for the parties and perused the record.
10. The basic question is whether the Annexure P/1 passed by respondent is in consonance with the requirement of ID Act, 1947. Before dealing with the rival contentions of the parties at bar, I deem it proper to reproduce the relevant provision, which reads as under:
S.3. Works Committee.- (1) In the case of any individual establishment in which one hundred or more workmen are employed or have been employed on any day in the preceding twelve months, the appropirate Government may by general or special order require the employer to constitute in the prescribed manner a Works Committee consisting of representatives of employers and workmen engaged in the establishement so however that the number of representatives of workmen on the Committee shall not be less than the number of representatives of the employer. The representatives of the workmen shall be chosen in the prescribed manner from among the workmen engaged in the establishment and in consultation with their trade union, if any, registered under the Indian Trade Unions Act, 1926 (16 of 1926) (2) It shall be the duty of Works Committee to promote measures for securing and preserving amity and good relations between the employer and workmen and, to that end, to comment upon matters of their common interest or concern and endeavour to compose any material difference of opinion in respect of such matters.
36 B. Power to exempt-Where the appropriate Government is satisfied in relation to any industrial establishment or undertaking or any class of industrial establishments or undertaking carried on by a department of that Government that adequate provisions exist for the investigation and settlement of industrial disputes in respect of workmen employed in such establishment or undertaking or class of establishments 11 WP. No 8368/2013 or undertakings, it may, by notification in the Official Gazette, exempt, conditionally or unconditionally such establishment or undertaking or class of establishments or undertaking from all or any of the provisions of this Act.
(Emphasize supplied) A bare perusal of section 3 of ID Act makes it crystal clear that the law makers have employed the word "may" in section (3). In the considered opinion of this Court, it is an enabling provision. The appropriate Government may by general or special order require the employer to constitute a works committee. It goes without saying that in given facts and circumstances the Central Government may not require or direct the employer to constitute a works committee. If requirement of constitution of works committee would have been a mandatory requirement, the law makers would not have used the word " appropriate Government may....". The constitution of works committee becomes a requirement only when a general or special order is issued by Central Government. It is not in dispute in the present case that the order in this regard was issued on 23rd December, 1994 (Annexure R1A). Pursuant to this order, it became obligatory on the part of the petitioner to constitute a works committee. Section 36(B) gives power to appropriate Government to grant exemption from all or any of the provisions of the ID Act. The key words of this provision are - "appropriate Government is satisfied that adequate provision exists for the investigation and settlement of industrial disputes in respect of workmen...." The appropriate Government was required to apply its mind about availability of adequate provision with the employer for the purpose of investigation and settlement of industrial disputes in respect of workmen. Appropriate Govt. can be satisfied only when it applies its mind on the basis of relevant consideration in the context of relevant statute. The Apex Court in (1994) 3 SCC (S.R. Bommai and others Vs. Union of India and others) opined as under-
"Hence it is not the personal whim, wish, view or opinion or the ipse dixit of the President dehors the material but a legitimate inference drawn from the material placed before him which is relevant for the purpose."
In the context of section 36B, the respondent was required to 12 WP. No 8368/2013 examine whether the alternative institutional mechanism relied upon by CIL fulfills the requirement of exemption
11. On reading section 3 and section 36(B) of the ID Act conjointly, it is crystal clear that requirement of constitution of works committee depends on general or special order by the appropriate Government. Even if such general or special order for constitution of works committee is issued by the appropriate government, the said requirement can be exempted by exercising the power under section 36(B) of the Industrial Disputes Act. Test for deciding the question of exemption is whether there exists adequate provision for investigation and settlement of industrial disputes in respect of workmen. Thus the litmus test on which the application of the petitioner was required to be decided was whether the provision and committee mentioned by petitioner are well equipped and suitable which can investigate and settle the industrial disputes of workmen. It is apt to quote the impugned order which reads as under-
Dated, New Delhi, the 20.03.2013.
Office Memorandum Subject: Exemption from the provisions of Section 3 of the industrial Disputes Act, 1947 regarding constitution of 'Works Committees' in the Coal India Ltd. and its subsidiary companies.
The undersigned is directed to refer to the correspondence resting with Ministry of Coal O.M. No. 49012 /1 /2011-PRIW-1, dated 25.02.2013 on the above mentioned subject and to say that the proposal of Ministry of Coal for granting exemption from the provisions of Section 3 of the Industrial Disputes Act, 1947 has been examined in this Ministry.
2. In this connection it is clarified that constitution of the 'Works Committee' is a Statutory requirement enshrined in the Industrial Disputes Act, 1947 and this cannot be substituted by other bipartite Welfare Committees.
3. After due consideration of all the facts, the proposal of the Ministry of Coal to grant exemption under Section 36 B of Industrial Disputes Act, 1947 from the constitution of 'Works Committee' under Section 3 to Coal India Ltd. and its 13 WP. No 8368/2013 subsidiaries cannot be acceded to.
4. This issue with the approval of the Secretary (L& E) (Babu Cherian) Deputy Secretary Ph. No. 23753079 (Emphasize supplied)
12. In the considered opinion of this Court, the respondent was required to examine the application of the petitioner on the anvil of aforesaid test. If impugned order is minutely examined it will show that singular reason for rejection of the application was that the works committee is a statutory requirement as per the ID Act and it cannot be substituted by other bipartite or welfare committee. In the considered opinion of this Court the impugned order clearly shows that the respondent has not applied its mind whether the alternative mechanism shown by the petitioner were adequate for investigation and settlement of industrial disputes in respect of workmen. The application was rejected at threshold solely on the ground that the statutory committee cannot be substituted on by any other committee. Constitution of the committees relied by the petitioner, its nature of activity, grievance redressal mechanism, scope of interference in industrial disputes etc. were not gone into by the respondent. Thus, in my opinion, Annexure P/1 is not in consonance with the requirement of section 36(B) of the ID Act.
13. Shri O.P. Namdeo, learned counsel contended that para 17 of the return makes it clear that reasons of rejection are justifiable. I am afraid that those reasons cannot be gone into in this petition. The order Annexure P/1 is passed by the statutory authority under the ID Act. This is settled in law that validity of an order of statutory authority is to be examined and seen on the the grounds mentioned therein. Same cannot be substituted by fililng counter affidavit before this Court. This view was taken way back by Constitution Bench in 1978 (1) SCC 405 (Mohinder Singh Gill Vs. The Chief Election Commissionier, New Delhi and others). Para 8 reads as under:-
"8. The second equally relevant matter is that when a statutory functionary makes an order based on certain 14 WP. No 8368/2013 grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J in Gordhandas Bhanji Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.
Orders are not like old wine becoming better as they grow older."
14. This view is followed by this Court in 2002 (2) MPLJ 366 (Kamla Bai Vs. Nagar Panchayat, Jatara and another ). In 2003 (6) SCC 545 (Chandra Singh and others Vs. State of Rajasthan and another) the apex Court followed the said ratio decidendi. Thus, the reasons assigned in Annexure P/1 alone are to be seen. Any other reason by way of reply or counter affidavit cannot provide strength to Annexure P/1.
15. On the basis of aforesaid analysis, in my opinion, the respondents utterly failed to examine the application of the petitioner seeking exemption as per relevant considerations and test laid down in section 36(B) of the ID Act. Thus, the impugned order Annexure P/ 1 cannot be permitted to stand. Accordingly, Annexure P/1 is set aside. Respondent shall decide the application of exemption of CIL afresh in the light of section 36(B) of the ID Act. Till such decision is taken, no coercive action be taken against the petitioner.
It be noted that this Court has not expressed any opinion on the merits of the case. Petitions are allowed to the extent indicated above. No cost..
(SUJOY PAUL) Judge Sarathe/-