- (1.) HEARD the counsel for the parties.
(2.) THE Management- petitioner has preferred this writ application seeking quashing of the award passed by the Presiding Officer, Central Government Industrial Tribunal No. 2, Dhanbad dated 31.10.2001 in Reference Case No. 2 of 1994(Annexure-7) whereby it has answered the reference against the petitioner- management holding that the dependant of the workman, Ramdhani Dhobi, Ex Mining Sirdarof Bhowra Colliery is entitled to employment under clause 9.4.3 of National Coal Wages Agreement-IV ( N.C.W.A.-IV). Learned counsel for the management- petitioner, while narrating the facts submitted that the date of birth of the respondent- workman recorded in Form B lying with the employer was 20.1.1932. He was appointed on 26.4.1946 and at the time of superannuation he was working as Mining Sirdar. It is stated that since, 23rd July 1991 he stopped attending duty and a statutory notice of superannuation was given to him on 27.7.1991 informing him about the date of superannuation w.e.f 20.1.1992 after attaining 60 years of age. The workman superannuated on 20.1.1992, thereafter an industrial dispute was raised on 23.3.1992 leading to the reference by the Central Government by notification dated 30.9.1993. The parties appeared on notice and filed their written statement where after the impugned award has been passed. The issue in question is quoted herein below:- "Whether the action of the management of M/s BCCL, Bhowra North Colliery, UG Mines in not providing employment to dependant of Ramdhani Dhobi, Ex- Mining Sirdar of Bhowra Colliery(N) (U/G Mines) under clause 9.4.3 of NCWA-IV is justified ? If not, to what relief the concerned workman is entitled?" It is submitted on behalf of the management- petitioner that under the terms of 9.4.3. N.C.W.A.-IV, the depandant of a workman, who is permanently disabled on account of injury or disease of a permanent nature resulting into loss of employment and so certified by the coal company concerned, is entitled to employment in place of his parents. The said agreement is quoted herein below:- "9.4.3 N.C.W.A.-IV:- Employment to one dependant of a worker who is permanently disabled in his place: (i) The disablement of the workman concerned should arise from injury or disease, be a permanent nature resulting into loss of employment and it should be so certified by the coal company concern. (ii) In case of disablement arising out of general physical disability so certified by Coal Company concern not arising out of injury or disease as in para (i) above, the concerned employee will be eligible for the benefit under this clause if the employee is up to the age of 58 years ; (iii) The depandant for this purpose means...................... (iv) The depandant to be considered for employment ............."
(3.) LEARNED counsel for the management submitted that employer- management never gave any certificate that the respondent- workman had been disabled by reasons of disease of permanent nature resulting into loss of employment. However, it is submitted that the workman had claimed before the Tribunal that he was examined by the Doctor of the D.G.M.S ( Director General of Mines Safety, Dhanbad), who reported that he is suffering from Pneumoconiosis. It was contended by the workman, that he should have been referred to the Apex Medical Board for a declaration relating to his medical condition, whether he is fit or medically unfit to continue in employment. However, it is submitted that the workman never got examined by the Medical Board of the Company and no declaration or certificate to that effect was issued by the Medical Board of the Company that he is permanently disabled to continue in the employment. It is further submitted that the learned Tribunal further proceeded to go beyond the terms of reference and undertook exercise to hold that on account of the disease Pneumoconiosis, which the workman had alleged to have been suffering, it was incumbent upon the coal company � management to examine him by the Apex Board and declaring him medically unfit, which they failed to do so. It is further submitted that the learned Tribunal, therefore, failed to appreciate that the statutory Board entrusted with the task of declaration of Medical Fitness of the workman under the Coal Company had never made such declaration which could bring the workman in question within the scope of enabling provision of 9.4.3.N.C.W.A-IV for giving any employment to his dependant. On the contrary, the Tribunal itself proceeded to make the declaration like an expert that since the workman had been recommended by the Medical Officer of D.G.M.S that he is suffering from Pneumoconiosis and as per clause 8.7.4 N.C.W.A.-IV, the workman ought to be examined within a period of 7 days of such reporting by Medical Board and on failure to do so the management has chosen to avoid its responsibility, although the workman was declared unfit by the Medical Officer. It is submitted that the medical officer acted in the capacity of the Medical Board by holding that the workman was suffering from disease, which rendered him medically unfit by way of permanent nature resulting into loss of employment and, therefore, the management was not justified in refusing employment to his son. Learned counsel for the management also has relied on relevant provisions of Section 25 of the Mines Act and the rules framed, thereunder, being Rule 29B, 29K and 29M, based upon which, he has made his submission that the act of declaration of medical fitness or otherwise is the duty of the Medical Board, duly constituted for the said purpose by the employer and the learned Tribunal was not justified in assuming the said role and declaring the workman as medically unfit in order to come within the scope of 9.4.3 N.C.W.A-IV. Based upon the aforesaid facts and circumstances, learned counsel for the management submitted that the learned Tribunal not only went beyond the scope of the reference but posed a wrong question to itself and accordingly, answered it in a wrong manner which is not proper in the eye of law. In the industrial adjudication, the Labour Court or the Tribunal is supposed to confine itself to the terms of the reference. In such a case at hand, the ingredients for fulfillment of the conditions prescribed under 9.4.3 N.C.W.A. -IV are that there ought to have been declaration by the Apex Medical Board in the terms that the workman is suffering from injury, disease of such permanent nature resulting in loss of employment where after, workman cannot proceed to work. It is further submitted that since no such declaration was made, admittedly the workman continued to work till his date of superannuation, although he had stopped attending duty from earlier date. Since, the aforesaid ingredients of 9.4.3.N.C.W.A-IV were not fulfilled, the Tribunal should not have ventured beyond the terms of reference by assuming the role of Apex Board in holding the workman medically unfit and thereafter, answering the reference by declaring that his dependant is entitled for employment in his place. Accordingly, he has submitted that the impugned judgment suffers from apparent errors of law on the face of it and is fit to be quashed.;