S.J.MUKHOPADHAYA, J. - (1.) BOTH the petitioners -Management of Nirsa Area of M/s. Eastern Coalfields Ltd. (for short -ECL) and the workmen have preferred the writ petitions against the common award dated 17th January, 1997 passed by the learned Presiding Officer, Central Government Industrial Tribunal No. 1, Dhanbad in Reference No. 43/1990, whereby and whereunder, while he held the action of the Management of Badjna Colliery in denying employment to Basudeo Bhuiyan and 682 others not justified, directed the petitioner management to employ at least 105 to 110 workmen w.e.f. 1979, within two months from the date of publication of award. About 683 workmen sponsored by their Union, i.e., petitioner of CWJC No. 2047 of 1997 (R) pleaded that all the 683 workmen as shown in the chart presented by them, were employed in Durga Boka Pahari Colliery, now a part of Badjna Colliery since before nationalization of coal mines in the year 1973. Before nationalization, there was some dispute between one Shri R.K. Agarwalla, owner of Durga Boka Pahari Colliery and M/s. Oriental Coal Company regarding title and ownership of the Colliery. Apart from a suit for the title and ownership filed, a criminal case was also lodged. In the meantime, after nationalization of M/s. Oriental Coal, the adjacent Badjna Colliery was taken over by the Central Government and vested with the M/s. ECL w.e.f. 1.5.1973. It was also pleaded by them that even after nationalization, as the Durga Boka Pahari Colliery remained in the possession of Shri R.K. Agarwalla, he continued to take work through his workers. A Civil Suit No. 5/1974 was filed by Shri R.K. Agarwalla with a plea that the Durga Boka Pahari Colliery has not been vested in the Central Government.
(2.) FURTHER case of the sponsoring Union of workmen was that in the year 1979 by intervention of the State authority, Shri R.K. Agarwalla relented and the possession of Durga Boka Pahari Colliery passed over to M/s. ECL and merged with Badjna Colliery in the year 1979. It was stated that the ownership of the Durga Boka Pahari Colliery having vested with M/s. ECL and thereafter though it merged with Badjna Colliery in the year 1979, the Management of M/s. ECL did not take over the services of the 683 workmen inspite of repeated representation. Earlier, the Central Government refused to refer the dispute to the Tribunal under Section 10(1)(d) of the Industrial Disputes Act. The workmen had to file a writ petition, CWJC No. 365 of 1989 before the Ranchi Bench of the Patna High Court, wherein the Court vide order dated 26th April, 1989 directed the Central Government to reconsider the matter. Another similar case was pending before the Supreme Court in Writ Petition (Civil) No. 417 of 1989 filed by the "Bihar Pradesh Colliery Mazdoor Congress and another against the Union of India and M/s. ECL", in which the workmen of Durga Boka Colliery claimed for their reinstatement in the services of M/s. ECL. After hearing the parties, the Supreme Court, passed the following orders on 24th July, 1989 : "After hearing the learned counsel for the both the parties, we direct that if the respondents start the Colliery, they will recruit the petitioners to the extent of their requirement. The writ petition is disposed of accordingly. There will be no order as to costs." It appears that the order of the Supreme Court was not brought to the notice of the Central Government, which taking into consideration the order dated 26th April, 1989 passed by the Ranchi Bench of Patna High Court in CWJC No. 365 of 1989 (R), referred the following dispute for adjudication by the Tribunal vide its order dated 5th February, 1990 : "Whether the action of the Management of Badjna Colliery of M/s. Eastern Coalfields Ltd. in denying employment to Shri Basudeo Bhuiyan and 682 others shown in the annexure is justified? If not, to what relief are workmen entitled to?
(3.) FROM the impugned award dated 17th January, 1997 passed in Reference No. 43 of 1990, it will be evident that on appreciation of evidence, on record, the learned Presiding Officer came to a finding that only 40 to 50 workers were working in the Durga Boka Pahari Colliery in the year 1979. Inspite of such finding, for the reasons best known to the learned Presiding Officer, it was presumed that at least 100 workers would have been working as the Colliery was running in two shifts. On the basis of such presumption, a finding was given that the action of the Management of Badjna Colliery of M/s. ECL in denying employment to Basudeo Bhuiyan and 682 others is not justified, as is evident from the observations of the learned Presiding Officer and quoted hereunder: "27. In view of the evidence on record it is clear that even the evidence of the management 'switnesses is relied upon them only 40 to 50 workers were working in the said Durga Pokapahari Colliery in the year 1979 and the colliery was running in two shifts naturally atleast 100 workers would have been working there and some more workmen would be required to do miscellaneous job. The sponsoring union has asked work of 507 workmen in the written argument. It is true that 683 or 507 workmen could not be engaged in a small open cast mine, like said Durga Bokapahari Colliery which is a part of Badjna Colliery. Considering all these facts this Tribunal is of the opinion that atleast 105 to 110 eligible and able bodied workmen should be taken into employment under the management of Badjna Colliery for running Durga Bokapahari Colliery immediately after providing necessary infrastructure there. 28. It is, therefore, held that the action of the management of Badjna Colliery in not giving employment to the workmen cannot be said to be justified and the workmen to the extent of number as given above are entitled for their employment on the identification by the President/Secretary of the sponsoring union. 29. Hence the following award : "The action of the management of Badjna Colliery of M/s. E.C. Ltd. in denying employment to Basudeo Bhuiyan and 682 others as per Annexure is not justified. The above management is further directed to employ at least 105 to 110 workmen from the date of their stoppage from work in the year 1979 within two months from the date of publication of the award on their identification by the President/ Secretary of the sponsoring Union. But they will not be entitled for their back wages on the principle of no work no pay. In the circumstances of the case, there will be no order as to cost." ;