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Supreme Court of India
Employers In Relation To The … vs Workmen Being Represented By … on 7 September, 2021Author: Hrishikesh Roy
Bench: A.M. Khanwilkar, Hrishikesh Roy, C.T. Ravikumar
[REPORTABLE]
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. OF 2021
(Arising out of SLP (C) No.29873 OF 2016)
EMPLOYERS IN RELATION TO THE
MANAGEMENT OF BHALGORA AREA
(NOW KUSTORE AREA) OF M/S BHARAT
COKING COAL LTD. APPELLANT(S)
VERSUS
WORKMEN BEING REPRESENTED BY
JANTA MAZDOOR SANGH RESPONDENT(S)
J U D G M E N T
Hrishikesh Roy, J.
1. Leave granted. This appeal has been preferred
by the Management against the judgement dated
11.02.2016 in the L.P.A. No.334/2008 whereby, the
Division Bench of the High Court of Jharkhand had
set aside the order passed by the learned Single
Judge and restored the Award dated 28.09.2005
passed by the Central Government Industrial
Signature Not Verified
Digitally signed by
DEEPAK SINGH
Date: 2021.09.07
Tribunal No.1 Dhanbad whereby, the workmen-
17:26:57 IST
Reason:
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respondents were directed to be reinstated with 50%
back wages.
2. We have heard Mr. Anupam Lal Das, learned Sr.
counsel appearing for the Management. The
respondent-Union who were espousing the interest of
the discharged workmen, is represented by Ms.
Anisha Upadhyay, the learned counsel.
3. The appellants are the Management of Bhalgora
Area of M/s Bharat Coking Coal Limited (‘BCCL’ for
short), a Central Government Undertaking within the
meaning of Section 617 of the Companies Act, 1956.
By virtue of their status, the BCCL is required to
process their recruitment, by notifying the
vacancies and requisitioning names from the
jurisdictional Employment Exchange, under the
provisions of the Employment Exchange (Compulsory
Notification of Vacancies) Act, 1959 (for short,
‘the 1959 Act’)
4. In 1986, the BCCL decided to recruit Scheduled
Castes/Scheduled Tribes candidates in vacancies of
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miners/loaders. Accordingly, the Management of
BCCL made requisition from the Employment Exchange
on the basis whereof, list of eligible SC/ST
candidates for appointment was prepared. As a
matter of fact, such list did not contain the names
of any of the 38 workmen whose case is represented
by the respondent-Trade Union. The allegation is
that those 38 job aspirants, in connivance with a
Dealing Assistant and a Personnel Manager of the
Bhalgora Area of BCCL, dishonestly secured
appointments. When such fraudulent appointments was
detected, disciplinary proceedings were drawn up
against the concerned Dealing Assistant and the
Personnel Manager and eventually both were removed
from service. Parallelly, Charge Memo was issued
against the concerned miners/loaders and following
the adverse finding in the departmental inquiry,
the beneficiaries of the fraudulent appointment
process were terminated from service.
5. The case of the 38 workmen was taken up by the
respondent-Trade Union and in the Reference Case
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No.98 of 1994, the Central Government Industrial
Tribunal No.1 Dhanbad (hereinafter referred to as,
‘the Tribunal’ for short) concluded that the
Management failed to substantiate the charge of
manipulated appointment as the concerned witness
i.e. the dealing clerk Jitendra Kumar Adeshra and
the Personnel Manager PM Prasad, were not examined
to prove the charge of unmerited appointment being
secured by the workmen, in connivance with the said
two employees of the Organization. For the
perceived failure of the Management to justify
their action, the termination orders were
interdicted by the Tribunal and the concerned
workmen were directed to be reinstated with 50%
back wages.
6. Aggrieved by the Tribunal’s Award dated
28.09.2005, the Management filed the W.P.(L)
No.1916 of 2006, challenging the finding and the
direction of the Tribunal. The learned Single
Judge noted that the specific case of some of the
workmen in their reply to the charge-memo was that
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their names figured in the Employment Exchange
sponsored list, sent from Bhowra area to Bhalgora
area and in this way, they tried to show that they
were legally appointed. But in their Written
Statement filed before the Tribunal in a clear
departure from their earlier stand, the workmen on
the second occasion contended that their
appointments were made by the General Manager of
the Bhalgora area independently and this was not
related to the Employment Exchange sponsored
panel, prepared by the Bhalgora area in 1986.
While analyzing such contradictory stand, the Writ
Court found that the lists sent from the Employment
Exchange to the Bhowra area (marked as Exbt.M-3 to
M-3/3) and the list sent from Bhowra area to
Bhalgora area (marked as Exbt.M-4/1 to M-4/4) were
available on record before the Tribunal. The names
in the lists were verified and it was found that
the litigating workmen did not figure in those
lists. The disciplinary action taken against the
Dealing Clerk and the Personnel Manager on the
charge of facilitating fraudulent employment for
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the 38 workmen, was also noted by the learned
Judge. In consequence, having regard to the
materials on record, it was concluded that the
Tribunal erroneously answered the reference against
the Management. It was accordingly held that the
reinstatement order for the workmen, was unmerited.
Adverting to the contradictory stand of the workmen
to lend legitimacy to their appointment, the
Court’s conclusion was that the Tribunal
misdirected itself in allowing the workmen to
depart from the earlier stand on the premises that
the workmen were appointed by the General Manager
independently and without reference to the lists
sent from the Employment Exchange. On this aspect,
it must be observed that the legitimacy of the
appointment cannot be tested on the touchstone of
two contradictory projections. If either one is
accepted, the next one has to be discarded. Thus,
it is reasonable to hold that the appointees failed
to establish that their appointments were
legitimate and should therefore, be immune from
interference.
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7. It is also relevant to record herein that the
Management witness Ram Janam Sigh (M-1), who was
the Deputy Personnel Manager in Bhowra area at the
relevant time, while proving the Exbt. M-3 series
and M-4 series had pointedly testified that the M-3
series Exbts. were the lists received from the
Employment Exchange from which, few were appointed
in Bhowra area and the remaining persons whose
names find place in M-4 series Exbts, were then
appointed in the Bhalgora area. From the materials
the Court formulated that the main question to be
examined is whether the names of the workmen
figured in the Employment Exchange sponsored lists.
It was then found that they did not. The learned
Judge accordingly held that the Management has
proved that it is a case of unmerited appointment
and the workmen were the beneficiaries of a
fraudulent process.
8. The Court was also of the view that the burden
was on the Union to establish that the workmen were
lawfully appointed but since such onus was not
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discharged by the Union, the Writ Petition was
allowed in favour of the Management, and against
the workmen.
9. Aggrieved by the decision of the learned
Single Judge, the Union filed the LPA No.334 of
2008 before the High Court. The Division Bench, on
the perceived failure of the Management to adduce
material to justify the termination orders, decided
in favour of the appointees. In this way, the
fraudulent process through which the workmen
secured appointment was not given due weightage by
the Division Bench. The fact that the names of the
workmen did not figure in the lists sponsored by
the Employment Exchange and as a corollary, the
appointments would be contrary to the prescription
in the 1959 Act, was also significantly overlooked,
in the LPA proceeding. The names of the workmen
did not as a matter of fact, figure in the Exbt.M-3
series and Exbt.M-4 series and yet, without regard
for this most relevant aspect, the Division Bench
erroneously concluded that the Management failed to
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adduce requisite evidence on un-merited
appointment, secured by the workmen.
10. At this stage it would be relevant to state
that the records of the domestic enquiry leading to
the termination orders were made available by the
Management to the Tribunal. All the exhibits from
page 1 to page 454, including the approval of the
General Manager for the discharge of the workmen on
the recommendation of the Project Officer, the
Exbt.M-2 chargesheets, as also the domestic enquiry
proceedings were all presented to the Tribunal by
the Management. To claim legitimacy for their
appointment, few of the workmen in their response
to the chargesheet as noted earlier, claimed that
their names figured in the lists sponsored by the
Employment Exchange. But in their Written
Statement, the workmen pleaded differently and
claimed that they were appointed by the General
Manager of the Bhalgora area, independently and
without reference to the lists from the Employment
Exchange. Such diametrically opposite stand of the
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workmen on how they secured appointment,
(predicated on two versions which naturally can not
stand together), should have in our view, persuaded
both the Tribunal as also the Division Bench to
answer the reference in favour of the Management.
11. In the present case, the Management’s
consistent stand has been that it was a case of
fraudulent appointment in connivance with the
Dealing Assistant and Personnel Manager, who faced
disciplinary action for facilitating wrongful
appointment. It is also noteworthy that the
appellant as a Government Undertaking, is under a
statutory obligation under the 1959 Act, to make
appointments only through the Employment Exchange.
But this was not done in this case for the 38
litigating workmen. The names of the respondent-
workmen, as earlier noted, did not figure in either
of the two lists relatable to the Employment
Exchange. Moreover, the workmen, as can be seen,
failed to discharge their burden and took the
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contradictory stand in a desperate attempt to
convey legitimacy to their appointment.
12. We must also be conscious of the fact that
departmental action was taken by the appellant
against the errant Personnel Manager and the
Dealing Assistant, for their misconduct in
facilitating unmerited appointment to the 38
workmen through a fraudulent process. In this
regard, usefully it can be noted that the Dealing
Assistant and the Personnel Manager were dismissed
for their misconduct. For the record, the Dealing
Assistant’s dismissal was upheld by the Tribunal on
13.06.2000 in the Reference No.5/97. The dismissal
order against the Personnel Manager was although
interfered by the High Court but on appeal by the
Management, the case was remanded to the High Court
for fresh adjudication. Since then, the Personnel
Manager has reached the age of superannuation.
These would suggest that the appellant pursued the
issue of unmerited appointment, both against the
facilitators and also the beneficiaries.
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13. In the above perspective, the reference in our
opinion, was erroneously answered by the Tribunal,
against the Management. In the process, the steps
taken by the Management to undo the wrong done by
the two delinquent employees to facilitate
unmerited appointment, was undeservedly interdicted
by the Tribunal.
14. The learned Single Judge should not have been
overruled by the impugned judgment by ignoring the
key fact that the appointees did not figure in
either of the lists, sponsored by the
jurisdictional Employment Exchange and that they
were beneficiaries of a fraudulent process. Enough
materials were presented to the Tribunal to justify
the action against the illegally appointed workmen,
and as such the appellants cannot be made to suffer
the consequence of the misconduct of their two
errant employees against whom, disciplinary actions
were taken by the Management. Moreover, the
contradictory stand of the workmen at different
stage would suggest that they were conscious and
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aware of being appointed through a non-bonafide
process. In any case, the appointments were
contrary to the requirements of the 1959 Act.
15. In Union of India Vs. M.Bhaskaran1, on similar
facts of fraudulent appointment, Justice S.B.
Majumdar writing for a Division Bench rightly
expressed the following,
“6. …the concerned railway employees,
respondents herein have admittedly
snatched employment in Railway service,
may be of a casual nature, by relying
upon forged or bogus casual labourer
cards. The unauthenticity of the service
cards on the basis of which they got
employment is clearly established on
record of the departmental enquiry held
against the concerned employees.
Consequently, it has to be held that
respondents were guilty of
misrepresentation and fraud perpetrated
on the appellant employer while getting
employed in Railway service and had
Snatched such employment which would not
have been made available to them if they
were not armed with such bogus and forged
labourer cards. It was clearly a case of
fraud on the appellant-employer. If once
such fraud is detected, the appointment
orders themselves which were found to be
tainted and vitiated by fraud and acts of
1 (1995) Supp. 4 SCC 100
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cheating on the part of employees, were
liable to be recalled and were at least
voidable at the option of the employer
concerned. This is precisely what has
happened in the present case. Once the
fraud of the respondents in getting such
employment was detected the respondents
were proceeded against in departmental
enquiries and were called upon to have
their say and thereafter have been
removed from service. Such orders of
removal would amount to recalling of
fraudulently obtained erroneous
appointment orders which were avoided by
the employer- appellant after following
the due procedure of law and complying
with the principles of natural justice.”
16. We also endorse the opinion of Justice D.Y.
Chandrachud, writing for a three judges’ Bench in
Chairman and Managing Director, Food Corporation
of India & Ors. Vs. Jagdish Balram Bahira & Ors. 2,
where the Court has noted the responsibility of
Courts to guard against fraudulent employment,
especially when such appointment is obtained by
perpetuating fraud upon the authorities,
“4. …Public employment is a significant
source of social mobility. Access to
education opens the doors to secure
futures. As a matter of principle, in the
2 (2017) 8 SCC 670
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exercise of its constitutional
jurisdiction, the court must weigh
against an interpretation which will
protect unjust claims over the just,
fraud over legality and expediency over
principle. As the nation evolves, the
role of the court must be as an
institution which abides by
constitutional principle, enforces the
rule of law and reaffirms the belief that
claims based upon fraud, expediency and
subterfuge will not be recognised. Once
these parameters are established with a
clear judicial formulation individual
cases should pose no problem. Usurpation
of constitutional benefits by persons who
are not entitled to them must be answered
by the court in the only way permissible
for an institution which has to uphold
the rule of law. Unless the courts were
to do so, it would leave open a path of
incentives for claims based on fraud to
survive legal gambits and the creativity
of the disingenuous.”
17. Fraudulent practice to gain public employment
cannot be countenanced to be permitted by a Court
of law. The workmen here, having hoodwinked the
Government Undertaking in a fraudulent manner, must
be prevented from enjoying the fruits of their ill-
gotten advantage. The sanctity of public
employment, as a measure of social welfare and a
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significant source of social mobility, must be
protected against such fraudulent process which
manipulates and corrupts the selection process.
Employment schemes floated by the State for
targeted groups, can absorb a finite number of
workmen. To abuse the legitimate process therefore
would mean deprivation of employment benefits to
rightful beneficiaries. The Courts as sentinel of
justice must strive to ensure that such employment
programmes are not manipulated by deceitful
middlemen, thereby setting up a parallel mechanism
of Faustian Bargain. Often, desperate job
aspirants’ resort to such measures to compete for
limited vacancies, but this Court cannot condone
false projections so as to circumvent the
statutorily prescribed procedure for appointments.
Such illegal practices must be interdicted by the
Courts.
18. For the aforesaid reasons, the reversal of the
well-reasoned order of the learned Single Judge is
found to be unjustified. The appeal accordingly
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stands allowed by setting aside the LPA judgment
and restoring the decision of the learned Single
Judge. It is ordered accordingly. The parties to
bear their own cost.
………………………………………………J.
[SANJAY KISHAN KAUL]
………………………………………………J.
[HRISHIKESH ROY]
NEW DELHI
SEPTEMBER 07, 2021
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