EMPLOYERS IN RELATION TO THE MANAGEMENT OF BHALGORA AREA (NOW KUSTORE AREA) OF M/S BHARAT COKING COAL LTD. versus WORKMEN BEING REPRESENTED BY JANTA MAZDOOR SANGH on 7 September 2021

1. Leave granted. This appeal has been preferred by theManagement against the judgement dated 11.02.2016 in the L.P.A.No.334/2008 whereby, the Division Bench of the High Court ofJharkhand had set aside the order passed by the learned SingleJudge and restored the Award dated 28.09.2005 passed by theCentral Government Industrial Tribunal No.1 Dhanbad whereby, theworkmen-respondents were directed to be reinstated with 50% backwages.

2. We have heard Mr. Anupam Lal Das, learned Sr. counselappearing for the Management. The respondent-Union who wereespousing the interest of the discharged workmen, is represented byMs. Anisha Upadhyay, the learned counsel.

3. The appellants are the Management of Bhalgora Area ofM/s Bharat Coking Coal Limited (‘BCCL’ for short), a CentralGovernment Undertaking within the meaning of Section 617 of the A

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ACompanies Act, 1956. By virtue of their status, the BCCL is requiredto process their recruitment, by notifying the vacancies andrequisitioning names from the jurisdictional Employment Exchange,under the provisions of the Employment Exchange (CompulsoryNotification of Vacancies) Act, 1959 (for short, ‘the 1959 Act’)

B4. In 1986, the BCCL decided to recruit Scheduled Castes/Scheduled Tribes candidates in vacancies of miners/loaders.Accordingly, the Management of BCCL made requisition from theEmployment Exchange on the basis whereof, list of eligible SC/STcandidates for appointment was prepared. As a matter of fact, suchlist did not contain the names of any of the 38 workmen whose case isCrepresented by the respondent-Trade Union. The allegation is that those38 job aspirants, in connivance with a Dealing Assistant and a PersonnelManager of the Bhalgora Area of BCCL, dishonestly securedappointments. When such fraudulent appointments was detected,disciplinary proceedings were drawn up against the concerned DealingDAssistant and the Personnel Manager and eventually both wereremoved from service. Parallelly, Charge Memo was issued against theconcerned miners/loaders and following the adverse finding in thedepartmental inquiry, the beneficiaries of the fraudulent appointmentprocess were terminated from service.

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E5. The case of the 38 workmen was taken up by therespondent-Trade Union and in the Reference Case No.98 of 1994, theCentral Government Industrial Tribunal No.1 Dhanbad (hereinafterreferred to as, ‘the Tribunal’ for short) concluded that the Managementfailed to substantiate the charge of manipulated appointment as theFconcerned witness i.e. the dealing clerk Jitendra Kumar Adeshra andthe Personnel Manager PM Prasad, were not examined to prove thecharge of unmerited appointment being secured by the workmen, inconnivance with the said two employees of the Organization. For theperceived failure of the Management to justify their action, thetermination orders were interdicted by the Tribunal and the concernedGworkmen were directed to be reinstated with 50% back wages.

6. Aggrieved by the Tribunal’s Award dated 28.09.2005, theManagement filed the W.P.(L) No.1916 of 2006, challenging the findingand the direction of the Tribunal. The learned Single Judge noted thatthe specific case of some of the workmen in their reply to the charge-Hmemo was that 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 WrittenStatement filed before the Tribunal in a clear departure from their earlierstand, the workmen on the second occasion contended that theirappointments were made by the General Manager of the Bhalgora areaindependently and this was not related to the Employment Exchangesponsored panel, prepared by the Bhalgora area in 1986. While analyzingsuch contradictory stand, the Writ Court found that the lists sent fromthe Employment Exchange to the Bhowra area (marked as Exbt.M-3to M-3/3) and the list sent from Bhowra area to Bhalgora area (markedas 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 litigatingworkmen did not figure in those lists. The disciplinary action takenagainst the Dealing Clerk and the Personnel Manager on the chargeof facilitating fraudulent employment for the 38 workmen, was alsonoted by the learned Judge. In consequence, having regard to thematerials on record, it was concluded that the Tribunal erroneouslyanswered the reference against the Management. It was accordinglyheld that the reinstatement order for the workmen, was unmerited.Adverting to the contradictory stand of the workmen to lend legitimacyto their appointment, the Court’s conclusion was that the Tribunalmisdirected itself in allowing the workmen to depart from the earlierstand on the premises that the workmen were appointed by the GeneralManager independently and without reference to the lists sent from theEmployment Exchange. On this aspect, it must be observed that thelegitimacy of the appointment cannot be tested on the touchstone oftwo contradictory projections. If either one is accepted, the next onehas to be discarded. Thus, it is reasonable to hold that the appointeesfailed to establish that their appointments were legitimate and shouldtherefore, be immune from interference.

7. It is also relevant to record herein that the Managementwitness Ram Janam Sigh (M-1), who was the Deputy PersonnelManager 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 seriesExbts. were the lists received from the Employment Exchange fromwhich, few were appointed in Bhowra area and the remaining personswhose names find place in M-4 series Exbts, were then appointed inthe Bhalgora area. From the materials the Court formulated that themain question to be examined is whether the names of the workmen ABC

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Afigured in the Employment Exchange sponsored lists. It was then foundthat they did not. The learned Judge accordingly held that theManagement has proved that it is a case of unmerited appointment andthe workmen were the beneficiaries of a fraudulent process.

8. The Court was also of the view that the burden was on theBUnion to establish that the workmen were lawfully appointed but sincesuch onus was not discharged by the Union, the Writ Petition wasallowed in favour of the Management, and against the workmen.

9. Aggrieved by the decision of the learned Single Judge, theUnion filed the LPA No.334 of 2008 before the High Court. TheCDivision Bench, on the perceived failure of the Management to adducematerial to justify the termination orders, decided in favour of theappointees. In this way, the fraudulent process through which theworkmen secured appointment was not given due weightage by theDivision Bench. The fact that the names of the workmen did not figurein the lists sponsored by the Employment Exchange and as a corollary,Dthe appointments would be contrary to the prescription in the 1959 Act,was also significantly overlooked, in the LPA proceeding. The namesof the workmen did not as a matter of fact, figure in the Exbt.M-3 seriesand Exbt.M-4 series and yet, without regard for this most relevantaspect, the Division Bench erroneously concluded that the ManagementEfailed to adduce requisite evidence on un-merited appointment, securedby the workmen.

10. At this stage it would be relevant to state that the records ofthe domestic enquiry leading to the termination orders were madeavailable by the Management to the Tribunal. All the exhibits from pageF1 to page 454, including the approval of the General Manager for thedischarge of the workmen on the recommendation of the ProjectOfficer, the Exbt.M-2 chargesheets, as also the domestic enquiryproceedings were all presented to the Tribunal by the Management.To claim legitimacy for their appointment, few of the workmen in theirresponse to the chargesheet as noted earlier, claimed that their namesGfigured in the lists sponsored by the Employment Exchange. But in theirWritten Statement, the workmen pleaded differently and claimed thatthey were appointed by the General Manager of the Bhalgora area,independently and without reference to the lists from the EmploymentExchange. Such diametrically opposite stand of the workmen on howHthey secured appointment, (predicated on two versions which naturally can not stand together), should have in our view, persuaded both theTribunal as also the Division Bench to answer the reference in favourof the Management.

11. In the present case, the Management’s consistent stand hasbeen that it was a case of fraudulent appointment in connivance withthe Dealing Assistant and Personnel Manager, who faced disciplinaryaction for facilitating wrongful appointment. It is also noteworthy thatthe appellant as a Government Undertaking, is under a statutoryobligation under the 1959 Act, to make appointments only through theEmployment Exchange. But this was not done in this case for the 38litigating workmen. The names of the respondent-workmen, as earliernoted, did not figure in either of the two lists relatable to the EmploymentExchange. Moreover, the workmen, as can be seen, failed to dischargetheir burden and took the contradictory stand in a desperate attempt toconvey legitimacy to their appointment.

12. We must also be conscious of the fact that departmentalaction was taken by the appellant against the errant Personnel Managerand the Dealing Assistant, for their misconduct in facilitating unmeritedappointment to the 38 workmen through a fraudulent process. In thisregard, usefully it can be noted that the Dealing Assistant and thePersonnel Manager were dismissed for their misconduct. For therecord, the Dealing Assistant’s dismissal was upheld by the Tribunalon 13.06.2000 in the Reference No.5/97. The dismissal order againstthe Personnel Manager was although interfered by the High Court buton appeal by the Management, the case was remanded to the HighCourt for fresh adjudication. Since then, the Personnel Manager hasreached the age of superannuation. These would suggest that theappellant pursued the issue of unmerited appointment, both against thefacilitators and also the beneficiaries.

13. In the above perspective, the reference in our opinion, waserroneously answered by the Tribunal, against the Management. In theprocess, the steps taken by the Management to undo the wrong doneby the two delinquent employees to facilitate unmerited appointment,was undeservedly interdicted by the Tribunal.

14. The learned Single Judge should not have been overruled bythe impugned judgment by ignoring the key fact that the appointees didnot figure in either of the lists, sponsored by the jurisdictionalEmployment Exchange and that they were beneficiaries of a fraudulent AB

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Aprocess. Enough materials were presented to the Tribunal to justifythe action against the illegally appointed workmen, and as such theappellants cannot be made to suffer the consequence of the misconductof their two errant employees against whom, disciplinary actions weretaken by the Management. Moreover, the contradictory stand of theworkmen at different stage would suggest that they were consciousBand aware of being appointed through a non-bonafide process. In anycase, the appointments were contrary to the requirements of the 1959Act.

15. In Union of India Vs. M.Bhaskaran[1], on similar facts offraudulent appointment, Justice S.B. Majumdar writing for a DivisionCBench rightly expressed the following, “6. …the concerned railway employees, respondents herein haveadmittedly snatched employment in Railway service, may be ofa casual nature, by relying upon forged or bogus casual labourercards. The unauthenticity of the service cards on the basis ofDwhich they got employment is clearly established on record ofthe departmental enquiry held against the concerned employees.Consequently, it has to be held that respondents were guilty ofmisrepresentation and fraud perpetrated on the appellantemployer while getting employed in Railway service and hadSnatched such employment which would not have been madeEavailable to them if they were not armed with such bogus andforged labourer cards. It was clearly a case of fraud on theappellant-employer. If once such fraud is detected, theappointment orders themselves which were found to be taintedand vitiated by fraud and acts of cheating on the part ofemployees, were liable to be recalled and were at least voidableFat the option of the employer concerned. This is precisely whathas happened in the present case. Once the fraud of therespondents in getting such employment was detected therespondents were proceeded against in departmental enquiriesand were called upon to have their say and thereafter have beenGremoved from service. Such orders of removal would amountto recalling of fraudulently obtained erroneous appointment orderswhich were avoided by the employer- appellant after followingthe due procedure of law and complying with the principles ofnatural justice.”

H1 (1995) Supp. 4 SCC 100

16. We also endorse the opinion of Justice D.Y. Chandrachud,writing for a three judges’ Bench in Chairman and ManagingDirector, Food Corporation of India & Ors. Vs. Jagdish BalramBahira & Ors.[2], where the Court has noted the responsibility of Courtsto guard against fraudulent employment, especially when suchappointment 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 amatter of principle, in the exercise of its constitutional jurisdiction,the court must weigh against an interpretation which will protectunjust claims over the just, fraud over legality and expediencyover principle. As the nation evolves, the role of the court mustbe as an institution which abides by constitutional principle,enforces the rule of law and reaffirms the belief that claims basedupon fraud, expediency and subterfuge will not be recognised.Once these parameters are established with a clear judicialformulation individual cases should pose no problem. Usurpationof constitutional benefits by persons who are not entitled to themmust be answered by the court in the only way permissible foran institution which has to uphold the rule of law. Unless thecourts were to do so, it would leave open a path of incentivesfor claims based on fraud to survive legal gambits and thecreativity of the disingenuous.”

17. Fraudulent practice to gain public employment cannot becountenanced to be permitted by a Court of law. The workmen here,having hoodwinked the Government Undertaking in a fraudulentmanner, must be prevented from enjoying the fruits of their ill-gottenadvantage. The sanctity of public employment, as a measure of socialwelfare and a significant source of social mobility, must be protectedagainst such fraudulent process which manipulates and corrupts theselection process. Employment schemes floated by the State fortargeted groups, can absorb a finite number of workmen. To abuse thelegitimate process therefore would mean deprivation of employmentbenefits to rightful beneficiaries. The Courts as sentinel of justice muststrive to ensure that such employment programmes are not manipulatedby deceitful middlemen, thereby setting up a parallel mechanism ofFaustian Bargain. Often, desperate job aspirants’ resort to such 2 (2017) 8 SCC 670

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Ameasures to compete for limited vacancies, but this Court cannotcondone false projections so as to circumvent the statutorily prescribedprocedure for appointments. Such illegal practices must be interdictedby the Courts.

18. For the aforesaid reasons, the reversal of the well-reasonedBorder of the learned Single Judge is found to be unjustified. The appealaccordingly stands allowed by setting aside the LPA judgment andrestoring the decision of the learned Single Judge. It is orderedaccordingly. The parties to bear their own cost.

CBibhuti Bhushan Bose

Appeal allowed.

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