RAM NARAIN OJHA Vs. BHARAT COKING COAL LTD

JUDGEMENT

(1.) The sole plaintiff is the appellant. This appeal is directed against the judgment dated 20-10-1982 and the decree signed on 29-11-1982 passed by Shri Manoher Lal Visa Additional Subordinate Judge, Vth Court, Dhanbad, in Money Suit No. 169/4 of 1975/82 dismissing the suit. The defendant is the sole respondent.

(2.) The case of the plaintiff, in short, is that he was working as Loaders' Sardar for Lodna and Baghdigi Collieries since the year 1953. Af that time the aforesaid collieries were owned and managed by Lodna Colliery Company (Private) Limited. With effect from 17-10-1971 the Management of the these two collieries was taken over by the Central Government. Subsequently with effect from 1-5-1972. These collierier were nationalised. After the nationalisation ultimately ownership and management of these colleiries vested in the sole respondent. Further case of the appellant is that he was receiving the Sardari Commission since 1953 at the rate of Oil paise in some cases and 0.12 paise in others for each tub of coal loaded by the labourers. On this basis, for his contract of service- the average amount of commission payable to him was Rs. 3,000/- per month. This amount was payable on any day of the following month. After taking over the management of the collieries for the period from 17-10-1971 to 30-4-1972 the appellant received part payment of his Sardari commission from the respondent, and for the balance he has preferred his claim under Section 23 of Coking Coal Mines Nationalisation) Act, 1972 in short the 'Act'). Even after the nationalisation of these collieries with effect from 1-5-1972 the contract of service of the appellant continued on the same terms and conditions and it is still subsisting. The respondent has been preparing payment sheet of Sardari Commission for each month with effect from 1-5-1972 but instead of making the full payment the defendant has been paying to the plaintiff, as his commission, approximately 25% of the total sum payable to him viz. The balance was withheld. The payment of the Sardari commission has, however, been totally stopped from November December, 1974 by the defendant in spite of the fact that the contract of the service of the plaintiff still subsisted. A registered notice through the lawyer was served on the respondent for this payment. No opportunity was given to the plaintiff for being heard in the matter in flagrant violation of the principle of natural justice as also of the provisions of the Act. The contract of services of the plaintiff still subsisted in absence of any refusal in writing by defendant to rectify or cancel the same. On these grounds, the plaintiff claimed the part payment of the commission withheld from 1-5-1972 to November/December, 1974 and the entire commission stopped thereafter upto 30-5-1975. Thus he claimed a total sum of Rs. 75,000/- an this account. Hence the suit was brought for the realisation of this money.

(3.) The defendant-respondent contested this claim by filing a written statement. It was contended that the claim of tbe plaintiff is a simple claim for wages and he should have brought the claim under the provisions of the Payment of Wages Act. The claim of the plaintiff was based on some archaic practice obtaining before the nationalisation of the Coking Coal Mines which could not be allowed to continue. The institution of the Loaders Sardars was there only to exploit the labour and, therefore, it had to be stopped as it was opposed to the modarn, concept of social justice. When the management of the two collieries was taken over the prevalent practice of payment of commission to the plaintiff was continued though there was no contract to this effect between the plaintiff and the defendant. However, Since this practice was continuing from before, it was not abruptly stopped though by the order dated 5-1-1972 it was reduced to 75% till further orders. In pursuance of the order of the custodian, some payments were made to the plaintiff for the period from 17-10-1971 to 30-4-1972. This defendant has arranged for sufficient supervisory staff for supervising the loading and there was no necessity of engaging the Loader Sardar. The payment of Sardari commission in all the collieries nationalised was stopped and the plaintiff was not entitled to get any such commission. As such there could be no question of the payment of this commission and the claim of tbe plaintiff for a sum of Rs. 75,000/-, is without any basis. On these grounds it was contended that the suit be dismissed.