Bharat Coking Coal Ltd. and ors. Vs. Babulal and anr. - Court Judgment

Excerpt:
- section 35-l: [d.k.jain & asok kumar ganguly,jj] new plea - show cause notice -ground by revenue that goods in question should be covered under the heading others in rule 3 of rules for interpretation of schedule to the act or ground of essentiality test. such grounds not taken in its show cause notice-same cannot be argued for first time before supreme court. schedule 1, chapter 57, note 1, s. xi notes 2(a) & 14 (a): [d.k. jain & asok kumar ganguly,jj] general rules for the interpretation of the schedule, rule 1 - classification of carpet held, note 1 is only to decide whether goods in question are carpets and other textile floor coverings for purposes of chapter 57 or not. once goods are carpets and falling under chapter 57, role of chapter note comes to an end. classification thereafter has to be covered under one heading or sub-heading of chapter 57 schedule 1, chapter 57, heading 5702: [d.k. jain & asok kumar ganguly, jj] carpets- jute predominating by weight over other single textile material held, where the goods fell under chapter 57 and consist of more than two or more textile materials, it has to be classified on the basis of that textile material which predominates by weight over any other single textile material. consequently, where in the carpets in question, jute predominated by weight over each other single textile material, the said carpet could only be classified as jute carpets and nothing else. it was more so, when in the instant case, such fact was admitted by the assistant commissioner in its order in view of the tests done by department chemical examiner on the spot and during the visit to the factory of the respondent company which was also admitted from the reports of indian industries research association. in such a case, the mere fact that the surface of the carpet is polypropylene fibre, it does not case to become jute carpet. in such a case, the common parlance test would have no application and, therefore, it could not be said that the carpets to the common man would not appear to be jute carpet but polypropylene carpet. it could not also be said that for the purpose of classification in instant case, rule 3 of the rules for the interpretation of the schedule to the act should be applied and by applying the said rule the goods manufactured by the respondent company should be covered under the heading others. clause (b) and clause (c) of the said rule 3 will apply only in those cases which cannot be classified under clause (a). since in the instant case following the dominant intention of clause (a), the goods manufactured by the respondent-company can be classified, clause (b) and clause (c) of the said rule need not be pressed into service.order1. leave granted.2. we have heard learned counsel on both sides.3. these appeals arise from the order made on november 21,1995 by the division bench of the calcutta high court in fmat no. 1548/90 and 250/92. admitted position is that the respondent babulal was senior mining engineer and the other first respondent maheshwari sharma was a manager working in the south govindpur colliery, govindpur area. on june 30, 1989, an accident had occurred at 2. 00 p.m. due to fall of the roof in xi seam (of coal) due to which five miners died and two miners were seriously injured. it is the case of the appellant that both the first respondents were not present at the site nor had they taken necessary safety precautions to aver (sic) accident to the miners. a fact finding committee came to be appointed to find out the cause for the death of the five and injury to two miners. the report dated july 1, 1989 appears to have put it pointedly that there was dereliction of the duty on the part of the respondents resulting in the mine accident. consequently, the appellant exercised the power under rule 12.4(1)(c) of the common coal cadre, 1974 which reads as under:12.4. termination(i) unless otherwise specifically provided, the contract of appointment of the executive cadre employee may be terminated otherwise than on disciplinary grounds:(a) ...(b) ...(c) ... with three months' notice or pay in lieu thereof on confirmation in the service, on either side.4. on the basis thereof, the service of both the first respondents came to be terminated. it is not in dispute that this court in c.a. no. 3673 of 1988 titled g.p lal v. coat india ltd. had struck down the rule as violative of article 14 of the constitution. consequently, the rule was never in vogue to invoke the exercise of the power by the appellants.5. the question then is: what would be the position of the respondents? it is not far to seek that when charge of dereliction of duty was imputed to both the first respondents, it was necessary to hold an enquiry to give an opportunity to them before taking any disciplinary action for the alleged dereliction of the duty. it is, therefore, necessary that the appellant should hold an enquiry against both the first respondents giving reasonable opportunity to them according to the rule. constitution bench rendered the decision in managing director, ecil, hyderabad and ors. vs b. karnukar and ors. : (1994)illj162sc had held that the delinquent must be deemed to be under suspension pending enquiry.6. in view of the above, we hold that the respondents are entitled to the subsistence allowance during the pending enquiry. enquiry should be completed within six months from the date of the receipt of the order. subsistence allowance shall be paid within six weeks from the date of receipt of the copy of the order.7. the appeals are accordingly disposed of. no costs.

Judgment:
ORDER

1. Leave granted.

2. We have heard learned Counsel on both sides.

3. These appeals arise from the order made on November 21,1995 by the Division Bench of the Calcutta High Court in FMAT No. 1548/90 and 250/92. Admitted position is that the respondent Babulal was Senior Mining Engineer and the other first respondent Maheshwari Sharma was a Manager working in the South Govindpur Colliery, Govindpur area. On June 30, 1989, an accident had occurred at 2. 00 p.m. due to fall of the roof in XI Seam (of coal) due to which five miners died and two miners were seriously injured. It is the case of the appellant that both the first respondents were not present at the site nor had they taken necessary safety precautions to aver (sic) accident to the miners. A fact finding Committee came to be appointed to find out the cause for the death of the five and injury to two miners. The report dated July 1, 1989 appears to have put it pointedly that there was dereliction of the duty on the part of the respondents resulting in the mine accident. Consequently, the appellant exercised the power under Rule 12.4(1)(c) of the Common Coal Cadre, 1974 which reads as under:

12.4. Termination

(i) Unless otherwise specifically provided, the contract of appointment of the executive Cadre employee may be terminated otherwise than on disciplinary grounds:

(a) ...

(b) ...

(c) ... With three months' notice or pay in lieu thereof on confirmation in the service, on either side.

4. On the basis thereof, the service of both the first respondents came to be terminated. It is not in dispute that this Court in C.A. No. 3673 of 1988 titled G.P Lal v. Coat India Ltd. had struck down the rule as violative of Article 14 of the Constitution. Consequently, the rule was never in vogue to invoke the exercise of the power by the appellants.

5. The question then is: what would be the position of the respondents? It is not far to seek that when charge of dereliction of duty was imputed to both the first respondents, it was necessary to hold an enquiry to give an opportunity to them before taking any disciplinary action for the alleged dereliction of the duty. It is, therefore, necessary that the appellant should hold an enquiry against both the first respondents giving reasonable opportunity to them according to the rule. Constitution Bench rendered the decision in Managing Director, ECIL, Hyderabad and Ors. vs B. Karnukar and Ors. : (1994)ILLJ162SC had held that the delinquent must be deemed to be under suspension pending enquiry.

6. In view of the above, we hold that the respondents are entitled to the subsistence allowance during the pending enquiry. Enquiry should be completed within six months from the date of the receipt of the order. Subsistence allowance shall be paid within six weeks from the date of receipt of the copy of the order.

7. The appeals are accordingly disposed of. No costs.