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SCA/510/2010 5/ 8 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 510 of 2010
=========================================================
AKHIL
GUJARAT GENERAL MAJDOOR SANGH - Petitioner(s)
Versus
UNION
OF INDIA & 2 - Respondent(s)
=========================================================
Appearance
:
MR
TR MISHRA for
Petitioner(s) : 1,
NOTICE SERVED BY DS for Respondent(s) : 1,
MR
HASMUKH THAKKER for Respondent(s) : 2,
MR NIRAV V JOSHI for
Respondent(s) :
3,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 08/04/2010
ORAL
ORDER
Heard
learned advocate Mr. TR Mishra on behalf of petitioner, learned
advocate Mr. HM Thakkar on behalf of respondent no. 2 and learned
advocate Mr. Nirav V Joshi appearing on behalf of respondent no. 3.
Though notice is served by respondent no. 1 no appearance is filed
by respondent no. 1 and no advocate is engaged by him.
Yesterday,
one affidavit is filed by Sr. General manager (HR), which is quoted
as under:
1. The
M/s. Jet Airways (I) Ltd Respondent no. 2 has awarded a contract
to M/s. Philipson Corporation respondent no. 3.
2. I
say that by a letter dated 5/4/2010 Airport Authority of India has
conveyed to the respondent no. 2 that Bureau of Civil Aviation
Security has intimated to the Airports Authority of India that the
application for the security clearance of M/s Philipson Corporation
respondent no. 3 has been rejected by the competent authority.
I further say that the present respondent no. 2 has been directed to
make necessary alternative arrangement on or before 9/4/2010.
Marked Annexure A collectively are the copies of communication
issued by Airports Authority of India and the communication issued
by Bureau of Civil Aviation Security.
3. In
view of aforesaid development the respondent no. 3 ceases to be the
contractor of respondent no. 2 and therefore the Ad interim stay qua
service condition of the workmen granted by this Hon’ble Court by an
order dated 25/2/2010 and continued till today may kindly be
vacated.
Against
this affidavit, today, further affidavit has been filed on behalf of
petitioner. Copy thereof is served to learned advocate Mr. Thakkar
at 11.40 am. Learned advocate Mr. Mishra brought to notice of this
Court in respect to earlier petition SCA 16523/2007 filed by
present respondent no. 3 M/s Philipson Corporation, where Union of
India, Secretary Bureau of Civil Aviation Security, Airport
Director, Airport Authority of India and Assistant Commissioner of
Bureau of Civil Aviation Security and Bureau of Civil Aviation
Security are join as a party. Therefore, in light of aforesaid back
ground as Bureau of Civil Aviation Security was party, this Court
has passed an order on 7/7/2008 which is quoted as under:
1. The
petitioner of this petition has prayed for appropriate writ to
direct the respondent authority to issue Security Clearance
Certificate to the petitioner.
2. Heard
Mr.Kinnariwala, learned counsel appearing for the petitioner,
Mr.Manav Mehta for respondent No.1, Central Government Standing
Counsel, Mr. Chetan Pandya for Mr.S.V. Raju for respondents Nos. 2,
3 & 4.
3. Upon
hearing the learned advocate appearing for both the sides and the
perusal of the order dated 13.06.2007 shows that there is only
communication for not granting the Security Clearance Certificate
and no reason whatsoever is mentioned. Apart from the above, during
the course of the hearing, Mr. Pandya, learned counsel appearing for
Bureau of Civil Aviation Security has placed on record the copy of
the communication dated 30.03.2007 addressed by the Deputy
Commissioner of Security (Civil Aviation), CSI, intimating that the
security clearance is not granted because it has come to the notice
that the said Company, i.e. the petitioner herein is infringing the
labour laws and exploitating the labourers and misusing the labour
license.
4. Such
a ground on the part of the Deputy Commissioner of Security is also
without any material produced on the record of this Court nor any
opportunity of hearing was given to the petitioner.
5. Under
these circumstances, neither the order of Bureau of Civil Aviation
Security nor the order dated 13.06.2007 (Annexure-D) can be
sustained in view of the non-compliance of the principles of natural
justice of no opportunity given to the petitioner nor
any reasons mentioned therein so far as the communication of the
order dated 13.06.2007 is concerned.
6. At
this stage, Mr.Pandya, learned counsel appearing for the respondent
Nos.2 to 4 states that if this Court directs, the opportunity of
hearing shall be given, but the petitioner may be directed to
cooperate with the same.
7. Mr.Mehta,
for respondent No.1 submitted that it is only after the opinion on
the security clearance granted or not granted, the Civil Aviation
Department may be required to take further action.
8. Under
these circumstances, the following directions:
The
petitioner shall be given opportunity of hearing by the Deputy
Commissioner of Security (Civil Application) of the Bureau of Civil
Aviation Security, Government of India, New Delhi. The petitioner
shall cooperate in the hearing of the matter.
The
said authority shall take appropriate decision within a period of
one month from the receipt of the order of this Court.
In
view of the above, the matter shall be decided afresh by the
aforesaid authority in accordance with law.
Until
the decision is taken and the same is communicated to the petitioner
by Regd. A.D.Post, ad interim relief granted earlier shall continue
to remain in operation with the clarification that in the event the
license of the petitioner expires by afflux of time and not renewed,
no further rights shall accrue to the petitioner for continuing with
the same activity.
It
is hardly required to be stated that if any untoward incident
happens pending the consideration and the petitioner continues
pursuant to the interim order, the petitioner will be responsible in
all respects for any act of himself or his agents or servants.
9. Petition
is disposed of in terms of the aforesaid direction. D.S.
This
Court has passed an order as referred above, where almost identical
situation was occurred at relevant time because in aforesaid
petition, petitioner contractor, present respondent no. 3 has
received communication dated 30/3/2007 from Bureau of Civil Aviation
Security addressed by Deputy Commissioner of Security (Civil
Aviation), CSI, intimating that security clearance is not granted
because it has come to the notice that said petitioner Company is
infringing labour laws and exploiting labourers and misusing labour
license.
The
affidavit has been filed by respondent no. 2 on the basis of
communication dated 5/4/2010 received from Airport Authority of
India and Airport Authority of India has received communication from
Bureau of Civil Aviation Security (Western region) vide letter dated
11-12/3/2010 as intimated that application for security clearance of
present respondent no. 3 M/s Philipson Corporation has been rejected
by competent authority. Therefore, request to make necessary
alternate arrangement on or before 9/4/2010. Why request has been
rejected made by M/s Philipson for security clearance, for that,
competent authority has not disclosed any reason.
Therefore,
learned advocate Mr. Mishra appearing on behalf of petitioner
request to permit petitioner to join Union of India notice to be
served through Security Bureau of Civil Aviation Security (Ministry
of Civil Aviation) A Wing, Janpat Bhavan, Janpat, New Delhi,
Bureau of Civil Aviation Security, Ground Floor AAI (NAD), Building
CSI Airport Mumbai 400 099, Bureau of Civil Aviation, Security,
Ground floor AAI (NAD), Building CSI Airport Mumbai 400 099 and
Airport Director and Airport Authority of India, Ahmedabad is to be
join as party in present proceeding, otherwise, petitioner is not
able to get prayer which has been made in present petition.
Learned
advocate Mr. Thakkar submitted that he has to implement direction
issued by Airport authority of India dated 5/4/2010. However,
learned advocate Mr. Joshi also submitted that once principal
employer has received communication from Airport authority of India
then respondent no. 3 Contractor must have to comply with such
direction.
In
light of this back ground, according to my opinion request which has
been made by learned advocate Mr. Mishra must have to be granted in
interest of justice, otherwise, matter will not be decided by this
Court effectively in absence of aforesaid parties as mentioned by
learned advocate Mr. Mishra. It is a question of livelihood of more
than 43 employees those who are working at present with respondent
no. 3.
In
light of this, petitioner is directed to join Union of India
Security Bureau of Civil Aviation Security (Ministry of Civil
Aviation) A Wing, Janpat Bhavan, Janpat, New Delhi, Bureau of
Civil Aviation Security, Ground Floor AAI (NAD), Building CSI
Airport Mumbai 400 099, Bureau of Civil Aviation, Security, Ground
floor AAI (NAD), Building CSI Airport Mumbai 400 099 and Airport
Director and Airport Authority of India, Ahmedabad as party
respondent no. 4, 5, 6 and 7. Accordingly, cause title of present
petition is to be amended today.
Therefore,
issue notice to newly added respondent no. 4 to 7 returnable on
16/4/2010. Meanwhile, earlier interim order granted by this Court
on 25/2/2010 shall remain continue till then. Meaning thereby that
communication received by respondent no. 2 from Airport authority of
India dated 5/4/2010 is not required to be implemented because of
interim order is extended by this Court. Direct service today is
permitted to each newly added respondent.
(H.K.RATHOD,
J)
asma
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