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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
WRIT PETITION NO. 144 OF 2010
Ultra-Tech Cement Ltd.,
Awarpur Cement Works,
Tahsil - Korpana,
District - Chandrapur. ... PETITIONER
Versus
Shrinivas Narayanrao Moharil,
resident of 81, Wasekar Layout,
Omkar Nagar, Chandrapur. ... RESPONDENT
Shri M.R. Pillai, Advocate for the petitioner.
Shri H.V. Thakur, Advocate for the respondent.
.....
CORAM : B.P. DHARMADHIKARI, J.
DATE OF RESERVING THE JUDGMENT : FEB. 03, 2010.
DATE OF PRONOUNCING THE JUDGMENT : FEB. 15, 2010.
JUDGMENT :
By this petition filed under Articles 226 and 227 of
Constitution of India, the petitioner – employer has challenged
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the order dated 04.01.2010 passed by the Labour Court,
Chandrapur, below Exh. 86 in Complaint (ULP) No. 186 of 1993
by which its application for dismissal of Complaint (ULP) has
been rejected. M/s. Larsen & Toubro Limited – employer is the
party respondent in that complaint and the petitioner before this
Court is its successor company. The contention of the petitioner
was, being “controlled industry” as contemplated under Section
2(ee) of Industrial Disputes Act, 1947 (hereinafter referred to as
the Act), the appropriate Government for it is Central
Government and hence provisions of Maharashtra Recognition of
Trade Unions and Prevention of Unfair Labour Practices Act
(hereinafter referred to as MRTU & PULP Act), are not applicable
to it. The present respondent had earlier filed a petition vide
Writ Petition No. 2558 of 1986 challenging the order on
preliminary issue and that writ petition was disposed of by this
Court on 12th March 2009. The proceedings in Complaint ULP
were expedited.
2. Looking to the nature of controversy, with the consent
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of Shri Pillai, learned counsel for the petitioner and Shri Thakur,
learned counsel for the respondent, the matter has been heard
finally by making rule returnable forthwith.
3. It is not in dispute that vide Notification dated
08.11.1977, for the purposes of Section 2(a)(i) of the Act, the
industry engaged in manufacture and production of cement has
been declared as “controlled industry”. In this back ground, the
petitioner contends that merely because of delegation under
Section 39 by Central Government of its power as appropriate
Government to State Government, State Government cannot
become appropriate Government. He points out that as per
provisions of Section 2(3) of MRTU & PULP Act, the provisions
thereof apply in relation to any industry, if State Government is
appropriate government for it. As for the petitioner industry, the
Central Government is appropriate Government, Labour Court
has no jurisdiction. He relies upon the judgment of Division
Bench of this Court in the case of Mazgaon Dock Ltd. vs. Shivbrat
Jagroop Mishra & Anr., reported at 2008 III CLR 755 and the
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judgment of Division Bench of Karnataka High Court in the case
of Workmen of Bagalkot Udyog Ltd. vs. Bagalkot Udyog Ltd.,
reported at 2000 Lab. I.C. 3219, to support his contention. He
argues that the reliance upon judgment of the Hon’ble Apex
Court in the case of Yovan, India Cements Employees Union vs.
Management of India Ltd., reported at 1994 Lab. I.C. 38, for this
purpose by Labour Court is misconceived. He points out that the
finding of Labour Court that objection has been raised belatedly
is misconceived because stay orders were operating in Writ
Petition No. 2558 of 1996 till 12.03.2009.
4. Shri Thakur, learned counsel for the respondent, on
the other hand, states that all proceedings and disputes
concerning the establishment of the petitioner have been taken
care of under provisions of MRTU & PULP Act. He states that in
this background, challenge as raised is totally misconceived and
also malafide. He points out that the petitioner had filed
Complaint ULP No. 280 of 1985 under MRTU & PULP Act before
the Industrial Court at Nagpur. By way of illustration, he also
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points out that in Complaint (ULP) No. 35 of 2007, filed by
present petitioners before the Industrial Court at Chandrapur,
where the Industrial Court refused to grant interim relief on
23.05.2007. According to him, therefore, the petitioner has no
locus to contend that provisions of MRTU & PULP Act, are not
applicable to it. On merits, he relies upon the judgment of the
Hon’ble Apex Court in the case of Yovan, India Cements
Employees Union vs. Management of India Ltd., (supra) to urge
that it squarely covers the issue. According to him, its
consideration by Division Bench of Karnataka High Court is not
proper and attention of Division Bench of this Court was not
invited to said judgment.
5. In brief reply, Shri Pillai, learned counsel, points out
that in reply to Writ Petition No. 5129 of 2007, State of
Maharashtra has on affidavit stated that it was exercising
delegated powers of Central Government and as establishment of
the petitioner is “controlled industry”, Central Government was
appropriate Government. He points out that this being a
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question of law going to the root of the matter, there cannot be
any estoppel.
6. Thus, before me, fact that the petitioner is controlled
industry and Central Government is appropriate government in
relation to it, is not in dispute. The fact that provisions of MRTU
& PULP Act apply only if State Government is appropriate
government is also not in dispute. The question is whether
because of delegation of its power under Section 39 of the Act by
Central Government to State Government, the provisions of
MRTU & PULP Act can become applicable to the petitioner –
establishment.
7. The question itself shows that any acquiescence or
consent of parties cannot confer jurisdiction upon Labour Court
or Labour Court functioning under MRTU & PULP Act, if the Act
itself is found to be not applicable. The issue was answered by
learned Single Judge of this Court in two matters in favour of
present respondent holding that as after such delegation under
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Section 39 of Industrial Disputes Act, State Government became
appropriate Government, the provisions of MRTU & PULP Act
were applicable. However, in appeals from it, the Division Bench
of this Court has reversed that finding. This judgment of
Division Bench is reported in Mazgaon Dock Ltd. vs. Shivbrat
Jagroop Mishra & Anr.. After considering the entire controversy,
in para 12, the Division Bench has observed thus :
“12. Perusal of Section 39 shows that it empowers
the appropriate Government, if it is the CentralGovernment to delegate its powers to the
subordinate officers and also to the StateGovernment and if the appropriate Government is
the State Government to delegate its powers to theofficer subordinate to it. By Section 39 powers of
the appropriate Government are conferred on theauthorities mentioned in Section 39. Section 39
does not designate those officers or government as
appropriate Government. It is clear that even if theCentral Government is the appropriate Government,
even after delegating its powers to the officers
subordinate to it, the Central Government will
continue to be the appropriate Government and the::: Downloaded on – 09/06/2013 15:36:53 :::
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officer to whom the powers are delegated will notbecome the appropriate Government. The officer
will be merely exercising the power of theappropriate Government. Same is the case, if the
powers are delegated by the Central Government tothe State Government. The appropriate Government
will continue to be the Central Government though
the State Government will be authorized as adelegate of the appropriate Government to exercise
the powers of the Central Government.”
8. Thus, these conclusions show that even after
delegation, Central Government continues to be appropriate
Government and the delegate will be exercising the powers of
appropriate Government i.e. Central Government. In view of this
finding, it is clear that mere delegation by Central Government
to State Government does not constitute State Government an
appropriate Government. The issue before the Hon’ble Division
Bench was in relation to establishment of Mazgaon Dock
Limited. There, the Industrial Court held that Central
Government was the appropriate Government but in view of the
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delegation by it to State Government, the State Government
became appropriate Government and hence provision of MRTU
& PULP Act were applicable to Mazgaon Dock Ltd., and
Complaint (ULP) against it was maintainable. The learned
Single Judge of this Court upheld that judgment. Thus, for this
Court, this judgment of Division Bench clinches the issue.
9.
However, in view of the contention that judgment of
the Hon’ble Apex Court in Yovan, India Cement Employees Union
vs. Management of India Ltd., (supra) has not been considered by
Division Bench, I am required to delve little more into the
controversy. Before the Hon’ble Apex Court, the issue was in
relation to reference of a dispute regarding contract labour in
cement industry. The reference was made by State Government
to Labour Court and employer preferred the preliminary
objection and contended that reference by State of Tamil Nadu
was bad as appropriate Government in relation to cement
industry was Central Government. This reference was made on
23.09.1987. The employees as also Union of India relied upon
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Notification dated 08.12.1977 issued under Section 39 of the
Industrial Disputes Act which mentioned that powers exercisable
by Central Government in relation to cement industry shall also
be exercised by State Government. The question before the
Hon’ble Apex Court was which one was appropriate Government
to make reference in the matter. The reference related to non
employment of 300 workers. The Labour Court had held that
Central Government was appropriate Government and reference
by State Government was not competent. This order was
challenged in Special Leave Petition. The Hon’ble Apex Court in
para 8 found that both Central and State Government were
appropriate Governments under Industrial Disputes Act and
hence reference by Government of Tamil Nadu was held to be
valid. In support, the Hon’ble Apex Court relied upon stand
taken by Union of India in counter affidavit that both Central as
also State Government are the appropriate Governments in view
of the Notification dated 08.12.1977. Thus, both the
Governments were held to be appropriate Governments under
Industrial Disputes Act for cement industry in view of the
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Notification dated 08.12.1977. Very same notification is relied
upon by present petitioner to urge that the Central Government
continues to be appropriate Government in relation to its
establishment/ industry.
10. Thus judgment of the Hon’ble Apex Court is
considered by Division Bench of Karnataka High Court in
Workmen of Bagalkot Udyog Ltd. vs. Bagalkot Udyog Ltd., (supra).
The Hon’ble High Court found that provisions of Section 39
permitted Central Government to delegate its powers to State
Government and delegatee cannot acquire a status equivalent to
that of delegator. The delegator is never denuded of its powers
and can strip off the powers of its delegatee. It has been,
therefore, found in para 11 that even for the purposes of
Industrial Disputes Act, State Government cannot be treated as
appropriate Government in relation to Industrial Dispute
concerning cement industry. In para 12, Karnataka High Court
considers the above judgment of the Hon’ble Apex Court and
observed that the conclusions of the Hon’ble Apex Court needed
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to be understood in the context in which they were made and it
cannot be taken as declaration of statutory statement of affairs
devoid of the context. In para 13, other judgment of the
Hon’ble Apex Court laying down the principles for appreciation
of precedence has been pointed out. In para 14, it has concluded
thus :
“14. Keeping in view the question raised before
the Supreme Court, the only reasonable inference
can be that the Supreme Court has held that boththe Central Government and the State Government
can exercise the powers of an appropriate
Government in relation to the cement industryunder the I.D. Act, the former being itself the
appropriate Government under Section 2(a)(i) and
the latter being its delegatee.”
11. The observations above, therefore, clearly show that
the State Government by itself is not an appropriate Government
in relation to Industrial Dispute concerning the industry of the
petitioner. The Hon’ble Apex Court reached its findings because
of stand in counter affidavit by Union of India and that stand
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was in the light of non employment of 300 workers. The
question of applicability of particular law did not depend upon it.
In facts before me, in view of the provisions of Section 2(3) of
MRTU & PULP Act, if Central Government is appropriate
Government for cement industry, the provisions of MRTU &
PULP Act cannot apply.
12.
The Division Bench of this Court has already
concluded the controversy. Even if it is presumed that Central
Government as also State Government are appropriate
Government for cement industry, it becomes clear that provisions
of MRTU & PULP Act cannot apply as Central Government then
continues to be and also remains an appropriate Government. In
my humble opinion, State Government while acting as
appropriate Government discharges the role as an agent of
Central Government and hence for the purpose of Section 2(3),
it cannot be said that for cement industry, State Government is
appropriate Government. The provisions of MRTU & PULP Act,
therefore, cannot apply to industry of the petitioner. The
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impugned order is, therefore, unsustainable. The same is
accordingly quashed and set aside. The application for dismissal
of complaint filed by the petitioner before Labour Court is
allowed and Complaint (ULP) No. 186 of 1993 on the file of
Labour Court, Chandrapur, instituted by present respondent is
dismissed.
13.
Writ Petition is allowed. Rule is made absolute in
above terms. However, in the facts and circumstances of the
case, there shall be no order as to costs.
JUDGE
*******
*GS.
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