{"id":200443,"date":"2010-02-15T00:00:00","date_gmt":"2010-02-14T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ultra-tech-cement-ltd-vs-shrinivas-narayanrao-moharil-on-15-february-2010"},"modified":"2016-05-15T13:29:20","modified_gmt":"2016-05-15T07:59:20","slug":"ultra-tech-cement-ltd-vs-shrinivas-narayanrao-moharil-on-15-february-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ultra-tech-cement-ltd-vs-shrinivas-narayanrao-moharil-on-15-february-2010","title":{"rendered":"Ultra-Tech Cement Ltd vs Shrinivas Narayanrao Moharil on 15 February, 2010"},"content":{"rendered":"
Bombay High Court<\/div>\n
Ultra-Tech Cement Ltd vs Shrinivas Narayanrao Moharil on 15 February, 2010<\/div>\n
Bench: B. P. Dharmadhikari<\/div>\n
                                          1\n           IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n                         NAGPUR BENCH\n\n\n\n\n                                                                          \n                  WRIT PETITION NO.  144  OF  2010\n\n\n\n\n                                                  \n     Ultra-Tech Cement Ltd.,\n\n\n\n\n                                                 \n     Awarpur Cement Works,\n     Tahsil - Korpana,\n     District - Chandrapur.                         ...   PETITIONER\n\n\n\n\n                                    \n                          Versus\n                    \n     Shrinivas Narayanrao Moharil,\n     resident of 81, Wasekar Layout,\n     Omkar Nagar, Chandrapur.                        ...   RESPONDENT\n                   \n\n     Shri M.R. Pillai, Advocate for the petitioner.\n      \n\n\n     Shri H.V. Thakur, Advocate for the respondent.\n                          .....\n   \n\n\n\n                             CORAM :  B.P. DHARMADHIKARI, J.\n     DATE OF RESERVING THE JUDGMENT        :  FEB.  03, 2010.\n\n\n\n\n\n     DATE OF PRONOUNCING THE JUDGMENT  :  FEB.  15, 2010.\n\n\n     JUDGMENT :  \n<\/pre>\n
              By   this   petition   filed   under   Articles   226   and   227   of <\/p>\n
     Constitution of India, the petitioner – employer has challenged <\/p>\n
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\n                                             2<\/span>
\n     the   order   dated   04.01.2010   passed   by   the   Labour   Court, <\/p>\n
     Chandrapur, below Exh. 86 in Complaint (ULP) No. 186 of 1993 <\/p>\n
     by   which   its   application   for   dismissal   of   Complaint   (ULP)   has <\/p>\n
     been rejected.  M\/s. Larsen & Toubro Limited – employer is the <\/p>\n
     party respondent in that complaint and the petitioner before this <\/p>\n
     Court is its successor company.  The contention of the petitioner <\/p>\n
     was, being “controlled industry” as contemplated under Section <\/p>\n
     2(ee) of Industrial Disputes Act, 1947 (hereinafter referred to as <\/p>\n
     the   Act),   the   appropriate   Government   for   it   is   Central <\/p>\n
     Government and hence provisions of Maharashtra Recognition of <\/p>\n
     Trade   Unions   and   Prevention   of   Unfair   Labour   Practices   Act <\/p>\n
     (hereinafter referred to as MRTU & PULP Act), are not applicable <\/p>\n
     to it.   The present respondent had earlier filed a petition vide <\/p>\n
     Writ   Petition   No.   2558   of   1986   challenging   the   order   on <\/p>\n
     preliminary issue and that writ petition was disposed of by this <\/p>\n
     Court on 12th  March 2009.   The proceedings in Complaint ULP <\/p>\n
     were expedited.\n<\/p>\n
     2.          Looking to the nature of controversy, with the consent <\/p>\n
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\n                                             3<\/span>
\n     of Shri Pillai, learned counsel for the petitioner and Shri Thakur, <\/p>\n
     learned counsel for the respondent, the matter has been heard <\/p>\n
     finally by making rule returnable forthwith.\n<\/p>\n
     3.          It   is   not   in   dispute   that   vide   Notification   dated <\/p>\n
     08.11.1977, for the purposes of Section 2(a)(i) of the Act,   the <\/p>\n
     industry engaged in manufacture and production of cement has <\/p>\n
     been declared as “controlled industry”.  In this back ground, the <\/p>\n
     petitioner   contends   that   merely   because   of   delegation   under <\/p>\n
     Section 39 by Central Government of its power as appropriate <\/p>\n
     Government   to   State   Government,   State   Government   cannot <\/p>\n
     become   appropriate   Government.     He   points   out   that   as   per <\/p>\n
     provisions of Section 2(3) of MRTU & PULP Act, the provisions <\/p>\n
     thereof apply in relation to any industry, if State Government is <\/p>\n
     appropriate government for it.  As for the petitioner industry, the <\/p>\n
     Central   Government   is   appropriate   Government,   Labour   Court <\/p>\n
     has   no   jurisdiction.     He   relies   upon   the   judgment   of   Division <\/p>\n
     Bench of this Court in the case of Mazgaon Dock Ltd. vs. Shivbrat <\/p>\n
     Jagroop  Mishra   & Anr.,<\/a>  reported  at  2008  III  CLR  755  and the <\/p>\n
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\n                                            4<\/span>
\n     judgment of Division Bench of Karnataka High Court in the case <\/p>\n
     of  Workmen   of   Bagalkot   Udyog   Ltd.   vs.   Bagalkot   Udyog   Ltd.,<\/a> <\/p>\n
     reported at 2000 Lab. I.C. 3219, to support his contention.   He <\/p>\n
     argues   that   the   reliance   upon   judgment   of   the   Hon’ble   Apex <\/p>\n
     Court in the case of  Yovan, India Cements Employees Union vs.  <\/p>\n
     Management of India Ltd.,<\/a> reported at 1994 Lab. I.C. 38, for this <\/p>\n
     purpose by Labour Court is misconceived.  He points out that the <\/p>\n
     finding of Labour Court that objection has been raised belatedly <\/p>\n
     is   misconceived   because   stay   orders   were   operating   in   Writ <\/p>\n
     Petition No. 2558 of 1996 till 12.03.2009.\n<\/p>\n
     4.          Shri   Thakur,   learned   counsel   for   the   respondent,   on <\/p>\n
     the   other   hand,   states   that   all   proceedings   and   disputes <\/p>\n
     concerning the establishment of the petitioner have been taken <\/p>\n
     care of under provisions of MRTU & PULP Act.  He states that in <\/p>\n
     this background, challenge as raised is totally misconceived and <\/p>\n
     also   malafide.     He   points   out   that   the   petitioner   had   filed <\/p>\n
     Complaint ULP No. 280 of 1985 under MRTU & PULP Act before <\/p>\n
     the Industrial Court at Nagpur.   By way of illustration, he also <\/p>\n
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\n                                              5<\/span>
\n     points   out   that   in   Complaint   (ULP)   No.   35   of   2007,   filed   by <\/p>\n
     present   petitioners   before   the   Industrial   Court   at   Chandrapur, <\/p>\n
     where   the   Industrial   Court   refused   to   grant   interim   relief   on <\/p>\n
     23.05.2007.   According to him, therefore, the petitioner has no <\/p>\n
     locus to contend that provisions of MRTU & PULP Act, are not <\/p>\n
     applicable to it.   On merits, he relies upon the judgment of the <\/p>\n
     Hon’ble   Apex   Court   in   the   case   of  Yovan,   India   Cements  <\/p>\n
     Employees  Union vs. Management of India Ltd.,<\/a> (supra) to urge <\/p>\n
     that   it   squarely   covers   the   issue.     According   to   him,   its <\/p>\n
     consideration by Division Bench of Karnataka High Court is not <\/p>\n
     proper   and   attention   of   Division   Bench   of   this   Court   was   not <\/p>\n
     invited to said judgment.\n<\/p>\n
     5.          In brief reply, Shri Pillai, learned counsel, points out <\/p>\n
     that   in   reply   to   Writ   Petition   No.   5129   of   2007,   State   of <\/p>\n
     Maharashtra   has   on   affidavit   stated   that   it   was   exercising <\/p>\n
     delegated powers of Central Government and as establishment of <\/p>\n
     the petitioner is “controlled industry”, Central Government was <\/p>\n
     appropriate   Government.     He   points   out   that   this   being   a <\/p>\n
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\n                                            6<\/span>
\n     question of law going to the root of the matter, there cannot be <\/p>\n
     any estoppel.\n<\/p>\n
     6.          Thus, before me, fact that the petitioner is controlled <\/p>\n
     industry and Central Government is appropriate government in <\/p>\n
     relation to it, is not in dispute.  The fact that provisions of MRTU <\/p>\n
     &   PULP   Act   apply   only   if   State   Government   is   appropriate <\/p>\n
     government   is   also   not   in   dispute.     The   question   is   whether <\/p>\n
     because of delegation of its power under Section 39 of the Act by <\/p>\n
     Central   Government   to   State   Government,   the   provisions   of <\/p>\n
     MRTU   &   PULP   Act   can   become   applicable   to   the   petitioner   –\n<\/p>\n
     establishment.\n<\/p>\n
     7.          The   question   itself   shows   that   any   acquiescence   or <\/p>\n
     consent of parties cannot confer jurisdiction upon Labour Court <\/p>\n
     or Labour Court functioning under MRTU & PULP Act, if the Act <\/p>\n
     itself is found to be not applicable.   The issue was answered by <\/p>\n
     learned Single Judge of this Court in two matters in favour of <\/p>\n
     present respondent holding that as after such delegation under <\/p>\n
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\n                                            7<\/span>
\n     Section 39 of Industrial Disputes Act, State Government became <\/p>\n
     appropriate   Government,   the   provisions   of   MRTU   &   PULP   Act <\/p>\n
     were applicable.  However, in appeals from it, the Division Bench <\/p>\n
     of   this   Court   has   reversed   that   finding.     This   judgment   of <\/p>\n
     Division   Bench   is   reported   in  Mazgaon   Dock   Ltd.   vs.   Shivbrat  <\/p>\n
     Jagroop Mishra & Anr..  After<\/a> considering the entire controversy, <\/p>\n
     in para 12, the Division Bench has observed thus :\n<\/p>\n
           “12. Perusal of Section 39 shows that it empowers
\n           the   appropriate   Government,   if   it   is   the   Central <\/p>\n
           Government   to   delegate   its   powers   to   the
\n           subordinate   officers   and   also   to   the   State <\/p>\n
           Government   and   if   the   appropriate   Government   is
\n           the State Government to delegate its powers to the <\/p>\n
           officer subordinate to it.   By Section 39 powers of
\n           the   appropriate   Government   are   conferred   on   the <\/p>\n
           authorities   mentioned   in   Section   39.     Section   39
\n           does not designate those officers or government as
\n           appropriate Government.  It is clear that even if the <\/p>\n
           Central Government is the appropriate Government,
\n           even   after   delegating   its   powers   to   the   officers
\n           subordinate   to   it,   the   Central   Government   will
\n           continue to be the appropriate Government and the <\/p>\n
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\n                                           8<\/span>
\n           officer to whom the powers are delegated will not <\/p>\n
           become   the   appropriate   Government.     The   officer
\n           will   be   merely   exercising   the   power   of   the <\/p>\n
           appropriate   Government.     Same   is  the   case,   if   the
\n           powers are delegated by the Central Government to <\/p>\n
           the State Government.  The appropriate Government
\n           will continue to be the Central Government though
\n           the   State   Government   will   be   authorized   as   a <\/p>\n
           delegate of the appropriate Government to exercise <\/p>\n
           the powers of the Central Government.”\n<\/p><\/blockquote>\n
     8.         Thus,   these   conclusions   show   that   even   after <\/p>\n
     delegation,   Central   Government   continues   to   be   appropriate <\/p>\n
     Government and the delegate will be exercising the powers of <\/p>\n
     appropriate Government i.e. Central Government.  In view of this <\/p>\n
     finding, it is clear that mere delegation by Central Government <\/p>\n
     to State Government does not constitute State Government an <\/p>\n
     appropriate Government.  The issue before the Hon’ble Division <\/p>\n
     Bench   was   in   relation   to   establishment   of   Mazgaon   Dock <\/p>\n
     Limited.     There,   the   Industrial   Court   held   that   Central <\/p>\n
     Government was the appropriate Government but in view of the <\/p>\n
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\n                                             9<\/span>
\n     delegation   by   it   to   State   Government,   the   State   Government <\/p>\n
     became appropriate Government and hence provision of MRTU <\/p>\n
     &   PULP   Act   were   applicable   to   Mazgaon   Dock   Ltd.,   and <\/p>\n
     Complaint   (ULP)   against   it   was   maintainable.     The   learned <\/p>\n
     Single Judge of this Court upheld that judgment.  Thus, for this <\/p>\n
     Court, this judgment of Division Bench clinches the issue.\n<\/p>\n
     9.<\/p>\n
                 However, in view of the contention that judgment of <\/p>\n
     the Hon’ble Apex Court in Yovan, India Cement Employees Union  <\/p>\n
     vs. Management of India Ltd.,<\/a> (supra) has not been considered by <\/p>\n
     Division   Bench,   I   am   required   to   delve   little   more   into   the <\/p>\n
     controversy.    Before   the  Hon’ble   Apex  Court,  the  issue  was  in <\/p>\n
     relation   to reference   of a  dispute  regarding  contract  labour  in <\/p>\n
     cement industry.  The reference was made by State Government <\/p>\n
     to   Labour   Court   and   employer   preferred   the   preliminary <\/p>\n
     objection and contended that reference by State of Tamil Nadu <\/p>\n
     was   bad   as   appropriate   Government   in   relation   to   cement <\/p>\n
     industry was Central Government.  This reference was made on <\/p>\n
     23.09.1987.   The employees as also Union of India relied upon <\/p>\n
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\n                                            10<\/span>
\n     Notification   dated   08.12.1977   issued   under   Section   39   of   the <\/p>\n
     Industrial Disputes Act which mentioned that powers exercisable <\/p>\n
     by Central Government in relation to cement industry shall also <\/p>\n
     be   exercised   by   State   Government.     The   question   before   the <\/p>\n
     Hon’ble Apex Court was which one was appropriate Government <\/p>\n
     to make reference in the matter.   The reference related to non <\/p>\n
     employment of 300 workers.   The Labour Court had held that <\/p>\n
     Central Government was appropriate Government and reference <\/p>\n
     by   State   Government   was   not   competent.   This   order   was <\/p>\n
     challenged in Special Leave Petition.  The Hon’ble Apex Court in <\/p>\n
     para   8   found   that   both   Central   and   State   Government   were <\/p>\n
     appropriate   Governments   under   Industrial   Disputes   Act   and <\/p>\n
     hence reference by Government of Tamil Nadu was held to be <\/p>\n
     valid.     In   support,   the   Hon’ble   Apex   Court   relied   upon   stand <\/p>\n
     taken by Union of India in counter affidavit that both Central as <\/p>\n
     also State Government are the appropriate Governments in view <\/p>\n
     of   the   Notification   dated   08.12.1977.     Thus,   both   the <\/p>\n
     Governments   were   held   to   be   appropriate   Governments   under <\/p>\n
     Industrial   Disputes   Act   for   cement   industry   in   view   of   the <\/p>\n
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\n                                              11<\/span>
\n     Notification dated 08.12.1977.   Very same notification is relied <\/p>\n
     upon by present petitioner to urge that the Central Government <\/p>\n
     continues   to   be   appropriate   Government   in   relation   to   its <\/p>\n
     establishment\/ industry.\n<\/p>\n
     10.         Thus   judgment   of   the   Hon’ble   Apex   Court   is <\/p>\n
     considered   by   Division   Bench   of   Karnataka   High   Court   in <\/p>\n
     Workmen of Bagalkot Udyog Ltd. vs. Bagalkot Udyog Ltd.,<\/a> (supra).\n<\/p>\n
     The   Hon’ble   High   Court   found   that   provisions   of   Section   39 <\/p>\n
     permitted   Central   Government   to   delegate   its  powers   to   State <\/p>\n
     Government and delegatee cannot acquire a status equivalent to <\/p>\n
     that of delegator.   The delegator is never denuded of its powers <\/p>\n
     and   can   strip   off   the   powers   of   its   delegatee.     It   has   been, <\/p>\n
     therefore,   found   in   para   11   that   even   for   the   purposes   of <\/p>\n
     Industrial Disputes Act, State Government cannot be treated as <\/p>\n
     appropriate   Government   in   relation   to   Industrial   Dispute <\/p>\n
     concerning cement industry.   In para 12, Karnataka High Court <\/p>\n
     considers   the   above   judgment   of   the   Hon’ble   Apex   Court   and <\/p>\n
     observed that the conclusions of the Hon’ble Apex Court needed <\/p>\n
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\n                                              12<\/span>
\n     to be understood in the context in which they were made and it <\/p>\n
     cannot be taken as declaration of statutory statement of affairs <\/p>\n
     devoid   of   the   context.       In   para   13,   other   judgment   of   the <\/p>\n
     Hon’ble Apex Court laying down the principles for appreciation <\/p>\n
     of precedence has been pointed out.  In para 14, it has concluded <\/p>\n
     thus :\n<\/p>\n
              “14.         Keeping in view the question raised before <\/p>\n
              the   Supreme   Court,   the   only   reasonable   inference
\n              can be that the Supreme Court has held that both <\/p>\n
              the Central Government and the State Government
\n              can   exercise   the   powers   of   an   appropriate
\n              Government   in   relation   to   the   cement   industry <\/p>\n
              under   the   I.D.   Act,   the   former   being   itself   the <\/p>\n
              appropriate Government under Section 2(a)(i) and
\n              the latter being its delegatee.”\n<\/p><\/blockquote>\n
     11.             The   observations   above,   therefore,   clearly   show   that <\/p>\n
     the State Government by itself is not an appropriate Government <\/p>\n
     in relation to Industrial Dispute concerning the industry of the <\/p>\n
     petitioner.  The Hon’ble Apex Court reached its findings because <\/p>\n
     of stand in counter affidavit  by Union of India and that stand <\/p>\n
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\n                                          13<\/span>
\n     was   in   the   light   of   non   employment   of   300   workers.     The <\/p>\n
     question of applicability of particular law did not depend upon it.\n<\/p>\n
     In facts before me, in view of the provisions of Section 2(3) of <\/p>\n
     MRTU   &   PULP   Act,   if   Central   Government   is   appropriate <\/p>\n
     Government   for   cement   industry,   the   provisions   of   MRTU   & <\/p>\n
     PULP Act cannot apply.\n<\/p>\n
     12.<\/p>\n
                The   Division   Bench   of   this   Court   has   already <\/p>\n
     concluded the controversy.   Even if it is presumed that Central <\/p>\n
     Government   as   also   State   Government   are   appropriate <\/p>\n
     Government for cement industry, it becomes clear that provisions <\/p>\n
     of MRTU & PULP Act cannot apply as Central Government then <\/p>\n
     continues to be and also remains an appropriate Government.  In <\/p>\n
     my   humble   opinion,   State   Government   while   acting   as <\/p>\n
     appropriate   Government   discharges   the   role   as   an   agent   of <\/p>\n
     Central Government and hence for the purpose of Section 2(3), <\/p>\n
     it cannot be said that for cement industry, State Government is <\/p>\n
     appropriate Government.  The provisions of MRTU & PULP Act, <\/p>\n
     therefore,   cannot   apply   to   industry   of   the   petitioner.     The <\/p>\n
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\n                                            14<\/span>
\n     impugned   order   is,   therefore,   unsustainable.     The   same   is <\/p>\n
     accordingly quashed and set aside.  The application for dismissal <\/p>\n
     of   complaint   filed   by   the   petitioner   before   Labour   Court   is <\/p>\n
     allowed   and   Complaint   (ULP)   No.   186   of   1993   on   the   file   of <\/p>\n
     Labour   Court,  Chandrapur,  instituted  by  present   respondent  is <\/p>\n
     dismissed.\n<\/p>\n
     13.<\/p>\n
                 Writ   Petition   is   allowed.     Rule   is   made   absolute   in <\/p>\n
     above   terms.     However,   in   the   facts   and   circumstances   of   the <\/p>\n
     case, there shall be no order as to costs.\n<\/p>\n
                                                       JUDGE                           <\/p>\n
                                          *******<\/p>\n
     *GS.\n<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 15:36:53 :::<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Ultra-Tech Cement Ltd vs Shrinivas Narayanrao Moharil on 15 February, 2010 Bench: B. P. Dharmadhikari 1 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-200443","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nUltra-Tech Cement Ltd vs Shrinivas Narayanrao Moharil on 15 February, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ultra-tech-cement-ltd-vs-shrinivas-narayanrao-moharil-on-15-february-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ultra-Tech Cement Ltd vs Shrinivas Narayanrao Moharil on 15 February, 2010 - 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