M/S. Livewel Aviation Services ... vs Bhartiya Kamgar Sena And Anr
2016 Latest Caselaw 6745 Bom

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                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         ORDINARY ORIGINAL CIVIL JURISDICTION
                                           




                                                                                              
                            WRIT PETITION NO.3065 OF 2006
      
    M/s. Livewel Aviation Services Pvt. Ltd.,            ...     Petitioner




                                                                      
          Versus                       
    Bhartiya Kamgar Sena And Another                     ...       Respondents
                                              .....
    Ms. Anjali P. Purav for the Petitioner.




                                                                     
    Mr. M.D. Nagle for Respondent No.1.
                                              .....
                                     
                                    CORAM                   :  S.C.GUPTE, J.

                                    RESERVED ON        :   09  JUNE 2016
                                     
                                    PRONOUNCED ON  :   29  NOVEMBER 2016
                                    
    (JUDGMENT)
     
    .           This petition,  filed  under  Article  226  of  the  Constitution  of  India, 
          

challenges an order passed by the Industrial Court at Mumbai in a

complaint of unfair legal practice under items 1(a), (b) and 6 of Schedule II and items 6, 9 and 10 of Schedule IV of the MRTU & PULP Act, 1971 filed by the union of its employees against the Petitioner. By the impugned

order, the Industrial court held the complaint to be maintainable.

2 The Petitioner is in the business of provision of various types of

services to airline companies within the airport precincts. These services, which are allied to air transportation, include exterior and interior aircraft cleaning, baggage handling, customer care, etc. Respondent No.1, who claims to be a registered trade union of workmen of the Petitioner, filed a

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complaint of unfair labour practice against the Petitioner before the Industrial Court at Mumbai, claiming inter alia benefits of permanency and

wages as permanent employees for sixty workmen of the Petitioner represented by it. A preliminary objection to the maintainability of this

complaint was raised by the Petitioner on the ground that the activities engaged in by the Petitioner being air transport services and the Petitioner thus being an 'air transport service industry' controlled by the Central

Government, that Government was the appropriate government for the purpose of disputes between itself and its workmen, and these disputes were beyond the purview of the Industrial Court deciding complaints under

the MRTU & PULP Act, 1971. The Industrial Court rejected the preliminary

objection, holding that the Petitioner was neither an industry carried on by the Central Government nor under the authority of the Central

Government and that the Central Government was not the appropriate government in relation to the dispute forming part of the complaint. The Industrial Court inter alia observed that the services of cleaning of aircrafts

and handling of baggage provided by the Petitioner were not air transport

services. These findings are challenged in the present petition.

3 Section 2(a) (i) of the Industrial Disputes Act, 1971 defines

'appropriate government' to be the Central Government in relation to any industrial dispute concerning any industry carried on by or under the authority of the Central Government...... or concerning any such controlled

industry as may be specified in this behalf by the Central Government or in relation to any industrial dispute concerning........ an air transport service, etc. The central question in this petition is whether the industrial dispute forming part of the complaint herein is concerning an air transport service.

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It is submitted by learned Counsel for the Petitioner that the word "concerning", which means "relating to, regarding, respecting, about, etc.",

is a word of wide amplitude and any industrial dispute affecting or connected with "air transport service" would fall within the definition

noted above. Learned Counsel relies in this behalf on the cases of Transport and Dock Workers' Union Vs. Khemka Co.1 and Sylvester & Co. Vs. Their Workmen through Transport & Dock Workers' Union 2.

Learned Counsel further relies on a line of cases including Olyster Marine Inc. Vs. Chandrakant R. Ugale3, D. Sarkar alias Dipak Sarkar Vs. State of Bihar4, J.R. Jugele, Rly. Contractor Vs. Smt. Sitabai Atamaram 5 and

The General Employees' Association Vs. Union of India & Ors. 6 and

contends that if the appropriate government, as in the case of Section 2(1)

(a) of the Contract Labour (Regulation and Abolition) Act, 1970, is the

Central Government in respect of the principal employer, even for a contractor working for such principal employer it has to be the Central Government. It is submitted that the principal employer of the Petitioner is

an airline company, for which the appropriate government is admittedly

the Central Government, and therefore, on the principle of the above referred to cases, even for the Petitioner the Central Government ought to be considered as the appropriate government.

4 The Petitioner carries on the business of handling of passengers and bags and baggages of airlines, and cleaning of aircrafts. It carries on this

business for an airline company, namely, Jet Airways. Going by the plain

1. 1999 I CLR 678 2 2008 I CLR 173 3 2001 III CLR 873 4 Cr.M.No.3367/1990 (R) dated February 13, 1997 High Court, Patna. 5 WP No.3077/1979, dated 23 January 1989 High Court, Bombay (Nagpur Bench) 6 WP NO.918/1987 dated July 17, 1990 High Court, Bombay

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nature of its activities, it cannot be said that the Petitioner is rendering any air transport service. In plain terms, no dispute concerning the service

rendered by the Petitioner can be said to be a dispute concerning air transport service, however, widely one were to interpret the word

"concerning". Such dispute neither "relates to" nor is it "relating" or "respecting" or "about" air transport service. The Petitioner may be providing services to an industry or establishment providing air transport

service, but the Petitioner itself is not providing any air transport services. Its services may be allied to, or auxiliary to, air transport services. But for that reason, the dispute between itself and its workmen does not concern

air transport service. We are not considering whether the Petitioner's

business concerns air transport service, but whether a dispute at its establishment concerns air transport service. That it certainly does not.

5 In Khemka Co.'s case (supra), the question was whether the dispute (i.e. a dispute between a shipping agency working only within the port of

Mumbai and its workmen) was "concerning a major port" within the

meaning of Section 2(1)(a) of the Industrial Disputes Act, 1971. A learned Single Judge of our Court (A.P. Shah, J) held that the intention of the legislature was to make the Central Government the appropriate

government in relation to industrial disputes concerning "works" in major ports, and in that view, any industrial dispute affecting or connected with a major port (in that case, the port of Mumbai) would fall within the

definition. A Division Bench of our Court in a later judgment, in Sylvester & Co.'s case (supra), explained the position further. The Division Bench held that the expression "concerning a major port" emphasized the existence of a nexus between the industrial dispute and the major port and

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a major port had to be defined with reference to the ambit of its operations. These decisions have no bearing on our facts. In our case, the

industrial dispute would be covered only if it affects or is connected with air transport service. It would have been another matter if the definition

had included a dispute concerning an airport, as in the two cases referred to above, where the definition included disputes concerning a major port. In that case, any works within the precincts of an airport would be covered

in the definition, and that would include the Petitioner who renders services within the airport. In our case, the definition requires a nexus between the industrial dispute and air transport service, and not between

the industrial dispute and airport.

6 The reliance on the line of judgments rendered in the context of the

Contract Labour (Regulation and Abolition) Act, 1970, is also out of place here. What this line of judgments holds is that when the principal employer's establishment is covered in clause (1) of Section 2(1) (a) of that

Act, that is to say, when the appropriate government is the Central

Government qua the principal, even qua the contractor the appropriate Government would be the Central Government. The reason is obvious. The appropriate Government under Section 2(1)(a) of that Act is to be

reckoned in relation to "any establishment" and such "establishment" has to be with reference to the principal employer. The rationale of these judgments is that it is in the fitness of things that the appropriate

Government should be the same in relation to an establishment both for the principal employer and the contractor. This has no bearing on the facts of our case. The definition clause of the Industrial Disputes Act, Section 2(a), defines the appropriate Government in relation to "any industrial

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dispute". Such industrial dispute must be concerning the industries mentioned in clause (i). In our case, the relevant industry is "air transprot

service". What, therefore, needs to be examined is whether the Petitioner is an industry rendering air transport service. The Petitioner and the air

transport service to which it renders service, are in any event not contractor and principal employer, respectively, within the meaning of the Contract Labour (Regulation and Abolition) Act, 1970. The analogy of the

cases arising under that Act concerning the contractor and the principal employer cannot be stretched to cover the facts of our case, where the Petitioner is rendering services to the airline on a principal to principal

basis, and not as a contractor to the principal employer.

7 There is, thus, no infirmity in the impugned order. Accordingly, the

petition is dismissed. No order as to costs.

(S.C.GUPTE, J.)