Bombay High Court
Mumbai Port Trust, Dock And ... vs Board Of Trustees Of The Port Of ... on 6 July, 2017
Bench: A.A. Sayed
WP 1220.02 & WP 2474.
Urmila Ingale
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 1220 OF 2002
Mumbai Port Trust Flotilla Worker's
Association, 2nd floor, Thackarcy House,
J.N. Heredia Marg, Bellard Estate,
Mumbai - 400 001. .. Petitioner
V/s.
1. Mumbai Port Trust,
Port Bhavan, Shoorji
Vallabhji Marg, Mumabi - 400 001.
2.The Chairman,
Mumbai Port Trust,
Port Bhavan, Shoorji
Vallabhji Marg, Mumbai - 400 001.
Union of India,
3.
through Ministry of Shipping &
Transport, Notice to be served
on Central Government Advocate,
Ayakar Bhavan, Mumbai .. Respondents
ALONG WITH
WRIT PETITION NO. 2474 OF 2002
Mumbai Port Trust, Dock and
General Employees' Union,
A Trade Union registered under the
Trade Unions Act 1926 and having
its office at Port Trust Kamgar Sadan,
Nawab Tank Road, Mazgaon,
Mumbai 400 010. .. Petitioner
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WP 1220.02 & WP 2474.
Vs.
1.Board of Trustees of the Port of Mumbai,
an autonomous body constituted under
the provisions of the Major Port Trusts Act,
1963 and having its registered office
at Port House, Shoorjee Vallabhdas Marg,
Ballard Estate, Mumbai 400 001.
2.Union of India,
Ministry of Labour
New Delhi,
Through the Central
Government Advocate, Mumbai
3.The Assistant Labour
Commissioner - Central - III
Ministry of Labour,
Government of India,
Shram Raksha Bhavan, Sion,
Mumbai - 400 022. .. Respondents
Mr. Suresh S. Pakale, for the Petitioner in WP/1220/2002.
Mr.Rajesh Gehani a/w Ms.Sujal Vikhare i/b Mr.Mahendra
Agvekar, for Petitioner in WP/2474/2002.
Mr.R.S.Pai, Advocate a/w Mr.Anand Pai & Mr.Manoj Thakur i/b
Mulla & Mulla, for Respondents No.1 & 2 in WP/1220/2002.
Mr.S.K. Talsania, Senior Advocate a/w Ms.Sneha Pandey i/b
Motiwala & Co., for Respondent No.1 in WP/2474/2002.
Mr.Mihir Desai, Senior Advocate a/w Ms.Devyani Kulkarni, for
Intervenor.
Mr.Anil Singh, ASG, a/w Mr.Advait Sethna & Mr.Yash Momaya,
for Union of India.
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WP 1220.02 & WP 2474.
CORAM : A.A.SAYED &
M.S.KARNIK, JJ.
RESERVED ON : 19th JUNE, 2017
PRONOUNCED ON : 06th JULY, 2017
JUDGMENT (PER M.S.KARNIK, J)
:
1. The issues involved in these two Petitions are
common. The challenge in these Petitions is to a notification
dated 15/03/2002 issued by the Labour and Employment
Adviser thereby directing that the provisions of section 2(h),
section 14 of the Minimum Wages Act, 1948 (for short 'MW Act')
and Rule 25 of the Minimum Wages (Central) Rules 1950 (for
short 'Rules of 1950') shall not be applied to the employees
engaged in the scheduled employments in Mumbai Port Trust
whose minimum wages were fixed vide gazette notification
numbers S.R.O. 335 dated 07/03/1951, S.R.O. 590 dated
29/03/1952 and S.R.O. 3671 dated 29/12/1954 having regard
to the conditions stipulated in the notification.
2. The 2nd challenge is to a communication dated
30/05/2002 issued by respondent No.1 - Mumbai Port Trust in
WP 1220.02 & WP 2474.
pursuance of the notification dated 15/03/2002. The
Respondent No.1-Mumbai Port Trust ('MPT' for short) thereby
decided that payment of overtime wages at double the rate of
ordinary rate of wages for overtime work for more than 9 hours
on any day or more than 48 hours in a week be discontinued
from the salary payable for the month of May 2002 in respect of
all categories of port employees except those to whom
provisions of the Factories Act, 1948 are applicable.
3. The petitioners have thus prayed for quashing of (a)
notification dated 15/03/2002; (b) impugned circular dated
30/05/2002 withdrawing the benefit of overtime wages.
4. The petitioner in WP/2474/2002 is a registered
trade union under the Trade Unions Act, 1926 and is
representing the workmen employed in the establishments of
respondent No.1 - Port Trust. According to the petitioners,
around 20,000 workmen are affected by the change in the
service condition as a result of the impugned orders. The
WP 1220.02 & WP 2474.
members of the petitioner-Union in WP No. 1220/02 are mainly
employed in the pilotage activities of the respondent No.1 and
engaged in the Port operation for berthing and unberthing of the
ships and they have been given appointment in the Port Flotilla
section of the Port department of respondent No.1.
The brief facts forming the basis of the filing of the
Petitions are thus :
5. The Government of India Ministry of Labour by
notification No. S.R.O. 335 dated 07/03/1951 in exercise of the
powers conferred by clause (a) of sub-section (1) of section 3
read with clause (i) of sub-section (1) of section 4 and sub-
section (2) of section 5 of the MW Act, 1948 fixed minimum
wages payable to 59 categories of the workers of the Bombay
Port Trust. On 29/03/1952 by notification No. S.R.O. 390, the
Central Government fixed minimum wages payable to 217
categories of the workmen employed in the different
departments in the respondent No.1 - Trust. This notification
WP 1220.02 & WP 2474.
was to take effect from 29/03/1952.
6. By the respondent No.1's - Trust Resolution (for
short 'T.R.') No. 569 of 1953, Rule 25 of the Rules of 1948 was
made applicable to all the categories of workmen covered under
MW Act with effect from 15/03/1951 and hence, overtime
allowance payable to them was calculated at double the
ordinary rate of wages.
7. The Central Government by publishing a third
notification No. S.R.O. 3671 dated 29/12/1954 made applicable
provisions of MW Act to another 177 categories of workmen out
of which 123 categories belonged to the manual and clerical
category of workers and thus, they too became eligible for
overtime allowance. According to the petitioners, industrial
dispute was raised by remaining 54 categories of workmen who
did not fall under the manual and clerical workers category
interalia demanding to be covered under MW Act and to be
afforded the benefit of Rule 25 of the said Rules of 1950. By an
WP 1220.02 & WP 2474.
award dated 28/11/1957, the remaining 54 categories were
afforded similar benefits of overtime allowance as payable under
the MW Act.
8. According to the petitioners, by virtue of T.R. No.
753 dated 25/08/1959, certain lower ranks of supervisory staff
were also provided the benefit of overtime allowance at double
the rate of ordinary wages. It is petitioner's case that the
practice protected by Settlements for last 5 decades is that the
workers with the respondent No.1 - MPT are paid double the
wage rate for overtime allowance which may be either due to
application of the MW Act, the Factories Act, 1948 or the
Settlements arrived at between the Trust and the workers. The
impugned notification of the Government of India dated
15/03/2002 had the effect of discontinuing the payment of
overtime wages to the members of the petitioners Union.
According to the petitioners, the respondent No.1 - Trust by the
circular dated 30/05/2002 unilaterally withdrew the benefit of
overtime allowance of double the ordinary rate of wages
WP 1220.02 & WP 2474.
provided under the MW Act reducing it to the overtime wage
rate in accordance with the provisions of Port Trust Rules upon
issuance of the notification dated 15/03/2002.
9. Being aggrieved by the change effected, a strike
notice was issued by the petitioners. The Conciliation Officer
and Assistant Labour Commissioner (Central) - III, Mumbai
issued a notice under section 12 of the Industrial Disputes Act,
1947 (for short 'ID Act') and entertained the industrial dispute.
The petitioners requested the Chief Personnel and Industrial
Relations Manager, Mumbai Port Trust to withdraw the proposed
change in service condition which request came to be rejected.
10. The petitioners have therefore impugned the
notification dated 15/03/2002 and the circular dated
31/05/2002 in these Petitions.
11. The petitioners have also raised a challenge as
regards inclusion of House Rent Allowance (HRA) while
WP 1220.02 & WP 2474.
computing the overtime allowance. Insofar as this challenge is
concerned, the issue is already raised before the appropriate
forum and therefore, we have refrained from entertaining this
aspect of the matter in these Petitions.
12. Learned Counsel for the petitioners assailed the
impugned orders contending that the same are arbitrary and
against the provisions of MW Act and Factories Act and the ID
Act. Our attention is invited to the relevant provisions of the
MW Act 1948 which read thus :
Section 2(b) : "Appropriate Government'' means -
(i) in relation to any scheduled employment carried on by or
under the authority of the 5 [Central Government or a railway
administration], or in relation to a mine, oilfield or major port, or
any corporation established by 6 [a Central Act], the Central
Government, and
(ii) in relation to any other scheduled employment, the 7 [State
Government];
Section 2(c) : "Competent Authority" means the authority
appointed by the appropriate Government by notification in its
Official Gazette to ascertain from time to time the cost of living
index number applicable to the employees employed in the
scheduled employments specified in such notification;
Section 2(e) : "Employer" means any person who employs,
whether directly or through another person, or whether on behalf
of himself or any other person, one or more employees in any
WP 1220.02 & WP 2474.
scheduled employment in respect of which minimum rates of
wages have been fixed under this Act, and includes, except in sub-
section (3) of section 26, -
(i) in a factory where there is carried on any scheduled
employment in respect of which minimum rates of wages have
been fixed under this Act, any person named under 9 [clause (f)
of sub-section (1) of section 7 of the Factories Act, 1948 (63 of
1948)], as manager of the factory;
(ii) in any scheduled employment under the control of any
Government in India in respect of which minimum rates of wages
have been fixed under this Act, the person or authority appointed
by such Government for the supervision and control of employees
or where no person or authority is so appointed, the head of the
department;
(iii) in any scheduled employment under any local authority in
respect of which minimum rates of wages have been fixed under
this Act, the person appointed by such authority for the
supervision and control of employees or where no person is so
appointed, the chief executive officer of the local authority;
(iv) in any other case where there is carried on any scheduled
employment in respect of which minimum rates of wages have
been fixed under this Act, any person responsible to the owner for
the supervision and control of the employees or for the payment
of wages;
Section 2(g) : "Scheduled Employment'' means an employment
specified in the Schedule, or any process or branch of work
forming part of such employment;
Section 2(h) : "Wages'' means all remuneration, capable of being
expressed in terms of money, which would, if the terms of the
contract of employment, express or implied, were fulfilled, be
payable to a person employed in respect of his employment or of
work done in such employment 10 [and includes house rent
allowance], but does not include -
(i) the value of -
(a) any house accommodation, supply of light, water, medical
attendance, of
WP 1220.02 & WP 2474.
(b) any other amenity or any service excluded by general or
special order of the appropriate Government ;
(ii) any contribution paid by the employer to any Pension Fund or
Provident Fund or under any scheme of social insurance;
(iii) any travelling allowance or the value of any travelling
concession;
(iv) any sum paid to the person employed to defray special
expenses entailed on him by the nature of his employment; or
(v) any gratuity payable on discharge;
Section 2(i) : "Employee'' means any person who is employed for
hire or reward to do any work, skilled or unskilled, manual or
clerical, in a scheduled employment in respect of which minimum
rates of wages have been fixed; and includes an out-worker to
whom any articles or materials are given out by another person to
be made up, cleaned, washed, altered, ornamented, finished,
repaired, adapted or otherwise processed for sale for the purposes
of the trade or business of that other person where the process is
to be carried out either in the home of the out-worker or in some
other premises not being premises under the control and
management of that other person; and also includes an employee
declared to be an employee by the appropriate Government; but
does not include any member of the Armed Forces of the 11
[Union].
Section 12 : Payment of minimum rates of wages. -
(1) Where in respect of any scheduled employment a notification
under section 5 24 [***] is in force, the employer shall pay to
every employee engaged in a scheduled employment under him
wages at a rate not less than the minimum rate of wages fixed by
such notification for that class of employees in that employment
without any deductions except as may be authorised within such
time and subject to such conditions as may be prescribed.
(2) Nothing contained in this section shall affect the provisions of
the Payment of Wages Act, 1936 (4 of 1936).
13. Learned Counsel for the petitioners also invited our
attention to the relevant portion of the provisions of section
WP 1220.02 & WP 2474.
59(1) of the Factories Act which read thus :
59. Extra wages for overtime.--
(1) Where a worker works in a factory for more than nine
hours in any day or for more than forty-eight hours in any
week, he shall, in respect of overtime work, be entitled to
wages at the rate of twice his ordinary rate of wages.
14. Learned Counsel for the petitioners invited our
attention to the schedule 4 item 1 and item 8 of the ID Act
which read thus :
Item 1 : Wages, including the period and mode of payment;
Item 8: Withdrawal of any customary concession or privilege or
change in usage.
15. According to the learned Counsel for the petitioners
the issuance of the said notification is arbitrary and
discriminatory as only the workmen of the Mumbai Port Trust
are singled out whereas no such notification is issued qua the
Port Trust of Vishakhapattanam, Kandla, Chennai. The
workmen at these Ports are continued to be paid the overtime at
double the ordinary rate of wages. It is also submitted that
prevailing service condition so far as overtime allowance at
other major Ports are similar. They are still paid at double the
WP 1220.02 & WP 2474.
rate of ordinary wages.
16. In the submission of the learned counsel for the
petitioners, on the principle of parity therefore if the similar
situate workmen of the other Ports are getting the benefit of the
overtime at double the rate of ordinary wages, this itself is a
good ground, according to the learned Counsel for the
petitioners, to strike down the impugned notification as being
violative of Article 14 of the Constitution of India.
17. Learned Counsel for the petitioners next contend
that the practice of paying overtime allowance is protected by
Settlements of last 5 decades and the workers of respondent
No.1 - Trust are paid double the overtime allowance which may
either be due to application of the MW Act, Factories Act, 1948
or Settlements arrived at between respondent No.1 and the
workmen of the petitioner- Union. Learned Counsel for the
petitioners invited our attention to the various Settlements
which provide that the existing benefits and allowance including
WP 1220.02 & WP 2474.
those contained in the last and earlier Settlements should not be
curtailed or withdrawn. Learned Counsel invited our attention
to clause 26 of the Settlement dated 12/06/1989 which
reads thus :
"26. General
(a) Existing benefits and allowances including those
contained in the last and earlier settlements should not be
curtailed or withdrawn. The principle of equal pay for
equal work should govern the resolving of issues relating to
proper classification and removal of anomalies.
Any facility, privilege, amenity, right, benefit monetary or
otherwise or concession to which an employee or category
or employees might be entitled to by way of any award,
practice or usage should not be withdrawn, reduced or
curtailed."
18. Learned Counsel invited our attention to clause 24 of
the Settlement dated 06/12/1994 which is on the line similar to
clause 26 reproduced above. He also invited our attention to
clause 36 of the Settlement dated 02/08/2000 which settlement
is for the period from 01/01/1997 to 31/12/2006 which reads
thus :
"Merely as a consequence of the implementation of this
Settlement, any facility, privilege, amenity, right, benefit,
monetary or otherwise or concession to which an employee or
a category of employees might be entitled to by way of any
award, practice, or usage, shall not be withdrawn, reduced or
curtailed, except to the extent and manner as explicitly
WP 1220.02 & WP 2474.
provided for in this Settlement. Provided, however, that this
protection clause shall not be used by the Federations and their
affiliated unions and any person/persons enjoying benefits
under this Settlement for preventing Port/DLB management
from taking steps for the implementation of the provisions of
this Settlement for improving productivity."
19. According to the learned Counsel for the petitioners,
the notification and the consequent circular therefore apart from
being arbitrary are a complete instance of non-application of
mind as the same have been issued without taking into
consideration clause 36 of the settlement dated 02/08/2000. In
the submission of learned counsel for the petitioners, the
workmen are entitled for overtime at double the rate of ordinary
wages which is the benefit they are getting right from 1951.
The said notification is therefore in complete breach of clause 36
which provides that as a consequence of implementation of this
Settlement, any facility, privilege, amenity, right, benefit,
monetary or otherwise or concession to which an employee or a
category of employees might be entitled to by way of any award,
practice, or usage, shall not be withdrawn, reduced or curtailed,
except to the extent and manner as explicitly provided for in this
Settlement.
WP 1220.02 & WP 2474.
20. According to the learned Counsel for the petitioners
the change in the service condition is effected without
substituting the Settlement dated 02/08/2000 that provides
continuation and protection of existing benefits and/or effecting
change in the service condition without passing any Trust
Resolution. The issuance of the notification virtually has an
effect of terminating the settlement and thus, the action on the
part of the respondents in not validly terminating the settlement
before implementing the change renders the notification illegal
and bad in law, so the learned Counsel would contend.
21. Learned Counsel Mr.Pakale for the petitioner in
WP/1220/02 made an attempt to contend that respondent No.2
was not an appropriate authority to issue impugned notification.
According to him, respondent No.2 -MPT is not an employment
specified in Part I or Part II of the Schedule or added to either
part by notification under section 27 as required by section 3.
Realising that it is only on account of operation of MW Act by
certain Notifications of 1951, 1952 and 1954 the workmen of
WP 1220.02 & WP 2474.
the petitioner's Union have derived the benefits of payment of
overtime wages at double the ordinary rate from 1951 that Shri
Pakale did not press this challenge. In any case, the petitioners
in Writ Petition No. 2474 of 2002 have categorically stated that
MW Act is applicable to the Port Trust under Entry 6 schedule I
as respondent Port Trust is local authority within the meaning of
Entry 6 of the Schedule.
22. Learned Counsel for the petitioners contended that
by issuance of the impugned circular, respondent No.1 has
virtually changed the service conditions of the petitioners in
breach of section 9A of the ID Act. The petitioners or their
workmen were not given notice of change as required by section
9A of the ID Act. Learned Counsel for the petitioner invited our
attention to relevant portion of Section 9A of the ID Act which
reads thus :
Section 9-A. Notice of change
.- No employer, who proposes to
effect any change in the conditions of service applicable to any
workman in respect of any matter specified in the Fourth
Schedule, shall effect such change, -
(a) without giving to the workmen likely to be affected by such
change a notice in the prescribed manner of the nature of the
change proposed to be effected; or
WP 1220.02 & WP 2474.
(b) within twenty- one days of giving such notice:
Provided that no notice shall be required for effecting any such
change--
(a) where the change is effected in pursuance of any
[settlement or award]; or
(b) .....
23. According to the learned Counsel for the petitioners
by virtue of various Settlements entered into during the last 5
decades, the workmen of the petitioners are protected by the
terms of Settlement, therefore, payment of overtime wages at
double the ordinary rate of wages is a service condition which
cannot be altered without issuing notice of change as
contemplated by section 9A. The impugned circular therefore is
non-est and void ab-initio.
24. It is next submitted on behalf of the petitioners that
in any case, the petitioners are entitled to the benefit of
overtime wages under the Factories Act. Learned Counsel for
the petitioner in WP No. 2474/2007 invited our attention to the
definition of 'manufacturing process' under section 2k of the
Factories Act which reads thus :
Section 2(k). "manufacturing process" means any process
for--
WP 1220.02 & WP 2474.
(i) making, altering, repairing, ornamenting, finishing,
packing, oiling, washing, cleaning, breaking up,
demolishing, or otherwise treating or adapting any article or
substance with a view to its use, sale, transport, delivery or
disposal, or
(ii) pumping oil, water, sewage or any other substance;
or]
(iii) generating, transforming or transmitting power; or
(iv) composing types for printing, printing by letter press,
lithography, photogravure or other similar process or book
binding;] [or]
(v) constructing, reconstructing, repairing, refitting,
finishing or breaking up ships or vessels; [or]
(vi) preserving or storing any article in cold storage;]
25. Our attention is also invited to the definitions of 2(l)
and 2(m) of the Factories Act which read thus :
Section 2(l) "worker" means a person [employed, directly or by or
through any agency (including a contractor) with or without the
knowledge of the principal employer, whether for remuneration or
not], in any manufacturing process, or in cleaning any part of the
machinery or premises used for a manufacturing process, or in any
other kind of work incidental to, or connected with, the manufacturing
process, or the subject of the manufacturing process [but does not
include any member of the armed forces of the Union];
Section 2(m) "factory" means any premises including the
precincts thereof--
(i) whereon ten or more workers are working, or were working
on any day of the preceding twelve months, and in any part of
which a manufacturing process is being carried on with the aid
of power, or is ordinarily so carried on, or
(ii) whereon twenty or more workers are working, or were
working on any day of the preceding twelve months, and in any
part of which a manufacturing process is being carried on
without the aid of power, or is ordinarily so carried on,
but does not include a mine subject to the operation of 6 [the
Mines Act, 1952 (35 of 1952)], or 7 [a mobile unit belonging to
the armed forces of the Union, railway running shed or a hotel,
restaurant or eating place].
8[Explanation [I].--For computing the number of workers for the
WP 1220.02 & WP 2474.
purposes of this clause all the workers in 10[different groups and
relays] in a day shall be taken into account;]
11 [Explanation II.--For the purposes of this clause, the mere fact
that an Electronic Data Processing Unit or a Computer Unit is
installed in any premises or part thereof, shall not be construed
to make it a factory if no manufacturing process is being carried
on in such premises or part thereof;]
26. It is contended that the workmen who are associated
with the manufacturing process are being paid overtime as per
section 59 under the Factories Act. Learned Counsel for the
petitioners relied upon the decision of this Court in the case of
Cricket Club of India Versus Employee's State Insurance
Corporation reported in 1994 2 Mh.L.J. 1228 to contend that
the workmen of the petitioners are working in the precincts of
the MPT and their activities are integral to the working of the
Port Trust. However, we refrain from going into this question as
there are no pleadings to decide this issue. There is nothing on
record to indicate the exact nature and duties discharged by the
workmen. In any case, these are of disputed questions of fact
and the petitioners have an alternate efficacious remedy to claim
overtime wages under section 59 of the Factories Act, if they are
entitled. Moreover, we do not find that the relief for payment of
overtime wages under section 59 is even prayed for in these
WP 1220.02 & WP 2474.
Petitions.
27. It is next contended by learned Counsel for the
petitioners that reading of section 26(2) of the MW Act would
indicate that before issuing the notification under section 26(2)
special reasons have to be recorded and the same is always
subject to such conditions and for such period as may be
specified. Learned Counsel for the petitioners submits that
neither are there any reasons contained in the notification nor
the period has been fixed during which time the exemption shall
operate. According to the learned Counsel for the petitioners,
the notification is therefore, not in accordance with sub-section
2 of section 26.
28. Learned Senior Counsel Mr.Mihir Desai for the
intervenors in support of the petitioners adopted the arguments
advanced by the learned Counsel for the petitioners. According
to the learned Senior Counsel even those employees who are not
covered in the notifications dated 07/03/1951, 29/03/1952 &
29/12/1954 are extended similar benefits of overtime under the
WP 1220.02 & WP 2474.
MW Act. The said employees are thus protected by the
Settlements. The entitlement to overtime allowance is based on
custom, usage and practice which is followed right from 1951
and this practice cannot be changed unless the procedure
contemplated by Section 9A of the ID Act is followed. In the
submission of learned Senior Counsel the entitlement to
overtime allowance flowed from the practice that is adopted by
MPT for all these years and not merely on the application of the
MW Act.
29. In support of his submissions, learned Senior
Counsel invited our attention to the minutes of the meeting held
on 05/12/1972, more particularly clauses 1.3 and 1.4 which
read as under :
"1.3 Government have not issued any fresh Notifications
fixing minimum wages under the Minimum Wages Act after
1954 in respect of Bombay Port Trust employees. However,
whenever new categories were created, the Trustees, on
being satisfied that they would have been notified under the
Minimum wages Act, had such Notifications been issued,
have, from time to time, in a large number of cases,
extended, of their own accord, the benefit of overtime
payment at the rate prescribed under the Minimum Wages
Act.
1.4 Thus, the present position is that all Class IV employees
and the bulk of Class III employees are eligible for overtime
WP 1220.02 & WP 2474.
at the rate prescribed under the Minimum Wages Act. There
are now 62 categories with a strength of about 425 not
eligible for overtime at this rage."
30. Thus, in the submission of learned Senior Counsel
once the decision has been taken by the respondents to extend
the benefit of the notification to the employees on its own
accord, the respondents are not justified in depriving the
employees of the said benefit by issuance of the impugned
circular and that too without making the mandatory compliance
of section 9A of the ID Act. Learned Senior Counsel therefore
contends that the board extended the benefit of overtime
allowance to every employee irrespective of the notification.
The applicability of the MW Act therefore became a condition of
service.
31. Learned Senior Counsel also contends that clause 19
of the Settlement has to be read along with clause 36. Clause 36
is already reproduced in para 18. Clause 19 read thus :
"19. Overtime Allowance : If any employee is asked by
the management to work beyond prescribed working hours,
overtime allowance will be paid as per relevant laws
governing the payment of this allowance and full payment
will not be denied."
WP 1220.02 & WP 2474.
32. In the submission of the learned Senior Counsel after
issuance of the notifications in the year 1951, 1952 and 1954,
the wages have been revised consequent to the various
Settlements entered into between the Management and the
Union. The overtime allowance which the employees were
getting for so long years therefore becomes existing benefit
protected by the Settlements and the same cannot be
withdrawn, reduced or curtailed except to the extent and
manner as explicitly provided for in the Settlements. In the
submission of learned Senior Counsel the entitlement of the
petitioners to claim overtime allowance is not now as of result of
applicability of the MW Act, but as a result of Settlements as the
petitioners continued to receive overtime allowance right from
the time they started receiving wages more than the minimum
wages.
33. Learned Senior Counsel for respondent No.1 in Writ
Petition No.2474/2002 and Counsel for MPT in Writ Petition
No.1220/2002 contend that present Petition is completely
WP 1220.02 & WP 2474.
misconceived inasmuch as the workmen of the petitioner's
Union have no right whatsoever to claim the overtime at double
the rate of ordinary wages under section 14 of MW Act and Rule
25 of the said Rules of 1950. Learned Senior Counsel invited
our attention to section 14 of the MW Act. According to learned
Senior Counsel for respondent No.1 it is by operation of law that
the members of the petitioner Union are no longer entitled to
the benefit of overtime wages under section 14 of MW Act or
Rule 25 of the Rules of 1950. According to the learned Senior
Counsel it is only in respect of those employees whose minimum
rate of wages is fixed under this Act that they are entitled to
overtime wages under section 14. In the submission of learned
Senior Counsel, minimum rate of overtime wages as provided
under the MW wages Act and the Rules framed thereunder has
to be paid to such employees but if any other law provides for
higher rate then the same will have to be paid.
34. In the submission of learned Senior Counsel
therefore by virtue of Settlements entered into between the
WP 1220.02 & WP 2474.
petitioners and the respondent No.1 - Trust, the workmen are
getting wages more than minimum rate of wages fixed by the
Act. In the submission of learned Senior Counsel therefore if the
employees are getting wages more than the minimum rate of
wages fixed under the MW Act, the claim of the petitioner is not
justified as the appropriate Government has powers to exempt
the application of Section 14 of the MW Act and Rule 25 of the
Rules.
35. Learned Additional Solicitor General appearing
on behalf of the Union of India invited our attention to the
impugned notification. According to him, the notification has
been issued in terms of the powers conferred by section 26(2) of
the MW Act. The reasons have been spelt out. Learned ASG
relied upon the conditions mentioned in the notification to
contend that the same is in conformity with the provisions of
section 26(2) of MW Act. According to learned ASG the wages
which are now payable to the members of the respondent-
Union are in terms of Settlements which have been arrived at
WP 1220.02 & WP 2474.
between the MPT and the Trade Union. The members
of the respondent- Union are being paid wages much more than
the minimum wages. In the submission of the learned ASG,
when the members of the respondent - Union are being paid
wages much more than the minimum wages, the Union of India
is justified in issuing the impugned notification. According to
the learned ASG, the wage structure of the employees of the
MPT has been revised through the conciliation proceedings
under ID Act and further minimum wages of these workers have
never been revised as per MW Act after the initial fixation and
therefore, having regard to these factors, it cannot be said that
the notification is bad in law. Learned ASG in support of his
submission relied upon the decision of the Apex Court in the
case of Indian Express Newspaper Vs. Union of India
reported in (1985) 1 Supreme Court Cases 641 to support his
contentions that the notification issued in exercise of powers
conferred by section 26(2) of the MW Act is not arbitrary.
36. Learned ASG therefore submits that the factors
WP 1220.02 & WP 2474.
which have been taken into consideration which according to
learned ASG in the teeth of section 14 of the MW Act and Rule
25 of the said Rules of 1950 are relevant factors taken into
consideration and therefore the notification issued under section
26(2) is in conformity with the MW Act.
37. According to the learned ASG it is undisputed that
under the Settlements, the employees are getting wages much
more than what is fixed under the MW Act. In the submission of
learned ASG, therefore, after fixing the minimum wages as per
the notifications dated 07/03/1951, 29/03/1952 and
29/12/1954, the wages to the employees are paid as per the
Settlements and/or as per wage structure of the employees
through the conciliation proceedings under the ID Act. Learned
ASG thus submits that there is nothing arbitrary or unreasonable
about the notification.
38. Having regard to the rival contentions advanced on
behalf of the learned Counsel appearing on behalf of the
WP 1220.02 & WP 2474.
respective parties, we now proceed to examine firstly the
legality of the impugned notification dated 15/03/2002. It is
not in dispute that by notification dated 07/03/1951, the
minimum rates of wages were fixed under the MW Act in the
Port of Bombay for the various categories of employees
mentioned therein. By subsequent notifications dated
29/03/1952 & 29/12/1954 in respect of some more categories
of employees, the minimum rates of wages payable under the
MW Act were fixed. It is also not in dispute that these
categories of employees who are covered by the notifications
were paid overtime allowance as required by sections 14 of the
MW Act read with Rule 25 of the said Rules of 1950. The MPT
extended similar benefit even to those employees who are not
covered by the notifications.
39. It is further not in dispute that the petitioner
employees are getting wages much more than the minimum
wages. Learned Senior Counsel for the respondent No.1 placed
reliance on the decision of the Apex Court in the case of Municipal
WP 1220.02 & WP 2474.
Council, Hatta Vs. Bhagat Singh and ors. (1998)2 Supreme
Court Cases 443 and invited our attention to paragraphs 4 & 5
which read thus :
"4. There is also an amendment to Section 14 by addition of
sub-section (1-a) under the Minimum Wages (Madhya
Pradesh Amendment and Validation) Act, 1961 being Act 23
of 1961. Sub-section (1-a) which is inserted in Section 14
entitles the State Government by notification to fix the limit
for overtime work in a scheduled employment. This
provision is not directly relevant. To claim overtime under
Section 14, the following conditions must be fulfilled by an
employee (1) the minimum rate of wages should be fixed
under the Minimum Wages Act, 1948; and (2) such an
employee should work on any day in excess of the number of
hours constituting a normal working day. Therefore,
overtime under Section 14 is payable to those employees
who are getting a minimum rate of wage as prescribed under
the Minimum Wages Act, 1948. These are the only
employees to whom overtime under Section 14 would
become payable. In the present case the respondents cannot
be described as employees who are getting a minimum rate
of wages fixed under the Minimum Wages Act, 1948. They
are getting much more and that too under the Madhya
Pradesh Municipal Service (Scales of Pay and Allowances)
Rules, 1967. Therefore, Section 14 has no application to
them. We have not been shown any other provision under
which they can claim overtime.
5. The application under Section 22 of the Minimum Wages
Act, is, therefore, misconceived. The respondents seem to
have proceeded on the basis that because employment under
any local Authority is listed as Item 6 in the Schedule to the
Minimum Wages Act, 1948 they would automatically get
overtime under the said Act. Section 14, however, clearly
provides for payment of overtime only to those employees
who are getting minimum rate of wage under the Minimum
Wages Act, 1948. It does not apply to those getting better
wages under other statutory Rules."
WP 1220.02 & WP 2474.
40. Though learned Senior Counsel for the respondents
has placed heavy reliance on the decision of the Apex Court in
the case of Municipal Council, Hatta (supra), in our opinion,
the decision may not squarely apply to the facts of the present
case. In the facts of the present case we are called upon to
decide legality and validity of the impugned notification dated
15/03/2002, which we have to examine in the light of the
powers conferred on the respondent No.3 by section 26(2) of
the MW Act.
41. Before the Apex Court in Municipal Council, Hatta
(supra), the issue was in respect of claim made by the employees
under section 22 of the MW Act claiming payment of overtime
under section 14 thereof for additional hours of work put in by
them and it is in this context, the Apex Court was pleased to
hold that as the employees are getting much more than the
minimum wages, therefore section 14 has no application to
those employees.
WP 1220.02 & WP 2474.
42. There is no dispute that the members of the
petitioners are getting better wages under the Settlements. The
right to claim payment of overtime under the MW Act flows
from section 14 of the MW Act read with Rule 25 of the said
Rules of 1950. It would be material to reproduce sections 14,
26(2) and Rule 25 of the said Rules of 1950.
Section 14 : Overtime : -
(1) Where an employee, whose minimum rate of wages is fixed under
this Act by the hour, by the day or by such a longer wage-period as may
be prescribed, works on any day in excess of the number of hours
constituting a normal working day, the employer shall pay him for every
hour or for part of an hour so worked in excess at the overtime rate
fixed under this Act or under any law of the appropriate Government for
the time being in force, whichever is higher.
(2) Nothing in this Act shall prejudice the operation of the provisions of
[section 59 of the Factories Act, 1948 (63 of 1948)] in any case where
those provisions are applicable.
Section 26(2) : The appropriate Government may, if for special
reasons it thinks so fit, by notification in the Official Gazette,
direct that 38 [subject to such conditions and] for such period as
it may specify, the provisions of this Act or any of them shall not
apply to all or any class of employees employed in any scheduled
employment or to any locality where there is carried on a
scheduled employment.
Rule 25 of the Minimum Wages (Central) Rules, 1950 :
Extra wages for overtime.-- (1) When a worker works in an
employment for more than nine hours on any day or for more
than forty-eight hours in any week, he shall in respect of overtime
work, be entitled to wages,--
(a) in the case of employment in agriculture, at one and a half
times the ordinary rate of wages;
WP 1220.02 & WP 2474.
(b) in the case of any other scheduled employment, at double the
ordinary rate of wages.
Explanation.--The expression 'ordinary rate of wages' means the
basic wage plus such allowance including the cash equivalent of
the advantages accruing through the concessional sale to the
person employed of foodgrains and other articles as the person
employed is for the time being entitled to, but does not include a
bonus.]
(2) .....
(3) Nothing in this rule shall be deemed to affect the provisions
of the Factories Act, 1948 (63 of 1948).
43. Insofar as the benefit of overtime allowance is
concerned, as indicated earlier, the same was paid to the
members of the petitioners by virtue of the 3 notifications of
1951, 1952 & 1954 referred to earlier. The authority issuing the
notification in exercise of power conferred under sub-section 2
of section 26 of MW Act read with sub-section (b)(i) of section 2
directed that the provisions of section 2(h), section 14 of MW
Act and Rule 25 of the said Rules of 1950 shall not apply to the
employees engaged in the scheduled employments in Mumbai
Port whose minimum wages were fixed vide gazette notifications
dated 07/03/1951, 29/03/1952 and 29/12/1954, having regard
to the following :
WP 1220.02 & WP 2474.
(i) The wage structure of the employees of Mumbai Port Trust
has been revised through conciliation proceedings under
Industrial Disputes Act, 1948;
(ii) The minimum wages of these workers have never been
revised under the Minimum Wages Act after the initial
fixation;
(iii) The employments of Ports are not included in the
schedule to the Minimum Wages Act, 1948 except the
employment in loading and unloading.
44. In the case of Indian Express Newspaper (supra),
the Apex Court in paragraphs 76, 77 & 78 has observed thus :
"76. Prof. Alan Wharam in his article entitled 'Judicial
Control of Delegated Legislation: The Test of
Reasonableness' in 36 modern Law Review 611 at pages
622-23 has summarised the present position in England as
follows:
"(i) It is possible that the courts might invalidate a statutory
instrument on the grounds of unreasonableness or uncertainty,
vagueness or arbitrariness; but the writer's view is that for all
practical purposes such instruments must be read as forming part
of the parent statute, subject only to the ultra vires test.
(ii) The courts are prepared to invalidate by- laws, or any other
form of legislation, emanating from an elected, representative
authority, on the grounds of unreasonableness uncertainty or
repugnance to the ordinary law; but they are reluctant to do so
and will exercise their power only in clear cases.
(iii) The courts may be readier to invalidate by-laws passed by
commercial undertakings under statutory power, although cases
WP 1220.02 & WP 2474.
reported during the present century suggest that the distinction
between elected authorities and commercial undertakings, as
explained in Kruse v. Johnson, might not now be applied so
stringently.
(iv) As far as subordinate legislation of non- statutory origin is
concerned, this is virtually obsolete, but it is clear from In re
French Protestant Hospital [1951] Ch. 567 that it would be
subject to strict control.
77. In India arbitrariness is not a separate ground since it
will come within the embargo of Article 14 of the
Constitution. In India any enquiry into the vires of
delegated legislation must be confined to the grounds on
which plenary legislation may be questioned, to the ground
that it is contrary to the statute under which it is made, to
the ground that it is contrary to other statutory provisions
or that it is so arbitrary that it could not be said to be in
conformity with the statute or that it offends Article 14 of
the Constitution.
78.That subordinate legislation cannot be questioned on
the ground of violation of principles of natural justice on
which administrative action may be questioned has been
held by this Court in The Tulsipur Sugar Co. Ltd. v.
Notified Area Committee, Tulsipur, Rameshchandra
Kachardas Porwal v. State of Maharashtra and in Bates v.
Lord Hailsham of St. Marylebone. A distinction must be
made between delegation of a legislative function in the
case of which the question of reasonableness cannot be
enquired into and the investment by statute to exercise
particular discretionary powers. In the latter case the
question may be considered on all grounds on which
administrative action may be questioned, such as, non-
application of mind, taking irrelevant matters into
consideration, failure to take relevant matters into
consideration, etc. etc. On the facts and circumstances of a
case, a subordinate legislation may be struck down as
arbitrary or contrary to statute if it fails to take into
account very vital facts which either expressly or by
necessary implication are required to be taken into
consideration by the statute or, say, the Constitution. This
can only be done on the ground that it does not conform to
the statutory or constitutional requirements or that it
offends Article 14 or Article 19 (1) (a) of the Constitution.
It cannot, no doubt, be done merely on the ground that it is
WP 1220.02 & WP 2474.
not reasonable or that it has not taken into account
relevant circumstances which the Court considers
relevant."
45. Having regard to the law laid down by the Apex
Court in the case of Indian Express Newspapers (supra), we
find that the Central Government has exercised its powers under
section 26(2) of the MW Act to issue the notification. In the
said notification, it is stipulated that exemption has been
granted having regard to the fact that the wage structure of the
employees of Mumbai Port Trust has been revised through
conciliation proceedings under the ID Act; minimum wages of
these workers have never been revised under the MW Act after
the initial fixation.
46. Though it is contended by the learned Counsel for
the petitioners that there is ambiguity insofar as clause (iii) of
the notification, we are of the opinion that the notification
cannot be said to be arbitrary only on this ground. The Central
Government has taken into consideration that rates of minimum
wages of the various categories of the employee were fixed by
WP 1220.02 & WP 2474.
the Central Government by issuance of the 3 notifications of
1951, 1952, 1954. The right to claim overtime allowance
under section 14 of the MW Act read with Rule 25 of the said
Rules of 1950 applies to those employees whose minimum rates
of wages are fixed under the Act. The wage structure of the
employees of Mumbai Port Trust has been revised through
conciliation proceedings under the ID Act which has formed the
basis for exempting the category of employees covered by 3
notifications from the applicability of section 14 of the MW Act
and Rule 25 of the said Rules of 1950. In this view of the
matter, it cannot be said that the impugned notification is in any
manner arbitrary or bad in law. The submission of the learned
Counsel for the petitioners that the impugned notification is
discriminatory as no such notification has been issued in respect
of other Ports can only be stated to be rejected as the impugned
notification is specifically issued in respect of MPT in the context
of the conditions mentioned thereunder. The challenge to the
notification dated 15/03/2002 therefore fails.
WP 1220.02 & WP 2474.
47. Let us now examine the second challenge as regards
the impugned circular dated 30/05/2002 issued by MPT by
which it was decided to discontinue the payment of overtime at
double the ordinary rate of wages. This circular as indicated
earlier is issued as a consequence of issuance of the impugned
notification dated 15/03/2002. The said circular is challenged
on various grounds already recorded earlier which in brief are
again reiterated hereafter :-
(a) The entitlement of overtime wages is pursuant to the various
Settlements entered into from time to time and therefore, the
payment of overtime at double the rate has become a condition
of service. The payment of overtime wages has now become a
long standing practice and even the same is protected by virtue
of clause 36 of the Settlement. The said circular is in breach of
section 9A of the ID Act.
(b) The employees of the other Ports continued to
receive overtime at double the rate of ordinary wages and
therefore, the issuance of circular is discriminatory.
WP 1220.02 & WP 2474.
(c) Those employees covered under the Factories Act are
getting the overtime as per section 59 of the Factories Act but
employees who are working in the precincts of the factories
though covered by the Factories Act are not paid overtime
allowance.
48. Learned Senior Counsel for the MPT in Writ Petition
No.2474/2002 and learned Counsel appearing for the MPT in
the connected Writ Petition No.1220/2002 contended that the
legality of the circular dated 31/05/2002 can best be questioned
by way of availing statutory remedy available to the employees
and for that matter, the petitioners could not have questioned
the legality of the circular/order of withdrawing the benefits of
overtime allowance by filing these Writ Petitions. It is further
submitted that whether section 9A had application in the facts of
the case essentially involved question of fact and therefore,
when there is a specific remedy available as provided under the
statute, the High Court should not deviate from the general view
and interfere under Article 226 except in a very strong case
WP 1220.02 & WP 2474.
made out for making a departure.
49. In the case of Hindustan Steel Works
Constructions Ltd and anr. Vs. Hindustan Steel Works
Construction Ltd. Employees Union (2005) 6 Supreme Court
Cases 725, the Apex Court in paragraphs 8, 9, 12 & 13, quoted
below, has held thus :
"8. In U.P. State Bridge Corporation Ltd. and Ors. v. U.P.
Rajya Setu Nigam S. Karamchari Sangh (2004) 4 SCC 268,
it was held that when the dispute relates to enforcement of
a right or obligation under the statute and specific remedy
is, therefore, provided under the statute, the High Court
should not deviate from the general view and interfere
under Article 226 except when a very strong case is made
out for making a departure. The person who insists upon
such remedy can avail of the process as provided under the
statute. To same effect are the decisions in Premier
Automobiles Ltd. v. Kamlekar Shantarum Wadke (1976) 1
SCC 496, Rajasthan SRTC v. Krishna Kant (1995) 5 SCC 75,
Chandrakant Tukaram Nikam v. Municipal Corporation of
Ahmedabad and Anr. (2002) (2) SCC 542 and in Scooters
India and Ors. v. Vijai V. Eldred (1998) 6 SCC 549.
9. In Rajasthan SRTC case it was observed as follows: (SCC
pp. 91-92, para 28)
"[A] speedy, inexpensive and effective forum for resolution
of disputes arising between workmen and their employers.
The idea has been to ensure that the workmen do not get
caught in the labyrinth of civil courts with their layers upon
layers of appeals and revisions and the elaborate procedural
laws, which the workmen can ill afford. The procedures
followed by civil courts, it was thought, would not facilitate
a prompt and effective disposal of these disputes. As against
this, the courts and tribunals created by the Industrial
Disputes Act are not shackled by these procedural laws nor
WP 1220.02 & WP 2474.
is their award subject to any appeals or revisions. Because
of their informality, the workmen and their representatives
can themselves prosecute or defend their cases. These
forums are empowered to grant such relief as they think just
and appropriate. They can even substitute the punishment
in many cases. They can make and remake the contracts,
settlement, wage structures and what not. Their awards are
no doubt amenable to jurisdiction of the High Court under
Article 226 as also to the jurisdiction of this Court under
Article 32, but they are extraordinary remedies subject to
several self-imposed constraints. It is, therefore, always in
the interest of the workmen that disputes concerning them
are adjudicated in the forums created by the Act and not in
a civil court. That is the entire policy underlying the vast
array of enactments concerning workmen. This legislative
policy and intendment should necessarily weigh with the
courts in interpreting these enactments and the disputes
arising under them".
12. In Basant Kumar Sarkar and Ors. v. Eagle Rolling Mills
Ltd. and Ors. (1964) 6 SCR 913 the Constitution Bench of
this Court observed as follows:
"It is true that the powers conferred on the High Courts
under Article 226 are very wide, but it is not suggested
by Mr. Chatterjee that even these powers can take in
within their sweep industrial disputes of the kind which
this contention seeks to raise. Therefore, without
expressing any opinion on the merits of the contention,
we would confirm the finding of the High Court that
the proper remedy which is available to the appellants
to ventilate their grievances in respect of the said
notices and circulars is to take recourse to section 10 of
the Industrial Disputes Act, or seek relief, if possible,
under sections 74 and 75 of the Act."
13. We find that the learned Single Judge observed that he
was not entering into the factual controversy, overlooking
the fact that the question relating to applicability of Section
9-A is essentially a question of fact. The Division Bench did
not discuss the basic issues about the applicability of Section
9-A and whether on the facts of the case Section 9-A has
really any application. It was disposed of with the following
observations:
"The employees concerned are workmen within the
meaning of that term as defined under Section 2(s) of
WP 1220.02 & WP 2474.
the Act and withdrawal of construction allowance from
them tantamounts to a change in the conditions of
service. In that view of the matter, the management of
the appellant company ought not to have withdrawn the
construction allowance presently paid to the employees
without issuing notice envisaged under Section 9-A of
the Act."
50. A useful reference can also be made to the decision
of the Apex Court in the case of Transport and Dock Workers
Union and ors. Vs. Mumbai Port Trust and anr. (2011) 2
Supreme Court Cases 575. Paragraph 14 of the Transport and
Dock Workers Union (supra) reads thus :
"In our opinion the writ petition filed by the appellants
should have been dismissed by the High Court on the
ground of existence of an alternative remedy under the
Industrial Disputes Act. It is well settled that writ
jurisdiction is discretionary jurisdiction, and the discretion
should not ordinarily be exercised if there is an alternative
remedy available to the appellant. In this case there was a
clear alternative remedy available to the appellant by
raising an industrial dispute and hence we fail to
understand why the High Court entertained the writ
petition. It seems to us that some High Courts by adopting
an over liberal approach are unnecessarily adding to their
load of arrears instead of observing judicial discipline in
following settled legal principles. However, we may also
consider the case on merits.
51. In our opinion, therefore, having regard to the fact
that apart from other questions of factual determination, one of
WP 1220.02 & WP 2474.
the question involved is relating to the applicability of section
9A of ID Act which essentially is a question of fact. Therefore,
without expressing any opinion on merits of the contention
raised in challenge to the impugned circular, we are of the
opinion that proper remedy which is available to the petitioners
to ventilate their grievance in respect of the said circular is to
take recourse to the remedies available under ID Act.
52. Even the claim under section 59 of the Factories Act
for overtime at double the ordinary rate of wages involves
questions of factual determination and therefore also in our
opinion the petitioners have alternate efficacious statutory
remedy to ventilate their grievance.
53. In the case of Hindustan Steel Works
Constructions Ltd (supra), the Apex Court in paragraphs 15 &
16 has observed thus :
"15. However, because of the long passage of time (the
writ petition was filed in 1997), the attendant
circumstances of the case in the background noted above
and in view of the agreement that this is a matter which
requires to be referred to the Tribunal, we direct that the
WP 1220.02 & WP 2474.
appropriate Government shall refer the following question
for adjudication by the appropriate Tribunal:
(1) Whether there was violation of Section 9-A of the
Industrial Disputes Act, 1947 as claimed by the
employees?
(2) Whether the withdrawal of the construction
allowance amounted to the change in the conditions of
service?
16. The parties shall jointly move the appropriate
Government with a copy of our judgment."
54. In the present Petitions, learned Counsel for the
petitioners have advanced submissions on the merits of the
impugned circular dated 30/05/2002. We are therefore not
inclined to entertain the present Petitions in its challenge to the
impugned circular dated 30/05/2002 in the exercise of our writ
jurisdiction under Article 226 of the Constitution of India.
However, we may not be understood to have expressed any
opinion on merits of the circular dated 30/05/2002. All the
contentions of the petitioners in this regard so far as challenge
to the impugned circular dated 30/05/2002 on merits are kept
open with liberty to the petitioners to take appropriate legal
recourse. Delay in challenging the circular may be considered
sympathetically by the adjudicating authority having regard to
the fact that the challenge to the circular in the present Petitions
WP 1220.02 & WP 2474.
was pending in this Court for a long time. Hence, the following
order :
O R D E R
(1) The Writ Petitions are rejected.
(2) The petitioners may challenge the circular dated
30/05/2002 before the Competent Forum. The
challenge to the circular dated 30/05/2002 may be
examined on its own merits without being
influenced by any observations made by us. We
expressly made it clear that we have not made any
observations on the merits of the circular dated
30/05/2002.
(3) No order as to costs. Rule is discharged.
(M.S.KARNIK, J.) (A.A.SAYED, J.)
After the judgment was pronounced, learned
Counsel for the petitioners made a request to expedite the
demand and consequential reference if so made.
Present Petitions were pending in this Court for
WP 1220.02 & WP 2474.
longtime. In this view of the matter, it is expected that the
decision on the demand that may be made and the
consequential reference, if any, would be decided expeditiously
by the Adjudicating Authority.
(M.S.KARNIK, J.) (A.A.SAYED, J.)
