Malabar Hill Citizens Forum vs The Commissioner Of Labour And 4 ...
2017 Latest Caselaw 4287 Bom

  skc                                                                     1                         8-wp-2339-13.sxw

             IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                    ORDINARY ORIGINAL CIVIL JURISDICTION

                            WRIT PETITION NO. 2339 OF 2013
                                        WITH
                            WRIT PETITION NO. 2304 OF 2013
                                        WITH
                            WRIT PETITION NO. 2306 OF 2013
                                        WITH
                            WRIT PETITION NO. 2338 OF 2013
                                        WITH
                            WRIT PETITION NO. 2354 OF 2013
                                        WITH
                            WRIT PETITION NO. 2361 OF 2013
                                        WITH
                            WRIT PETITION NO. 2365 OF 2013
                                        WITH
                            WRIT PETITION NO. 2367 OF 2013
                                        WITH
                            WRIT PETITION NO. 2371 OF 2013
                                        WITH
                            WRIT PETITION NO. 2374 OF 2013
                                        WITH
                            WRIT PETITION NO. 2796 OF 2013
                                        WITH
                            WRIT PETITION NO. 670 OF 2014
                                        WITH
                            WRIT PETITION NO. 673 OF 2014


Malabar Hill Citizens Forum                                                   ...Petitioner
     Versus
The Commissioner of Labour & Ors.                                             ...Respondents


Mr. M. D. Naik - Senior Advocate with Mr. Shailesh More for Petitioners in
Petitions.
Mr. Kedar Dighe - AGP for State - Respondent Nos. 1 and 2 in WP 2339
of 2013
Mr. A. L. Patki - Addl. GP for State - Respondent Nos. 1 and 2 in WP
2338 of 2013.
Mr. Himanshu Takke - AGP for State - Respondent Nos. 1 and 2 in WP
2304 and 2371 of 2013 and 673 of 2014.


                                                                                                                  1/13



     ::: Uploaded on - 14/07/2017                                            ::: Downloaded on - 15/07/2017 00:21:59 :::
      skc                                                                     2                         8-wp-2339-13.sxw

Mr. Kunal Bhange - AGP for State - Respondent Nos. 1 and 2 in WP
2306 and 2374 of 2013.
Mr. Hemant Haryan - AGP for State - Respondent No. 2 in WP 2354 and
2365 of 2013.
Mr. M. A. Sayed - AGP for State - Respondent Nos. 1 and 2 in WP 2361
of 2013.
Mr. U. S. Upadhyay - AGP for State - Respondent Nos. 1 and 2 in WP
2367 of 2013.
Mr. Sukanta K. - AGP for State - Respondent Nos. 1 and 2 in WP 2796
of 2013.
Ms Uma Palsuledesai - AGP for State - Respondent Nos. 1 and 2 in WP
670 of 2014.
Mr. V. M. Parkar for Respondent No. 4.


                              CORAM : SHANTANU S. KEMKAR &
                                      M. S. SONAK, JJ.

DATE : JULY 11, 2017

COMMON ORDER : (Per : M. S. Sonak, J.)

Heard learned counsel for the parties.

2] Learned counsel for the parties submit that since, the issues

involved in all these petitions are virtually identical, they may be disposed

of by a common order. They further agree that writ petition no. 2339 of

2013 may be taken as the lead petition.

3] The employer 'Malabar Hill Citizens Forum' has challenged the

order of Reference dated 21st June 2013 purportedly made by the

Appropriate Government under the provisions of the Industrial Disputes

Act, 1947 (said Act). The impugned reference order upon consideration of

a failure report, refers to the dispute of termination of the services of Mr.

skc 3 8-wp-2339-13.sxw

Uday Anant Gurav for adjudication to the Industrial Tribunal. The schedule

of reference, requires the Tribunal to decide whether Mr. Uday Anant

Gurav be re-instated in service with full back-wages and continuity of

service with effect from 15th January 2005.

4] Mr. K. M. Naik, learned Senior Advocate for the petitioner has raised

only the following two grounds in support of the petitions :

(A) That there is no delegation of power in favour of the Deputy

Commissioner of Labour, Bombay District to exercise powers,

otherwise vested in the State Government for making Reference

under the provisions of the said Act. Accordingly, the Reference is

incompetent and in fact a nullity. In this regard, a reliance was

placed on certain notifications issued by the State Government and

the decision of the Hon'ble Supreme Court in case of Ariane

Orgachem Private Limited vs. Wyeth Employees Union & Ors.1

(B) That the very Reference, was barred by principles of

resjudicata in view of the final judgment and order dated 23 rd

September 2012 passed by the Industrial Court in Complaint (ULP)

No. 409 of 2005 awarding compensation under section 30(1)(b) of

the Maharashtra Recognition of Trade Unions & Prevention of

Unfair Labour Practices Act 1971 (MRTP & PULP Act).

1 (2015) 7 SCC 561;

      skc                                                                     4                         8-wp-2339-13.sxw

5]        If the petitions are perused, then, it does appear, as contended by

the learned counsel for the respondents that the issue of alleged lack of

delegation of powers in favour of the Deputy Commissioner of Labour,

who has made the impugned reference dated 21st June 2013, has not even

been raised. However. Mr. Naik, learned counsel for the petitioner submits

that this is an issue which goes to the root of jurisdiction and therefore,

there can be no bar to raising such issue in the course of arguments. Mr.

Naik points out that this Court, after taking note of the petitioner's

submissions had even directed the respondents to file an affidavit to clarify

the position. He therefore submits that this is not a case where any of the

respondents have been taken by surprise.

6] Even though, the issue as regards delegation does not appear to

have been raised in the petition, there is no necessity to non-suit the

petitioner on this count. The respondents were made aware of the issue

and the Deputy Commissioner of Labour has filed an affidavit on 20 th July

2016, dealing with such issue.

7] In the affidavit dated 20th July 2016, reliance is placed upon

notification dated 29th April 1987, which establishes that there has been

valid delegation of powers to the Deputy Commissioner of Labour

(Conciliation), Bombay District, in so far as disputes arising in the City of

Bombay and Bombay Suburban District is concerned.

      skc                                                                     5                         8-wp-2339-13.sxw

8]        Mr. Naik however relies upon notifications dated 16th August 1996,

14th February 1997 and 19th August 2003 to submit that the notification

dated 29th April 1987 relied upon by the respondents is no longer in force

and powers of making reference are delegated only to Additional

Commissioners or Commissioners of Labour but not to Deputy

Commissioners of Labour.

9] We have carefully, with the assistance of learned counsel for the

parties, perused the notifications in question. The notification dated 16 th

August 1996 is really not relevant, as conceded by Mr. Naik. In any case,

even this notification, supersedes certain earlier notifications issued by the

Government but there is no reference to the crucial notification dated 29 th

April 1987, by which powers to make reference has been delegated to the

Deputy Commissioner of Labour, in so far City of Bombay and Bombay

Suburban District is concerned.

10] The notification dated 14th February 1997 reads thus :

"INDUSTRIES, ENERGY AND LABOUR DEPARTMENT Mantralaya, Mumbai 400032, dated the 14th February 1997. INDUSTRIAL DISPUTES ACT, 1947.

No. IDA.0896/CR-623/Lab-3.- In exercise of the powers conferred by clause (b) of section 39 of the Industrial Disputes Act, 1947 (14 of 1947), the Government of Maharashtra hereby directs that the powers exercisable by it, under sub-section (1) of section 10 and sub-section (5), of section 12 of the said Act shall be exercisable also by the Commissioner of Labour, Mumbai, Maharashtra State."

[Emphasis supplied]

skc 6 8-wp-2339-13.sxw

11] Mr. Naik, learned Senior Advocate for the petitioner submits that

since in this case, the impugned reference order is relatable to exercise of

powers under section 10(1) and section 12(5) of the said Act, the subject

matter of the impugned reference is governed by the notification dated 14th

February 1997, which, delegates powers of making reference only to the

Commissioner of Labour, Mumbai, Maharashtra State and not to Deputy

Commissioner of Labour. Mr. Naik, submits that this position is made

further clear by notification dated 19th August 2003, which again, refers to

delegation of powers in favour of Commissioner, in the recitals to the said

notification.

12] The notification dated 19th August 2003, takes cognizance of the

earlier notifications dated 16th August 1996, 14th February 1997 and 16th

December 1980. However, there is no reference to the crucial notification

dated 29th April 1987 in the notification dated 19 th August 2003. On the

basis of notification dated 19th August 2003 therefore, it cannot be said that

the notification dated 29th April 1987 stands impliedly superseded or that

the notification dated 29th April 1987 is not longer in force.

13] Besides, since considerable emphasis was laid by Mr. Naik upon the

notification dated 14th February 1997, it is necessary to note that this

notification states that the powers exercisable under section 10(1) and

skc 7 8-wp-2339-13.sxw

12(5) of the said Act shall be exercisable 'also by Commissioner Labour,

Mumbai Maharashtra State'. Expression 'also' implies that such delegation

is in addition to the earlier delegation in favour of Deputy Commissioner of

Labour in terms of the notification dated 29th April 1987, which is not shown

to be either abrogated or superseded by any of the notifications referred to

by Mr. Naik, on the aspect of delegation.

14] On behalf of the respondents State, an affidavit has been filed by

the Deputy Labour Commissioner, who has, on oath, made a statement

that the notification dated 29th April 1987 continues to be in force and has

not been superseded by any subsequent notifications. The use of the

expression 'also' in the notification dated 14th February 1997 supports this

position. Accordingly, we are unable to accept the contentions that there

was no valid delegation of powers in favour of the Deputy Commissioner of

Labour and that the impugned reference order is therefore incompetent or

ultra vires.

15] In Ariane Orgachem Private Limited (supra) there was no reference

made to the notification dated 29th April 1987, which is a specific delegation

in favour of Deputy Commissioner of Labour. Accordingly, the decision in

the case of Ariane Orgachem Private Limited (supra) is distinguishable.

Accordingly, we are unable to uphold the first contention raised by Mr. Naik

in support of all these petitions.

    skc                                                                     8                         8-wp-2339-13.sxw

16]     In so far as the plea of res judicata is concerned, at the outset it is

required to be noted that such plea, assuming that the same is tenable,

would involve adjudication into disputed questions of fact. From the perusal

of the judgment and order dated 23rd September 2011 in Complaint (ULP)

No. 409 of 2005, it appears that the complaint of the workmen was non

payment of appropriate wages, non issuance of appointment orders and

matters of such nature. The final order directs payment of compensation of

Rs.75,000/- to each of the workmen as 'lump sum compensation and

token reasonable compensation' (see operative portion of judgment and

order dated 23rd September 2011 at page 100 of the paper book). On such

basis, it cannot be said that the very making of reference was barred by

any provisions of res judicata or principles analogous to res judicata.

17] Besides, it appears, that the petitioners have challenged the

judgment and order dated 23rd September 2011 by instituting writ petition

(l) no. 2470 of 2001 in which Rule has been issued and the impugned

judgment and order dated 23rd September 2011 has been stayed subject to

deposit of certain amounts. This means that the petitioners, on one hand,

have secured a stay on the judgment and order dated 23rd September 2011

and on the other hand, the petitioners, rely upon the very same judgment

and order to raise plea of res judicata. In such circumstances, it is not

possible to accept Mr. Naik's contention that impugned reference was

incompetent or barred by principle of res judicata.

    skc                                                                     9                         8-wp-2339-13.sxw

18]     Since, we are unable to accept two contentions raised by and on

behalf of the petitioners, these petitions are required to be dismissed.

Further, we may note that in the matters of this nature, when the workmen,

allege that their services have been terminated unlawfully, it is only

appropriate that such workmen, are enabled to agitate their grievances

before at least one judicial or quasi judicial forum. For the last four years,

the petitioners, have succeeded in virtually stalling adjudication before the

Industrial Tribunal by raising issues, which, in our opinion, were not only

hyper technical but also untenable. Such a course of action, at the behest

of the employer, who can afford luxury of prolonged litigation can hardly be

encouraged in an equitable jurisdiction under Articles 226 or 227 of the

Constitution of India.

19] In S. K. Verma vs. Mahesh Chandra & Anr.2, the Supreme Court,

in the context of preliminary objections raised by employers, in order to

stall adjudication on merits, has made the following observations at

paragraph 2:

"There appears to be three preliminary objections which have became quite the fashion to be raised by all employers, particularly public sector corporations, whenever an industrial dispute is referred to a tribunal for adjudication. One objection is that there is no industry, a second that there is no industrial dispute and the third that the workman is no workman. It is a pity that when the Central Government, in all solemnity, refers an industrial dispute for adjudication, a public sector corporation which is an instrumentality of the State instead of welcoming a decision by

2 AIR 1984 SC 1462

skc 10 8-wp-2339-13.sxw

the Tribunal on merits so as to absolve itself of any charge of being a bad employer or of victimisation etc. should attempt to evade decision on merits by raising such objections and never thereby satisfied, carry the matter often times to the High Court and to the Supreme Court, wasting public time and money. We expect public sector corporations to be model employers and model litigants. We do not expect them to attempt to avoid adjudication or to indulge in luxurious litigation and drag: workmen from court to court merely to vindicate, not justice, but some rigid technical stand taken up by them. We hope that public sector corporation will henceforth refrain from raising needless objections, fighting needless litigations and adopting needless postures."

[Emphasis supplied]

20] True, the observation in S. K. Verma (supra) were made in the

context of public sector undertakings. However, in the present case, the

petitioner is 'Malabar Hill Citizens Forum' and the dispute relates to

alleged termination of services of workmen employed by them for

maintaining a park known as 'Priyadarshini' Park at Nepean Sea Road,

which is the forum claims to have developed and maintains for the

purposes of recreation and sports facilities. The observations therefore,

would apply to an employer of such nature as well.

21] In D. P. Maheshwari vs. Delhi Administration & Ors.3 , once

again, the Hon'ble Supreme Court, in the context of exercise of jurisdiction

under Article 226 of the Constitution, which might result in stalling

adjudication of industrial disputes on merits, made the following

observations:

3 AIR 1984 SC 153






 skc                                                                     11                         8-wp-2339-13.sxw

"It was just the other day that we were bemoaning the unbecoming devices adopted by certain employers to avoid decision of industrial disputes on merits. We noticed how they would raise various preliminary objections, invite decision on those objections in the first instance, carry the matter to the High Court under Article 226 of the Constitution and to this Court under Article 136 of the Constitution and delay a decision of the real dispute for years, sometimes for over a decade. Industrial peace one presumes, hangs in the balance in the meanwhile. We have now before us a case where a dispute originating in 1969 and referred for adjudication by the Government to the Labour Court in 1970 is still at the stage of decision on a preliminary objection. There was a time when it was thought prudent and wise policy to decide preliminary issues first. But the time appears to have arrived for a reversal of that policy. We think it is better that tribunals, particularly those entrusted with the task of adjudicating labour disputes where delay may lead to misery and jeopardise industrial peace, should decide all issues in dispute at the same time without trying some of them as preliminary issues. Nor should High Courts in the exercise of their jurisdiction under Art. 226 of the Constitution stop proceedings before a Tribunal so that a preliminary issue may be decided by them. Neither the jurisdiction of the High Court under Article 226 of the Constitution nor the jurisdiction of this Court under Art. 136 may be allowed to be exploited by those who can well afford to wait to the detriment of those who can ill afford to wait by dragging the latter from Court to Court for adjudication of peripheral issues, avoiding decision on issues more vital of them. Article 226 and Art. 136 are not meant to be used to break the resistance of workmen in this fashion. Tribunals and Courts who are requested to decide preliminary questions must therefore ask themselves whether such threshold partadjudication is really necessary and whether it will not lead to other woeful consequences. After all tribunals like Industrial Tribunals are constituted to decide expeditiously special kinds of disputes and their jurisdiction to so decide is not to be stifled by all manner of preliminary objections and journeyings up and down. It is also worthwhile remembering that the nature of the jurisdiction under Article 226 is supervisory and not appellate while that under Art. 136 is preliminary supervisory but the court may exercise all necessary appellate powers to do substantial justice. In the exercise of such jurisdiction neither the High Court nor this Court is required to be astute to interfere with the exercise of jurisdiction by special tribunals at interlocutory stages and on preliminary issues."

   skc                                                                     12                         8-wp-2339-13.sxw

                                                    [Emphasis supplied]
22]     The aforesaid two decisions, were once again, quoted with approval

by the Supreme Court, in Workmen employed by Hindustan Lever Ltd.

vs. Hindustan Lever Limited4, by observing thus :

"It is most unfortunate that all those unhealthy and injudicious practices resorted to for unduly delaying the conclusion of civil proceedings have stealthily crept in, for reasons not unknown, in the adjudication of industrial dispute for the resolution of which an informal forum and simple procedure were devised with the avowed object of keeping them free from the dilatory practices of civil courts. Times without number this Court, (to quote only two D.P. Maheswari v. Delhi Administration & Ors. (1983) 4 SCC 293 : (AIR 1984 SC

153) and S.K. Verma v. Mahesh Chandra, (1983) 4 SCC 214 :(AIR 1984 SC 1462), disapproved the practice of raising frivolous preliminary objections at the instance of the employer to delay and defeat by exhausting the workmen the outcome of the dispute yet we have to deal with the same situation in this appeal by special leave."

[Emphasis supplied]

23] In the present cases, the services of the workmen are alleged to

have been terminated some time in the year 2005. Till date, the matter, is

at the stage of deciding whether reference of the dispute to the Industrial

Tribunal is legal and valid. In this manner, the petitioner - employer has,

succeeded in stalling adjudication on merits for several years, fully

conscious that such stalling, is bound to wilt the resistance of the workmen

and deny them adjudication on merits by the Industrial Tribunal.

Accordingly, we are of the opinion that these petitions are required to be

dismissed with costs.

4 AIR 1984 SC 1683






     skc                                                                     13                         8-wp-2339-13.sxw




24]        For all the aforesaid reasons, we dismiss each of these petitions

with costs of Rs.10,000/- (Rupees Ten Thousand) payable to the

respondent workmen in each of the petitions. Such costs to be paid within

a period of four weeks from today. The interim order granted earlier is

hereby vacated. The Industrial Tribunal is directed to dispose of the dispute

in accordance with law and on their own merits as expeditiously as

possible and in any case within a period of one year from today.

25] All concerned to act on basis of authenticated copy of this order.

   (M. S. SONAK, J.)                                     (SHANTANU S. KEMKAR, J.)




Chandka