Bharat Electronics Ltd vs Shri. Bhiwaji Mhasku More & Ors
2017 Latest Caselaw 2353 Bom

                                                                                       1                                   W.P. 5902.1998 - [ J ]


                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                 CIVIL APPELLATE JURISDICTION


                                                WRIT PETITION NO. 5902 OF 1998



                        Bharat             Electronics                Ltd.
                        L-1, MIDC Industrial Area,
                        Taloja - 410 208, Dist. :
                        Raigad.                                                                               .... PETITIONER


                                                            VERSUS


                        1.          Bhiwaji            Mhasku              More
                                    Podi No. 1, Near
                                    Railway Cabin, Narayan
                                    Bhodeshwar Chawl,
                                    Panvel, Dist.Raigad.


                        2.          K.B.Wagh,
                                    Presiding                Officer,
                                    First Labour Court,
                                    Thane.                                                              .... RESPONDENTS


                                                            .............................
                                                Smt. M.H.Doshi, Advocate for Petitioner.
                                                None for Respondents.
                                                            .............................
                                                                              CORAM : P.R.BORA, J.
                           JUDGMENT RESERVED ON                                                   : 2nd MARCH, 2017
                           JUDGMENT PRONOUNCED ON : 5th MAY, 2017
                                                           .............................




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                                                                                        2                                   W.P. 5902.1998 - [ J ]


                        JUDGMENT :

1. Heard learned counsel appearing for the

petitioner. None has appeared for respondent No. 1.

Respondent No. 2 is formal party.

2. The petitioner has challenged the order dated

16/07/1998 passed by the first Labour Court at Thane in

Reference [IDA] No. 122/1989.

about his termination before the Dy. Commissioner of

Labour seeking his reinstatement with full back-wages and

continuity of service. The dispute so raised was referred

by the Dy. Commissioner of Labour, Taddeo, Mumbai for

its adjudication to the Labour Court at Thane.

4. While denying the allegations made by the

respondent No. 1 as about commission of Unfair Labour

Practices and denying the employee-employer relationship

with the respondent No. 1, a preliminary objection was

raised by the petitioner about the maintainability of the

Reference application before the Labour Court at Thane.

Preliminary objection was raised by the petitioner to the

3 W.P. 5902.1998 - [ J ]

effect that the 'appropriate Government' in respect of the

petitioner/company is the Central Government and,

therefore, the Reference sent by the State Government to

the State authority was not maintenable for want of

jurisdiction.

5. The learned Labour Judge instead of first

deciding the issue of 'maintainability' as a preliminary

issue, proceeded with the Reference and simultaneously

decided all the issues involved in the Reference. The

Labour Court directed the petitioner to reinstate the

respondent No. 1 with continuity in service and full back-

wages w.e.f. 30/12/1986. Aggrieved by, the present

petition is filed.

6. The learned counsel for the petitioner, though

has advanced elaborate arguments on all aspects of the

matter including the finding recorded by the Labour Court

as regards the maintainability of the Reference

application, it appears to me that the present petition can

be disposed of only on the point of maintainability without

going into the merits of the other contentions raised in the

petition.

4 W.P. 5902.1998 - [ J ]

7. The learned counsel for the petitioner has

brought to my notice that while deciding Writ Petition No.

9699 of 2004 arising out of the decision by the Industrial

Court in Reference [IDA] No. 27/1998, this Court

[CORAM : B.H.MARLAPALLE, J.] has upheld the finding

recorded by the Tribunal that Bharat Electronics Ltd. i.e.

the present petitioner, since is fully owned by the Govt. of

India, the appropriate Govt. for it is the Central Govt. I

am reproducing herein below the entire said order, which

reads thus,

" 1. Heard Mr. Ghaisas, the learned counsel for the petitioner who was employed under M/s Bharat Electronics Ltd.

2. Reference [it] No. 27 of 1998 was made by the State Government and a preliminary issue was raised regarding the appropriate Government for the said establishment. The Tribunal noted that 75% of the share holding of M/s Bharat Electronics Ltd. was in the name of the President of India and the remaining 25% shares of the respondents are owned by the financial institutions like nationalized banks, etc. and as the company is fully owned by the

5 W.P. 5902.1998 - [ J ]

Government of India, the appropriate Government would be the Central Government. Once these findings were recorded by the Industrial Court, it was not permissible for it to proceed to make observations on merits of the case and against the petitioner employee.

                                                3.           While             upholding                 the           findings
                                                recorded                by        the        Tribunal              regarding
                                                Central                  Government                         being               the

appropriate Government for M/s Bharat Electronics Ltd., it is directed that the findings recorded by the Tribunal on merits will not come in the way of the petitioner so as to re-agitate his challenge to the order of dismissal before the Central Government, Tribunal or any other forum as is available in law.

                                                4.           Save            and          except              the         above
                                                observations,                       petition               is         rejected

summarily with liberty as is available in law. "

8. The learned counsel thereafter brought to my

notice an another order passed by this Court [CORAM :

Dr. D.Y.CHANDRACHUD, J.] on 13/07/2006 in Writ

Petition No. 5654 of 2004, which reads thus,

6 W.P. 5902.1998 - [ J ]

" This petition has been placed for orders under the caption of 'Orders'. With the consent of both the learned counsel and at their request the petition has been heard.

At the hearing of the Petition, counsel appearing for the Respondents stated on instructions that the Respondents do not press the complaint. Complaint [ULP] 75 of 2004, filed by the union before the Industrial Court at Thane, having regard to the judgment of the learned Single Judge of this Court dated 11th April, 2005 in Vilas R.Gaikwad Vs. M/s Bharat Electronics Ltd. [Writ Petition No. 9699 of 2004] in which the finding of the Tribunal that the appropriate government was the Central Government has been confirmed.

Learned counsel states that the union will adopt appropriate proceedings for seeking a reference to adjudication under section 10 of the Industrial Disputes Act, 1947. On the request of counsel appearing for the respondents, Complaint [ULP] 75 of 2004 is dismissed as withdrawn with liberty reserved to the Respondents to adopt appropriate proceedings for seeking a reference to adjudication under Section 10 of the Industrial Disputes Act. In the

7 W.P. 5902.1998 - [ J ]

event that such a request is made, the appropriate Government shall take expeditious steps in accordance with law for making a reference to adjudication. Issuance of this direction is not opposed by the petitioners. In these circumstances, the impugned order dated 17/04/2004 passed by the Industrial Court is by consent quashed and set aside. Complaint [ULP] 75 of 2004 is dismissed as not pressed with liberty reserved to the Respondents herein who are the original complainants to adopt appropriate proceedings in accordance with law as noted. The Petition is disposed of. "

9. The learned counsel thereafter brought to my

notice one more order passed by this Court [CORAM :

NISHITA MHATRE, J.] on 19/01/2011 in Writ Petition

No. 279/1999, wherein also it has been confirmed that the

State Govt. is not an appropriate Govt. for the

petitioner/Corporation. The aforesaid Writ Petition was

ultimately withdrawn by the petitioner in the said petition

with liberty to approach the Regional Labour

Commissioner [Central] to obtain a Reference for

adjudication of the dispute.

                                                                                        8                                   W.P. 5902.1998 - [ J ]


                        10.                     After            having              considered                   the           aforesaid

Judgments, there remains no doubt that for the petitioner

the appropriate Govt. is the Central Govt. and not the

State Govt. The Labour Court has erred in rejecting the

objection raised by the petitioner/company that Central

Government was the appropriate authority in relation to

the petitioner/company. In view of the fact that the

appropriate Government in relation to the

petitioner/company is Central Government, the Reference

at the behest of the State Government was not

maintainable and as such the impugned Award is without

jurisdiction. The same, therefore, deserves to be set

aside.

11. In normal course, it would have been

appropriate to give liberty to the respondent No.

1/workman to approach the Regional Labour

Commissioner [Central] to obtain a fresh Reference for

adjudication of the dispute. However, having regard to

the facts involved in the present petition, it appears to me

that it would not be appropriate and also practicable to

pass such an order.

12. The services of the respondent No. 1/workman

9 W.P. 5902.1998 - [ J ]

were admittedly terminated in the year 1986. The

Reference of which was made after three years i.e. in the

year 1989. It was decided in the year 1998 and the same

was challenged before this Court in the year 1998. On

30/11/1998, this Court granted interim stay in so far as

the direction to reinstate the respondent No. 1/workman is

concerned. However, the petitioner/Company was directed

to deposit the entire amount of back-wages w.e.f.

30/12/1986 within four (4) weeks. The

respondent/workman was permitted to withdraw 50% of

the said amount on furnishing security to the satisfaction

of the Registrar of this Court. Remaining 50% of the

amount was directed to be invested in fixed deposit with a

nationalized bank. It was clarified by this Court in the said

order that in the event of the respondent No. 1/workman

failing to furnish security to the satisfaction of the

Registrar of the Court, then that half amount shall also be

invested in the fixed deposit. The record shows that in

pursuance of the directions given by the Court, the

petitioner/company within the given time deposited the

sum of Rs. 57,626/- towards full back-wages of the

respondent No. 1/workman w.e.f. 30/12/1986. The

record further shows that though the respondent No.

1/workman was permitted to withdraw 50% of the said

10 W.P. 5902.1998 - [ J ]

amount, the respondent No. 1/workman did not withdraw

the amount and the entire amount deposited by the

petitioner/company has been, therefore, invested in fixed

deposit and is lying with this Court. The record of the

case further reveals that the respondent No. 1/workman

though has been duly served and had initially appeared

through his counsel in the year 1998, has not thereafter

attended the present proceeding. As stated earlier, the

respondent No. 1/workman has not even withdrawn 50%

amount though he was permitted for that. In the

aforesaid circumstances, it does not appear to me that

there is any propriety in now giving liberty to the

respondent No. 1/workman to approach the Regional

Labour Commissioner [Central] to obtain a fresh

Reference regarding his dispute.

13. More over, the respondent No. 1 had worked

with the petitioner for a short period of less than three

years. Further, nothing has been brought on record by

the respondent No. 1 to show that he was appointed in the

petitioner/company by following the due recruitment

process. From the record, it further can not be certainly

said whether the respondent No. 1 was appointed as an

employee of the petitioner to work as a watchman at the

11 W.P. 5902.1998 - [ J ]

residential buildings of the Officers of the petitioner or

whether it was a contract of providing security between

the respondent No. 1 and the petitioner. Despite there

being any such concrete evidence on record, the Labour

Court has allowed the Reference and has directed the

reinstatement of the respondent No. 1 with continuity of

service and full back-wages w.e.f. 30/12/1986. The

aforesaid order has been passed by the Labour Court on

16/07/1998. While awarding full back-wages for the

period of about 12 years, no reasons are assigned by the

Labour Court. More particularly in view of the fact that it

has been admitted by the respondent No. 1 that he is

doing the business of garments, the order granting full

back-wages could not have been passed by the Labour

Court. It shows non application of mind by the Labour

Court. In absence of sufficient evidence, it appears to me

that the Labour Court could not have passed impugned

order. In view of the facts as above, I see no reason for

giving liberty to the respondent No. 1 for approaching the

Regional Labour Commissioner [Central] to obtain a fresh

Reference for adjudication of the dispute which had

undisputably arisen in the year 1986. There appears no

propriety in passing such an order after long lapse of 30

years.

12 W.P. 5902.1998 - [ J ]

14. In the foregoing circumstances and for the

reasons stated, the order dated 16/07/1998 passed by

the Labour Court, Thane in Reference [IDA] No. 122/1989

is set aside and quashed.

The amount deposited by the petitioner in this

Court shall be refunded to the petitioner with accrued

interest thereon after expiry of the period of 90 days from

the date of this order.

15. Writ Petition is, thus, allowed and Rule is made

absolute in the aforesaid terms.

[P.R.BORA, J.]

KNP/W.P. 5902.1998 - [ J ]