Bombay High Court
Bharti Airtel Limited, Through ... vs State Of Maharashtra, Through ... on 24 February, 2022
Bench: A.S. Chandurkar, G. A. Sanap
10jud wp 5474.2019.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION (WP) NO. 5474/2019
Bharti Airtel Limited
a Company incorporated under the
Companies Act, 1956, having its Registered
Office at Bharti Crescent, Nelson Mandela Road,
Vasant Kunj, Phase II, New Delhi - 110 070
and having its Maharashtra & Goa Circle
office at 2nd floor, Vega Centre, A wing
Shankarshet Road, Next to Income Tax
Office, Swargate - Pune 411037.
(through Mrs. Dhanashree w/o Sudhir
Dhawade, Assistant Manager Legal and
Regulatory holding power of attorney
from Bharti Airtel Ltd. for instituting
the instant writ petition) ..... PETITIONER
// VERSUS //
1. State of Maharashtra
Through Principal Secretary,
Energy & Labour Department
having his office at Mantralaya,
Mumbai - 400 032.
2. Additional Labour Commissioner, Nagpur
Administrative Building No. 2,
A wing, 4th floor, Civil Lines, Nagpur.
3. Assistant Labour Commissioner,
Nagpur & Conciliation Officer,
Office of the Additional Labour
Commissioner, Administrative Building No. 2,
A Wing, 4th floor, Civil Lines, Nagpur
4. Member, Industrial Tribunal,
Civil Lines, Nagpur.
5. Bahujan Employees Federation of India
Through Secretary Vidharba Region,
Laghuvetan Colony, Quarter No. 2,
Kamptee Road, Nagpur -14
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6. Checkmate Industrial Service Pvt. Ltd.
Parmar Park, Jambhulkar Chowk,
Pune, Maharashtra - 400 023
Through its Managing Director. .... RESPONDENT(S)
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Shri M.M. Agnihotri with Shri Yogesh Dharashivkar, Advocates for the
petitioner
Miss. Nivedita P. Mehta, AGP for respondent no. 1 to 4/State
None for respondent no. 5
Shri D.M. Kakani, Advocate for respondent no. 6
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CORAM : A.S. CHANDURKAR AND G.A. SANAP, J.J.
DATED : 24/02/2022
ORAL JUDGMENT : (PER:- A. S. CHANDURKAR, J.)
Rule. Rule made returnable forthwith. Heard the learned
counsel for the parties.
2. The respondent no. 5 has been duly served but there is no
appearance on its behalf.
3. The challenge raised in this writ petition is to the Award
dated 30.04.2019 passed by the Industrial Court, Nagpur on a Reference
made to it by the Government of Maharashtra vide order dated
07.06.2014. This order was passed in exercise of the jurisdiction
conferred by Section 10(1)(d) read with Section 12(5) of the Industrial
Disputes Act, 1947 (for short the "Act of 1947"). The petitioner seeks a
declaration that the order of Reference as made is without jurisdiction
for the reason that the appropriate authority as contemplated by the
provisions of Section 2(a)(i) of the Act of 1947 is the Central
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Government.
4. The petitioner company is in the business of
telecommunications and had entered into an agreement with the
respondent no 6 for management of various infrastructure sites of the
company. Security Guards registered with the respondent no. 5 -
Federation are stated to have been engaged by the respondent no. 6 in
the matter of providing security to the services as rendered. About
twenty six Security Guards raised a dispute with regard to their
engagement with the respondent no. 6. Initially, complaints were filed
under Section 28 of the Maharashtra Recognition of Trade Unions
and Prevention of Unfair Labour Practices Act, 1971 by the respondent
no. 5. After withdrawing the complaints an application dated 27.12.2012
seeking conciliation under the Act of 1947 was filed before the
Conciliation Officer. On conclusion of these proceedings, a failure report
dated 20.05.2014 was submitted to the State Government. In view of
that failure report Reference was made by the Assistant Commissioner of
Labour for adjudication of the dispute to the Industrial Tribunal.
Pursuant thereto the Industrial Tribunal passed its Award on 30.04.2019
holding that the termination of employees as shown in the statement of
claim to be illegal and unjustified. The petitioner was directed to
reinstate the said employees alongwith payment of back-wages within a
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period of three months from the date of publication of the order.
Thereafter the members of the Union took further steps to implement
the said Award. In these circumstances, the petitioner has challenged the
aforesaid Award.
5. The learned Counsel for the petitioner submits that the
Assistant Commissioner of Labour had no jurisdiction whatsoever to
make the Reference in view of the fact that the appropriate Government
insofar as the petitioner was concerned was the Central Government as
per Section 2(a)(i) of the Act of 1947. He referred to the Notification
dated 04.11.2004 as published in the Gazette indicating the same. Since
the petitioner was engaged in telecommunication services that were
controlled by the State Government under Section 4 of the Indian
Telegraph Act, 1885, the Reference made by the State Government
which was not the appropriate Government was beyond jurisdiction.
Though this stand was taken before the Conciliation Officer and
thereafter before the Industrial Tribunal, it had not been considered in
the proper perspective. Thus, it is submitted that for want of
jurisdiction, even the Award passed by the Industrial Tribunal was liable
to be set aside. The said Award was passed in the absence of Counsel for
the petitioner.
6. The learned Assistant Government Pleader for the
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respondent nos. 1 to 4 has referred to the affidavit filed on record and
has opposed the prayers made therein. It is submitted that the Reference
as made was validly made by the Assistant Commissioner of Labour and
the same was rightly referred to the Industrial Tribunal. Since the
Industrial Tribunal had considered all the relevant aspects there was no
reason to interfere with the impugned Award.
7. We have heard the learned Counsel for the parties and we
have perused the material on record. The issuance of Notification dated
04.11.2004 and its publication in the Central Gazette by the Ministry of
Labour and Employment Department is not in dispute. As per that
Notification, the Central Government had specified the controlled
industry engaged in the telegraph services which was controlled by the
Central Government to be the appropriate authority. In view of the
provisions of Section 2(a)(i) of the Act of 1947 it becomes clear that in
so far as the petitioner is concerned the appropriate authority would be
the Central Government. The reference as made by the Assistant
Commissioner of Labour by holding the State Government to be the
appropriate Government would therefore not be competent. The
Industrial Tribunal however failed to consider this material aspect
despite referring to the provisions of Section 2(a)(i) of the Act of 1947.
Mere registration under the Bombay Shops and Establishments Act, 1948
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would not be material when a specific Notification by the Central
Government has been issued in that regard. It is thus found that the
appropriate Government in the present case would be the Central
Government.
8. Another contention raised on behalf of the petitioner is
absence of the representative of the petitioner before the Industrial
Tribunal. By filing an affidavit of the Counsel named in the said
proceedings, it is urged that the petitioner was not represented before
the Industrial Tribunal when the impugned order was passed. Be that as
it may, once it is found that Reference as made by treating the State
Government to be the appropriate Government is incorrect, further
adjudication by the Industrial Tribunal would be the outcome of an
exercise without jurisdiction. Hence on this ground the Award dated
30.04.2019 passed by the Industrial Tribunal is liable to be set aside.
Consequent to aforesaid, the respondent no. 5 - Union would be
required to initiate proceedings afresh if it has any grievance in the
matter by approaching the competent Conciliation Officer.
9. In view of the aforesaid, the following order is passed:-
i. The order of Reference dated 07.06.2014 is set aside
as being made without jurisdiction.
ii. The Award passed in Reference (IT) No. 7 of 2014
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dated 30.04.2019 is consequently set aside.
iii. It is made clear that if the members of the respondent
no. 5 - Union have any grievance whatsoever they are at
liberty to adopt such legal remedies as are permissible in
law in the light of the aforesaid adjudication.
10. Rule is made absolute in the aforesaid terms with no order
as to costs.
JUDGE JUDGE
Digitally signed
by SANDIP
SANDIP MAHADEV
MAHADEV GATE
GATE Date:
2022.02.26
16:34:11 +0530
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