Gauhati High Court
Page No.# 1/ vs The Union Of India And 16 Ors on 27 January, 2021
Page No.# 1/10
GAHC010243782019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/8290/2019
M/S. GILBARCO VEEDER ROOT INDIA PVT. LTD. AND ANR.
HAVING ITS REGISTERED CORPORATE OFFICE AT ART GUILD HOUSE, B-
WING, 1ST FLOOR, PHOENIX MARKET CITY, LBS MARG, KURLA(WEST),
MUMBAI-400070
2: ANIMESH DEY
MANAGER (OPERATIONS)
NORTH EAST-IN-CHARGE
M/S GILBARCO VEEDER ROOT INDIA PVT. LTD. KAHILIPARA COLONY
P.O. BINOVANAGAR
GUWAHATI-78101
VERSUS
THE UNION OF INDIA AND 16 ORS.
REP. BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF LABOUR
AND EMPLOYMENT, NEW DELHI-110001
2:THE REGIONAL LABOUR COMMISSIONER (CENTRAL)
KENDRIYA SHRAM SADAN
R.K. MISSION ROAD
BIRUBARI
GUWAHATI-781017
3:LABOUR ENFORCEMENT OFFICER (CENTRAL)
KENDRIYA SHRAM SADAN
R.K. MISSION ROAD
BIRUBARI
GUWAHATI-781017
4:PRESIDING OFFICER
CENTRAL GOVT. INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT
2ND FLOOR KENDRIYA SHRAM SADAN
R.K. MISSION ROAD
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BIRUBARI
GUWAHATI-781017
5:SAURAVJYOTI BHUYAN
HOUSE NO. 22
C/O RAMNATH TALUKDAR
GANESHGURI
HENGRABARI
BASUDEV NAGAR
GUWAHATI-781006
6:DEBAJIT HAZARIKA
VILL FATUAL HAON
P.O. FURKATING
P.S. FURKATING DIST. GOLESHAT ASSAM-785610
7:RATUL KR. RAJBONGSHI
VILL. KATAHGURI
P.O. SARAGAON
DIST. NAGAON
ASSAM-782103
8:ANUP DEKA
S/O DIPAN DEKA
VILL. MAJAGAON
P.O. AND P.S. KAMPUR
DIST. NAGAON
ASSAM-782426
9:ANUPAM SAIKIA
WARD NO. 3
P.O. AND P.S. PARALIGURI
KAMPUR
ASSAM-782426
10:LAXMAN ADHIKARI
VILL. HATIBANGHA
P.O. BORGULI
DIST. NAGAON
ASSAM-782143
11:HITESH DAHAL (RESIGNED)
VILL. GANGMOUTHAN
DIST. SONITPUR
ASSAM-784167
12:DEBAJIT SARMA
GANESH NAGAR
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JYOTI NAGAR
P.O. BAMUNIMAIDAN
GHY-21
GUWAHATI
ASSAM-781021
13:UTPAL BORAH
VILL. RANGAJAN
P.O. LETEKUPUKHURZI
DIST. N. LAKHIMPUR
BIHPARIA
ASSAM-787033
14:RUMAN JYOTI BORAH
CINNAMARA
NEAR FCI GATE
P.O. CINNAMARA
DIST. JORHAT
ASSAM-785008
15:JINNATUO ABEDIN (RESIGNED)
C/O HAMIDUR RAHAMAN
DHIRENPARA
ITABHATA
GUWAHATI-781025
16:GAURAV SUMAN
VILL. BARA HASAN PUR
P.O. AND PS. KHUSHAROPUR
DIST. PATNA
BIHAR-803202
17:ASHISH DUTT
VII. AND P.O.KAHILIPARA
SUB-DIV. UDAIPUR
P.S R.K. PUR
DIST. GOMATI
TRIPURA-799116
18:M/S MONALISHA EDC
BUILDING NO. 1/36
MHB COLONY
KHERNAGAR SHREE RAM CHS
RAM MANDIR ROAD
KHERNAGAR
BANDRA (EAST) MUMBAI-40007
Advocate for the Petitioner : MR. D DAS SR. ADV
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Advocate for the Respondent : MR. K GOGOI(R-1,2,3,4)
BEFORE
HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
ORDER
Date : 27-01-2021
Heard Mr. D. Das, learned senior counsel appearing for the petitioners, assisted by Mr.
P. Choudhury. Mr. S. Borthakur appears for respondent Nos. 5 to 17, Mr. K. Gogoi, learned
CGC appears for respondent Nos. 1 to 4 and Mr. P. Sengupta appears for the respondent No.
18.
2. The issue to be decided in the present case is whether the Central Government or
the State Government is the appropriate Government for referring the dispute between the
parties, in terms of Section 2(a) of the Industrial Disputes Act, 1947.
3. The petitioner's case in brief is that the petitioner No. 1 is a registered Company
under the Companies Act, 1956 having corporate Identity number given in the year 2009 to
2010 and having its corporate Office at Mumbai and Sales Office at Guwahati. The petitioner's
Company is in the business of manufacturing, selling and servicing of fuel dispensing units.
4. The petitioner's counsel submits that the petitioner had taken over and acquired
Midco Ltd., which was engaged in a similar business as that of the petitioner. Thereafter, the
employees of the erstwhile Midco Ltd. were transferred by the petitioner to its sister concern
i.e., M/s Monalisha EDC (respondent No. 18), which was a manpower supply agency.
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5. Being aggrieved by the transfer, some 13 employees of the erstwhile Midco Ltd.
submitted a complaint to the Labour Enforcement Officer (Central), Office of the Regional
Labour Commission (Central), Guwahati. Subsequent to the above, the Labour Enforcement
Officer (Central) issued a letter dated 28.01.2019 to the petitioners, requesting them to offer
their comments with respect to the complaint made by the 13 disgruntled employees of the
erstwhile Midco Ltd. As no conciliation could be arrived at between the parties, the Under
Secretary to the Government of India, Ministry of Labour & Employment issued the impugned
Order dated 26.07.2019, whereby it referred the dispute between the parties to the Central
Government Industrial Tribunal-cum-Labour Court, Guwahati for adjudication in exercise of
Clause (d) of Sub-section (1) and Sub-section (2A) of Section 10 of the Industrial Disputes
Act, 1947, wherein Reference Case No. 08/2019 has been registered.
6. The learned senior counsel for the petitioners submits that as per the provisions of
Section 2(a)(i) of the Industrial Dispute Act, 1947, it is not the Central Government which is
the appropriate authority for deciding the dispute raised by some of its employees, as the
Central Government was to have not less than 51% of the paid-up share capital in the
petitioner Company. However, the Central Government did not have any share in the
petitioner Company. He submits that the State Government is the appropriate and competent
authority for determining such disputes, as the petitioner does not carry on its business under
the authority of the Central Government. In support of his arguments, the learned senior
counsel has relied upon the judgment in the case of Carlsbad Mineral Water Mfg. Co. Ltd
Vs. P.K. Sarkar & Ors., reported in AIR 1952 Calcutta 6 and the Judgment of the Apex
Court in Heavy Engineering Mazdoor Union Vs. State of Bihar & Ors. , reported in
(1969) 1 SCC 765.
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7. Mr. S. Borthakur, the learned counsel for the respondent Nos. 5 to 17 submits that
the respondent Nos. 5 to 17 do not have any grievance, if the dispute is referred for
adjudication by the State Government or the Central Government.
8. Mr. K. Gogoi, the learned CGC, on the other hand submits that though the
respondent Nos. 1 to 4 will not be filing any affidavit, a reading of Section 2(a)(i) of the
Industrial Disputes Act, 1947 provides that a company dealing in oil fields would come under
the authority of the Central Government. He submits that as the erstwhile Midco Ltd. was a
Contractor with the Indian Oil Company Ltd., which was having its business in oil fields, and
as the petitioner Company had taken over Midco Ltd. and doing the work of Midco Ltd., the
petitioner Company can be said to be working under the authority of the Central Government,
as the employees of Midco Ltd. have been transferred to the respondent No. 18, which is a
manpower supply agency, which also supplies manpower to the IOC Ltd. As such, there was
no infirmity with the impugned Order dated 26.07.2019.
9. Mr. P. Sengupta, learned counsel for the respondent No. 18 submits that he has got
no comments to make in this case.
10. I have heard the learned counsels for the parties.
11. The extract of Section 2(a)(i) and the full Section of 2(a)(ii) of the Industrial
Disputes Act, 1947 (hereinafter referred to as the "1947 Act"), which has been relied upon by
the parties is reproduced below:-
"2. Definitions.- In this Act, unless there is anything repugnant in the subject
or context,--
(a) " appropriate Government" means--
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(i) in relation to any industrial dispute concerning any industry carried on by or
under the authority of the Central Government,"...........
............"or [an air transport service, or a banking or an insurance company,] a
mine, an oil field,] [a Cantonment Board,] or a [major port, any company in
which not less than fifty-one per cent. of the paid-up share capital is held by
the Central Government, or any corporation, not being a corporation referred to
in this clause, established by or under any law made by Parliament, or the
Central public sector undertaking, subsidiary companies set up by the principal
undertaking and autonomous bodies owned or controlled by the Central
Government, the Central Government, and."
"(ii) in relation to any other industrial dispute, including the State public sector
undertaking, subsidiary companies set up by the principal undertaking and
autonomous bodies owned or controlled by the State Government, the State
Government:
Provided that in case of a dispute between a contractor and the contract labour
employed through the contractor in any industrial establishment where such
dispute first arose, the appropriate Government shall be the Central
Government or the State Government, as the case may be, which has control
over such industrial establishment]."
12. While the petitioner's counsel has relied upon the fact that no share capital of the
petitioner's Company is held by the Central Government, while the 1947 Act requires that not
less than 51% share should be held by the Central Government to come under the authority
of the Central Government, Mr. K. Gogoi, learned CGC, on the other hand submits that as the
petitioner's Company is doing the business of manufacturing, selling and servicing of fuel
dispensing units, under the Indian Oil Corporation, the petitioner's Company would come
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under the authority of the Central Government, as Indian Oil Company was having oil fields
and working them.
13. The Calcutta High Court in the case of Carlsbad Mineral Water Mfg. Co. Ltd Vs.
P.K. Sarkar & Ors. (Supra) has held at Paragraph No. 12 as follows:-
"12. Mr. Sen Gupta has laid great stress on the fact that by the terms of the contract
the Government had the right to control the activities of the appellants in many ways. It must
be remembered however that by the contract the appellants were given the exclusive right to
sell articles on Government property and it was very natural that Government would see to it
that what was sold was wholesome and not too expensive and that the persons employed to
sell were respectable persons fit to be allowed on railway stations and in railway trains. 'The
nature of the contract required considerable control by the Government, but that would not
make the business carried on by the appellants as a business of Government carried on by
the appellants by authority of Government. It seems to me quite clear that the employers of
the workmen in the soda water factory and indeed in the catering department were the
appellants and an industrial dispute would be between the workmen and the appellants. If
the business of manufacturing and supplying these mineral water was carried on by authority
of Government the workmen would be the workmen of Government. But such obviously is
not the case. In my judgment it is quite impossible to hold that the Carlsbad Mineral Water
Manufacturing Company Limited is a business carried on by authority of Government. It is a
business not owned by Government, but is on the other hand owned by the Carlsbad Mineral
Water Manufacturing Company Limited. It is carried on their behalf and for their benefit and
any control of Government only arises because of the terms of the contract which this
company has entered into with Government a contract which gives them an exclusive right to
sell certain articles on railway property. The business or industry is carried on by the
appellants and therefore there was an industrial dispute between the appellants who are a
limited company in Calcutta and their employees. This could clearly be referred for
adjudication by the State Government of West Bengal under Section 10(l)(c) of the Industrial
Disputes Act.
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In the case of Heavy Engineering Mazdoor Union Vs. State of Bihar & Ors.
(Supra), the Apex Court has held at paragraph No. 3 as follows:-
"(3.) Under Section 2 (a) 'appropriate Government' (leaving aside the words
which are not relevant for our purposes) means (i) in relation to any industrial dispute
concerning an industry carried on by or under the authority of the Central
Government, the Central Government, and (ii) in relation to any other industrial
dispute the State Government. As was done before the High Court, Mr. Nag, appearing
for the appellant-union, conceded that he would not contend that the company is an
industry carried on by the Central Government but argued that it is an industry carried
on under the authority of the Central Government and therefore it is that Government
and not the State Government which is the appropriate Government for making a
reference under Section 10 of the Act. The first question raised by the appellant-union,
therefore, turns solely upon the construction of the words "carried on under the
authority of the Central Government."
The contention was primarily grounded on the fact that the entire share capital
of the company has been contributed by the Central Government, all its shares are
held by the President and certain officers of the Central Government presumably its
nominees and extensive control is vested in the Central Government.;
14. The fact that the petitioner Company is engaged in the business of manufacturing,
selling and servicing of fuel dispensing units does not give any indication that their business
involves working the oil fields. The petitioner's business might be relatable to the products of
an oil field. However, the same does not mean that they are doing the business of working
the oil fields. Further, the petitioner Company is a maintenance contractor in respect of fuel
dispensing units. Also, the workers of respondent No. 18 are purportedly service engineers in
respect of fuel dispensing units. There is nothing to show that the business carried on by the
petitioner Company is partly owned by the Central Government. Also, the business of
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operating oil fields is different from manufacturing, selling and servicing of fuel dispensing
units.
15. In view of the reasons stated above, this Court is of the view that the Central
Government is not competent to make the present reference, in exercise of the powers
conferred by Section 10 of the 1947 Act, as the Central Government is not the appropriate
Government. Accordingly, the impugned Order dated 26.07.2019 passed by the Under
Secretary to the Government of India, Ministry of Labour and Employment is hereby set
aside. The dispute raised by the private respondents should be sent by the Assistant Labour
Commissioner to the Secretary to the Government of Assam, Labour Department for referring
the dispute to the learned Labour Court within 2 weeks from the date of receipt of a copy of
this order.
16. The writ petition is accordingly disposed of.
JUDGE
Comparing Assistant
