Karnataka High Court
Bengaluru Metro Rail Corporation Ltd vs Assistant Labour Commissioner ... on 3 November, 2025
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WP No. 40113 of 2017
C/W WP No. 44263 of 2017
WP No. 31611 of 2019
HC-KAR WP No. 52329 of 2019
WP No. 197 of 2020
WP No. 6697 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
R
DATED THIS THE 3RD DAY OF NOVEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
WRIT PETITION NO. 40113 OF 2017 (L-RES)
C/W
WRIT PETITION NO. 44263 OF 2017 (L-RES)
WRIT PETITION NO. 31611 OF 2019 (L-RES)
WRIT PETITION NO. 52329 OF 2019 (L-RES)
WRIT PETITION NO. 197 OF 2020 (L-RES)
WRIT PETITION NO. 6697 OF 2022 (L-RES)
IN WP NO.40113/2017:
BETWEEN:
1. BANGALORE METRO RAIL CORPORATION LTD.,
EMPLOYEES UNION (REGD.)
HAVING ITS REGD. OFFICE AT:
807, JYOTHI, 5TH MAIN ROAD,
VIJAYANAGAR, BENGALURU-40,
Digitally signed by
CHANDRASHEKAR
REPRESENTED BY ITS GENERAL SECRETARY,
LAXMAN
KATTIMANI
Location: HIGH
SRI.T.R.UDAYA, AGED ABOUT 31 YEARS.
COURT OF
KARNATAKA
DHARWAD BENCH
2. MANJUNATH S,
S/O SRI.SHIVASHARANAPPA,
WORKING AS STATION CONTROLLER,
BAIYAPPANAHALLI METRO STATION,
BMRCL, BAIYAPPANAHALLI,
BENGALURU-560 038.
3. SAGAR S
S/O SRI SEKAR K
WORKING AS MAINTANER PEENYA DEPOT BMRCL
PEENYA BENGALURU - 560058
(PETITIONER NO.3 IS DELETED V/O/DT 17.02.2023
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WP No. 197 of 2020
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OF THE HON'BLE HIGH COURT OF KARNATAKA)
...PETITIONERS
(BY SRI P S RAJAGOPAL, SR. ADV FOR
SMT ASHWINI RAJAGOPAL, ADVOCATE)
AND:
1. BANGALORE METRO RAIL CORPORATION LTD.,
(JOINT VENTURE OF GOVERNMENT OF INDIA AND
GOVERNMENT OF KARNATAKA ) HAVING ITS
REGISTERED OFFICE AT 3RD FLOOR,
BMTC COMPLEX, KENGAL HANUMANTHAIAH
ROAD BENGALURU - 560027,
REPRESENTED BY ITS MANAGING DIRECTOR.
2. UNION OF INDIA,
REPRESENTED BY ITS SECRETARY,
MINISTRY OF HOUSING & URBAN AFAFIRS,
MAULANA AZAD RD, RAJPATH AREA,
CENTRAL SECRETARIAT, NEW DELHI - 110001.
3. THE DEPUTY CHIEF LABOUR COMMISSIONER (C)
GOVERNMENT OF INDIA,MINISTRY OF LABOUR,
"SHRAM SADAN", YESHWANTHPUR
INDUSTRIAL SUBURB AREA, II STAGE,
GORGUNTEPALYA,
TUMKUR ROAD, BANGALORE - 560022.
4. THE REGIONAL LABOUR COMMISSIONER (C),
GOVERNMENT OF INDIA, MINISTRY OF LABOUR,
"SHRAM SADAN", YESHWANTHPUR
INDUSTRIAL SUBURB AREA II STAGE,
GORGUNTEPALYA, TUMKUR ROAD,
BANGALORE - 560022.
5. GOVERNMENT OF KARNATAKA,
REPRESENTED BY ITS PRINCIPAL SECRETARY,
LABOUR DEPARTMENT, VIKAS SOUDHA,
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BANGALORE - 560001.
...RESPONDENTS
(BY SRI S SANTHOSH NARAYAN, ADV. FOR R1,
SRI M N KUMAR, CGC FOR R2 TO R4,
SRI SANTHOSH GOGI, AAG WITH
SRI MANJUNATH B, AGA FOR R5)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE BMRCL
EMPLOYEES CONDUCT, DISCIPLINE AND APPEAL RULES, 2014
VIDE ANNEX-D BY DECLARING THE SAME AS ILLEGAL,
IRREGULAR, ARBITRARY, MALAFIDE, CAPRICIOUS AND NOT
SUSTAINABLE BOTH IN LAW AND ON FACTS AND ETC.
IN WP NO.44263/2017:
BETWEEN:
1. BANGALORE METRO RAIL CORPORATION LTD.,
EMPLOYEES UNION(REGD),
HAVING ITS REGD OFFICE AT:NO.807,
JYOTHI, 5TH MAIN ROAD,
VIJAYANAGAR, BENGALURU-40,
REPRESENTED BY ITS GENERAL SECRETARY ,
SRI T R UDAYA, AGED ABOUT 31 YEARS.
2. MANJUNATH S,
S/O SRI SHIVASHARANAPPA,
WORKING AS STATION CONTROLLER,
BAIYAPPANAHALLI METRO STATION,
BMRCL, BAIYAPPANAHALLI,
BENGALURU-560038.
3. SAGAR S
S/O SRI SEKAR K,
AGED ABOUT 26 YEARS,
WORKING AS MAINTAINER
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PEENYA DEPOT, BMRCL
PEENYA, BENGALURU-560058.
(PETITIONER NO.3 IS DELETED VIDE
ORDER DT 09.01.2023 OF THE HIGH COURT
I.A.NO.1/22.
...PETITIONERS
(BY SRI P S RAJAGOPAL, SR. ADV. FOR
SMT ASHWINI RAJAGOPAL, ADVOCATE FOR PETITIONER 1
AND 2)
AND:
1. GOVERNMENT OF KARNATAKA,
REPRESENTED BY ITS PRINCIPAL SECRETARY,
URBAN DEVELOPMENT DEPARTMENT,
VIKAS SOUDHA, BANGALORE-560001.
2. UNION OF INDIA,
REPRESENTED BY ITS SECRETARY,
MINISTRY OF HOUSING AND URBAN AFFAIRS,
MAULANA AZAD RD, RAJPATH AREA,
CENTRAL SECRETARIAT, NEW DELHI-110001.
3. BANGALORE METRO RAIL CORPORATION LTD.,
(A JOINT VENTURE OF GOVERNMENT OF INDIA &
GOVERNMENT OF KARNATAKA),
HAVING ITS REGISTERED OFFICE AT:
3RD FLOOR, BMTC COMPLEX,
KENGAL HANUMANTHAIAH ROAD,
BENGALURU -560027,
REPRESENTED BY ITS MANAGING DIRECTOR
...RESPONDENTS
(BY SRI SANTOSH GOGI, AAG WITH
SRI MANJUNATH B, AGA FOR R1,
SRI M N KUMAR, CGC FOR R2,
SRI S SANTHOSH NARAYAN, ADVOCATE FOR R3)
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C/W WP No. 44263 of 2017
WP No. 31611 of 2019
HC-KAR WP No. 52329 of 2019
WP No. 197 of 2020
WP No. 6697 of 2022
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE NOTIFICATION DTD.7.7.2017 VIDE ANNEX-C
ISSUED BY THE R-1 BY DECLARING THE SAME AS ILLEGAL,
IRREGULAR, ARBITRARY, CAPRICIOUS AND NOT SUSTAINABLE
BOTH IN LAW AND ON FACTS.
IN WP NO.31611/2019:
BETWEEN:
M/S BANGALORE METRO RAIL
CORPORATION LIMITED,
BMTC COMPLEX, 3RD FLOOR,
K H ROAD, SHANTHINAGAR,
BANGALORE-560027,REPRESENTED BY ITS
ASSISTANT GENERAL MANAGER,
SRI D R PRASHANTHA.
...PETITIONER
(BY SRI SANTHOSH NARAYAN S, ADVOCATE)
AND:
1. UNION OF INDIA,
MINISTRY OF LABOUR AND EMPLOYMENT,
SHRAM SHAKTI BHAVAN,
RAFI MARG, NEW DELHI-110001,
REPRESENTED BY ITS DEPUTY DIRECTOR.
2. THE GENERAL SECRETARY,
BMRCL EMPLOYEES UNION,
# 807, JYOTHI, 5TH MAIN ROAD,
VIJAYANAGAR, BANGALORE-560040.
3. REGIONAL LABOUR COMMISSIONER,
SHRAM SADAN,YESHWANTHPUR INDUSTRIAL
SUBURUB-II STAGE,
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GORAGUNTEPALYA,TUMKUR ROAD,
BANGALORE-560022.
...RESPONDENTS
(BY SRI M N KUMAR, CGC FOR R1,
SRI P.S.RAJAGOPAL, SR. ADVOCATE FOR
SRI JAYANTH DEV KUMAR, ADVOCATE FOR R2,
SRI SANTOSH GOGI, AAG WITH
SRI MANJUNATH B, AGA FOR R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 OF
THE CONSTITUTION OF INDIA PRAYING TO
SET ASIDE THE REFERENCE ORDER DATED 4.12.2018 AT
ANNEXURE-F TO THIS WRIT PETITION.
IN WP NO.52329/2019:
BETWEEN:
M/S BANGALORE METRO RAIL
CORPORATION LIMITED,
BMTC COMPLEX, 3RD FLOOR,
K H ROAD, SHANTHINAGAR, BANGALORE-560027.
REPRESENTED BY ITS DEPUTY GENERAL MANAGER,
HUMAN RESOURCES (O AND M),
SRI MANJUNATHASWAMY.
...PETITIONER
(BY SRI S SANTHOSH NARAYAN, ADVOCATE)
AND:
1. ASSISTANT LABOUT COMMISSIONER (CENTRAL),
(CENTRAL) AND CONCILIATION OFFICER,
SHRAM SADAN, YESHWANTHPUR INDUSTRIEAL
SUBURU-II STAGE, GORAGUNTEPALYA,
TUMKUR ROAD, BANGALORE-560022.
2. THE GENERAL SECRETARY,
BMRCL EMPLOYEES UNION,
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NO.807, JYOTHI, 5TH MAIN ROAD,
VIJAYANAGAR, BANGALORE-560040.
...RESPONDENTS
(BY SRI M N KUMAR, CGC FOR R1,
SRI P S RAJAGOPAL, SR. ADVOCATE FOR
SRI JAYANTH DEV KUMAR, ADVOCATE FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
DATED 13.9.2019 AT ANNX-F ISSUED BY R-1 TO THIS W.P.
IN WP NO.197/2020:
BETWEEN:
1. BANGALORE METRO RAIL CORPORATION LTD.,
EMPLOYEES UNION (REGD),
HAVIANG ITS REGD OFFICE
AT NO.807, JYOTHI, 5TH MAIN ROAD,
VIJAYANAGAR, BENGALURU-40,
REP. BY ITS GENERAL SECRETARY,
SRI UDAYA, T.R. AGED ABOUT 34 YEARS.
2. MANJUNATH S,
S/O SRI SHIVASHARANAPPA,
AGED ABOUT 40 YEARS,
WORKING AS STATION CONTROLLER,
BAIYAPPANAHALLI METRO STATION,
BMRCL, BAIYAPPANAHALLI,
BENGALURU-560 038.
3. VEERABHADRA SWAMY.E, S/O SRI ESHWARAPPA,
WORKING AS JUNIOR ENGINEER,
BAIYAPPANAHALLI DEPOT BMRCL,
BAIYAPPANAHALLI,BENGALURU-560038.
...PETITIONERS
(BY SRI P S RAJAGOPAL, SR. ADVOCTE FOR
SRI JAYANTH DEV KUMAR, ADVOCATE)
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AND:
1. GOVERNMENT OF KARNATAKA,
BY ITS PRINCIPAL SECRETARY,
LABOUR DEPARTMENT,
MULTISTORIED BUILDING,
BENGALURU-560 001.
2. UNION OF INDIA,
REP BY SECRETARY TO THE GOVERNMENT,
MINISTRY OF LABAOUR AND EMPLOYMENT,
RAFI MARG, NEW DELHI-110011.
3. BANGALORE METRO RAIL CORPORATION LTD.,
A JOINT VENTRURE OF GOVERNMENT OF INDIA
AND GOVERNMENT OF KARNATAKA),
HAVING ITS REGISTERED OFFICE AT
3RD FLOOR, BMTC COMPLEX,
KENGAL HANUMANTHAIAH ROAD,
BENGALURU-560 027,
REP BY ITS MANAGING DIRECTOR.
...RESPONDENTS
(BY SRI SANTOSH GOGI, AAG WITH
SRI MANJUNATH B, AGA FOR R1,
SRI S SANTHOSH NARAYAN, ADVOCATE FOR R3,
SRI M N KUMAR, CGC FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
NOTIFICATION DATED 18.11.2019 (ANNX-L) ISSUED BY THE
R-1.
IN WP NO 6697 OF 2022:
BETWEEN
BENGALURU METRO RAIL CORPORATION LTD.,
BMTC COMPLEX, 3RD FLOOR,
K H ROAD, SHANTINAGAR, BENGALURU-560027,
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REPRESENTED BY ITS DEPUTY
GENERAL MANAGER-HR AND O AND M,
SRI M S M SHASTRY.
...PETITIONER
(BY SRI SANTHOSH NARAYAN S, ADVOCATE)
AND:
1. ASSISTANT LABOUR COMMISSIONER (CENTRAL),
SHRAMEVA JAYATE BHAWAN, II STAGE,
YESHWANTHPUR INDUSTRIAL SUBURB,
GORAGUNTEPALYA, TUMKUR ROAD,
BENGALURU-560022.
2. THE GENERAL SECRETARY BMRCL EMPLOYEES' UNION
NO.807, JYOTHI, 5TH MAIN ROAD
VIJAYANAGAR, BENGALURU-560040.
...RESPONDENTS
(BY SRI M N KUMAR, CGC FOR R1,
SRI RAJAGOPAL, SR. ADV. FOR
SRI JAYANTH DEV KUMAR, ADVOCATE FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE
ORDER DATED 10.02.2022 PASSED BY THE R1 IN FILE
NO.8(71/2021-B3) AT ANNEXURE-K TO THIS WRIT PETITION.
THESE PETITIONS HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 11TH AUGUST, 2025 AND COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT PRONOUNCED THE
FOLLOWING:
CORAM : HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
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CAV ORDER
Bangalore Metro Rail Corporation Ltd. ("BMRCL") is a
Company registered under the Companies Act, 1956(Act,
1956). BMRCL operates a metro rail network in Bengaluru.
Said metro rail is popularly known as "Namma Metro"
meaning thereby Our Metro.
2. The BMRCL Employees Union (Union) claims
that Central Government is the "appropriate Government".
BMRCL and State contend that the State Government is
the "appropriate government".
3. In this batch of petitions, questions that need to
be resolved are:
(i) Which is the "appropriate government" for
BMRCL in relation to any Industrial Dispute?
(ii) Whether the State Government under Section
2(n)(vi) of the Industrial Disputes Act, 1947 (Act, 1947)
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can notify the services of Bangalore Metro Rail Corporation
Ltd as "Public utility service"?
(iii) Whether the State Government under Section 2
(1) of the Karnataka Essential Services Maintenance Act,
2013, can notify the services of Bangalore Metro Rail
Corporation Ltd as essential service?
4. The Union has filed three Writ Petitions namely:
(i) W.P.No.40113/2017
(ii) W.P.No.44263/2017
(iii) W.P.No.197/2020
The BMRCL has filed three Writ Petitions namely:
(i) W.P.No.31611/2019
(ii) W.P.No.52329/2019
(iii) W.P.No.6697/2022
Facts in Writ Petition No.40113/2017
5. In this petition, the Union assailed the BMRCL
Employees (Conduct, Discipline and Appeal) Rules, 2014
(Rules, 2014) on the premise that it could not have been
approved by the authority under the State Government as
the "Appropriate Government" for BMRCL is the Central
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Government. The petitioner-Union sought for a writ of
mandamus to restrain the respondent-State from granting
exemption under Section 14 of the Industrial Employment
Standing Orders Act, 1946 ("Act, 1946"). In addition,
direction is also sought to initiate proceeding against the
concerned officials of BMRCL by invoking Sections 13 and
14-A of the Act, 1946.
6. Respondent No.1 - BMRCL took a contention
that the petition is premature and also urged that the
Government of Karnataka is the "appropriate Government"
for BMRCL. It also urged that the Act, 1946 does not apply
to BMRCL as the employees of BMRCL mostly perform
specialized supervisory functions and are not workmen as
such, the BMRCL has sought exemption under Section 14
of the Act, 1946.
7. The State of Karnataka - respondent No.5
opposed the petition on the premise that the petition is
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premature and the application filed by the BMRCL seeking
exemption under Section 14 of the Act, 1946 is still under
consideration.
WRIT PETITION No.44263/2017
8. This petition is filed by the Union challenging
the Notification dated 07.07.2017 issued under Section 3
of the Karnataka Essential Services Maintenance Act, 2013
(Act, 2013) prohibiting strike by the employees of BMRCL.
9. The petitioner contended that the State
Government has no jurisdiction to declare services of
BMRCL as the 'essential services' as the services of BMRCL
is not coming under the purview of the Act,2013. The
petitioner urged that Metro Rail being a Central subject
under the Union List of Constitution of India and projects
concerning Metro Rail are governed by Central legislations
namely Metro Railways (Construction of Works) Act, 1978
("Act, 1978") and Metro Railways (Operation and
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Maintenance) Act, 2002 ("Act, 2002"), the State
Government under the Act, 2013 has no jurisdiction to
declare services of BMRCL as 'Essential Services'.
WRIT PETITION No.197/2020
10. In this petition, the Union has impugned the
Notification dated 18.11.2019 issued under Section
2(n)(vi) of the Act, 1947, declaring BMRCL as a 'public
utility service'. The challenge is on the premise that the
State Government has no jurisdiction.
WRIT PETITION No.31611/2019
11. Petitioner-BMRCL has assailed the order dated
04.12.2018 referring the industrial dispute to the Central
Government Industrial Tribunal. The challenge is on the
premise that Central Government is not the 'Appropriate
Government'.
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WRIT PETITION No.52329/2019
12. The BMRCL has assailed the order dated
13.09.2019 declaring 12 office bearers of the Union as
protected workmen, on the premise that the Central
Government is not the 'Appropriate Government' under
Section 2(a) of the Act, 1947 and respondent No.1 lacked
jurisdiction to pass impugned order.
WRIT PETITION No.6697/2022
13. Petitioner - BMRCL, challenges the order dated
10.02.2022 declaring 12 office bearers of Union as
protected workers. The challenge is on the same ground
as noticed in W.P.No.52329/2019.
14. Sri P S Rajagopal, learned Senior counsel for
the petitioner-Union in W.P.No.40113/2017,
W.P.No.44263/2017 and W.P.No.197/2020 raised the
following contentions:
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(i) Under Section 2(a)(i) of the Act, 1947 for a
Railway Company, the Appropriate Government
is the Central Government and so also for a
Company run by or under the authority of the
Central Government;
(ii) Section 2(o) of the Act, 1947 defines the
expression "Railway company" and the said
definition incorporates the definition of "railway
company" as defined in sub-section (5) of
Section 3 of Indian Railways Act, 1890 (Act,
1890). Thus, BMRCL would be a railway
company as defined under the Act, 1947.
(iii) Under the Contract Labour (Regulation and
Abolition Act, 1970 (Act, 1970), the
"appropriate Government" is defined in Section
2(a)(i). As per the said definition the
"appropriate Government" for an establishment
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under the Act, 1970 is the "appropriate
Government" as provided under the Act, 1947.
(iv) Under the Act, 1946 the "appropriate
Government" is defined in Section 2(b). As per
the said definition, the "Appropriate
Government" in respect of industrial
establishment under the control of Central
Government or a Railway administration is the
Central Government.
(v) Under the Act, 1890, the expression "railway
company" is defined under Sub-section (5) of
Section 3. Under the said definition, a "railway
company" includes the owners or lessees of a
railway or parties to an agreement for working
a railway;
(vi) The Memorandum of Understanding among
Government of India, Government of Karnataka
and BMRCL provides that BMRCL shall
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construct, develop, commission, operate and
maintain the metro rail project in accordance
with the approved project schedule; BMRCL is a
party to an agreement for working a railway
and would be a 'railway company' as defined
under Section 2(o) of the Act, 1947 read with
sub-section 3(5) of the Act, 1890.
(vii) The Act, 1978 does not define the expression
"railway company". However, sub-section (2) of
Section 2 refers to the Act, 1890 and provides
that the expression used and not defined under
the Act, 1978, shall have the meaning as
assigned in the Act, 1890. Thus, the definition
of "railway company" as defined in Act, 1890
should also be read into the Act, 1978.
(viii) Likewise, the Act, 2002 does not define the
expression 'railway company' and makes
reference to the Act, 1978 in respect of words
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and expressions, used but not defined in the
Act, 2002.
(ix) The Railways Act, 1989 which repealed the Act,
1890 does not define the expression "railway
company".
(x) Though the Act, 1890 is repealed and is not in
force, the repeal of the Act, 1890 does not
obliterate the definition of the "Railway
company" incorporated by reference in Section
2(o) of the Act, 1947 and sub-section (2) of
Section 2 of the Act, 1978.
(xi) The metro rail is predominantly controlled by
the Central Government. Under the Act, 1978
and the Act, 2002, the metro railway cannot be
operated without the permission of the Central
Government and its operation can be stopped at
any time by the Central Government;
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(xii) Section 2(j) of Act, 2002 defines 'metro railway
administration' in relation to Government Metro
Railway to mean the General Manager of that
railway and the General Manager can be
appointed only with the consent of the Central
Government.
15. Sri S.Santosh Narayan, learned counsel for the
BMRCL raised the following contentions:
(i) The definition of 'Appropriate Government' as
provided under Section 2(a)(i) of the Act, 1947
would exclude the Central Government in case
the share holding of Central Government in
those companies is less than 51%. The Central
Government would be the Appropriate
Government for only those companies referred
to in Section 2(a)(i).
(ii) The Central Government's shareholding in
BMRCL is only 50% and BMRCL is not
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specifically referred to in Section 2(a)(i) of the
Act, 1947, Central Government cannot be the
Appropriate Government for BMRCL.
(iii) Section 2(o) of the Act, 1947 defines "Railway
company" by referring to the definition of
"railway company" as defined in Section 3(5) of
Act, 1890. Since Act, 1890 is repealed by
Railways Act, 1989 (Act, 1989), after the repeal
of Act, 1890, Section 2(o) of the Act, 1947 is
not amended to define the expression 'Railway
company'. Thus, the definition of "Railway
company" as defined in Act, 1890 is not
available, and the said definition cannot be read
into in Section 2(o) of Act, 1947.
(iv) The Act, 1890 defines the expression 'tramway'
under Section 3(1) and it incorporates the
definition of 'tramway' as defined in Tramways
Act, 1886. The definition of 'tramway' as
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provided under Section 3(5) of Tramways Act,
1886 does not cover the Metro Railway as
metro rail was not in existence in 1886.
(v) The Act, 1989 which defines the "railway"
specifically excludes the tramway.
(vi) BMRCL stands excluded from the applicability of
Act, 1989 as metro railway is not covered under
the definition of railway under the Act, 1989.
(vii) BMRCL is governed under the provisions of Act,
2002 and the expression "metro railway" is
defined in Section 2(i) under the Act, 2002.
Said definition excludes tramways and "Railway
company". Thus, BMRCL cannot be equated
with a "railway company" as it is defined under
the Act, 2002.
(viii) The Act, 2002 also defines the expression
railway in Section 2(p) by referring to the
definition of railway as defined in Clause (31) of
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Section 2 of Act, 1989. The said definition
excludes tramway and does not include metro
railway, as such, BMRCL is not a "railway
company".
(ix) The Act, 2002 being a Special Legislation, Act,
1890 which is repealed by Act, 1989 cannot
prevail over the Special Legislation.
(x) Under the Memorandum of Understanding
among the Government of India, Government of
Karnataka and BMRCL, the cost of land,
rehabilitation and resettlement is to be borne by
the Government of Karnataka. Necessary
approval, clearance and sanction for smooth
implementation of the project has to be
accorded by the Government of Karnataka.
Thus, the State Government has pervasive
control.
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(xi) In Writ Petition No.16187/2009 in M/s Logwell
Forge Ltd. vs Bengaluru Metro Rail
Corporation Limited1, the Court has held that
the Government of Karnataka has substantial
control over BMRCL.
(xii) In Writ Appeal No.3529/2009, the Court has
held that the State Government has substantial
control over BMRCL;
(xiii) In an identical case in CMRL Employees Union
vs Ministry of Housing and Urban Affairs
and Ors2, the High Court of Madras has held
that Chennai Metro is not a railway company
coming under the purview of the Central
Government.
16. Learned Additional Advocate General Sri.
Santosh Gogi, appearing for the State raised the following
contentions:
1
ILR 2010 Kar 87
2
WP.No.12931/2019
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(i) BMRCL is the joint venture of the Government
of Karnataka and Government of India each
having 50% stake in the BMRCL
(ii) The Board of Directors of BMRCL comprises
following heads of the executive signifying
pervasive control of the State Government:
1. Hon'ble Chief Minister of GOK
2. Hon'ble Minister of State of Bengaluru City
Development,
3. Chief Secretary to the GOK,
4. Principal Secretary to GOK (Finance
Department),
5. Chairman, BDA,
6. Secretary to Government Housing and Urban
Development Department,
7. Commissioner Bengaluru City Corporation,
8. Managing Director, Karnataka Urban
Infrastructure Development and Finance
Corporation,
9. Special Officer, Mass Rapid Transit System.
(iii) The decision relating to the land acquisition,
shifting of utilities and other structural
alignment, rehabilitation of the project affected
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persons, multi model integration and incidental
decisions are by the State Government.
(iv) Metro Rail by BMRCL is not carried on by or
under the Authority of the Central Government.
BMRCL is a registered Company under the Act,
1956, and its Board runs the metro railway in
Bengaluru as such, it is not an industry carried
on by or under the authority of Government of
India;
(v) The Act, 1989 defines railway in Section 2(31)
and the definition of railway excludes the
tramway. Thus, the metro rail which is similar
to a tramway cannot be a railway company.
(vi) The Act, 2002 is the special enactment and it
defines the expression, "metro railway" and the
"railway" and the Act, 2002 makes a distinction
between "railway" and "metro railway". Hence,
the "metro railway" is different from "railway"
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and definition of "railway" or the "railway
company" in the Act, 1890 cannot be looked
into;
(vii) Since, the expression "metro railway" is not
referred in the Act, 1947, reference cannot be
made to the definition of "railway company" in
the Act, 1989 which is repealed.
(viii) The role of the Central Government is confined
to the statutory framework and nothing to do
with the establishment and operation of the
metro railway.
(ix) Section 2(f) of Act, 2002 defines "Government
metro railway" and Section 2(l) defines "non-
Government metro railway". BMRCL being a
Company registered under the Act, 1956 is a
"non-Government metro railway". As such, the
Central Government is not the appropriate
Government for metro railway.
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(x) The Ministry of Urban Development,
Government of India vide its letter dated
11.05.2006 has informed the Chief Secretary of
State of Karnataka to enact appropriate
Legislation to regulate construction, operation
and maintenance of the system. Thus, the State
Government has the legislative competence to
enact law relating to maintenance and operation
of the metro railway.
(xi) As per Clauses 12.16 to 12.18 of Memorandum
of Understanding dated 24.12.2010, the
Government of Karnataka has to bear the
financial losses if any, and capital expenditure
during the operational phase; Thus, the State
Government has the primacy over the Central
Government in the operation, running and
maintenance of metro railway;
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(xii) Under Clause D(i) of Metro Rail Policy, 2017,
the State Government has to moot for
assistance by the Central Government and the
State Government has to provide required
support to metro rail companies.
17. Learned Counsel Sri. M.N Kumar for the Union
of India would urge the following points:
(i) Memorandum of Association of BMRCL classifies
its main object as carrying on railway transport
as a railway company. Thus, BMRCL is a Railway
Company under Section 2(a)(i) r/w 2(o) of the
Act, 1947.
(ii) The Bangalore Metro Phase-I received
Government of India's approval with equity/
subordinate debt and imposed conditions
governing implementation which demonstrates
central control.
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(iii) BMRCL is registered as Principal Employer with
the Central Government under Section 7 of the
Act, 1970 indicating jurisdiction of authorities
under the Legislation passed by the Parliament.
(iv) The Central Government in exercise of its
powers under Section 1(3) of Act, 1978 issued
Notification extending the Act, 1978 to
Karnataka which establishes the Central
Government's control governing metro
construction in Bengaluru.
(v) The Joint Venture Memorandum of
Understanding dated 24.12.2010 provides
50:50 share holding. It provides for
appointment of General Manager only with the
approval of the Central Government and the
Chairman is nominated by the Central
Government.
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(vi) Phase-II of Bangalore Metro Railway is approved
by the Central Government in exercise of power
under the Act, 1978 and Act, 2002.
(vii) The Committee constituted by the Central
Government is involved in payment of wages,
inspections, compliance and grievance
redressal.
(viii) The Delhi High Court treated Delhi Metro Rail
Corporation as "Railways" for purposes of
Section 2(a)(i) of Act, 1947 and The Essential
Services Maintenance Act, 1981 in the context
of industrial action, supporting Central
"appropriate Government".
(ix) The Karnataka Labour Commissioner's letter
dated 26/04/2022 states BMRCL does not fall
under the State Labour Department and that
the Central Government shall address
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workmen's grievances, evidencing inter-
Governmental consensus on jurisdiction.
18. This Court has considered the contentions
raised at the bar and perused the records.
19. The question whether the Central Government
or the State Government is the "Appropriate Government"
for BMRCL has to be decided by referring to the definition
of "Appropriate Government" referred to in various
legislations noted above.
20. The relevant portion of definition of
"appropriate Government" as found in Section 2(a)(i) of
Act, 1947 reads as under:
"2(a) "appropriate Government" means--
(i) in relation to any industrial dispute
concerning any industry carried on by or
under the authority of the Central
Government, or by a railway company
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
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xxxx 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, xxxxxxxxx
(other portion of the definition not relevant for these cases
is omitted)
21. On perusal of the definition of "Appropriate
Government" under Section 2(a)(i) of the Act, 1947
extracted above, it is noticed that the Central Government
would be the "Appropriate Government",
(i) in case the establishment is run by the Central
Government or under the authority of the
Central Government.
(ii) in case the establishment is a railway company.
Whether the BMRCL is run under the Authority of the
Central Government?
22. It is not the case of the Employees Union that
BMRCL is run by the Central Government. It is urged that
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the Central Government has pervasive control over BMRCL
as such, BMRCL is run under the authority of the Central
Government if not by the Central Government.
23. The General Manager for BMRCL is appointed by
the Government of India as provided under Section 3 of
Act, 1978. Under the Memorandum of Understanding,
though the State Government has the power to appoint
Managing Director for metro railway, such appointment is
only with the consent of the Central Government.
24. The powers conferred on the Central
Government with reference to the relevant provisions in
the Act, 1978 and Act, 2002 are provided in the chart
below for easy reference:
METRO RAILWAYS (CONSTRUCTION OF WORKS) ACT, 1978
SECTION GIST/CONTENT
1(3) Central Government may declare the Act's
application to National Capital Region, other
metropolitan cities and metropolitan areas
after consultation with State Government
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(consultation only, not consent required).
3 Central Government appoints the General
Manager for every metro railway to administer
metro railway operations.
4(1) Central Government may constitute an
Advisory Board for every metro railway to
assist on development plans, project financing
and ensuring alignment with local
requirements.
4(3) Central Government appoints the Chairman of
the Advisory Board from among its members.
27(1) Central Government appoints commissioners of
metro railway as it thinks fit.
27(2) Commissioners report to Central Government
on metro railway fitness for public use and
make inspections as Central Government
directs.
28 Commissioners exercise powers subject to
control of Central Government.
30 Metro railway administration may sell or
dispose of surplus land vested in Central
Government only with previous approval of
Central Government.
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31(1) Metro railway administration gives notice of
accidents to Central Government (not State
Government) in prescribed form and time.
31(2) Central Government may appoint a
commission to enquire into accidents and
report on causes and compliance with safety
provisions.
32(1) Central Government may by notification add
metro alignments to the Schedule for new
metropolitan cities/areas or alter existing
alignments if necessary for construction and
maintenance.
42 Central Government has power to issue orders
to remove difficulties in giving effect to the
Act's provisions for up to two years from Act's
application to any metropolitan city.
44(1) Central Government has exclusive power to
make rules by notification in Official Gazette to
carry out the Act's purposes.
THE METRO RAILWAYS (OPERATION AND MAINTENANCE)
ACT, 2002
SECTION CONTENT/GIST
1(2) Central Government may extend the Act to other
metropolitan areas and cities (except Kolkata) by
Notification after consultation with State
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Government. Extension of power is solely with
Centre.
2(1)(a) Central Government is defined as the Ministry of
Government of India dealing with Railways in
relation to technical planning and safety of metro
railways.
3(1) Central Government may, by Notification,
constitute Government metro railways for efficient
administration in NCR, metropolitan city and
metropolitan area.
4(1) Central Government shall appoint the General
Manager of a Government metro railway by
Notification in whom the general superintendence
and control shall vest.
7(1) Central Government may appoint one or more
Commissioners of Metro Railway Safety.
8 Commissioner's duties include inspecting metro
railways and reporting to Central Government;
making inspections as directed by Central
Government.
9 Commissioner exercises powers subject to control
of Central Government for inspection, inquiry, and
requiring attendance of officials.
12 Chief Commissioner of Railway Safety shall
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prepare annual report and forward to Central
Government.
13 Central Government shall cause annual report of
Chief Commissioner of Railway Safety to be laid
before each House of Parliament (not State
Legislature).
14 Metro railway shall not be opened for public
carriage of passengers except with previous
sanction of Central Government.
16 Central Government's sanction under sections 14
and 15 applies to opening of additional lines,
stations, junctions, remodelling of yards and
bridges.
18 Central Government may direct closure of metro
railway for public carriage or discontinuance of
rolling stock use after Commissioner's report on
safety.
19 Re-opening of closed metro railway requires
inspection by Commissioner and sanction in
accordance with provisions - approval ultimately
from Central Government.
20 Previous sanction of Central Government required
before using rolling stock of different design or
type; sanction given after Commissioner's report.
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21 Central Government may delegate its powers or
functions under Chapter-V (Opening of Metro
Railway) to Commissioner by Notification.
22(1) Central Government may make rules by
Notification to carry out provisions of Chapter V
relating to opening of metro railways.
28 Metro railway administration shall provide means
of communication between passengers and
officials as approved by Central Government.
32(1) Central Government may make rules by
notification to carry out provisions of Chapter VI
(Working of Metro Railway).
34(1) Central Government may constitute Fare Fixation
Committee for recommending fare for carriage of
passengers.
38(1) Metro railway accidents to be notified to police
officers appointed by Central Government, in
addition to local authorities and State
Government.
47(1) Central Government may make rules by
notification to carry out provisions of Chapter VIII
(Accidents).
48 Central Government may appoint Claims
Commissioner by notification for adjudicating
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compensation claims.
50 Claims Commissioner holds office for term
specified by Central Government.
51(2) Claims Commissioner may be removed from office
by order of Central Government on ground of
proved misbehavior or incapacity.
56(1) Central Government may make rules by
notification to carry out provisions of Chapter IX
(Claims Commissioner).
78(2) Central Government may, by notification, specify
metro railway properties for which
damage/destruction attracts enhanced penalty.
86 Metro railway administration (including non-
Government) bound by directions on policy
questions given by Central Government in writing.
87 No non-Government metro railway shall work
without obtaining permission from Central
Government.
88 Protection from legal proceedings for actions in
good faith extends to Central Government, metro
railway administration, and officials.
89(1) Metro railway property cannot be taken in
execution of decree without previous sanction of
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Central Government.
97 Powers, duties and functions of security staff shall
be as prescribed by Central Government through
rules.
98(1) Central Government may delegate its powers
under the Act to subordinate officers or metro
railway administration officers by notification.
99(1) Central Government may make orders to remove
difficulties in giving effect to provisions of the Act.
100(1) Central Government may make rules by
notification for carrying out purposes of the Act.
101 Government metro railway administration may
make regulations with previous approval of
Central Government.
102 Rules made by Central Government and
regulations made by metro railway administration
to be laid before Parliament (not State
Legislature).
25. It is indeed true that the State Government
which has 50% share holding like the Central Government,
has certain significant roles to play in BMRCL. However, the
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final say in key administrative actions is that of the Central
Government and the State Government has to take
approvals or concurrence from the Central Government in
certain crucial administrative decisions.
26. The further contention of the State that the
Board of Directors in the BMRCL are the Ministers and
Secretaries of the State of Karnataka, is of little assistance
to the State to contend that BMRCL is run independently or
under the control of the State Government, without any
authority of the Central Government. Metro railway itself is
governed by the Act, 1978 and Act, 2002, both Central
legislations and these two legislations as already discussed
above confer various powers on the Central Government.
The State Government which is in charge of several
operations of metro railway has to act in establishing,
maintaining and operating the railway only after necessary
approval or concurrence of the Central Government.
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27. Memorandum of Understanding dated
24.12.2010 incorporates following clauses which define the
role of each party to the agreement viz., Government of
India, Government of Karnataka and BMRCL:
(i) Clause No.7.1 of the Memorandum of
Understanding specifies that Bangalore
Metro Rail Project Phase -I shall be
governed by Act, 1978 and Act, 2002 or
such legislation made from time to time as
may be decided by Government of India;
(ii) Clause 11.1 provides for sharing of
escalated cost subject to approval by
empowered committee and empowered
group of Ministers at Government of India
level;
(iii) Clause 12.20 prohibits the Government of
Karnataka from transferring the Managing
Director of the Company, the State
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Government nominee, without prior consent
of Ministry of Urban Development,
Government of India.
(iv) Clause 14.1 provides for construction,
development, commission, operation and
maintenance of the project in accordance
with all applicable laws which would include
Act, 1978 and Act, 2002.
(v) Clause 15.1 confers authority on the Board
of Directors to manage BMRCL and Clause
No.15.2 enables Government of India to
nominate five directors including the
Chairman of the Board and Government of
Karnataka is enabled to appoint four
directors and a Managing Director;
(vi) Clause No.15.3 mandates the Government
of Karnataka to nominate the Managing
Director with prior consent of Government
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of India and the appointment is by the
Board;
28. The Phase - II of the Bengaluru Metro is also
approved by the Government of India vide order dated
21.02.2014 and Phase - II is also governed by two Central
legislations viz., Act, 1978 and Act, 2002.
29. For the aforementioned reasons and provisions
of law referred to above in the Act, 1970 and Act, 2002,
the Court is of the view that over BMRCL - the Central
Government has pervasive control and the State
Government plays second fiddle to the Central
Government.
Whether BMRCL is a Railway company as
defined under Section 2(o) of the Industrial
Disputes Act, 1947
30. Section 2(o) of the Act, 1947 defines the
expression "railway company" as follows:
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" 'Railway company' means a railway company as
defined in Section 3 of the Indian Railways Act, 1890."
31. The Act, 1947 expressly incorporates, by
reference, the definition of "railway company" contained in
Section 3 (5) of the Act, 1890.
32. The Act, 1989 has repealed the Act, 1890. In
the Act, 1989 the 'railway company' is not defined. After
the repeal of Act, 1890, Section 2(o) of Act, 1947 which
defines the expression 'railway company' is not amended.
Now, the question is whether the expression "railway
company" is defined in Section 2(o) of Act, 1947 which
makes a reference to the definition of "railway company"
as defined in Act, 1989 can be referred to despite the
repeal of the Act, 1890.
33. The law in this regard is well settled as rightly
urged by learned Senior counsel, Sri P.S. Rajgopal who
relied on the Constitution Bench judgment of the Apex
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Court in Ram Sarup and others vs Munshi and
others3.
34. In case the words and expressions of a statute
are incorporated by reference in another statute, then
those words and expressions of the former statute, will
continue to exist in the later, even if the former is
repealed. To put it differently, in any statute, if the words
and expressions are used incorporating by reference,
those words and expressions will have independent
existence in the statute where it is incorporated. Once
such incorporation is made then those words and
expressions are not dependent on the original statue from
which they are incorporated. Such words and expressions
are to be read as if they are written in the later statute
itself.
3
AIR 1963 SC 553
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35. This being the position, the definition of
"railway company" as defined in the Act, 1890 is the
definition of "Railway company" as defined in Section 2(o)
of Act, 1947 notwithstanding the repeal of Act, 1890.
36. The definition of 'railway company' of the Act,
1890 reads as under:
"3(5) "railway company" includes any persons,
whether incorporated or not, who are owners or lessees
of a railway or parties to an agreement for working a
railway."
(emphasis supplied)
37. From the language employed in the definition, it
is evident that it is an inclusive definition. In the definition
of "railway company", the expression 'railway' is used at
two other places. The word "railway" itself is defined in
Section 3(4) of the Act, 1890 and it reads as under:
"Section 3(4) "railway" means a railway, or
any portion of a railway, for the public: carriage of
passengers, animals or goods, and includes -
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(a) all land within the fences or other boundary-marks
indicating the limits of the land appurtenant to a
railway;
(b) all lines of rails, sidings or branches worked over for
the purposes of, or in connection with, a railway;,
(c) all stations, offices, warehouses, wharves,
workshops, manufactories, fixed plant and machinery
and other works constructed for the purposes of, or in
connection with, a railway; and
(d) all Berries, ships, boats and rafts which are used on
inland waters for the purposes of the traffic of a railway
and belong to or are hired or worked by the authority
administering the railway."
38. From the definition of "railway" which is quite
broad, it is explicit that the "all lines of rail" (railway track)
would also be a railway. The person who owns the lines of
rail would also be a railway company under the definition
of "railway company". The person who is a lessee of a
railway track is also a railway company. BMRCL is the
owner of Bangalore Metro rail lines. It is a Company. Thus,
BMRCL becomes the owner of the "railway and since it is
Company it becomes a "Railway company".
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39. More than anything else, the expression,
"parties to an agreement for work in railway" in Section
3(5) of Act, 1890 which would also be the part of the
definition of "Railway company" under Section 2(o) of the
Act, 1947 is relevant. The expression, "parties to an
agreement for working in railway" in its ambit includes all
persons who enter into an agreement for working a
railway. The import of the said expression is also quite
clear. If a person is part of the agreement for
commissioning, operating or maintaining a railway would
be within the ambit of the definition of the "railway
company". The reason is, the expression used in the
definition is "working a railway". The word "working" in its
plain grammatical sense would also mean 'operating' in
addition to other connotations.
40. Government of India, Government of Karnataka
and BMRCL entered into a tripartite agreement dated
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24.12.2010. Clause 14.1 of the Memorandum of
Understanding executed among the Government of India,
Government of Karnataka, and Bangalore Metro Rail
Corporation Limited (BMRCL) reads as under:
"BMRCL, which has been set up as a joint venture of
the Government of India and the Government of
Karnataka, is meant exhaustively for implementation
of the project, and no new assignment shall be given
to the company by the promoters unilaterally. BMRCL
shall construct, develop, commission, operate, and
maintain the project in accordance with the approved
project schedule as stated in Clause No. 8.1 above
and the applicable laws."
(emphasis supplied)
41. It is evident that BMRCL is party to the
agreement where it agreed to build, operate and maintain
the Metro railway in Bengaluru. BMRCL is a party to the
agreement for working a railway. Thus, BMRCL is a
"Railway company" as defined in Section 2(o) of the Act,
1947.
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42. Once BMRCL is a "Railway company", as defined
in Section 2(o) of Act, 1947, then, under Section 2(a)(i) of
Act, 1947, Central Government would be the "Appropriate
Government" for BMRCL.
43. The contention of the respondent-State and
BMRCL that the Central Government is not having 51%
stake as such, cannot be the Appropriate Government has
no merit. Section 2(a)(i) of Act, 1947 does not mandate
51% stake for the Central Government in a railway
company to be the Appropriate Government. Under
Section 2(a)(i) of Act, 1947, if an establishment, in
relation to industrial dispute is a "railway company", then,
the Central Government is the appropriate Government.
44. To sum up, the Court is of the view that the
Central Government is the "Appropriate Government" for
two reasons:
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(i) the Central Government has
pervasive control over the BMRCL;
(ii) BMRCL is a "Railway company" as
defined under Section 2(o) of Act, 1947 read
with Section 3(5) of Act, 1890.
45. The contention of the respondent/State and
BMRCL that the expression "Railway company" is not
included in the definition of "metro railway" and the
concept of 'metro rail' was not there in 1890 when the Act
was enacted and for this reason, the metro rail cannot be
treated as a "railway company" has no merit.
46. As already noticed, the "Railway company" is an
inclusive definition which incorporates wide range of things
including a party to an agreement for working a railway as
discussed above and the very definition of "railway" found
in the Act, 1890 would also include wide range of things.
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47. Assuming that the word "railway" is not
incorporated in the Act, 1947 and for that reason, the
definition of "railway" in Act, 1989 cannot be looked into,
even then, the definition of "railway company" as found in
Section 3(5) of the Act, 1890, which is incorporated in
Section 2(o) of the Act, 1947 is enough to conclude that
BMRCL is a "Railway company" for the reasons already
discussed supra.
48. Referring to the definition of Section 2(31) of
Act, 1989 it is urged that Section 2(31)(i) excludes
tramway within the municipal area and urged that Metro
which is similar to tramway stands excluded from the
definition of railway.
49. The relevant portion of Section 2(31) of the Act,
1989 reads as under:
"railway" means a railway, or any portion of a railway,
for the public carriage of passengers or goods, and
includes--
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(a) xxx;
(b) all lines of rails, sidings, or yards, or branches used
for the purposes of, or in connection with, a railway;
(c) xxx;
(d) all rolling stock, stations, offices, warehouses,
wharves, workshops, manufactories, fixed plant and
machinery, roads and streets, running rooms, rest
houses, institutes, hospitals, water works and water
supply installations, staff dwellings and any other works
constructed for the purpose of, or in connection with,
railway;
(e) xxx
(f) all ferries, ships, boats and rafts which are used on
any canal, river, lake or other navigable inland waters
for the purposes of the traffic of a railway and owned,
hired or worked by a railway administration, but does
not include--
(i) a tramway wholly within a municipal area; and
(ii) lines of rails built in any exhibition ground,
fair, park, or any other place solely for the
purpose of recreation;"
50. Tramway is different from metro rail. Added to
that "tramway" which is excluded from the definition of
"railway" is the tramway in Municipal area. There is no
difficulty in holding that the municipal area and
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metropolitan area or corporation area have different
connotations under law. Section 2(31) of Act, 1989 is quite
wide to include all lines of rails, sidings, or yards, or
branches used for the purposes of, or in connection with, a
railway. What is specifically excluded in Section 2(31)(i) is
"tramway" in municipal area. It is to be noticed in the year
1978 itself the law relating to metro rail was in place and
Act, 1989, while excluding "tramway" from the definition
of "railway" does not exclude the metro railway.
51. Sub-section (2) of Section 2 of the Act, 1978
reads as under:
"All other words and expressions used herein
and not defined, but defined in the Indian Railways
Act, 1890 (9 of 1890), shall have the meanings
respectively assigned to them in that Act."
52. From the aforementioned provision, it is evident
that expressions and words which are used and not
defined in the Act, 1978 shall have the same meanings as
assigned to them in the Indian Railways Act, 1890.
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53. Sub-section (2) of Section 2 of the Act, 2002
reads as under:
"All other words and expressions used herein
and not defined, but defined in the Metro Railways
(Construction of Works) Act, 1978, (33 of 78) shall
have the meanings respectively assigned to them in
that Act."
54. From the aforementioned provision, it is evident
that expressions and words which are used and not
defined in the Act, 2002 shall have the same meanings as
assigned to them in the Act, 1978. As already noticed, Act,
1978 refers to Act, 1890. Act, 1890 does define the term
"railway company."
55. The relevant portion of definition of "metro
railway" as provided under Section 2(1)(i) of Act,1978 and
as provided in Section 3(4) of the Act, 1890 are extracted
below for easy comparison:
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Section 2(1)(i) - Metro Railways Section 3(4) - Indian Railways
(Construction of Works) Act, 1978 Act, 1890
"metro railway" means a metro "railway" means a railway, or any
railway or any portion thereof for portion of a railway, for the public
the public carriage of passengers, carriage of passengers, animals
animals or goods and includes,-- or goods, and includes,--
(a) all land within the (a) all land within the fences or
boundary marks indicating the other boundary marks indicating
limits of the land appurtenant to the limits of the land appurtenant
a metro railway; to a railway;
(b) all lines of rails, sidings, yards (b) all lines of rails, sidings, or
or branches worked over for the branches worked over for the
purposes of, or in connection purposes of, or in connection
with, a metro railway; with, a railway;
(emphasis supplied)
56. On comparison of the aforementioned definition
of "metro railway" and "railway" as defined in Act, 2002
and Act, 1890 respectively, the Court is of the view that
the definition though varies at some places, Clause (b) in
both definitions in essence would be the same when it
comes to the railway tracks, as expression "all lines of
rails" are used in both definitions. Thus, even if the
definition of "Railway Company" is not included under the
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Act, 2002, it does not take metro railway out of the ambit
of Railway Company as defined in Section 2(o) of the Act,
1947.
57. The contention that BMRCL is a company
registered under the Act, 1956 and does not come under
the definition of railway company is also not supported by
any provision of law. At this juncture, it is also relevant to
notice the Memorandum of Association of BMRCL. The
relevant portion of the objects of the company
enumerated in paragraph (A) 1 and 2 are as under:
1. To establish, operate and maintain a Rapid Rail
Transit system by the construction of circular or
other type of railway lines in and around Bengaluru
City so as to meet the urban transport needs of
Bangalore.
2. To carry on the business of railway transport,
carriers of passengers, by rail and to generally
carry on all businesses relating to a Railway
Company (as defined in the Indian Railways Act,
1890 as amended from time to time or equivalent
new definition of a Railway Company, or any new
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amended Act which may come into force), including
but not limited to:-
(emphasis supplied)
58. Even the Memorandum of Association of
BMRCL refers to the definition of the Railway company as
defined in the Act,1890. As already noticed, the definition
of "Railway company" in Act,1890 and in Act, 1947
includes the party working a railway. Thus, BMRCL though
a company registered under the Act,1956 is a party
working a railway in terms of the Memorandum of
Understanding as already discussed above. Thus, BMRCL is
indeed a "Railway company" as per Section 2(a)(i) and
2(o) of the Act, 1947.
59. It is to be noticed that BMRCL which came into
existence in the year 2005 pursuant to registration under
the Act, 1956 makes a reference to the definition of
'railway company' as defined in Act, 1890. It is to be
noticed that when the company was registered in 2005,
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the Act, 1890 was repealed by the Act, 1989.
Nevertheless, the Memorandum of Association makes
reference to the definition of a 'railway company' as
defined in Act, 1890. The Memorandum of Association is a
private contract among the shareholders of the company
which has to be in conformity with the provisions of the
Act, 1956 and the Rules made thereunder. There is no
provision of law which prohibits the parties to the contract
to incorporate the definition used in any enactment either
repealed or in force. Thus, the reference to the expression
'railway company' found in the Act, 1890 in the
Memorandum of Association of BMRCL is permissible and
that being the position, it has to be understood that
BMRCL understood the definition of ''railway company" as
defined in the Act, 1890.
60. Now the Court has to consider the expression
"Appropriate Government" with reference to enactments
relevant for discussion.
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61. The Act, 1970 defines the expression
'appropriate Government'. The definition of 'appropriate
Government' as found in Section 2(1)(a) reads as under:
"2(1)(a) "appropriate government" means,-
(i) in relation to an establishment in
respect of which the appropriate
Government under the Industrial
Disputes Act, 1947 (14 of 1947),
is the Central Government, the
Central Government;
(ii) in relation to any other
establishment, the Government of
the State in which that other
establishment is situated;"
62. The definition of the appropriate Government in
the Act, 1970 provides that the "appropriate Government"
in relation to an establishment in respect of which the
Appropriate Government under the Act, 1947 is the
Central Government, the Central Government. Since,
BMRCL is a "Railway company" under Section 2(o) of Act,
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1947 for BMRCL the appropriate government would be the
Central Government.
Whether the State Government under Section 2(n)(vi) of
the Industrial Disputes Act, 1947 can notify the services
of Bangalore Metro Rail Corporation Ltd as Public Utility
Service
63. Writ Petition No.197/2020 is filed by the Union
challenging the Notification dated 18.11.2019 issued under
Section 2(n)(vi) of the Act, 1947 as public utility service.
Entry 1 of First Schedule to Act, 1947 reads as under.
Relevant portion of Section 2(n) of Act,1947 reads as
under
2(n) " Public utility service" means-
i. Any railway service or any transport service for the
carriage of passengers or goods by air
ii. xxx
(vi) Any industry specified in the first schedule which
the appropriate Government may, if satisfied that
public emergency or public interest so requires by
notification in the Official Gazette declared to be a
public utility service for the purposes of this Act, for
such period as may be specified in the notification.xxx
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64. The first entry in the First Schedule in the Act,
1947 reads as under:
'1. Transport (other than railways) for the
carriage of passengers or goods by land or water'.
(emphasis supplied)
First schedule to the Act, 1947 does not include railway.
Rather, it specifically excludes railway.
65. Section 2(n)(vi) provides that appropriate
Government may, if satisfied that public interest so
requires notify public utility service in respect of an
industry specified in the First Schedule. Since 'appropriate
Government' for BMRCL, is the Central Government, the
State Government has no power to issue Notification in
respect of Railway.
66. To issue notification under Section 2(n)(vi) of
Act, 1947, in respect of any industry specified in the First
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Schedule, the Government issuing the notification must be
the 'appropriate Government' for that industry. Since
State Government is not the appropriate Government for
BMRCL the Notification dated 18.11.2019 at
No.Ka.e.139.LWV.2017 at Annexure-L issued by the State
Government is without jurisdiction and has to be quashed.
Whether the State Government under Section 2 (1) of
the Karnataka Essential Services Maintenance Act, 2013,
can notify the services of Bangalore Metro Rail
Corporation Ltd as essential service?
67. Writ Petition No.44263/2017 is filed by the
petitioner-Union assailing the Notification dated
07.07.2017 under the Karnataka Essential Services
Maintenance Act, 2013. The definition of Essential service
under Section 2 of the Karnataka Essential Services
Maintenance Act, 2013 (Act, 2013) reads as under.
"2. Definitions.- (1) In this Act, unless the context
otherwise requires,-
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(a) "essential service" means,-
(i) any service connected with production,
generation, storage, transmission, supply or distribution,
as the case may be, of water or electricity;
(ii) any transport service for the carriage of
passengers or goods by motor vehicles.
Explanation .- For the purpose of this clause, the
expression "motor vehicle" shall have the meaning
assigned to it in clause (28) of section 2 of the Motor
Vehicles Act, 1988 (Central Act 59 of 1988).
(iii) any other service or employment or class
thereof connected with any matter with respect to which
the State Legislature has power to make laws under List
II of the Seventh Schedule to the Constitution and which
the Government being of the opinion that refusal to work
therein would prejudicially affect the maintenance of any
public utility services or the public safety or the
maintenance of supplies and service necessary for the life
of the community or would result in the infliction of grave
hardship on the community, may, by notification, declare
to be an essential service for the purpose of this Act;"
(emphasis supplied)
68. Definition of Motor Vehicle in Act, 1988 (Act,
1988) under Section 2(28) reads as under:
"Section 2 (28) motor vehicle or vehicle means any
mechanically propelled vehicle adapted for use upon
roads whether the power of propulsion is transmitted
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thereto from an external or internal source and includes a
chassis to which a body has not been attached and a
trailer; but does not include a vehicle running upon
fixed rails or a vehicle of a special type adapted for use
only in a factory or in any other enclosed premises or a
vehicle having less than four wheels fitted with engine
capacity of not exceeding [twenty-five cubic
centimeters]."
(emphasis supplied)
69. Thus, under the Act, 2013, read with Section
2(28) of Act, 1988 transport by railway/metro railway is
excluded under Section 2 of the Act, 2013.
70. Section 2(1)(a)(iii) of the Act, 2013 provides
that the State Government may issue Notification under
Section 2(1)(a)(iii), if the Government is of the opinion
that it is necessary considering the circumstances
mentioned in the provision. However, the power conferred
is only in respect of subjects enumerated in List II of
Seventh Schedule of the Constitution of India. Metro
railway or Railway is not in List II of Seventh Schedule.
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71. Thus, the State Government is not competent
to issue Notification dated 07.07.2017 at No.
Na.Aa.E/287/CRJ/2017 marked at Annexure - C under the
Karnataka Essential Services Maintenance Act, 2013 in
respect of services of BMRCL.
72. Learned counsel appearing for respondent/State
and BMRCL heavily relied on the judgments of the Division
Bench of this Court in Samuel Sathyasheelan vs Union
of India4 and also the judgment of the Madras High Court
in CMRL Employees Union, supra.
73. It is required to be noticed that in Logwell
Forge Limited supra of this Court, was not called upon to
decide as to which is the Appropriate Government for an
establishment in relation to industrial dispute under the
Act, 1947. The Court was dealing with the question as to
whether the BMRCL would come under the purview of the
4
W.P.No.48094/2012
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Karnataka Transparency in Public Procurement Act, 1999
and the Court has held that BMRCL would come under the
purview of the Karnataka Transparency in Public
Procurement Act, 1999.
74. The judgment does not discuss the provisions of
Act, 1947, Act, 1890, Act, 1946, Act, 1970 and Act, 1996
which have a bearing on these cases. Apart from that,
when the case in Logwell supra was decided, BMRCL was
not brought under the purview of Act, 1978 and Act, 2002
and BMRCL came under the purview of these Acts with
effect from 16.10.2009.
75. In addition, the Court was not deciding the lis
between the Central Government and the State
Government. Hence the said judgment does not apply to
the facts of these petitions.
76. As far as the judgment in Madras High Court in
CMRL Employees Union supra, with due respect, this
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Court is not persuaded to follow the said judgment, for the
following two reasons:
(i) The Court has not noticed that despite repeal of
Act, 1890 in terms of Act, 1989, the definition of
'railway company' as defined in Section 3(5) of Act,
1890, which is incorporated by reference in Section
2(o) of the Act, 1947 is very much in existence in
said Section 2(o); and
(ii) The Court has also proceeded on the wrong
footing that the Act, 1978 and Act, 2002 are special
enactments prevailing over Act, 1947 ignoring the
binding precedent of the Apex Court in Life
Insurance Corporation of India V. D.J Bahadur
and others 5
77. The contention that Act, 1978 and Act, 2002
being special enactments would override the Act, 1947 has
no merit. The Act, 1978 and Act, 2002 do not prohibit the
5
1981 (1) SCC 315
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metro railway construction activity, or the operation,
maintenance activity by the industrial establishments
governed by the Act, 1947. Thus, in case of an industrial
dispute concerning metro railway, such disputes if covered
under the Act, 1947 will have to be adjudicated as
provided under the Act, 1947.
78. Once, the Act, 1947 is held to be applicable,
then the Railway company has to be understood with
reference to Section 2(o) of Act, 1947 which in turn refers
to the definition of railway company as found in Section
3(5) of Act, 1890. In that view of the matter, there has to
be an Appropriate Government for BMRCL as well and
same has to be decided with reference to Act, 1947. Thus,
the contention that the Act, 1978 and Act, 2002 being
special enactments override the provisions of Act, 1947
cannot be accepted.
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79. The contention that the State Government has
control over the matters relating to acquisition of land and
maintenance and operation do not confer the State
Government the primacy over the Central Government
when it comes to key decisions in establishing, running
and maintaining the metro railway cannot be accepted as
the provisions of law in the Act, 1978 and Act, 2002
catalogued above reveal pervasive control of the Central
Government.
80. Sri Santosh Gogi, learned Additional Advocate
General for respondent/State has also referred to Section
2(f) and 2(l) of Act, 2002 to substantiate the contention
that there are two different kinds of metro railways viz.,
(a) Government metro railway as defined under Section
2(f) and (l) non-Government metro railway which is other
than Government metro railway.
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81. These two definitions which recognize the
Government owned metro railway and a non-Government
metro railway (private railway) do not come to the aid of
the State to contend that the Central Government is not
the appropriate Government for BMRCL.
82. More than anything else, Act, 2002 and Section
2(p) defines "railway" by incorporating definition as found
in Section 2 of Act, 1989. This being the position, the
railway as defined in Act, 1989 as already noticed is a
wide definition that includes the rail lines of metro railway
as metro railway runs on a track.
83. For the aforementioned reasons, this Court is of
the view that BMRCL is predominantly carried by the
authority of the Central Government and it is a 'Railway
company' as defined in Section 2(o) of Act, 1947.
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84. For the aforementioned reasons, this Court is of
the view that the Central Government is the 'appropriate
Government' for BMRCL.
85. The petitioner - Union in Writ Petition
No.40113/2007 has assailed the BMRCL Employees
(Conduct, Discipline and Appeal) Rules, 2014 on the
premise that the same could not have been certified by
the authorities under the State Government. Hence, same
is quashed.
86. The State Government-5th respondent is
restrained from granting any exemption under Section 14
of the Industrial Employment (Standing Orders) Act, 1946
to 1st respondent-Company from the provisions of
Industrial Employment (Standing Orders) Act, 1946.
87. Writ Petition No.31611/2019 is filed by BMRCL
assailing the reference order dated 04.12.2018 at No.L-
42011-146-2018-IR(DU) marked at Annexure - F on the
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WP No. 40113 of 2017
C/W WP No. 44263 of 2017
WP No. 31611 of 2019
HC-KAR WP No. 52329 of 2019
WP No. 197 of 2020
WP No. 6697 of 2022
premise that the Office of the Central Government has no
jurisdiction to refer the dispute to the Central Government
Industrial Tribunal. Since, the Central Government is the
'appropriate authority', the order of reference is by the
competent authority.
88. Writ Petition No.52329/2019 is filed by BMRCL
assailing the order dated 13.09.2019 at No.8(38)2019-B3,
marked at Annexure - F, passed by 1st respondent -
Conciliation Officer of the Central Government under the
Industrial Disputes Act, 1947 declaring 12 office bearers of
BMRCL as protected workman for the year 2019-20. Since,
the Central Government is the 'appropriate Government',
said order dated 13.09.2019 for the year 2019-20 was
validly passed.
89. Writ Petition No.6697/2022 is filed by BMRCL
assailing the order dated 10.02.2022 at No.8(71)/2021-
B3, marked at Annexure - K, passed by 1st respondent-
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WP No. 40113 of 2017
C/W WP No. 44263 of 2017
WP No. 31611 of 2019
HC-KAR WP No. 52329 of 2019
WP No. 197 of 2020
WP No. 6697 of 2022
Conciliation Officer of the Central Government under the
Industrial Disputes Act, 1947, declaring 12 office bearers
of BMRCL as protected workmen for the year 2021-22.
Since, the Central Government is the 'appropriate
Government', said order dated 10.02.2022 for the year
2021-22 was validly passed.
90. In W.P. No.40113/2017 the second prayer is to
direct prosecution against the respondents. Said prayer is
not seriously urged during hearing and the Court is of the
view that no ground is made out to initiate prosecution
against officers of BMRCL as prayed in prayer (b) in the
Writ Petition No.40113/2017.
91. Conclusion:
(a) The Bangalore Metro Rail Corporation Limited is
a Railway company within the meaning of
"Railway company" as defined in Section 2(a)(i)
r/w Section 2(o) of the Industrial Dispute Act,
1947.
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WP No. 40113 of 2017
C/W WP No. 44263 of 2017
WP No. 31611 of 2019
HC-KAR WP No. 52329 of 2019
WP No. 197 of 2020
WP No. 6697 of 2022
(b) Under Section 2(n)(vi) of the Industrial
Disputes Act, 1947, the State Government
has no competence to notify the services of
Bangalore Metro Rail Corporation Ltd as
Public Utility Service.
(c) Under Section 2(1) of the Karnataka Essential
Services Maintenance Act, 2013, the State
Government has no competence to notify the
services of Bangalore Metro Rail Corporation
Ltd as essential service
92. Hence the following:
ORDER
(i) Writ Petition No.40113/2017 is allowed-
in-part.
(a) The Bangalore Metro Rail
Corporation Limited Employees (Conduct,
Discipline and Appeal) Rules, 2014 is
quashed.
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(b) The State Government/5th respondent is
restrained from granting any exemption
under Section 14 of the Industrial
Employment (Standing Orders) Act, 1946
to 1st respondent-Company from the
application of the provisions of Industrial
Employment (Standing Orders) Act, 1946.
(ii) Writ Petition No.44263/2017 is allowed.
(a) Notification dated 07.07.2017 at
No.Na.Aa.E/287/CRJ/2017 marked at
Annexure - C issued under the Karnataka
Essential Services Maintenance Act, 2013 in
respect of services of 3rd respondent-
Company is quashed.
(iii) Writ Petition No.31611/2019 is dismissed.
(a) The order dated 04.12.2018 at
No.L-42011-146-2018-IR(DU) marked at
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Annexure - F is issued by the appropriate
Government (Central Government).
(b) The Central Government Industrial
Tribunal shall proceed to adjudicate the
reference.
(iv) Writ Petition No.52329/2019 is dismissed.
(v) Writ Petition No.197/2020 is allowed.
(a) The notification No. Ka.e.139.LWV.
2019 dated 18.11.2019 at Annexure - L,
issued under Section 2(n) of Industrial
Disputes Act, 1947, declaring the services
of the Bangalore Metro Railway Corporation
Limited as public utility services by
respondent No.1 - the authority under the
State Government is without jurisdiction
and accordingly quashed, as Central
Government is the 'appropriate
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Government' for Bangalore Metro Railway
Corporation Limited.
(vi) Writ Petition No.6697/2022 is dismissed.
(vii) In so far as the Writ Petitions which are
allowed-in-part, the reliefs which are not
specifically granted are rejected.
(viii) No order as to cost.
Sd/-
(ANANT RAMANATH HEGDE)
JUDGE
Brn
