Madras High Court
Air India Limited vs The Government Of India on 15 September, 2022
W.P.No.39222 of 2005
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 15.09.2022
CORAM:
THE HON'BLE MR.JUSTICE K. KUMARESH BABU
W.P. No.39222 of 2005
and W.M.P.No.42017 of 2005
and W.M.P.No.358 of 2006
AIR INDIA LIMITED
Represented by General Manager (P),
Airlines House, Meenambakkam, Chennai – 27. ... Petitioner
(Cause title amended vide order dated 07.10.2021
made in W.M.P.No.20158 of 2021 in W.P.No.39222 of 2005)
vs
1.The Government of India,
Represented by its Under Secretary,
Ministry of Labour & Employment,
New Delhi.
2.The Presiding Officer,
Central Government Industrial Tribunal,
-Cum- Labour Court,
1st Floor, Block No.6,
Shastri Bhawan,
26, Haddows Road,
Chennai – 600 006.
3.Chennai Airport Contract,
Workers Union,
Represented by its Secretary,
No.13, 1st Street, Balaji Nagar,
Anakaputhur,
Chennai – 600 070.
4.The Management of ENREC Engineers,
No.49, A-3, 13th Cross Street,
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Page No.1 of 10
W.P.No.39222 of 2005
New Colony, Chrompet,
Chennai – 600 044. ... Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India
praying for a Writ of Certiorari, calling for the records from the 1 st
respondent's order dated 02.11.2005 bearing reference No.L-11012/29/2005-
IR(C-I) and to quash the same.
For Petitioner : Mr.K.Srinivasamurthy
For Respondents : Mr.J.Madanagopal Rao for R1
Senior Central Government Standing Counsel
R2 – Labour Court
Mr.Balan Haridas for R3
R4 – No appearance
ORDER
This instant Writ Petition have been filed seeking to quash the order of
the 1st respondent dated 02.11.2005, bearing Reference No.L-
11012/29/2005-IR (C-I) and quash the same.
2.The said impugned order is an order of reference made by the 1 st
respondent, referring dispute to the Central Government Industrial Tribunal
-Cum- Labour Court, Chennai.
3.Heard the Mr.K.Srinivasamurthy, learned counsel for the petitioner
and Mr.J.Madanagopal Rao, learned Senior Central Government Standing
Counsel appearing for the 1st respondent and Mr.Balan Haridas, learned
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W.P.No.39222 of 2005
counsel appearing for the 3rd respondent. No appearance on behalf of the 4th
respondent.
4.Mr.K.Srinivasamurthy, learned counsel for the petitioner would
submit that the petitioner is an Airline Industry. It is taken over by the Air
Corporation Act, 1953. The said Act was repealed on 21.03.1994 by Air
Corporation (Transfer of Undertakings and Repeal) Act, 1994. He further
argued that the petitioner is not an establishment as defined under the
Contract Labour Abolition and Regularisation Act, 1970. In line, with
carrying on the business, it had constructed 318 flats for providing housing
accommodation for its employees. There was no sewage system and hence,
the sewage has to be collected in a septic tank and removed through lorry's.
In view of the Regulations of the Tamil Nadu Pollution Control Broad, the
petitioner had also established a sewage treatment plant to treat the sewage
in the said housing society. In view that the petitioner lacked expertise,
maintenance of the sewage treatment plant was given to the 3 rd respondent
by an invitation of tender. The maintenance operations were carried on by the
4th respondent by engaging its own employees. There was no direct nexus
between the petitioner and the 4th respondent employees. According to him,
they had also approached the Alandur Municipality which had passed a
resolution on 25.02.2005 to grant sewage connection to the housing colony.
After such communication is granted, the service of 4 th respondent would not
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W.P.No.39222 of 2005
be required. When that being so, eight workers working in the sewage
treatment plant noting that the contract would not be extended any further,
he has raised an industrial dispute claiming to be the worker of the petitioner
on the contract basis. On receipt of the notice of Conciliation from the
Assistant Commissioner of Labour, the petitioner had sent a reply
repudiating the claim made by the 4th respondent, who claimed to be the
Union in which the eight workers were members. However, the Assistant
Commissioner of Labour filed a failure report. An Office Memorandum of
the 1st respondent, dated 04.07.2005, was sent to the Ministry of Civil
Aviation and Tourism, with a direction to advise the petitioner to settle the
dispute amicably. For which also, the petitioner sent a detailed reply to the
Ministry of Civil Aviation. Thereafter, the 1st respondent has issued the
impugned reference.
5.According to Mr.K.Srinivasamurthy, learned counsel for the
petitioner, the dispute as raised by the 3rd respondent itself is not
maintainable as the 3rd respondent have no locus to raise the dispute. He
would contend that a Union would raise a dispute only if majority of member
of an undertaking are members of a Union, only then such Union can raise
an Industrial Dispute in respect of the workmen. In this case, according to
him, there was no employees of the petitioner who are members of the 3rd
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W.P.No.39222 of 2005
respondent Union. When that being so, the reference itself is bad and
therefore, he prayed for quashing the reference. He had also relied upon
various judgment to support his contention.
6.Countering his arguments, Mr.Balan Haridas, learned counsel
appearing on behalf of the 3rd respondent would submit that when the
reference has been made, the same could be struck down under Article 226
of Constitution of India, only when such reference is without the authority of
law or beyond the reasons prescribed under the Industrial Dispute Act. He
claimed, that the issue raised by the petitioner that the 3 rd respondent does
not have locus standi to make a reference is a disputed question of fact and
therefore cannot be gone into by this Court under Article 226 of the
Constitution of India.
7.Apart from that, Mr.Balan Haridas, learned counsel for the 3rd
respondent, refuted the claim made by the petitioner, that none of the
petitioner’s employees are members of the 3rd respondent. He further stated
that the petitioner do not dispute that the eight workers had not worked in
the sewage treatment plant belonging to the petitioner. When that being so,
even the entitlement of such workmen should be only gone into by the
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W.P.No.39222 of 2005
Tribunal and not in the present Writ Petition as to the maintainability of the
reference, it could not be gone into and hence, sought to dismiss the Writ
Petition. He further pleaded that the issue of maintainability has not been
raised either before the Conciliation Officer nor in the reply to the Office
Memorandum issued by the 1st respondent.
8.Mr.J.Madanagopal Rao, learned Senior Standing Counsel appearing
on behalf of the 1st respondent would also submit that the present Writ
Petition is not maintainable either on law or on facts.
9.I have considered the arguments made by the learned counsel
appearing on either side and perused the materials available on record.
10.At the outset, the petitioner seeks to set aside the order of reference
made on the ground that the 3rd respondent Union had no locus standi to
raise a dispute on behalf of the workers who have been employed by the 4th
respondent pursuant to the contract entered upon by the petitioner and the 4th
respondent. The contention of Mr.K.Srinivasamurthy, learned counsel for the
petitioner that the 3rd respondent has no locus standi, is based on the fact that
the majority of the members employed by the petitioner are not members of
the 3rd respondent Union and therefore, it has no locus standi. To substantiate
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W.P.No.39222 of 2005
that the 3rd respondent has no locus standi, Mr.K.Srinivasamurthy, has relied
upon various judgments.
11.A perusal of the said judgments would indicate, that those
judgments were all made after an Award has been passed either allowing the
claim or rejecting the claim on the basis of locus. The present case is even at
the initial stage. Even the case relied upon by the learned counsel for the
petitioner such factual dispute has been settled by the Industrial Tribunal.
12.Hence, I am of the view that the issue of locus standi cannot be
gone into in this Writ Petition till the same has been adjudicated upon by a
fact finding authority as this Court cannot adjudicate a dispute as to the
question of fact. Even if the statement of the petitioner has to be accepted, it
is to be proved by way of evidence that majority of its employees are not
members of the 3rd respondent. Hence, in view of the same, I do not wish to
traverse on the other points raised by the learned counsel for the petitioner. It
would be fit case to relegate the parties to the Central Government Industrial
Tribunal, the 2nd respondent herein. The 2nd respondent is directed to frame a
preliminary issue as to the locus standi of the 3rd respondent herein to
maintain the claim and decide the same before proceeding any further.
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W.P.No.39222 of 2005
13.With the above direction, this Writ Petition is disposed of.
However, there shall be no order as to costs. Consequently, connected
miscellaneous petitions are also closed.
15.09.2022
Index: Yes/no
Speaking/non-speaking
gba
To
1.The Under Secretary,
for The Government of India,
Ministry of Labour & Employment,
New Delhi.
2.The Presiding Officer,
Central Government Industrial Tribunal,
-Cum- Labour Court,
1st Floor, Block No.6,
Shastri Bhawan,
26, Haddows Road,
Chennai – 600 006.
https://www.mhc.tn.gov.in/judis
W.P.No.39222 of 2005
K. KUMARESH BABU, J.
gba
W.P.No.39222 of 2005
and W.m.P.No.42017 of 2005
https://www.mhc.tn.gov.in/judis
W.P.No.39222 of 2005
15.09.2022
https://www.mhc.tn.gov.in/judis
