Bombay High Court
Union Of India Thr Secretary Dept Of ... vs The Ammunition Factory Workers Union ... on 9 April, 2025
Author: A. S. Chandurkar
Bench: A. S. Chandurkar
2025:BHC-AS:17175-DB
1 WP-15036-23.doc
BHARAT
DASHARATH
PANDIT
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Digitally signed by
BHARAT
CIVIL APPELLATE JURISDICTION
DASHARATH
PANDIT
Date: 2025.04.16
WRIT PETITION NO.15036 OF 2023
14:15:47 +0530
1] Union of India through Secretary, )
Department of Defence Production, Ministry of )
Defence, South Block, New Delhi 110001 )
)
2] The Director General Ordnance)
(Coordination & Services) (Formerly the )
Chairman, Ordnance Factories Board) 10-A,)
Shahid Kudhiram Bose Road, Kolkata-700001. )
)
3] The General Manager, Ammunition Factory, )
Kirkee, Pune-03 )
)
4] The Prl. Controller of Accounts (Factories), )
10-A, Shahid Kudhiram Bose Road, Kolkata -)
700001 )
)
5] Munitions India Ltd., Pune having its )
Corporate Office at Nyati Unitree, 2nd Floor,)
Nagar Road, Yarwada, Pune 411006 and having)
its Registered Office at Ammunition Factory, )....Petitioners,
Khadki, Pune - 411003. )
V/s
1] The Ammunition Factory Workers' Union, )
having its office at S.N. Joshi Bhavan, Sl.No.81, )
Dr. Baba Saheb Ambedkar Road, Kirkee, Pune)
411003. )
)
2] Harish Kailas Bhoir, residing at 63, 4, Type- )
II, Ordnance Factory, Dehu Road, Pune-412101 )
)
3] Renjith Radhakrishnan Nair, )
residing at Sl. No.4/1/1/J, Nandanam, Jai )
Malhar, Nagar, Near Khandoba, Mall, Lohegaon, )
Pune - 411047. )....Respondents.
Dr. Uday Warunjikar a/w Ms. Vaishali Chaudhari, Ms. Gargi Warunjikar,
Mr. Ashutosh Mishra, Advocates for the petitioners.
Mr. K. S. Shukla a/w Mr. Vijayan Balakrishnan & Mr. Mohammed Naved
BDP-SPS
1/12
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I. Mulla i/b K.S. Shukla & Associates, Advocates for the Respondents.
****
CORAM : A. S. CHANDURKAR &
M. M. SATHAYE, JJ.
DATE : 9th APRIL, 2025
ORAL JUDGMENT: (Per A. S. Chandurkar, J.)
1] Rule. Rule made returnable forthwith and heard learned counsel for the parties.
2] The Petitioners are aggrieved by the order dated 28/01/2022 passed by the Central Administrative Tribunal, Mumbai in Original Application No.694 of 2015. By the said order, a direction has been issued to the Petitioners to grant benefits to the members of the Respondent no.1 Union in terms of paragraph 8 of the Original Application in the form of various compensatory allowances from 01/01/2006. The communications dated 12/09/2015 and 22/09/2015 denying such benefits have been quashed and the Circular dated 26/06/2009 issued by the Ministry of Defence excluding the grant of such allowances has been held to be illegal.
3] Brief facts relevant for consideration of the challenge as raised are that the Respondent no.1 is a Union of workers' engaged at the Ammunition Factory, Khadki, Pune. Respondent Nos. 2 and 3 are its BDP-SPS 2/12 ::: Uploaded on - 16/04/2025 ::: Downloaded on - 19/04/2025 09:10:19 ::: 3 WP-15036-23.doc representative members. It is the case of the Respondents that the Ammunition Factory stands covered under the provisions of the Factories Act, 1948 (for short, the Act of 1948) and hence the petitioners are bound to grant all facilities and benefits admissible to the workers in question. On that basis, it is their case that Overtime Allowances are to be computed on the ordinary rate of wages which include house rent allowance, transport allowance, small family allowance and other such allowances. By Circular dated 26/06/2009, the Ministry of Defence modified Overtime Allowance and excluded house rent allowance, transport allowance, small family allowance, etc for being taken into consideration for computing Overtime Allowance. The Union of employees working with Heavy Vehicles Factory had approached the Madras High Court raising a challenge to the order passed by the Central Administrative Tribunal dismissing the Original Application challenging the said Circular. However, the Madras High Court on 30/11/2011 set aside the order of the Tribunal and held that the Circular dated 26/06/2009 was contrary to Section 59(2) of the Act of 1948. The present petitioners challenged the said order before the Supreme Court and the proceedings are stated to be pending there. In the meanwhile, respondent nos. 2 and 3 moved applications dated 31/07/2015 seeking a clarification on the exclusion of such allowances while computing Overtime Allowance. The workers' Union also made a BDP-SPS 3/12 ::: Uploaded on - 16/04/2025 ::: Downloaded on - 19/04/2025 09:10:19 ::: 4 WP-15036-23.doc representation on 20/08/2015 in that regard. The Chairman, Ordnance Factories Board by the communication dated 12/09/2015 rejected the representation made by the Union. Thereafter, the General Manager, Ammunition Factory rejected the applications made by respondent nos. 2 and 3 on 22/09/2015. Being aggrieved, the respondents preferred Original Application No. 694 of 2015 challenging the same. In paragraph 3 of the Original Application, it was stated that the same was filed within the prescribed limitation under Section 21 of the Administrative Tribunals Act, 1985 (for short, the Act of 1985). 4] The petitioners filed their affidavit-in-reply and raised a plea that the Original Application was barred by limitation inasmuch as the Circular dated 26/06/2009 ought to have been challenged immediately thereafter. Merely by making representations in the year 2015, the limitation could not be extended. In further sur-rejoinder filed by the petitioners, this aspect was reiterated.
On 18/02/2019, the Tribunal disposed of the Original Application on the ground that the Special Leave Petition filed on behalf of the Petitioners challenging the judgment of the Madras High Court was pending and hence as and when the said proceedings were decided, the Respondents could agitate their claim. Liberty was accordingly granted BDP-SPS 4/12 ::: Uploaded on - 16/04/2025 ::: Downloaded on - 19/04/2025 09:10:19 ::: 5 WP-15036-23.doc to them.
5] The Respondents being aggrieved preferred Review Petition No.17 of 2019 before the Tribunal. By the order dated 23/09/2020, the Tribunal was of the view that the orders passed on similar lines as passed by the Madras High Court had been implemented in other jurisdictions. Hence the Tribunal was of the view that the order dated 18/02/2019 ought to be recalled and the Original Application be restored. Original Application No.694 of 2015 was accordingly restored. By the impugned order dated 28/01/2022 the Tribunal granted the reliefs as prayed for by the Respondents, subject to filing an Undertaking that in case the Supreme Court allowed the Special Leave Petition, the benefits granted would be recoverable. The Petitioners being aggrieved by this order, have preferred the present Writ Petition. 6] Dr. Uday Warunjikar, the learned counsel appearing for the Petitioners inter alia submitted that the Tribunal while allowing the Original Application failed to take into consideration the stand taken by the petitioners that the Original Application was barred by limitation. Though such plea was specifically raised in the reply to the Original Application, the same was not considered at all. According to him, the rights of the Respondents stood determined with the issuance of BDP-SPS 5/12 ::: Uploaded on - 16/04/2025 ::: Downloaded on - 19/04/2025 09:10:19 ::: 6 WP-15036-23.doc Circular dated 26/06/2009. As the Respondents were aggrieved by the said Circular, they ought to have challenged the same immediately. Instead of doing so, representations/applications came to be moved in the year 2015 only to get over the period of delay. In view of the reply given to the said representations on 12/09/2015 and 22/09/2015, same was treated as giving a cause of action to the Respondents. He submitted that merely by making of such representations the period of limitation would not be extended as the cause for filing the Original Application had arisen on 26/06/2009 itself. Without considering the specific objection raised by the Petitioners, the Tribunal proceeded to grant relief. This resulted in grave prejudice to the Petitioners. The learned counsel placed reliance on the decisions in State of Uttar Pradesh and Others vs. Arvind Kumar Srivastava and Others , (2015) 1 SCC 347 and Chairman/Managing Director, U.P. Power Corporation Ltd. and Others vs. Ram Gopal , 2020 SCC OnLine 101 to substantiate his contentions. He therefore submitted that the impugned order passed by the Tribunal was without jurisdiction and thus liable to be set aside.
7] Mr. K. S. Shukla, the learned counsel appearing for the Respondents opposed the aforesaid submissions. According to him, the Original Application as filed was within the period of limitation and that BDP-SPS 6/12 ::: Uploaded on - 16/04/2025 ::: Downloaded on - 19/04/2025 09:10:19 ::: 7 WP-15036-23.doc the Tribunal was justified in entertaining the said proceedings on merits. The right to receive Overtime Allowance was a continuing cause of action and therefore it could not be said that there was any delay whatsoever in filing the Original Application. As similarly situated workers were getting the benefit of the judgment of the Madras High Court, the respondents were also entitled to the same. Reference was made to various orders passed by the Tribunal granting such relief and it was thus submitted that there was no reason to interfere with the impugned order. It was further submitted that despite the interim directions issued by this Court on 22/11/2024, the said directions had not been complied with in its true letter and spirit. It was thus submitted that no interference with the impugned order was called for. 8] Having heard the learned counsel for the parties and having perused the impugned order, we are of the view that the Tribunal committed an error in not considering the defence raised by the Petitioners that the Original Application had been filed beyond the period of limitation. For this reason, we are of the view that the impugned order deserves to be set aside and the Original Application ought to be remitted to the Tribunal to decide the same afresh after considering the objection raised by the Petitioners that it was barred by limitation. We say so for the following reasons :-
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(a) In Original Application No.694 of 2015, the Respondents in paragraph 3 have pleaded that the application was filed within limitation prescribed by Section 21 of the Act of 1985 as the communications dated 12/09/2015 and 22/09/2015 were under challenge. Perusal of paragraph 8(a) indicates that besides the aforesaid communications, the Respondents had also sought a declaration that the Circular dated 26/06/2009 issued by the Ministry of Defence was illegal. The Circular dated 26/06/2009 indicates the decision of the Ministry of Defence that for the purposes of computing Overtime Allowance under the Act of 1948, the allowances of compensatory nature would be excluded.
In the affidavit-in-reply filed by the petitioners, it has been pleaded in paragraph 5 that the claim of the respondents was barred as the Circular dated 26/06/2009 ought to have been challenged immediately. The making of representations in 2015 would not give any cause of action to the BDP-SPS 8/12 ::: Uploaded on - 16/04/2025 ::: Downloaded on - 19/04/2025 09:10:19 ::: 9 WP-15036-23.doc respondents. This stand was reiterated in paragraph 5 of the sur-rejoinder filed by the petitioners.
When the Original Application was initially decided on 18/02/2019, a reference was made in paragraph 3(e) to the Petitioners' contention that the claim of the Respondents was hopelessly time barred. The Tribunal however disposed of the Original Application on the ground that the Special Leave Petition was pending before the Supreme Court wherein challenge to the judgment of the Madras High Court was under consideration. After this order was reviewed on 23/09/2020, the Original Application came to be decided by the impugned order dated 28/01/2022. Perusal of this order indicates that there is no consideration whatsoever to the objection raised by the petitioners on the ground of limitation. When such defence was specifically raised in the reply, it was necessary for the Tribunal to have considered the same in accordance with law before entering into the merits of the adjudication. Same has however not been BDP-SPS 9/12 ::: Uploaded on - 16/04/2025 ::: Downloaded on - 19/04/2025 09:10:19 ::: 10 WP-15036-23.doc done.
(b) Section 21(2) of the Act of 1985 creates a jurisdictional bar for the Tribunal to entertain proceedings that are filed beyond the prescribed period of limitation. Thus if the proceedings before the Tribunal are specifically opposed on the ground of limitation, it would be incumbent upon the Tribunal to consider such objection on merits. Failure to do so raises an issue of jurisdiction thus giving a cause for this Court to interfere in exercise of jurisdiction under Article 226 of the Constitution of India.
9] In the light of the aforesaid discussion, we are of the considered opinion that it was necessary for the Tribunal to have first considered the jurisdictional aspect as to whether the Original Application was filed within limitation. Having failed to do so, the impugned order becomes unsustainable. We are therefore inclined to remit the proceedings to the Tribunal to re-consider the Original Application afresh. For this reason, we have not gone into the aspect as to whether the representations which were replied to on 12/09/2015 and 22/09/2015, BDP-SPS 10/12 ::: Uploaded on - 16/04/2025 ::: Downloaded on - 19/04/2025 09:10:19 ::: 11 WP-15036-23.doc would bring the Original Application within limitation. This is for the reason that Circular dated 26/06/2009 is also under challenge. All these aspects would be required to be gone into by the Tribunal. 10] For the aforesaid reasons the following order is passed:-
(i) The order dated 22nd January 2022 passed in Original Application No.694 of 2015 is quashed and set aside.
(ii) The proceedings in Original Application No.694 of 2015 are remanded to the Central Administrative Tribunal for fresh adjudication in accordance with law. The Tribunal shall consider the issue of limitation alongwith all other issues that arise for consideration. In case the Tribunal finds that the Original Application was filed beyond the period of limitation, an opportunity shall be granted to the Respondents to seek condonation of delay. It is clarified that this Court has not examined the challenge as raised by the respondents on merits.
All points are kept open for adjudication.
(iii) Any payments made by the Petitioners pursuant to the interim directions issued on 22/11/2024 in the writ petition shall not be recovered from the Respondents. However, such BDP-SPS 11/12 ::: Uploaded on - 16/04/2025 ::: Downloaded on - 19/04/2025 09:10:19 ::: 12 WP-15036-23.doc payments would be subject to final outcome of the Original Application by the Tribunal. The Undertakings given by the Respondents pursuant to the aforesaid order would continue to operate, subject to the decision of the Tribunal.
(iv) Rule is made absolute in aforesaid terms with no order as to costs.
(M. M. SATHAYE, J.) (A. S. CHANDURKAR, J.) BDP-SPS 12/12 ::: Uploaded on - 16/04/2025 ::: Downloaded on - 19/04/2025 09:10:19 :::