Bombay High Court
Digamber Madye And Ors vs Union Of India And Ors on 10 April, 2015
Bench: B.R.Gavai, A.S.Gadkari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 1701 OF 2012
Mr. Digamber Madye & Ors. ... Petitioners
vs.
Union of India & Ors. ... Respondents
Mr. Susheel Mahadeshwar i/b. Ms. Ranjana Todankar, Advocate for the
Petitioners
Mr. Parag Vyas i/b. D.R. Shah for respondent No.1.
Ms. Kavita Anchan i/b. M.V. Kini & Co. for respondent No.2.
Dr. Birendra Saraf a/w Mr. Farid F. Karachiwala, Ms. Sneh Mehta and Ms.
Juhi Mathur i/b. Wadia Ghandy & Co. for Respondent No.3 (MIAL).
Ms. Anjali Purav for Respondent No.4.
CORAM: B.R.GAVAI & A.S.GADKARI, JJ.
DATE : 10th April, 2015.
P.C. : (PER B.R.GAVAI, J.) Rule. Rule returnable forthwith. Heard by consent of the parties.
2. The Petition arises out of the order passed by Respondent No.1 dated 13th December, 2011 thereby rejecting the application filed by the petitioners for amendment of the Reference No. CGIT-2/40 of 2005 made earlier.
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3. The facts in brief giving rise to the present petition are as
under :-
(a) According to the petitioners, the petitioners were employed for
manning STD/ISD telephone facilities provided for the passengers by the Airports Authority of India (AAI) at Chhatrapati Shivaji International Airport (CSI). It is the case of the petitioners that they were in fact employed by the Respondent No.2 - Airports Authority of India, though they were shown as ig contract labour through the Respondent No.4 contractor - M/s. Friends Communication Services.
(b) The petitioners had approached this Court by way of Writ Petition No. 876 of 1998 praying that Airports Authority of India be directed to absorb and regularize their services. This Court, by an order dated 29th June, 1998, passed in the said Writ Petition, directed status quo to be maintained with regard to the employment of the petitioners. In the meantime, since the petitioners had already approached the Authorities under the Industrial Disputes Act for making a reference under Section 10 of the said Act, by a Judgment and order passed by the Division Bench dated 4th February, 2005, the said Petition came to be ::: Downloaded on - 07/05/2015 20:35:52 ::: Mhi 3 WP-1701-12.sxw disposed of with liberty to the petitioners to apply to the learned Industrial Tribunal for interim relief. It was further directed that the learned Tribunal shall endeavour to dispose of the same within 8 weeks from the receipt thereof. By the said order, till the decision of the learned Industrial Tribunal, the interim relief which was granted earlier was directed to be continued.
(c) In the meantime, on the application made by the petitioners, the Respondent No.1, by an order dated 27th December, 2004, made Reference on the following issues to the learned Industrial Tribunal :-
(1) "Whether the contract between Airport Authority of India and M/s. Friends Communication Services, Mumbai is 'sham' and 'bogus' and is a camouflage to deprive Shri Digamber Madye and 22 other contract workmen (list enclosed), of benefits available to permanent workmen of Airport Authority of India, Mumbai ?
(2) Whether the workmen concerned should be declared as permanent/regular workmen of Airport Authority of India ?
(3) What are the wages and consequential benefits to be paid to Shri Digamber Madye and 22 other workmen and from which date and what other direction are necessary in the matter ?"
(d) In the year 2003, the Airports Authority of India Act, 1994 suffered an amendment. Section 12A came to be inserted. Section 12-A provides that the Airport Authority of India may make a lease of the premises of an airport in order to permit the lessee to carry out some of the ::: Downloaded on - 07/05/2015 20:35:52 ::: Mhi 4 WP-1701-12.sxw functions of the Airport Authority under Section 12 of the said Act. In pursuance of the said provisions, Respondent No.2 entered into an agreement with the Respondent No.3 called "Operation, Management and Development Agreement" (hereinafter referred to as "OMDA"). As per the said agreement, Respondent No.2 had granted lease of the Mumbai Airport for a period of 30 years to Respondent No.3. With effect from 3 rd May, 2006, the management of Chhatrapati Shivaji International Airport was transferred from Respondent No.2 to Respondent No.3.
(e) It is the case of the petitioners that clause 5.1 of the OMDA provides that the rights and obligations associated with the Operation and Management of the airport would stand transferred to Respondent No.3. In the Reference, which was pending before the learned Industrial Tribunal, Respondent No.2 made an application dated 25.6.2008 purportedly under the provisions of Section 18(3) of the Industrial Disputes Act. It was contended in the said application made by Respondent No.2 Airports Authority of India on 25.6.2008 that with effect from 3.5.2006 i.e. after the transfer of the CSI Airport to MIAL, the liability in respect of the petitioners lay with MIAL. The said application is still pending and no orders are passed therein. However, it appears that similar application made by the Respondent No.2 Airports Authority of India in another ::: Downloaded on - 07/05/2015 20:35:52 ::: Mhi 5 WP-1701-12.sxw Reference, wherein similar issue arose, was allowed by the learned Tribunal. Challenging the the same, a writ petition was filed before this Court being Writ Petition No.695 of 2008. The same was allowed by this Court by a judgment and order dated 25.4.2008. In the meantime, the petitioners made an application for amendment of item No.2 of the Schedule to the Reference seeking the following amendment and also for prayer for adding Respondent No.3 as a party to the said Reference. The said application is rejected and aggrieved thereby, the present Petition. The proposed amendment which the petitioners seek, reads as under :-
"(2) Whether the workmen concerned should be declared as permanent/regular workmen of Airports Authority of India and permanent /regular workmen of M/s. Mumbai International Airport Private Limited with effect from 03.05.2006 after the transfer of the management of the airport from Airports Authority of india to M/s. Mumbai International Airport Private Limited."
4. Heard Shri Susheel Mahadeshwar learned counsel appearing on behalf of the petitioners and Dr. Saraf on behalf of Respondent No.3.
5. Shri Mahadeshwar submits that the learned Industrial Tribunal has grossly erred in rejecting the application. The learned counsel submits that in view of the OMDA entered into between Respondent Nos. 2 and 3, with effect from 3.2.2006, the management of the CSI Airport has been transferred to Respondent No.3. He submits that not only that, but it is also ::: Downloaded on - 07/05/2015 20:35:52 ::: Mhi 6 WP-1701-12.sxw the stand of the Respondent No.2 that with effect from 3.5.2006, the liability in respect of the petitioners, if any, will lie with MIAL. The learned counsel submits that clause 5.1 has been construed by Their Lordships of the Apex Court in the case of Delhi International Airport Private Limited vs. Union of India & Ors. (2011) 12 SCC 449. It is further submitted that Clause 5.1 of the agreement entered into between the Respondent No.2 and Respondent No.3 is pari materia with Clause No.5.1, which fell for consideration before the Apex Court. The learned counsel submits that the said clause has been interpreted by the Apex Court thereby holding that all rights and obligations associated with the operation, management of the Airport would stand transferred to DIAL. He, therefore, submits that in view of the clear interpretation with respect to the pari materia clause which fell for consideration before the Apex Court, all rights and obligations associated with operation and management of the airport would stand transferred to Respondent No.3. The learned counsel submits that the said judgment of the Apex Court has not been taken into consideration by the Respondent No.1.
6. The learned Counsel for the petitioners relies on the Judgment of the Apex Court in the case of M/s. Hochtief Gammon vs. State of Orissa and others AIR 1975 SC 2226. He submits that in similar facts, ::: Downloaded on - 07/05/2015 20:35:52 ::: Mhi 7 WP-1701-12.sxw the Apex Court held that if the presence of a party is necessary or appropriate for adjudication of the Reference, then an application amending the reference for addition of such party is to be allowed. He further submits that while considering the application for amendment or addition of party, Respondent No.1 had no jurisdiction to go into the merits of the dispute.
The learned counsel submits that the limited enquiry that was permissible was as to whether the presence of a party sought to be added was either necessary or appropriate for adjudication of the Reference. He submits that in any case, since in view of the transfer of rights and obligations with effect from 3.5.2006 of the Respondent No.2 to Respondent No.3, in case the petitioners succeed in their case against the Respondent No.2, since the Respondents steps into the shoes of Respondent No.2 after 3.5.2006, the liability would be fastened upon Respondent No.3. The learned counsel submits that not only this, but from the application made by Respondent No.2 before the learned Industrial Tribunal, it will be clear that this is also the stand of the Respondent No.2. The learned counsel, therefore, submits that the petition deserves to be allowed and the impugned order deserves to be quashed and set aside.
7. Dr. Saraf, on the contrary, submits that if the amendment to the Reference as sought to be made is allowed, it would amount to superseding ::: Downloaded on - 07/05/2015 20:35:52 ::: Mhi 8 WP-1701-12.sxw the earlier Reference and substituting the same with a new Reference. The learned counsel submits that on the date on which Reference was filed, the Respondent No.3 was not in existence. He submits that in any case, the original dispute is only with regard to the dispute between the petitioners and the Respondent No.2. He submits that by an amendment scope of reference cannot be expanded so as to bring the Respondent No.3, which has no role in a dispute between the petitioners and the Respondent No.2.
The learned counsel submits that there is no privity of relationship between the petitioners and Respondent No.3 and as such they cannot be compelled to participate in the dispute between the petitioners and the Respondent No.2. The learned counsel relies on the Judgment of the Apex Court in the case of State of Bihar vs. D.N.Ganguly 1959 SCR 1191 and the Judgment of the learned Single Judge of the Madras High Court in the case of The Management of Thambi Motor Service, Salem vs. The Presiding Officer Labour Court, Coimbatore & Anr. and the Judgment arising out of the Judgment of the learned Single Judge delivered by the Appellate Court in the case of The workers employed in the Thambi Motor Service, Salem, vs. The Management of Thambi Motor Service, Salem and another. (W.A. No.84 of 1960). The learned counsel further submits that the Judgment of the Apex Court in the case of Delhi International ::: Downloaded on - 07/05/2015 20:35:52 ::: Mhi 9 WP-1701-12.sxw Pvt.Ltd. (cited supra) cannot be made applicable to the facts of the present case. The learned counsel submits that in the said case, a notification under the Contract Labour (Regulation and Abolition) Act was issued by the Central Government making applicable the notification issued under the said Act to the establishment of Delhi International Airport of Airports Authority of India . The learned counsel submits that in that view of the matter, in the factual background, that since a notification was already issued prohibiting contract labour for trolley retrievals in establishment of Airports Authority of India at the International Airports and Domestic Airports. The Apex Court held that no separate notification would be required for bringing the Delhi International Airport Private Limited (DIAL) within the scope of such notification. He submits that since the notification was in respect of the establishment and since the said airport which was earlier managed by the Airports Authority of India and since under OMDA the management was transferred to DIAL, the view has been taken by the Apex Court. He further submits that the factual scenario in the present case is totally different. He submits that firstly, there is no such notification in respect of the International Airport at Mumbai.
Secondly, he submits that there is no relation of any nature between the petitioners and the Respondent No.3. The learned counsel relied on paras ::: Downloaded on - 07/05/2015 20:35:52 ::: Mhi 10 WP-1701-12.sxw 18, 19, 53 and 71 of the said Judgment. He submits that perusal of the same would reveal that the Judgment of the Apex Court was delivered by it in the peculiar facts therein and the same cannot be made applicable to the facts of the present case. Similarly, the learned counsel submits that the Judgment in the case of M/s. Hoechief Gammon (cited supra) is also not applicable to the facts of the present case. He submits in the said case that right from the beginning the dispute was as to whether the bonus was payable by the contractor or the principal employer. He submits that in this factual background, the Apex Court has held that the presence of the principal employer would be appropriate for adjudication of the lease between the parties. The learned counsel further submits that in the said case, the principal employer had a role to play since the beginning.
However, in the present case, the Respondent No.3 has nothing to do with the dispute between the petitioner and the Respondent no.2 when the Reference was made to the learned Tribunal. Dr. Saraf had also pointed out certain clauses in the OMDA in support of his contention that there is o liability of the employees like the petitioners on the Respondent No.3.
8. The learned counsel further relied on the Judgment of the learned Single Judge of this Court in the case of The Mumbai ::: Downloaded on - 07/05/2015 20:35:52 ::: Mhi 11 WP-1701-12.sxw International Airport Authority Pvt.Ltd. vs. Airports Authority of India & Ors. (W.P. No.695 of 2008) decided on 25th April, 2008. The learned Counsel submits that in the said case, the learned Single Judge has clearly held that the presence of Respondent No.3 MIAL (the Petitioner before the Division Bench) was not at all necessary and has quashed and set aside the order passed by the learned Tribunal which had allowed the application of Respondent No.2 for impleading the MIAL party in the said dispute. The learned counsel further submits that the view taken by the learned Single Judge has been affirmed by the Division Bench in LPA No.117 of 2009 vide order dated 23rd April, 2009. The learned counsel, therefore, submits that the impugned order warrants no interference and the Petition is liable to be dismissed.
9. With the assistance of the learned counsel for the parties, we have perused the record. The facts to which we have referred are not in dispute at all. Undisputedly, the order of referring the dispute was passed on 27 th December, 2004 and at that time the dispute was purely between the petitioner and the Respondent No.2. However, it is also not in dispute that Respondent no.2 has entered into OMDA with Respondent No.3 and as per the said OMDA, a lease has been executed on 26th April, 2006. In ::: Downloaded on - 07/05/2015 20:35:52 ::: Mhi 12 WP-1701-12.sxw accordance with the said OMDA, management of the CSI has been transferred to Respondent No.3 with effect from 3.5.2006.
10. The pari materia clause in respect of Delhi International Airport Pvt.Ltd. (cited supra) fell for consideration before the Apex Court.
The Apex Court has observed thus in para 53 which reads as under :-
"53 DIAL expressly assumed the "rights and obligations associated with the operation and management of the airport"
through OMDA. While Section 12A of the AAI Act only notes that the "powers and functions" of AAI will be transferred to its lessors, it is "inconceivable that by virtue of Section 12A the powers and functions of AAI will stand transferred and not the corresponding obligations." If it was the "obligation" of AAI to follow valid directions of the Central Government by virtue of its status as an enumerated industry, and if DIAL has admittedly assumed those same obligations through OMDA, then DIAL is presumably also obligated to follow such directions. Again, a contrary interpretation would allow AAI to circumvent the Central Government's exercise of authority over its work merely by contracting it out to third parties. It is abundantly clear that the Central Government is the appropriate government qua DIAL and consequently the said Notification of 26th July, 2004 is equally applicable to DIAL."
The Apex Court further observed thus in para 71 :-
"71 This issue is fully settled by the foregoing analysis. From the analysis, DIAL falls under AAI establishment. For example, Clause 5.1 of OMDA, which notes that the "rights and obligations associated with the operation and management of the Airport would stand transferred to" DIAL, would seem to suggest that orders given to AAI establishment would also apply to DIAL establishment, even if the two were, as DIAL claims, ::: Downloaded on - 07/05/2015 20:35:52 ::: Mhi 13 WP-1701-12.sxw separate establishments. If AAI establishment is obligated to abolish contract labour and DIAL establishment (even if it is somehow separate) has assumed AAI establishment's obligations through the OMDA, then DIAL is presumably required to fulfill those obligations. Critical to this inference is the fact that the Central Government's 26th July, 2004 notification was issued before OMDA was signed."
It has been held by the Apex Court in the said paragraphs that in view of clause 5.1 of the OMDA, rights and obligations associated with the operation and management of the airport would stand transferred. It has been held that the obligations which were cast upon the Airports Authority of India would be required to be fulfilled by its lessee. No doubt, the Apex Court in the said case was dealing with a notification by which the establishment of the Respondent No.2 was brought into the ambit of notification issued under the Contract Labour (Regulation and Abolition) Act. However, it is now a settled principle of law that even obiter dicta of the Apex Court is binding upon this Court. The Apex Court by interpreting a pari materia clause in OMDA executed between the Airports Authority of India and its lessee, has interpreted that the rights and obligations which were cast upon the Airports Authority of India would be required to be fulfilled by the lessee. Clause 5.1 of the agreement between Respondent Nos. 2 and 3 is identical. In that view of the matter, in view of the interpretation placed on the said clause by the Hon'ble Apex Court, it will ::: Downloaded on - 07/05/2015 20:35:52 ::: Mhi 14 WP-1701-12.sxw have to be held that the Respondent No.3, who is lessee of Respondent No.2, will be obliged to fulfill the obligations that the Respondent No.2 is required to fulfill.
11. We may clarify that at this stage, neither Respondent No.1 nor this Court can go into the merits of the dispute and the claims of the parties on merits. The limited enquiry that is permissible as to whether Respondent No.1 was justified in rejecting the application made by the petitioner for amendment of clause 2 of the Schedule to the Reference and for impleading Respondent No.3 as a party-respondent.
12. We may also gainfully refer to the Judgment of the Apex Court in the case of M/s. Hochtief Gammon vs. State of Orissa (cited supra).
In the said case, the dispute was regarding the entitlement of the workmen employed by the contractor for payment of bonus. The case of the contractor was that the liability to pay the bonus would be upon the contractor only if the said bonus was paid by the principal employer.
Accordingly, an application was field by the contractor under Section 18(3)
(b) of the Industrial Disputes Act for impleading the principal employer i.e. M/s. Hindustan Steel Ltd. as party to the said Reference. The application was rejected. The petition came to be filed before the High Court ::: Downloaded on - 07/05/2015 20:35:52 ::: Mhi 15 WP-1701-12.sxw challenging the order of learned Tribunal. The same was also dismissed.
Being aggrieved thereby, a Special Leave Petition came to be filed before the Apex Court. The Apex Court in its Judgment reported in Hochtief Gammon vs. Industrial Tribunal, Bhubaneshwar, Orissa and others AIR 1964 SC 1746 observed in para 7 thus :-
"The next contention raised by Mr. Chatterjee is that M/s. Hindustan Steel Ltd. is a necessary party because it is the said concern which is the employer of the respondents and not the appellant. In other words,this contention is that though in form the appellant engaged the workmen whom the respondent union represents, the appellant was acting as the agent of its principal and for adjudicating upon the industrial dispute referred to the Tribunal by the State of orissa, it is necessary that the principal, viz., M/s. Hindustan Steel Ltd. Ought to be added as a party. In dealing with this argument, it is necessary to bear in mind the fact that the appellant does not dispute the respondent Union's case that the workmen were employed by the appellant. It would have been open to the State Government to ask the Tribunal to consider who was the employer of these workmen and in that case, the terms of reference might have been suitably framed. Where the appropriate Government desires that the question as to who the employer is should be determined, it generally makes a reference in wide enough terms and includes as parties to the reference different persons who are alleged to be the employers. Such a course has not been adopted in the present proceedings, and so, it would not possible to hold that the question as to who is the employer as between the appellant and M/s. Hindustan Steel Ltd. is a question incidental to the industrial dispute which has been referred under s. 10(1)(d). This dispute is a substantial dispute between the appellant and M/s Hindustan Steel Ltd. and ::: Downloaded on - 07/05/2015 20:35:52 ::: Mhi 16 WP-1701-12.sxw cannot be regarded as incidental in any sense, and so, we think that even this ground is not sufficient to justify the contention that M/s. Hindustan Steel Ltd. is a necessary party which can be added and summoned under the implied powers of the Tribunal under s. 18(3)(b)"
13. After dismissal of the SLP, an application came to be filed by the contractor before the Government of Orissa for modifying the earlier Reference and adding Hindustan Steel Ltd. as a party to the Reference. The said application was rejected and the matter reached upto the Apex Court.
The Apex Court, in the said case, held that the Government has failed to apply its mind properly to the facts of the said case. The Apex Court found that there was at least an arguable case on the point as to who was liable to pay bonus. In that case, the company would have been a necessary and proper party. It was further held that the question as to who was liable to pay the bonus was a very relevant question and that made the company a necessary or at least a proper party. The Apex Court, therefore, held that the Government had reached the decision without taking into consideration the relevant consideration. It would be appropriate to reproduce para 13 of the said Judgment of the Apex Court :-
"13. The Executive have to reach their decisions by taking into account relevant considerations. They should not refuse to consider relevant matter nor should take into account wholly irrelevant or extraneous consideration. They should not misdirect themselves on a ::: Downloaded on - 07/05/2015 20:35:52 ::: Mhi 17 WP-1701-12.sxw point of law. Only such a decision will be lawful. The courts have power to see that the Executive acts lawfully. It is no answer to the exercise of that power to say that the Executive acted bona fide nor that they have bestowed painstaking consideration. They cannot avoid scrutiny by courts by failing to give reasons. If they give reasons and they are not good reasons, the court can direct them to reconsider the matter in the light of relevant matters, though the propriety, adequacy or satisfactory character of those reasons may not be open to Judicial scrutiny. Even if the Executive considers it inexpedient to exercise their powers they should state their reasons and there must be material to show that they have considered all the relevant facts."
In this background, the Apex Court remanded the matter to the State Government for reconsidering the same.
ig No doubt, that as is strenuously urged by Dr. Saraf, the facts are distinguishable. However, as already observed herteinabove, even the obiter dicta of the Hon'ble Apex Court would bind us. In our considered view, the ratio that will have to be culled out from the said Judgment is that if on the facts it is found that the presence of a particular party is necessary or at least proper for adjudication of a dispute, an application will have to be considered favourably.
14. As already discussed hereinabove, it would not be appropriate for us to go into the merits of the rival claims. Though Dr. Saraf has taken great labour to point out as to how the respondent No.3 would not be liable for any claims of the petitioner, it would not be proper for us to go into the said rival contentions which are touching the merits of the matter.
However, as already discussed hereinabove, in view of clause 5.1 and ::: Downloaded on - 07/05/2015 20:35:52 ::: Mhi 18 WP-1701-12.sxw which has been interpreted by the Apex Court, the rights and obligations of the Airports Authority of India from a particular date shall stand transferred to respondent No.3. In case, it is held that the claim of the petitioner is justified and if the learned Industrial Tribunal comes to a finding that the contract between the Airports Authority of India - Respondent No.2 and the Respondent No.4 was sham, bogus and camaflouge to deprive the petitioners the benefits available to permanent workmen of Airports Authority of India then a question would arise as to what would happen to the petitioners after 3.5.2006. At the cost of repetition, we are making it clear that we are not observing anything about the merits of the claim of the petitioners. However, if the finding in the reference is in favour of the petitioners, then in that event for considering the claim of the petitioners after 3.5.2006,in our considered view, the presence of the Respondent No.3 would, if not necessary, at least be proper.
15. Insofar as the Judgment of the Apex Court in the case of State of Bihar vs. D.N.Ganguly & Ors (cited supra) is concerned, in the said case, the State Government had cancelled its two earlier References and directed a fresh reference to be referred to the learned Tribunal. In that background, the Apex Court held that the Government had no inherent ::: Downloaded on - 07/05/2015 20:35:52 ::: Mhi 19 WP-1701-12.sxw power to cancel the reference. It will be relevant to refer to para 14 of the said Judgment which reads thus :
"14. Apart from these provisions of the Act, on general principles it seems rather difficult to accept the argument that the appropriate government should have an implied power to cancel its own order made under Section 10(1). If on the representation made by the employer or his workmen the appropriate government considers the matter fully and reaches the conclusion that an Industrial dispute exists or is apprehended and then makes the reference under Section 10(1), there appears to be no reason or Principe to support the contention that it has an implied power to cancel its order and put an end to the reference proceedings initiated by itself. In dealing with this question, it is important to bear in mind that power to cancel its order made under Section 10(1), which the appellant claims, is an absolute power; it is not as if the power to cancel implies the obligation to make another reference in respect of the dispute in question; It is not as if the exercise of the power is subject to the condition that reasons for cancellation of the order should be set out. If the power claimed by the appellant is conceded to the appropriate government, it would be open to the appropriate government to terminate the proceedings before the tribunal at any stage and not to refer the Industrial dispute to any other Industrial Tribunal at all. The discretion given to the appropriate government under Section 10(1) in the matter of referring Industrial disputes to Industrial Tribunals is very wide; but it seems the power to cancel which is claimed is wider still; and it is claimed by implication on the strength of Section 21 of the General Clauses Act. We have no hesitation in holding that the rule of construction enunciated by Section 21 of the General Clauses Act insofar as it refers to the power of rescinding or cancelling the original order cannot be invoked in respect of the provisions of Section 10(1) of the Industrial Disputes Act."::: Downloaded on - 07/05/2015 20:35:52 :::
Mhi 20 WP-1701-12.sxw The Apex Court in the said case has specifically rejected the contention raised by the State that it has inherent power to cancel its own order. The Apex Court found that when the Government on the representation made by either the employer or the workmen considers the matter fully and reaches the conclusion that an industrial dispute exists or is apprehended and then makes the reference, then there is no reason or principle to support the contention that it has an implied power to cancel its order and put an end to the reference proceedings initiated by it. Their Lordships of the Apex Court found that if the power claimed by the appellant is conceded to the appropriate government, it would be open to the appropriate government to terminate the proceedings before the tribunal at any stage and not to refer the industrial dispute to any other Industrial Tribunal at all.
16. In the present case, the case is not of cancelling a reference.
The case is regarding addition of a party and amendment to one of the clauses of the schedule to the Reference. In that view of the matter, we find that the said Judgment would not be applicable to the facts of the present case.
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17. Insofar as the Judgments of the learned Single Judge and the Division Bench of the Madras High Court in Appeal are concerned, the learned Single Judge found that the import of the earlier reference was on the basis that the retrenchment of the workers was justified. However, by the amended reference, the position was negatived. It will be appropriate to refer the following observations of the learned Single Judge :-
"The same point might be viewed from another angle. On the first reference the Tribunal was bound to compute the retrenchment compensation due to the workers by applying the provisions of S.25 - length of service etc., to the facts of the case. The Tribunal would not, however, embark on this enquiry if on the second reference it found that the retrenchment was unjustified. The relief that could be awarded to the workers would be entirely different. This would plainly demonstrate that the two references were or would be inconsistent with each other, and that in substance the second reference not merely added to but superseded the first. I am, therefore, clearly of the opinion that the amendment effected by the reference of December, 1957, could not be given effect to unless the Government were vested with a power to cancel, modify or amend the first order of reference and as it is conceded that the Government did not have such a power the reference in question must be held ultra vires."
It would thus be clear on the facts of the said case that , the learned Single Judge found that the second reference awarded in effect, in supersession or cancellation of the earlier reference. The same are not the facts in the present case. Similar is the discussion of the Division Bench of the Madras High Court. In the said case, what has been held is that a ::: Downloaded on - 07/05/2015 20:35:52 ::: Mhi 22 WP-1701-12.sxw power cannot be exercised which in effect is in the nature of cancelling or superseding the old reference. In that view of the matter, the facts of the said Judgment are not applicable to the present case.
18. Insofar as the Judgment of the learned Single Judge of this Court in the case of Writ Petition No. 695 of 2008 with W.P. No.841 of 2008 (The Mumbai International Airportt Authority Pvt.Ltd. vs. Airports Authority of India & Ors.) is concerned, the said Judgment arises out of an application by the Respondent No.2 which was made under Section 18(3)
(b) of the Industrial Disputes Act which was allowed by the learned Industrial Court. The learned Single Judge, relying upon the earlier Judgment of the Apex Court in the case of Hochtief Gammon vs. Industrial Tribunal, Bhubaneshwar, Orissa and others AIR 1964 SC 1746, held that the course adopted by the learned Tribunal was not permissible and has set aside the said order. However, the present proceedings are arising out of an application before the Central Government for amendment of the reference. As such, the present case would be governed by the second Judgment of the Apex Court in the case of M/s.
Hochtief Gammon vs. State of Orissa & Ors.(cited supra) and not the first one. In that view of the matter, we find that the said judgment would ::: Downloaded on - 07/05/2015 20:35:52 ::: Mhi 23 WP-1701-12.sxw not be applicable to the present case. It is to be noted that from the Judgment delivered by the learned Single Judge that in the said case, a specific statement was made on behalf of Respondent No.3 that in the event the workers were successful, the Respondent No.3 was bound to fulfill the obligations in view of certain clauses of the said OMDA. It will be appropriate to refer to para 22 of the said Judgment which read thus :-
"22. Mr. Dada has specifically contended that despite petitioners challenging the orders of joinder by CGIT, the workers covered by the reference should not have cause for concern. He submits that each of these workmen, if tomorrow held entitled to the benefits of permanency would get the benefit, in the terms of the contract between the petitioners and AAI. To be precise, they will get the benefits of clauses 5.1, 5.2, 6.1 to 6.1.4 of Chapters V & VI of the Agreement between the petitoners and AAI. Mr. Dada's submission proceeds on the basis that the workers, if held to be entitled to the benefits of permanency, would, in terms of the contract between petitioners and AAI, get the necessary relief provided they come within the pool of 66% of the workers stipulated in the agreement. Thus, despite the impugned orders being quashed and set aside and this Court holding that the presence of petitioners is not necessary, yet, the petitioners would not run away from their obligations nor would fail to comply with them, insofar as, protection of employees. In other words, his submission is that AAI is not wound up nor its existence wiped out. The moment employees are held to be direct and permanent employees of AAI, then, they come within the purview of the agreement between petitioners and AAI. Once, they are so covered then, their employment is continuing. In such circumstances, the Award would bind the petitioners as well."::: Downloaded on - 07/05/2015 20:35:52 :::
Mhi 24 WP-1701-12.sxw It can thus be clearly seen that a specific stand was taken by Respondent No.3 before this Court that in case the workmen in the said case were held entitled to the benefits of permanency, they would get the benefits in view clauses 5.1, 5.2, 6.1 to 6.1.4 of Chapter V & VI of the Agreement. It can thus clearly be seen that in the said case, one of the factors while deciding the matter was specific statement made on behalf of the Respondent No.3 that in case claim of the workers was upheld, the workers would be entitled to get benefit from Respondent No.3 in view of clauses in the OMDA. On the contrary, in the present case, a specific stand is taken by the Respondent No.2 that from 3.5.20-06, all obligations and liabilities of Respondent No.2 are transferred to Respondent No.3. It can thus be seen that in the event if the petitioners ultimately succeed in their claim, then again another round of litigation would be involved as to what would happen to them after 3.5.2006.
19. We find that if the Respondent No.3 is made a party and the amendment as sought is made, it would not expand the scope dispute. The only additional question that would be decided is if in the event the petitioners are successful in justifying their claim against Respondent No.2, whether the Respondent No.3, who steps into the shoes of Respondent ::: Downloaded on - 07/05/2015 20:35:52 ::: Mhi 25 WP-1701-12.sxw No.2, would be liable to perform the obligations of Respondent No.2 from 3.5.2006 or not.
20. In that view of the matter, we find that the Respondent No.1 has erred in rejecting the application. The only ground given in the application is that on 27th December, 2014, the Respondent No.3 was not in existence and, therefore, it cannot be impleaded as a party respondent. Had the Respondent no.1 has gone into the averments made on behalf of the applicant in this application, he could have very well seen as to why, according to the petitioners, the presence of Respondent No.3 was necessitated.
21. In ordinary course, we could have remitted back the matter to the Respondent No.1 for considering afresh. However, we find that the litigation between the parties is pending right from 1998. In any case, since we are of the considered view that presence of Respondent No.3 is appropriate and proper, if not necessary for the decision of the Reference, we do not propose to adopt that course. We find that the application which seeks an amendment to clause 2 of Schedule to the Reference and addition of Respondent No.3 is necessary for complete adjudication of the dispute between the parties. In any case, we find that if the same is done, it will also avoid multiplicity of litigations. As such, we are inclined to allow the ::: Downloaded on - 07/05/2015 20:35:52 ::: Mhi 26 WP-1701-12.sxw application made by the petitioners. We are fortified in the view taken by us, in view of the Judgment of the Apex Court in the case of Telco Convey Drivers Mazdoor Sangh and another v. State of Bihar and others AIR 1989 SC 1565 and of the Division Bench of this Court in the case of Ramruch Pande and others vs. State of Maharashtra & Ors. 2002 (94) FLR 961.
22. In the result, Rule is made absolute in terms of prayer clauses
(a) and (b). No order as to costs.
23. Needless to state that all rival contentions available to the parties are kept open.
24. At this stage, Dr. Saraf, learned Counsel for the Respondent No.3 requests for stay of our order for twelve weeks from today. Shri Mahadeshwar vehemently opposes the application on the ground that the petitioners are out of employment for the last more than four years.
25. Taking into consideration that the dispute is pending for a petty long period, we are inclined to stay our order for a period of twelve weeks from today.
(A.S.GADKARI, J.) (B.R.GAVAI, J.)
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