Patna High Court
Reliance Communication Ltd vs The Union Of India & Ors on 23 March, 2017
Author: Ashwani Kumar Singh
Bench: Ashwani Kumar Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.18041 of 2014
===========================================================
Reliance Communication Limited a company registered under the Companies Act
having its registered office at H-Block, 1st Floor, Dhirubahi Ambani Knowledge
City, Navi Mumbai and circle office at 7th Floor, Kashi Place, P.S.- Kotwali, Patna
through its authorized signatory Indrajit Mukhopadhyay, son of Sri N.C.
Mukhopadhyay, 7th Floor, Kashi Place, P.S.- Kotwali, Patna
.... .... Petitioner
Versus
1. The Union of India through the Secretary, Department of Labour and
Employment, New Delhi
2. The Assistant Labour Commissioner (Central), Room No. 6, 16 and 17, 2nd
Floor, A Block, Mauryalok Complex, Patna
3. The Presiding Officer, Industrial Tribunal, Muzaffarpur
4. Manoj Kumar, son of Late Awadh Bihari Singh, resident of Mohalla- Hanuman
Mandir, Yadav Nagar, P.O.- Bhagwanpur, P.S.- Sadar, District-Muzaffarpur
.... .... Respondents
===========================================================
Appearance :
For the Petitioner/s : Mr. Rajesh Ranjan, Advocate
Mr. Shshil Kumar, Advocate
Mr. Dipak Kumar, Advocate
For the Respondent no.4 : Mr. Santosh Kumar, Advocate
For the Respondent-U.O.I.: Mr. Awadesh Kumar Pandey, SCG-2
Mr. Ravender Kumar Sharma, CGC
For the Respondent-State : Mr. Alok Kumar, Advocate
===========================================================
CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
ORAL JUDGMENT
Date: 23-03-2017
This writ application has been filed by the petitioner
for quashing of the order dated 04.04.2014 passed by the Presiding
2 Patna High Court CWJC No.18041 of 2014 dt.23-03-2017
2 / 17
Officer, Industrial Tribunal, Muzaffarpur in I.D. Case No. 01 of
2013 whereby the petitioner‟s application with preliminary
objection on the point of jurisdiction has been dismissed.
2. Mr. Rajesh Ranjan, learned Advocate for the
petitioner submitted that telecommunication sector is a controlled
industry as notified by the Central Government under the Industrial
Disputes Act, 1947 (for short „I.D. Act‟) and, therefore, the
appropriate Government with respect to constitution of industrial
tribunal and entrustment of industrial disputes concerning
controlled industry is the Central Government. He submitted that
the Industrial Tribunal, Muzaffarpur constituted by the State
Government had no jurisdiction to entertain the dispute directly
raised by the workman (respondent no.4) before it, as any industrial
dispute arising out of employment of a controlled industry can only
be entertained by a tribunal constituted by the Central Government.
3. Mr. Rajesh Ranjan, learned Advocate submitted
that the workman being an employee of the petitioner-company had
already raised industrial dispute before the Central Government and
subsequently filed the present case by suppressing the aforesaid
fact.
4. He submitted that the workman was initially
appointed in the year 2007 as a consultant in one of the group
3 Patna High Court CWJC No.18041 of 2014 dt.23-03-2017
3 / 17
companies of the petitioner namely, Reliance Next Link Pvt. Ltd.
Subsequently, in the year 2009, he was absorbed in the employment
of the petitioner-company and was posted at Muzaffarpur. Due to
certain business exigency, on 31.08.2012, he was transferred to
Aurangabad, Bihar, where he was asked to join by 03.09.2012, but
instead of joining his new place of posting, he immediately sent an
e-mail that he was unable to join his duties on account of his ill
health. He requested the management to allow him to work till his
recovery. The management allowed him to continue to work at
Muzaffarpur for the next one month. Thereafter, the workman failed
to join at Aurangabad. The petitioner company sent another letter to
the workman on 05.10.2012 asking him to immediately join at
Aurangabad.
5. He submitted that subsequently the workman
filed a complaint dated 08.10.2012 before the Deputy Labour
Commissioner, Muzaffarpur, alleging therein that when he raised
demands before the management regarding his service condition
and other legal demands, he was transferred from Muzaffarpur to
Aurangabad with unfair motive to harass and torture him mentally.
The Deputy Labour Commissioner, Muzaffarpur, subsequently
transferred the said complaint to the Labour Enforcement Officer
(Central), Muzaffarpur by letter dated 17.10.2012 for necessary
4 Patna High Court CWJC No.18041 of 2014 dt.23-03-2017
4 / 17
action.
6. It is submitted that when the workman did not
pay any heed to the aforesaid letter dated 05.10.2012, the petitioner-
company sent another letter dated 11.10.2012 followed by letter
dated 18.10.2012 whereby the workman was informed that if he
failed to join immediately, it would be deemed that he had
voluntarily abandoned his service. Once again, the workman failed
to respond to the said letters. When the workman did not respond to
the aforesaid notices and also failed to join his duty without any
intimation, it was presumed that the workman had voluntarily
abandoned his service. Accordingly, a sum of Rs.30,519/- was
credited in his account on 12.12.2012 by way of full and final
settlement of his dues with the petitioner-company.
7. It is submitted that on the basis of the complaint
filed by the workman, a conciliation proceeding was initiated by the
Assistant Labour Commissioner (Central), wherein the petitioner-
company had submitted its reply. The Conciliation Officer by letter
dated 14.03.2013 submitted his report, wherein he declared that the
proceeding ended in failure of conciliation.
8. It is submitted by Mr. Rajesh Ranjan, learned
Advocate that the petitioner appeared in the I.D. Case No. 01 of
2013 filed directly by the workman suppressing the fact that his
5 Patna High Court CWJC No.18041 of 2014 dt.23-03-2017
5 / 17
complain was entertained by the Conciliation Officer and raised a
preliminary objection with regard to jurisdiction of the tribunal to
entertain the dispute.
9. He submitted that respondent no.4 was not a
workman as defined under Section 2(s) of the I.D. Act. He was
discharging duty, which was managerial in nature and was drawing
salary of Rs.13, 500/- per month.
10. He submitted that the tribunal erred in law in
rejecting the preliminary objection filed on behalf of the petitioner-
company vide impugned order dated 04.04.2014.
11. He submitted that since the petitioner-company
is a telecommunication provider having received licenses from the
Department of Telecommunication under Section 4 of the Indian
Telegraph Act, 1885, the provisions of the I.D. Act accord
jurisdiction upon the labour courts/tribunals constituted by the
Central Government and, therefore, the workman could not have
invoked the jurisdiction of the industrial tribunal constituted by the
State Government.
12. The stand of the petitioner has been supported
both by the Union of India and the State of Bihar in their respective
counter affidavits filed before this Court.
13. In the counter affidavit filed on behalf of the
6 Patna High Court CWJC No.18041 of 2014 dt.23-03-2017
6 / 17
respondent-Union of India, it is stated that the Central Government
is the "appropriate Government" in respect of the establishment of
the petitioner. It is further stated that the action of the respondent-
workman in filing of his dispute before the Industrial Tribunal,
Muzaffarpur is not correct as the Central Government is the
"appropriate Government" in respect of the petitioner‟s
establishment.
14. Similarly, in counter affidavit filed on behalf of
the respondent-State of Bihar, it is stated that the petitioner-
company comes under the Schedule of employment of Central
Government and in view of Section 2(a)(i) of the I.D. Act, the
"appropriate Government" in case of the petitioner is the Central
Government.
15. Learned Advocate for the State of Bihar and the
learned Advocate appearing for the Union of India submitted that
while passing the impugned order the tribunal erred in law, as it
arrogated upon itself the jurisdiction, which was not at all vested in
it.
16. On the other hand, learned Advocate appearing
for the workman submitted that in terms of the 3rd proviso to
Section 10(1)(d) and Section 2-A(2) of the I.D. Act a worker is
entitled to approach the tribunal constituted by the State
7 Patna High Court CWJC No.18041 of 2014 dt.23-03-2017
7 / 17
Government even in the cases under which the employment of the
worker is in a controlled industry. He submitted that the findings of
the tribunal in the order passed on the point of jurisdiction to
entertain the dispute are based on correct appreciation of facts and
law and, hence, the same do not require any interference by this
Court.
17. Having heard the parties and perused the record,
the issue, which arise for consideration, in the present application is
as under:
"Whether the Industrial Tribunal at
Muzaffarpur has jurisdiction to entertain the
dispute raised by the workman, who was
employed in a company providing
telecommunication service on the strength of
having received license from the Department
of Telecommunication under Section 4 of the
Telegraph Act, 1885, which is notified as a
controlled industry?"
18. In order to appreciate the aforesaid issue, it
would be necessary to refer to the relevant provisions of the I.D.
Act, which are Sections 2(a)(i), 2-A(2), 7 (1), 7-A (1) and 10(1)(d)
of the I.D. Act. They read as under:-
"2. Definition.- In this Act, unless there is
anything repugnant in the subject or context,-
8 Patna High Court CWJC No.18041 of 2014 dt.23-03-2017
8 / 17
(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 or concerning any such
controlled industry as may be specified in this
behalf by the Central Government or in relation
to an industrial dispute concerning a Dock
Labour Board established under section 5-A of
the Dock Workers (Regulation of Employment)
Act, 1948 (9 of 1948), or the Industrial Finance
Corporation of India Limited formed and
registered under the Companies Act, 1956 (1 of
1956), or the Employees‟ State Insurance
Corporation established under Section 3 of the
Employees‟ State Insurance Act, 1948 (34 of
1948), or the Board of Trustees constituted under
section 3-A of the Coal Mines Provident Fund
and Miscellaneous Provisions Act, 1948 (46 of
1948), or the Central Board of Trustees and the
State Boards of Trustees constituted under
section 5-A and section 5-B, respectively, of the
Employees‟ Provident Fund and Miscellaneous
Provisions Act, 1952 (19 of 1952), or the Life
Insurance Corporation of India established under
section 3 of the Life Insurance Corporation Act,
1956 (31 of 1956), or the Oil and Natural Gas
Corporation Limited registered under the
Companies Act, 1956 (1 of 1956), or the Deposit
9 Patna High Court CWJC No.18041 of 2014 dt.23-03-2017
9 / 17
Insurance and Credit Guarantee Corporation
established under section 3 of the Deposit
Insurance and Credit Guarantee Corporation Act,
1961, (47 of 1961), or the Central Warehousing
Corporation established under section 3 of the
Warehousing Corporations Act, 1962 (58 of
1962), or the Unit Trust of India established
under section 3 of the Unit Trust of India Act,
1963, or the Food Corporation of India
established under section 3, or a Board of
Management established for two or more
contiguous States under section 16 of the Food
Corporations Act, 1964 (37 of 1964), or the
Airports Authority of India constituted under
section 3 of the Airports Authority of India Act,
1994 (55 of 1994), or a Regional Rural Bank
established under section 3 of the Regional Rural
Banks Act, 1976 (21 of 1976), Export Credit and
Guarantee Corporation Ltd. or the Industrial
Reconstruction Bank of India Limited, the
National Housing Bank established under section
4 of the National Housing Bank Act, 1987 (53 of
1987), or an air transport service, or a banking or
an insurance company, a mine, an oil-field a
Cantonment Board, or a major port, any company
in which not less than fifty-one per cent of the
paid-up share capital is held by the Central
Government, or any corporation, not being a
corporation referred to in this clause, established
10 Patna High Court CWJC No.18041 of 2014 dt.23-03-2017
10 / 17
by or under any law made by Parliament, or the
Central public sector undertaking, subsidiary
companies set up by the principal undertaking
and autonomous bodies owned or controlled by
the Central Government, the Central
Government, and
2-A. Dismissal, etc., of an individual workman
to be deemed to be an industrial dispute.-
(1) xxx xxx xxx
(2) Notwithstanding anything contained in
section 10, any such workman as is specified in
sub-section (1) may, make an application direct
to the Labour Court or Tribunal for adjudication
of the dispute referred to therein after the expiry
of forty-five days from the date he has made the
application to the Conciliation Officer of the
appropriate Government for conciliation of the
dispute, and in receipt of such application the
Labour Court or Tribunal shall have powers and
jurisdiction to adjudicate upon the dispute, as if it
were a dispute referred to it by the appropriate
Government in accordance with the provisions of
this Act and all the provisions of this Act shall
apply in relation to such adjudication as they
apply in relation to an industrial dispute referred
to it by the appropriate Government.
7. Labour Courts.-(1) The appropriate
Government may, by notification in the Official
Gazette, constitute one or more Labour Courts for
11 Patna High Court CWJC No.18041 of 2014 dt.23-03-2017
11 / 17
the adjudication of industrial disputes relating to
any matter specified in the Second Schedule and
for performing such other functions as may be
assigned to them under this Act.
7-A. Tribunals.-(1) The appropriate Government
may, by notification in the Official Gazette,
constitute one or more Industrial Tribunals for the
adjudication of industrial disputes relating to any
matter, whether specified in the Second Schedule
or the Third Schedule, and for performing such
other functions as may be assigned to them under
this Act.
10. Reference of dispute to Boards, Courts or
Tribunals.-(1) Where the appropriate
Government is of opinion that any industrial
dispute exists or is apprehended, it may at any
time, by order in writing-
(a) xxx xxx xxx
(b xxx xxx xxx
(c) xxx xxx xxx
(d) refer the dispute or any matter
appearing to be connected with, or relevant to,
the dispute, whether it relates to any matter
specified in the Second Schedule or the Third
Schedule, to a Tribunal for adjudication:
Provided that where the dispute relates to
any matter specified in the Third Schedule and is
not likely to affect more than one hundred
workmen, the appropriate Government may, if it
12 Patna High Court CWJC No.18041 of 2014 dt.23-03-2017
12 / 17
so thinks fit, make the reference to a Labour
Court under clause (c):
Provided further that where the dispute
relates to a public utility service and a notice
under Section 22 has been given, the appropriate
Government shall, unless it considers that the
notice has been frivolously or vexatiously given
or that it would be inexpedient so to do, make a
reference under this sub-section notwithstanding
that any other proceedings under this Act in
respect of the dispute may have commenced:
Provided also that where the dispute in
relation to which the Central Government is the
appropriate Government, it shall be competent for
the Government to refer the dispute to a Labour
Court or an Industrial Tribunal, as the case may
be, constituted by the State Government."
19. Having noticed the aforesaid provision of the I.D.
Act, when I look to the facts of the present case, I find that there is
no dispute to the fact that the telecommunication industry is a
controlled industry notified by the Central Government under the
I.D. Act. Hence, in view of the definition of the term "appropriate
Government" given in Section 2(a)(i) of the I.D. Act, the
"appropriate Government "in case of the petitioner-company is the
Central Government, which is competent to deal with the matter
arising out of the I.D. Act.
13 Patna High Court CWJC No.18041 of 2014 dt.23-03-2017
13 / 17
20. Further, section 7(1) of the I.D. Act empowers
the "appropriate Government" to constitute one or more labour
courts in a State by notification in the Official Gazette for the
adjudication of industrial disputes relating to any matter specified in
the Second Schedule and for performing such other functions as
may be assigned to them under the I.D. Act. Thus, the provision is
wide enough to enable the "appropriate Government" to constitute
more than one labour court. Consequently, the Central Government
may constitute labour courts in any State for adjudication of the
matters in respect of which it is the "appropriate Government"
whereas the State Government may constitute labour courts in its
territories for adjudication of the matter in relation to which it is
"appropriate Government".
21. Similarly, the "appropriate Government" as
defined under Section 2(a)(i) of the I.D. Act has been empowered
by Section 7-A(1) of the I.D. Act to constitute one or more
industrial tribunals for the adjudication of industrial disputes
relating to any matter whether specified in the Second Schedule or
the Third Schedule and for performing such other functions as may
be assigned to them under the I.D. Act.
22. Thus, it would be evident that the Central
Government can appoint tribunals for any State for adjudication of
14 Patna High Court CWJC No.18041 of 2014 dt.23-03-2017
14 / 17
the industrial disputes in relation to which it is the "appropriate
Government" whereas the State Government may constitute one or
more tribunals in its territory for adjudicating the matter in respect
to which it is the "appropriate Government". The appointment of
the industrial tribunals has to be made by "appropriate
Government" by means of a notification in its Official Gazette.
23. From perusal of the aforesaid provisions
prescribed under Sections 7(1) and 7-A(1) of the I.D. Act, it would
be evident that the intent of the legislature is that the dispute should
be adjudicated by the concerned labour courts/ tribunals constituted
by the "appropriate Government" only.
24. Further, from perusal of Section 10(1)(d) of the
I.D. Act, it would be evident that it vests an absolute and
discretionary power on the appropriate Government to refer or not
to refer for adjudication an industrial dispute. This power is
absolute as no other body or authority can refer an industrial dispute
for adjudication under the I.D. Act. In exercise of its power under
Section 10 of the I.D. Act, the Government has the discretion to
refer not only existing and apprehended industrial disputes, but also
the power to refer those disputes which has earlier refused to refer
upon considering the failure report of the Conciliation Officer.
25. The 3rd proviso to Section 10(1)(d) of the I.D.
15 Patna High Court CWJC No.18041 of 2014 dt.23-03-2017
15 / 17
Act has been inserted by the Amending Act 46 of 1982. It
empowers the Central Government to refer the industrial disputes in
relations to which it is the "appropriate Government" to constitute a
labour court or an industrial tribunal, as the case may be, by the
State Government. It would, thus, mean that now it is not necessary
that the Central Government where it is the appropriate
Government, must refer the disputes only to the labour court or
industrial tribunals constituted by the Central Government.
26. From perusal of the 3rd proviso of Section
10(1)(d) of the I.D. Act, by no stretch of imagination, it can be said
that a workman can directly approach a labour court or an industrial
tribunal constituted by the State Government in respect of an
industrial dispute in relation to which the Central Government is the
"appropriate Government". Under the said provision, it is the
Government alone, who is vested with the discretion to choose
anyone of the authorities, as specified for the purpose of
investigation and settlement of industrial disputes.
27. So far as Section 2-A(2) of the I.D. Act is
concerned, it was incorporated in section 2-A by virtue of
Amendment Act, 24 of 2010, which came into force with effect
from 15.09.2010. Sub-section (2) stipulates that notwithstanding
anything contained in Section 10, a workman may make an
16 Patna High Court CWJC No.18041 of 2014 dt.23-03-2017
16 / 17
application direct to the labour court or tribunal for adjudication of
the dispute after expiry of forty-five days from the date he has made
the application to the Conciliation Officer of the appropriate
Government for conciliation of the dispute and on receipt of such
application, the labour court or tribunal shall have powers and
jurisdiction to adjudicate upon the dispute as if it was a dispute
referred to it by the "appropriate Government". The aforesaid
provision confers discretion to a workman, who has made
conciliation application to directly invoke the jurisdiction of the
labour court/tribunal, if conciliation proceedings are not concluded
within forty-five days.
28. The provision prescribed under Section 2-A(2) of
the I.D. Act cannot be interpreted to mean that it gives a discretion
to a workman engaged in a controlled industry as notified by the
Central Government to approach directly to an industrial tribunal or
labour court constituted by the State Government rather the
workman in the given circumstance may directly invoke jurisdiction
of the appropriate labour court/tribunal.
29. In view of the discussions made above, I am of
the considered opinion that the Industrial Tribunal, Muzaffarpur
completely lacked jurisdiction to entertain and adjudicate the
dispute directly raised by the workman in the present case.
17 Patna High Court CWJC No.18041 of 2014 dt.23-03-2017
17 / 17
30. Accordingly, the impugned order dated
04.04.2014passed by the Presiding Officer, Industrial Tribunal, Muzaffarpur in I.D. Case No. 01 of 2013 cannot be sustained. It is set aside, accordingly.
31. The writ application stands allowed. No costs.
(Ashwani Kumar Singh, J.) Sanjeet/-
AFR/NAFR NAFR CAV DATE NA
Uploading Date 01.04.2017 Transmission NA Date