Bhandari Vs. Mahanagar Telephone Nigam Ltd. & Ors  Insc 400 (8 August 2005)
Pasayat & H. K. Sema
[With C.A. No.6463/2003 and C.A.
No.6464/2003] ARIJIT PASAYAT, J.
in these appeals is to the correctness of the judgment rendered by a Division
Bench of the Bombay High Court allowing the Letters Patent Appeal filed by the Mahanagar
Telephone Nigam Limited (in short 'MTNL'), the respondent no.1. The appellants
were working in the Canteens maintained by the Departmental Canteen Committee.
questioned the legality of termination of their services. The Government of
India, Ministry of Labour, referred the matter for adjudication by the Central
Government Industrial Tribunal No.II, Bombay (in short 'CGIT'). Preliminary objection was raised by the present
respondents on the ground that the concerned workmen were holding civil posts
of the Central Government and, therefore, Industrial Disputes Act, 1947 (in
short 'ID Act') has no application. The CGIT did not accept this stand and held
that the action of the Departmental Canteen Committee in terminating the
services of the appellants was not justified. Direction was given to reinstate
the appellants in service in the same capacity from the date of retrenchment.
The respondents were also directed to treat them in continuous service and to
pay back wages. The CGIT's orders were questioned before the Bombay High Court
by filing writ petitions. Learned Single Judge dismissed the writ petitions
holding that the respondent no.1 MTNL had been held to be an industry and,
therefore, without following the provisions of the ID Act termination could not
have been directed. Letters Patent Appeals were filed before the Bombay High
Court. By the impugned judgment, the High Court held that the reference under
Section 10(1) of the ID Act was not maintainable. It was noted that the present
appellants were holding civil post. Reference was made to the notification
dated 11.12.1979 which, inter alia, stated that all posts in the canteens and tiffin
rooms run departmentally in the Central Government offices or establishments
are civil posts and the incumbent would qualify as holders of civil posts under
the Central Government. Necessary Rules under proviso to Article 309 of the
Constitution of India, 1950 (in short 'the Constitution') were framed and
published in the official gazette on 7.7.1981. As the present appellants were
holding civil post, the only forum to adjudicate their grievance was the
Central Administrative Tribunal (in short 'Administrative Tribunal) constituted
under the Administrative Tribunal's Act, 1985 (in short the 'Act') and not the
CGIT. Questioning the correctness of the judgment of the High Court the present
appeals have been filed. It was submitted that a three-Judge Bench of this
Court in General Manager, Telecom v. A. Srinivasa Rao and Ors. (1997 (8) SCC
767) has held that the views expressed in Bombay Canteen Employee's Association
v. Union of India (1997 (6) SCC 723) were not correctly decided. It was held
that the view expressed that the "telecom industry" is not an
industry is not correct. A similar view was expressed about another in a
decision in Sub-Divisional Inspector of Post, Vaikam and Ors. v. Theyyam Joseph
and Ors. (1996 (8) SCC 489). Both Theyyam Joseph and General Manager, Telecom
(supra) were rendered by two-Judge Benches.
counsel for the appellants submitted that since it has been held by a
three-Judge Bench that Telephone Nigam is an industry, the reference made to
CGIT and the adjudication by it was not without jurisdiction. In any event, as
workman of an industry, it was open to the appellants to seek relief from CGIT,
even though, it is conceded for the sake of argument, that the appellants held
civil post. They were free to choose any of the forums available.
response, learned counsel for the respondents submitted that the question
whether the present appellants could have moved the CGIT and not the
Administrative Tribunal was not decided by the three-Judge Bench General
Manager, Telecom case (supra). With reference to the office memorandum
reiterating the decision contained in office memorandum (O.M.
No.6/41/73-Welfare) dated 18th December, 1979, it was submitted that in clear
terms it has been provided that the employees of the canteen do not come under
the purview of the ID Act. The notification dated 11.12.1979 clearly indicated
that all posts in the canteen and tiffin rooms run departmentally by the
Government of India are in connection with the affairs of the Union. That being
so, the CGIT had no jurisdiction to deal with the matter and the appellants
should have moved the Administrative Tribunal.
to him the effect of the notifications and office memorandum were not
find that in General Manager, Telecom (supra) there was no adjudication of the
question whether the holder of civil posts could move the CGIT or the only
forum to seek relief was the Administrative Tribunal. Further, the effect of
the notifications and office memorandums were not considered in the said case.
Legality of the notifications and office memorandums has not been questioned. In
Bombay Telephone Canteen Employees'
Association, Prabhadevi Telephone Exchange v. Union of India and Anr. (AIR 1997 SC 2817), in para
11 this Court observed as follows:
an overall view, we hold that the employees working in the statutory canteen,
in view of the admission made in the counter- affidavit that they are holding
civil posts and are being paid monthly salary and are employees, the necessary
conclusion would be that the Tribunal has no jurisdiction to adjudicate the
dispute on a reference under Section 10(1) of the Act. On the other hand, the
remedy to approach the constitutional court under Article 226 is available.
the remedy under Section 19 of the Administrative Tribunals Act is available.
generally, the practice which has grown is to direct the citizen to avail of,
in the first instance, the remedy under Article 226 or under Section 19 of the
Administrative Tribunals Act and then avail of the right under Article 136 of
the Constitution by special leave to this Court etc. Thus, in view of the
admission made by the respondents in their counter-affidavit that the workmen
of the appellant Association are holding civil posts and are being paid monthly
wages and benefits and are considered to be employees, the jurisdiction of the
Industrial Tribunal stands excluded. It is open to the aggrieved party to
approach the appropriate authority in accordance with law. In that view, the
finding of the Tribunal in the impugned judgment is legal and warrants no
interference. It is open to the respondents to avail of such remedy as is
available to a regular employee including the right to approach the Central
Administrative Tribunal or the High Court or this Court thereafter for redressal
of legal injury." Question may arise as to whether the workman had a right
to move the Industrial Tribunal. It is certainly not a right in the sense that
it is within the discretion of the Government to make a reference or refuse it,
of course for legally tenable reasons. On the contrary, under the Act there is
no such restriction.
three-Judge Bench was not directly considering the questions involved in the
present appeals. It cannot be said that the said decision has concluded the
matter against the present respondents.
therefore, think it proper to refer the matter for hearing by a three-Judge
Bench. The basic issue to be considered by the three-Judge Bench would be
whether a person holding civil post can seek relief under the ID Act on the
basis that he was a workman.
the papers be placed before the Hon'ble Chief Justice of India for appropriate