INDIA CEMENTS EMPLOYEES UNION, TIRUNELVELI v. SECRETARY TO GOVERNMENT, MINISTRY OF LABOUR, GOVT. OF INDIA, DELHI
2009-07-24
ELIPE DHARMA RAO, M.VENUGOPAL
body2009
DigiLaw.ai
JUDGMENT Per Elipe Dharma Rao, J. :- The appellants herein have filed the writ petition before the learned single Judge, praying for a Writ of Mandamus forbearing the fourth respondent from effecting closure on or after 16.10.2006, without complying with the provisions of the Industrial Disputes Act, 1947, more particularly Section 33 of the Act. The appellants are the employees of the fourth respondent. The 4th respondent is the contractor of the third respondent for transporting limestone from quarry/mines to the factory. According to the appellants, the 4th respondent is carrying on this work for the last 40 years and one Mr. K. S. Krishnamoorty who started the transport died and now his children are continuing the same under the name and style of K. S. Krishnamoorty Transport; that K. S. Krishnamoorthy also started Krishna Mines and the children of K. S. Krishnamoorthy are continuing the said business; that both Krishna Mines and K. S. Krishnamoorthy Transports function at the same premises and the purpose of business is also common; that Krishna Mines is performing lime stone quarry/mines and K. S. Krishnamoorthy Transport, transports the limestone from the said quarry/mines to the factory of India Cements, Sankar Nagar and there is a clear functional integrality between the entities and one Ravi Sankar is signing as Manager for K. S. Krishnamoorty Transport and as a Manager for Krishna Mines and both functions from the same address and they have the same telephone number and address for communication; that the 44 employees who are concerned in this case are drivers and workers driving lorries and discharging incidental works and suddenly during May, 2006 the 4th respondent stopped operating 8 lorries and without giving job to some drivers, they have engaged private transport to carryout the very same job; that this matter was raised as an industrial dispute under Section 2(k) of the Industrial Disputes Act, 1947 before the second respondent, wherein besides contending that only the State Government is the appropriate Government as the 4th respondent is registered under the Motor Transport Workers Act with the State Government, the 4th respondent has also filed a statement dated 18.9.2006 stating that they are going to close down the establishment with effect from 16.10.2006. In these circumstances, the appellant has filed the writ petition before the learned single Judge.
In these circumstances, the appellant has filed the writ petition before the learned single Judge. Before the learned single Judge, a detailed counter-affidavit has been filed by the 4th respondent, to which a rejoinder has been filed by the petitioner/appellant and the 4th respondent has also filed a reply counter. The firm stand of the fourth respondent is that they are completely dependent on the third respondent for their business and in spite of many requests to enhance the contract amount, in view of the fact that the cost of fuel, salaries of the employees and other incidental charges have gone up manifold, the third respondent has declined to increase the transportation charges, and ultimately by the notice dated 19.6.2006, the third respondent has terminated the contract. It has further been submitted by the fourth respondent that even though they were running the organisation with heavy losses for quite a long time, they are not in a position to bear the loss any more and hence only after complying with the mandatory requirements under the Industrial Disputes Act, they have issued the closure notice on 14.10.2006. It has further been argued on behalf of the 4th respondent that they being registered under the Motor Transport Workers Act with the State Government, the 2nd respondent has no jurisdiction to entertain the dispute raised by the appellants. Since the learned single Judge has held that the 2nd respondent has no jurisdiction to entertain the dispute raised by the appellant and that if at all the appellants have to raise the dispute only before the authorities of the State Government, the appellants are before us by way of this appeal. Even before us, the strong point urged on either side is only with regard to the jurisdiction aspect of the 2nd respondent. Only if this legal point of jurisdiction of the 2nd respondent to decide the matter is gone into in detail and decided, the other aspects of the case cannot be decided. Hence, we proceed to decide this legal aspect first. On behalf of the appellants, it has been strenuously argued that since the fourth respondent is a contractor to the third respondent, a Central Government organisation, the 2nd respondent will only have jurisdiction. Even otherwise, in view of the judgment of the Honourable Apex Court in Yovan, India Cements Employees Union & Anr. v. Management of India Cements Ltd. & Ors.
Even otherwise, in view of the judgment of the Honourable Apex Court in Yovan, India Cements Employees Union & Anr. v. Management of India Cements Ltd. & Ors. 1994 I CLR 33 S.C., both the Central and State Governments are the appropriate Governments and hence, there is nothing wrong on the part of the appellants approaching the 2nd respondent. However, on the part of the learned counsel for the fourth respondent, reiterating the grounds urged in the counter-affidavit and the reply counter filed by them before the learned single Judge, it has been argued that the learned single Judge has considered all the facts and circumstances of the case correctly and has properly dismissed the writ petition, with a direction to the appellants to approach the appropriate State Government authorities and would pray to dismiss this appeal. There is no dispute with regard to the fact that the fourth respondent is a transporter and the appellants are the employees of the fourth respondent. The fourth respondent is not a contractor for any other purpose, except for transporting the limestone from the quarry to the factory of the third respondent. From the materials placed on record, we are able to see that the fourth respondent is totally dependent on the third respondent for their transportation business. Probably, this aspect would have inspired rather confused the appellants to presume that the fourth respondent is also a Central Government entity and have approached the second respondent, a Government of India official, for redressal of their grievances. The fourth respondent may be a transporter totally dependent on a Central Government organisation like the third respondent, for their transport business. But, this itself would not make them a Central Government organisation. The fourth respondent is a private organisation, engaged in transport business and for their own reasons they have pinned their hopes only on the third respondent and when there is no enhancement of contract amount by the third respondent, the fourth respondent has decided to close down the organisation itself. It is not the case of the appellants also that the third respondent itself has established the fourth respondent company, under a different name and style, so as to say that it is nothing but an off-shoot of the third respondent, a Central Government organisation.
It is not the case of the appellants also that the third respondent itself has established the fourth respondent company, under a different name and style, so as to say that it is nothing but an off-shoot of the third respondent, a Central Government organisation. Being a Transport Company, functioning from Tamil Nadu, the fourth respondent has registered itself with the State Government and therefore, automatically, any dispute, including an industrial dispute, pertaining to the fourth respondent would lie only before the authorities of the State Government. But, for the best reasons known to them, the appellants have chosen a wrong forum and are now trying to justify their action under some pretext or other, which we are unable to accept. Coming to the judgment of the Honourable Apex Court in the Yovan's case, relied on by the learned counsel for the appellants, the dispute involved therein is between the employees appointed by the contractors of the first respondent therein namely the Management of India Cements Limited and as such the India Cements was the 'principal employer'. In the said case, the Central Government has made it very clear that by the notification dated 8.12.1977 issued under Section 39 of the I.D. Act, the powers exercisable by the Government of India in relation to cement industry shall also be exercised by State Governments, except in the cases of mines and quarries forming part of cement industry where the Central Government alone has jurisdiction and therefore, both the Central Government and the State Governments have concurrent jurisdiction under the Act in relation to cement industry. While relying on this judgment, it has been submitted on the part of the appellant that the third respondent being a cement industry, both the Central Government and the State Governments will have concurrent jurisdiction under the Act and therefore, there is nothing wrong in the appellants approaching the second respondent, a Central Government entity. We are not in a position to accept this contention since there is no relationship of 'principal employer' and 'employees' in the case on hand between the third respondent and the appellant. Further, the appellants are the employees appointed directly by the fourth respondent a transport company. No parity of any nature in the service conditions and the pay structure between the employees of the third respondent and the fourth respondent i.e. the appellants has been brought to our notice.
Further, the appellants are the employees appointed directly by the fourth respondent a transport company. No parity of any nature in the service conditions and the pay structure between the employees of the third respondent and the fourth respondent i.e. the appellants has been brought to our notice. Therefore, we have no hesitation to hold that at no stretch of imagination, the appellants can either be considered as the 'employees' of the third respondent through the fourth respondent or the fourth respondent as an organ of the Central Government. There can never be any dispute that the transport company of the fourth respondent, being registered with the State Government of Tamil Nadu and further, the fourth respondent is not at all an entity of the third respondent, only the State Government will have jurisdiction to adjudicate the proceedings. Therefore, this judgment of the Honourable Supreme Court is very well distinguishable from the facts of the case on hand and thus has no application to the case on hand. Mr. S. Jayaraman, the learned counsel appearing for the fourth respondent would press into service the judgment of a Division Bench of this Court in W.A. Nos. 275 to 278 of 1986, dated 21.7.1987 [The Management of Krishna Mines v. The Board of Arbitration for Cement Industry & Ors.]. In this judgment, the sister concern of the fourth respondent viz. Krishna Mines and the Indian National Cement and Allied Workers Federation along with the Board of Arbitration for Cement Industry, New Delhi and the Government of India, represented by its Secretary, Ministry of Labour, New Delhi are the parties. In this Division Bench judgment, which has become final, it has been unequivocally held that 'the transport industry cannot be said to be an allied industry to the cement manufacturing units ....' and that 'the provisions of the (Industrial Disputes) Act are quite clear in that the reference under Section 10A of the Act can be made only by the appropriate Government, which in the case of motor transport workers happens to be the State Government and the Board of Arbitrators had no jurisdiction to consider the dispute between the carriers and their workers in a reference made by the Central Government.' This observation, which became final, of the Division Bench of this Court squarely applies to the case on hand also.
When the members of the appellant are the employees of the fourth respondent and when there is no employee - employer relationship between the appellant and the third respondent and when the fourth respondent is only a transport company registered with the State Government of Tamil Nadu, the 'appropriate Government' in the case on hand would, definitely, be the State Government and the second respondent/the Assistant Labour Commissioner (Central) Madurai - 2 has no jurisdiction to adjudicate the matter. In view of this position, we have not gone into the other aspects of the case. The learned single Judge has thoroughly analysed the entire aspect of the case in a proper manner and we find no illegality or irregularity in the order passed by the learned single Judge so as to cause our interference. Accordingly, this appeal is dismissed. No costs. Consequently, connected Miscellaneous Petitions are closed. However, the appellant is at liberty to raise the dispute before the authorities of the State Government for redressal of their grievances.