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2014 DIGILAW 1119 (CAL)

Ramapada Manna v. Union of India

2014-11-27

JYOTIRMAY BHATTACHARYA, TAPASH MOOKHERJEE

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Judgment : Jyotirmay Bhattacharya, J. This Mandamus Appeal is directed against the judgment and/or order passed by a learned Single Judge of this Court on 18th September, 2008 in W.P. No.16491(W) of 2007, dismissing the writ petition of the appellant whereby implementation of the order and/or judgment dated 8th November, 2010 passed by a Division Bench of this Hon’ble Court in appeal being MAT No.3852 of 1998 (Rajkumar Sardar & Ors. V. Union of India & Ors.) was prayed for. The legality and/or correctness of the said order has been challenged in this appeal at the instance of the appellants/writ petitioners. Let us now give a short background of this litigation. The writ petitioners had been working as cooks and helpers/cooksmates in the Scholar Hostel of Bose Institute, Calcutta. They were appointed by the Mess Committee on contract basis. They filed a writ petition praying for issuance of a writ in the nature of mandamus commanding the respondent (Bose Institute) to regularize their service under the Bose Institute with all benefits as admissible to the regular employees of Bose Institute. They claimed that they are really the employees of Bose Institute and not of the Mess Committee. While dealing with the said writ petition, though it was held by the learned Single Judge of this Court that no writ lies against Bose Institute as the same is neither a State nor an instrumentality of the State nor an authority within the meaning of Article 12 of the Constitution but still then having regard to the fact that the writ petitioners having been appointed by the Mess Committee on contract basis, His Lordship felt that the provision of the Contract Labour (Regulation and Abolition) Act, 1978 would apply; but in His Lordship’s view whether such a system should be abolished or not as contended by the writ petitioner can only be decided by the Central Government under Section 10(1) of the said Act. In the appeal filed by the writ petitioners challenging the said judgment and/or order of the learned Single Judge of this Court, the Hon’ble Division Bench of this Court practically affirmed the findings of the learned Single Judge of this Court in the order passed on 8th November, 2000. In the appeal filed by the writ petitioners challenging the said judgment and/or order of the learned Single Judge of this Court, the Hon’ble Division Bench of this Court practically affirmed the findings of the learned Single Judge of this Court in the order passed on 8th November, 2000. The appeal Court disposed of both the appeal and the writ petition by directing that the writ petitioners will be at liberty to apply before the appropriate Government under Section 10(1) of the said Act for abolition of contract labour in Bose Institute and if such application is made by the writ petitioners, the same was directed to be disposed of by the appropriate Government in accordance with law after holding due enquiry and after giving opportunity of hearing to both the writ petitioners as well as Bose Institute and all other concerned authority and by passing a reasoned and speaking order within six months from the date of receipt of the application made by the writ petitioners. The writ petitioners were directed to submit such an application before the appropriate authority within a fortnight from the date of the order. It was made clear in the said order that the writ petitioners in their application must give all particulars in details as to why contract labour in the Bose Institute should be abolished and the appropriate Government after receipt of such application, if, is of the view that further particulars and information are necessary, it will be open to the appropriate authority to call for the same from the petitioners on behalf of the Bose Institute and/or from any other appropriate authority as it would be deem fit and proper. The Bose Institute was directed to ensure that status quo as on date relating to service of all the writ petitioners is maintained by all the authorities and the parties including the Mess Committee till the decision is taken by the Central Government on the aforesaid application. In pursuance of the aforesaid direction passed by the Hon’ble Division Bench of this Court, an application was submitted by the writ petitioners before the Central Government for its decision. In pursuance of the aforesaid direction passed by the Hon’ble Division Bench of this Court, an application was submitted by the writ petitioners before the Central Government for its decision. The Central Government refused to resolve the said dispute in terms of the direction passed by the Hon’ble Division Bench of this Court as the Central Government opined that in view of the judgment of the Hon’ble Supreme Court dated 30th August, 2001 in the matter of Steel Authority of India Ltd. Vs. National Union Waterfront Workers & Ors., the appropriate Government in respect of Bose Institute would be State Government and not the Central Government and as such the Under Secretary of the Ministry of Labour, Government of India by his letter dated 30th January, 2002 referred the said dispute to the Secretary to the Government of West Bengal, Labour Department for resolving the dispute relating to abolition of contract labour in the establishment of M/s. Bose Institute, Calcutta in the light of the Division Bench judgment of this Hon’ble Court passed on 8th November, 2000 in appeal being MAT No.3852 of 1998. The legality of the said decision was challenged by the writ petitioner by filing the subsequent writ petition being W.P No.16491(w) of 2007 which has given rise to the present appeal before us. Though it is true that at the time when the Division Bench disposed of the earlier appeal on 8th November, 2000, the law was not settled on that date as to which forum will be the appropriate forum for deciding such a dispute relating to a particular industry and/or institute and/or establishment which is not being carried on by or under the authority of the Central Government. In that context, the earlier Division Bench passed such an order on 8th November, 2000. Subsequently, which forum i.e. Central Government or the State Government, which is the appropriate authority to resolve a dispute relating to any industry and/or institution and/or establishment not being carried on by or under the authority of the Central Government, was decided finally by the Hon’ble Apex Court in the case of Steel Authority of India Ltd. –V-National Union Waterfront Workers & Ors. reported in 2001 (7) SCC 1 wherein it was held that to hold that the Central Government is the appropriate Government in relation to an establishment, the Court must be satisfied that the particular industry in question is carried on by or under the authority of the Central Government. It was further held therein that the Central Government will be the appropriate Government under the CLRA Act and/or Industrial disputes Act provided the industry/establishment in question is carried on by a Central government company/ an undertaking under the authority of the Central Government. It was further held thereunder that such an authority may be conferred either by statute or by virtue of the relationship of principal and agent or delegation of power. It was also held that where the authority to carry on any industry for or on behalf of the Central Government, is conferred on the Government company/any undertaking by the statute under which it is created, no further question arises. But, if it is not so, the question that arises is whether there is any conferment of authority on the Government company/any undertaking by the Central Government to carry on the industry in question. In this regard, we have examined the memorandum of association and the regulations and/or bylaws of Bose Institute which is a society registered under the Societies Act. Though we find that certain Government nominees are nominated by the Central Government in the Governing Body of Bose Institute and fund is also provided by the Central Government for running the said Institute, but the Governing Body which comprises of various important personalities including some Central Government and State Government nominees is an autonomous body and the said Institute is run as per the decision of the Governing body of the said Institute. The Central Government does not retain pervasive control over the administration and management of Bose Institute. Such an institute can never be held to be carried on by or under the authority of the Central Government and as such the Central Government cannot be held to be an appropriate Government for resolving the dispute as mentioned by the Division Bench of this Hon’ble Court on 8th November, 2000 in MAT No.3852 of 1998. Such an institute can never be held to be carried on by or under the authority of the Central Government and as such the Central Government cannot be held to be an appropriate Government for resolving the dispute as mentioned by the Division Bench of this Hon’ble Court on 8th November, 2000 in MAT No.3852 of 1998. In our view the State Government is the appropriate authority to decide the present dispute between the parties in view, of the decision of the Hon’ble Supreme Court in the case of Steel Authority of India Ltd. (supra). As such we hold that the learned Single Judge of this Hon’ble Court did not commit any illegality in rejecting the said writ petition by the order which is impugned in this appeal. As a matter of fact, the appellant also filed an application in this appeal being CAN No.9513 of 2014 for modifying the order passed by the earlier Division Bench of this Court on 8th November, 2000 in MAT No.3852 of 1998 so that the State Government may be substituted in the place of Central Government and necessary direction may be issued upon the State Government to decide the said dispute in the light of the decision of the earlier Division Bench of this Court passed on 8th November, 2000 in MAT 3852 of 1998. Mr. Roy Chowdhury, learned Advocate, appearing for the State respondent also submitted before us that in the present context, the State Government is the appropriate authority and not the Central Government and he assures this Court that the State Government will take appropriate steps to resolve the said dispute as expeditiously as possible. Considering the facts of the present case as stated above we dispose of this appeal by modifying the order passed by the earlier Division Bench of this court on 8th November, 2000 in MAT No.3852 of 1998 by directing the State Government, being the appropriate authority to resolve the dispute between the parties in the light of the decision of the earlier Division Bench of this Court dated 8th November, 2000 passed in MAT No.3852 of 1998 as early as possible but positively within a period of 12 weeks from the date of communication of this order. We, thus, hold that the Central Government need not decide the present dispute. We, thus, hold that the Central Government need not decide the present dispute. The application for modification filed by the appellant being CAN 9513 of 2014 is thus, disposed of. The order passed by the learned Trial Judge is, thus, affirmed with the above modification. The appeal is thus, disposed of. Tapash Mookherjee, J. I agree.