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2017 DIGILAW 2213 (BOM)

Jayant Bhagwantrao Satam v. State of Maharashtra

2017-10-20

SANDEEP K.SHINDE

body2017
JUDGMENT : SANDEEP K. SHINDE, J. 1. In these PILs, the petitioners are seeking declaration that the strike by the employees of the State Transport Corporation is "illegal and unconstitutional" and seek mandatory relief, to direct the employees of the State Transport Corporation to resume their duties forthwith. 2. The petitioners would contend that, the strike has caused immense inconvenience to the residents of the State of Maharashtra and has largely affected the day-today life of the rural population. The petitioners have contended that, strike was resorted to in the festival of Diwali which has arrested the mobility of the population in the rural area in the State. It is further contended that, though the State is a stakeholder and has control over the Corporation, it has not taken notable efforts to resolve the issues for last more than four days for one reason or another not known to them. It is contended that, the so called passive attitude of the State is aggravating the situation across the State causing immense inconvenience to children, senior citizens, daily commuters. It is contended, there is no alternative infrastructure and/or commuting facility available in the rural area of the State. It is contended that the private transporters are exploiting the situation in absence of a proper and effective regulating authority. It is contended, on several routes no private transport facility is also available which has isolated the population of that area from the rest of the world. That in these circumstances, the petitioners would contend that, the State being the final Controlling Authority in terms of the provisions of Section 34 of the Road Transport Corporation Act, the State may be directed to resolve this burning issue by evolving some mechanism. It is contended by the petitioners, that negotiations by the Union Leaders with the Committee over the last five days has not fructified and as such unless the State intervenes effectively, the issue is not likely to be resolved. 3. The MSRTC was established by the State Government of Maharashtra as per the provisions of Section 3 of the Road Transport Corporation Act, 1950. The website shows the Corporation ferries seven million passengers daily on 13,700 routes through/in 16,500 buses. It serves routes to towns and cities within Maharashtra and adjoining states. 3. The MSRTC was established by the State Government of Maharashtra as per the provisions of Section 3 of the Road Transport Corporation Act, 1950. The website shows the Corporation ferries seven million passengers daily on 13,700 routes through/in 16,500 buses. It serves routes to towns and cities within Maharashtra and adjoining states. Looking at the large network of the Corporation in terms of the routes on which it serves a service rendered by the Corporation is indispensable. 4. That in terms of the provisions of section 34 of the Road Transport Corporation Act, 1950 the State Government is empowered to give to the Corporation general instructions to be followed and such instructions may also include directions relating to recruitment, conditions of service and training of its employees, wages to be paid to the employees, reserves to be maintained by it and disposal of its profits or stocks. The provisions under Chapter-V of the Road Transport Corporation Act in clear terms says that, State has control over the administration and the financial affairs of the Corporation. 5. It appears that, several rounds of negotiations between the Corporation and the Union has not yield any result. It appears that, the employees of the Corporation are demanding revision in their pay-scale in terms of the recommendations of the 7th Pay Commission and it further appears, the Corporation is not able to comprehend with it. The Learned Counsel for the respondents, State submitted across the bar, that in spite of several rounds of negotiations, the respondents and the State has not come to an amicable solution. 6. The subject PILS were heard by me on 18th October, 2017. It was suggested in the course of the hearing that, since several rounds of negotiations had failed, it would be appropriate if the State constitutes a high-powered Committee and evolve a mechanism and also draws a terms of reference in consultation with the stakeholders for resolving the issue. In the course of hearing on 18th October, 2017 there was a consensus between the contesting respondents that if the State appoints a high-powered Committee, that may resolve the issue. The learned Counsel appearing for the State sought time to take instructions and accordingly the matter was adjourned to 20th October, 2017. Today, when the petitions were heard, the learned Counsel for the State was not armed with any instructions. The learned Counsel appearing for the State sought time to take instructions and accordingly the matter was adjourned to 20th October, 2017. Today, when the petitions were heard, the learned Counsel for the State was not armed with any instructions. That after hearing the Counsel for the Corporation, and for the Union, it was suggested to the Counsel for the State, that he may obtain instructions as to whether the State intends to appoint a high-powered Committee. He was also directed to take instructions as about the steps taken by the State to make alternate arrangements for commuting, ferrying the passengers across the State. So as to enable the Counsel to obtain instructions, the hearing of the petition was kept at 4.30 p.m. 7. The Learned Counsel appearing for the State, submitted a statement, inter-alia recording the steps taken by the State to alleviate the problem faced by the citizens on account of the impugned strike in issue. He submitted thus:- (i) the State Government issued a Notification dated 16th October, 2017 permitting all private vehicles, school buses, company buses and goods carriers to carry out the work of plying and ferrying the passengers for the entire duration of strike. This notification was issued under the provisions, MOU Rules 1988. (ii) that in view of the Notification, 4000 buses/vehicles have been plying on the routes for long distance travel of passengers. (iii) in order to ensure that no law and order situation is created on account of plying of these buses, police protection has been sought by the State Government. (iv) the services of home guards, drivers are requisitioned for plying the existing buses. 8. It was submitted, that the State is making all efforts to arrive at some solution by continuous negotiations with the respondent, Union. Besides, it is submitted in writing by the State that the State is ready and willing to constitute a high-powered Committee comprising of: (i) the Finance Secretary. (ii) the Transport Secretary (State). (iii) Transport Commissioner. (iv) Vice-Chairman and Managing Director of MSRTC. It is submitted that the Committee would be constituted on 23rd October, 2017 subject to the respondents/other unions resuming work immediately and the high-powered Committee shall submit a report within two months from the date of its constitution. The written submissions/brief notes submitted on behalf of the State is taken on record and marked 'X' for identification. 9. It is submitted that the Committee would be constituted on 23rd October, 2017 subject to the respondents/other unions resuming work immediately and the high-powered Committee shall submit a report within two months from the date of its constitution. The written submissions/brief notes submitted on behalf of the State is taken on record and marked 'X' for identification. 9. The Learned Counsel for the respondent, Union, on instructions submitted that the office bearers are not happy with the constitution of the Committee and that would insist that the Hon'ble Chief Minister to head the committee. Besides, it is submitted on behalf of the Union that unless there is any assurance of any interim pay hike by the respondent, State Corporation they would not resume work immediately. In other words, it is the contention of the Union that unless the Hon'ble Chief Minister heads the high-powered committee and further unless there is any assurance of the interim pay atleast Rs. 8,000/- per employee, employees would not recall the strike. 10. The question that falls for consideration is as to whether strike of the employees of the Corporation commenced on midnight of 16th October, 2017 was illegal. 11. Mr. Hegde, the Learned Counsel for the Corp oration submitted that under Section 2(n) Of the I-D Act, the Corporation is rendering the public utility service and the State Government had issued Notification No. 42206/Prakaran Kramank 125/Kaam-2 on 29th September, 2017. He has invited my attention to the provisions of Section 22(1)(a) and (d) of the Industrial Disputes Act. Mr. Hegde, submitted that the strike of the employees of the Corporation is per-se illegal, inasmuch as, it is in breach of the provisions of Clause (a) which requires the notice of six weeks before going on strike. In the case in hand, admittedly the notice w as given on 29th September, 2017 and that too under Section 22 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. It was pointed out by Mr. Hegde that the notice given by the respondent, Union was of 14 days whereas the requirement is of six weeks, when the person is employed in the public utility service industry. Mr. Hegde, further pointed out that the resort to the strike was also in the breach of Clause (d) of Section 22(1) of the I.D. Act. 12. Hegde that the notice given by the respondent, Union was of 14 days whereas the requirement is of six weeks, when the person is employed in the public utility service industry. Mr. Hegde, further pointed out that the resort to the strike was also in the breach of Clause (d) of Section 22(1) of the I.D. Act. 12. The Learned Counsel appearing for the respondent, Corporation, further submitted that the Corporation had moved the Labour Court, Latur in Reference (ULP) No. 1 of 2017 seeking prohibitory order of injunction to restrain the employees of the Corporation from resorting to the strike. In the said reference, the Learned Labour Court vide order dated 13th October, 2017 restrained the employees of the Corporation from commencing a strike before or midnight of 16th October, 2017 or thereafter, the same being prima-facie in utter disregard to the provisions of Section 22 of the I.D. Act, 1947. 13. Mr. Hegde, the Learned Counsel appearing for the Corporation thus submitted that, the Corporation had taken possible steps as permissible in law to prevent its employees from resorting to the strike well before the strike was commenced. He would further submit that, the reference is pending and in the said reference, the Union being respondent may participate for redressal of the grievances. He would submit that this Court may direct the Labour Court to decide the reference in a time bound manner to protect the interest of the employees of the Corporation and until then, they may be directed to resume their duties. The Learned Counsel appearing for the Union, would oppose the submission by submitting that the reference proceedings pending before the Labour Court will not culminate in final award in the near future and therefore she did not accept this suggestion. 14. The Learned Counsel for the Union, however, submitted that the negotiations with the Corporation and its Officers have not fructified yet and there are no chances at all that such negotiations would resolve the tie between the parties. She would therefore urge that it is only with the intervention of the State who is otherwise a final authority relating to the financial issues of the Corporation, the issue would be resolved. She therefore strenuously urged that to balance the equities and for resolving this issue, the State may be directed to appoint a high-powered Committee. She would therefore urge that it is only with the intervention of the State who is otherwise a final authority relating to the financial issues of the Corporation, the issue would be resolved. She therefore strenuously urged that to balance the equities and for resolving this issue, the State may be directed to appoint a high-powered Committee. She would further urge that if the State appoints a high-powered Committee the outer limit may be fixed within which the appropriate decision would be taken by such Committee. 15. Mr. Hegde further pointed out that on 16.10.2017, the conciliation proceedings at the instance of the Corporation were admitted under Section 12(1) of the Industrial Disputes Act, 1947 (In short 'ID Act') and the notice was served to the Respondent/Union. He has placed on record a copy of the notice issued by the Deputy Commissioner of Labour and Conciliation Officer, Industrial Disputes Act, 1947, Maharashtra State, Mumbai making a reference to conciliation proceedings admitted on 16.10.2017. A copy of the notice is taken on record and marked as Exhibit 'X-1 for Identification'. 16. Mr. Hegde, therefore submitted that the Respondent-Union went on the strike on the midnight of 16.10.2017 was clearly in the breach of the provisions of Clauses (a) and (d) of Section 22(1) of the ID Act. Mr. Hegde further submitted that in terms of the Section 24 of the ID Act, strike by the Respondents is per-se illegal as it is in the breach of Clauses (a) and (d) as referred to here in above. 17. The learned counsel, however, refuted the submissions and contended that the subject notification dated 29.9.2017 issued by the State declaring the Corporation undertakes public utility service within the meaning of Section 2(n) of the ID Act is malafide action to upset the strike notice given by the Union on 29.9.2017. The learned counsel for the Union further submitted that the order passed in reference by the Labour Court at Latur is challenged by the Union in revision on the several grounds. She further submitted that the two Courts of competent jurisdiction are seized of the subject issue and, therefore, this Court cannot declare the strike resorted to by the Respondent-Union is illegal. 18. She further submitted that the two Courts of competent jurisdiction are seized of the subject issue and, therefore, this Court cannot declare the strike resorted to by the Respondent-Union is illegal. 18. I have gone through the orders passed by the Labour Court, Latur in Reference No. 1 of 2017 as well as notice issued by the Deputy Commissioner of Labour and the Conciliation Officer. I have also perused the Notification dated 29.9.2017 issued by the Industry, Energy and Labour Department, State of Maharashtra declaring activity of the Corporation as that of public utility. 19. That on plain reading of the provisions of Section 22, I am prima-facie satisfied that the action of the Respondent-Union resorting to strike on the midnight of 16.10.2017 was in breach of the provisions of Clauses (a) and (d) of the Section 22(1) of the ID Act. It is clarified that, I have not concluded and/or adjudicated the issue finally. 20. The question that falls for consideration, is as to "whether this Court in its writ jurisdiction under Article 226 of the Constitute of India is empowered to hold the strike of the employees of the Corporation was illegal when admittedly the issue is sub-judice before the Court of the competent jurisdiction?" 21. It is not in dispute that the Respondent-Union indeed undertakes public utility service which is so evident from the large network it has and the fact that it serves 7 million passengers daily on 13,700 routes across the State in 16,500 buses. Therefore, besides validity of the Notification issued by the State declaring Corporation renders public utility service, the facts of the case clearly discloses that because of the strike by the employees of the Corporation, life of people in the rural areas has heavily disturbed and virtually come to stand still. Judicial notice can be taken of the fact that private transport operators do not ply their buses on the every route and as such, there are no transport facilities available in the interior parts of the State except that of State Corporation. Judicial notice can also be taken of the fact that since last four days, the commuters, children, patients, handicapped persons, senior citizens are facing immense difficulties and as such, transport system in the rural parts of the State has collapsed to the considerable extent. Judicial notice can also be taken of the fact that since last four days, the commuters, children, patients, handicapped persons, senior citizens are facing immense difficulties and as such, transport system in the rural parts of the State has collapsed to the considerable extent. The Hon'ble Apex Court in the case of T.K. Rangarajan vs. Government of T.N. and Others, (2003) 6 SCC 581 has posed and answered questions; whether right to strike is fundamental, statutory or equitable/ moral right and answered that no such right exists with the Government employees. The questions posed and answered were; (a) There is no fundamental right to go on the strike. (b) There is no legal or statutory right to go on the strike. (c) There is no moral or equitable justification to go on the strike. 22. The Hon'ble Supreme Court in paragraph 15 of the said judgment has observed thus: "15. In Communist Party of India (M) vs. Bharat Kumar a three-Judge Bench of this Court approved the Full Bench decision of the Kerala High Court by holding thus: (SCC p.202, para 3) "There cannot be any doubt that the fundamental rights of the people as a whole cannot be subservient to the claim of fundamental right of an individual or only a section of the people. It is on the basis of this distinction that the High Court has rightly concluded that there cannot be any right to call or enforce a 'bandh' which interferes with the exercise of the fundamental freedoms of other citizens, in addition to causing national loss in many ways. We may also add that the reasoning given by the High Court, particularly those in paragraphs 12, 13 and 17 for the ultimate conclusion and directions in paragraph 18 is correct with which we are in agreement." 23. Likewise, in paragraph 19, the Apex Court has observed thus: "19. Apart from statutory rights, government employees cannot claim that they can take the society at ransom by going on strike. Even if there is injustice to some extent, as presumed by such employees, in a democratic welfare State, they have to resort to the machinery provided under different statutory provisions for redressal of their grievances. Strike as a weapon is mostly misused which results in chaos and total maladministration. Even if there is injustice to some extent, as presumed by such employees, in a democratic welfare State, they have to resort to the machinery provided under different statutory provisions for redressal of their grievances. Strike as a weapon is mostly misused which results in chaos and total maladministration. Strike affects the society as a whole and particularly when two lakh employees go on strike en masse, the entire administration comes to a grinding halt. In the case of strike by a teacher, the entire educational system suffers; many students are prevented from appearing in their exams which ultimately affects their whole career. In case of strike by doctors, innocent patients suffer; in case of strike by employees of transport services, entire movement of the society comes to a standstill; business is adversely affected and number of persons find it difficult to attend to their work, to move from one place to another or one city to another. On occasions, public properties are destroyed or damaged and finally this creates bitterness among the public against those who are on strike." 24. That the observations of the Apex Court as reproduced here-in-above mandates that the employees cannot claim that they can take the society ransom by going on the strike and even if there is injustice to some extent, they have to resort to machinery provided under different statutory provisions for redressal of their grievance. 25. In this case, it was suggested to the union of Employees that the high-powered Committee will look into the grievance of the petitioner afresh and would also consider the interim hike in the pay within three weeks from the constitution of the Committee. It was suggested that the high-powered Committee would submit a report within two months. It was suggested to the Union that, the strike has resulted and paralysed the life of the people in the rural areas and as such it is not in the interest of the public to continue with the strike. It was suggested to the Union that, in the given circumstances, it would be in the interest of all stakeholders and parties to participate in the negotiations with the high-powered Committee and arrive at an amicable solution. All these suggestions were not accepted by the Union. It was suggested to the Union that, in the given circumstances, it would be in the interest of all stakeholders and parties to participate in the negotiations with the high-powered Committee and arrive at an amicable solution. All these suggestions were not accepted by the Union. The Corporation is state within the meaning of Article 12 of the Constitution and thus, its employees stand on same footing as of that Government servants. 26. That since the services of the Corporation are in the nature of public utility and since the strike has caused immense inconvenience to the rural population and since the respondent, Union is not willing to have a resort to the machinery provided by the State i.e. constitution of high-powered Committee and also by taking into consideration the law laid down by the Supreme court in the case of T.K. Rangarajan (supra), this Court is of the view that the strike by the employees of the State Transport Corporation of Maharashtra is, prima-facie, illegal and hence the following order:- (i) the strike by the employees of the State Transport Corporation is hereby declared illegal. (ii) The strike by the employees of the State Transport Corporation is hereby recalled. (iii) the respondent, Unions are directed to inform its employees that the Court has directed them to resume their duties forthwith. (iv) the State is directed to constitute a high-powered Committee consisting of five members instead of four members by Monday, 23rd October, 2017 and draw a terms of reference and communicate the same to the respondent, Unions on 24th October, 2017. (v) The Committee shall also consider the interim pay revision of the employees of the Corporation on/or before 15th November, 2017 and shall conclude its findings on/or before 22nd December, 2017 and submit a report to this Court. (vi) Issue notices to the respondents returnable on 10th January, 2018. (vii) It is clarified, all proceedings pending before the Courts of competent jurisdiction and authorities are not stayed. (viii) Stand over to 10th January, 2018.