IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF APRIL, 2019 BEFORE THE HON' BLE MR.JUSTICE R. DEVDAS WRIT PETITION NO.5737/2018 (L-RES) BETWEEN BELLARY ZILLA GANI KARMIKARA SANGHA SHANTI NIVAS, 1ST WARD, ANAND BAZAR SANDUR, BELLARY KARNATAKA-583119 REPRESENTED BY ITS VICE-PRESIDENT (BY SRI CLIFTON D ROZARIO, ADVOCATE FOR SRI MAITREYI KRISHNAN, ADVOCATE) ... PETITIONER AND 1. UNION OF INDIA MINISTRY OF LABOUR AND EMPLOYMENT SHRAM SHAKTHI BHAVAN RAFI MARG, NEW DELHI-110001 REPRESENTED BY ITS UNDER SECRETARY.
2. M/S GAVIAPPA AND CO.
NAVALUTI POWER IRON ORE MINES 15/142, NEHRU CO-OPERATIVE COLONY HOSPET, BELLARY-583203 REPRESENTED BY ITS MANAGER.
... RESPONDENTS (BY SRI N KUMAR, CGC FOR R1;
SRI K DIRAJ KUMAR, ADVOCATE FOR R2) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER ISSUED BY THE 1ST RESPONDENT DATED 20.07.2017 (PLACED AS ANNEXURE-A), DIRECT THE 1ST RESPONDENT TO REFER THE DISPUTE IN REGARD TO THE ILLEGAL RETRENCHMENT OF 201 WORKMEN BY THE 2ND RESPONDENT WITHIN A PERIOD OF 3 MONTHS.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED ON 01.03.2019 AND COMING ON FOR PRONOUNCEMENT OF ORDERS, THIS DAY, THIS COURT MADE THE FOLLOWING:
ORDER The petitioner is a Union representing the workmen of the second respondent-Company. It is the contention of the petitioner that in the year 2011, the workmen were asked to stop work since the mining activities came to a closure. The petitioner-Union raised a dispute before the Regional Labour Commissioner (Central) and the Conciliation Officer with regard to the illegal closure of the mines in violation of the Industrial Disputes Act, 1947, espousing the cause of 201 workmen. The second respondent filed objections before the Regional Labour Commissioner, making bare denials in regard to the claim petition filed by the petitioner-Union. The conciliation proceedings ended in a failure.
2. Subsequent to failure of the conciliation, the first respondent-Central Government issued the impugned order dated 20.07.2017, refusing to refer the dispute for adjudication, on the ground that the petition was made after lapse of 5-14 years and the authenticity of the workmen could not be evidenced before the authority.
3. Learned Counsel for the petitioner submits that the problem of closure of the mines in the year 2011 was not confined to the second respondent-Company. It is a known fact that several of the mines in Bellary and other parts of Karnataka were closed down during the said period. The workmen from several of such Companies who were denied employment approached the Regional Labour Commissioner and the said authority has, in fact, referred the dispute to the Central Government Industrial Tribunal. It is therefore, submitted by the learned Counsel for the petitioner that the impugned order cannot be sustained.
4. On the other hand, learned Counsel for the second respondent-Company has sought to attack the petition on several technical grounds. It is contended that the petitioner- Union has no locus standi to maintain the writ petition. It is contended that the petitioner has not produced any certification of affiliation and that the workmen can be represented in any proceedings only through a registered Trade Union. It was further contended that in case of an affiliation, it only entitles the main body to maintain the proceedings. The learned Counsel further contends that the petitioner-Union claims to be an Union of all employees in mining industry in Bellary and not an Union of employees of a particular mine/employer. Therefore, it is submitted that not all members of the petitioner would be interested in the subject matter of the writ petition.
5. The second ground of attack is that this petition cannot be maintained at the Principal seat of this Court at Bengaluru. It is submitted that the petitioner and respondent No.2 are from Bellary and respondent No.1 is at New Delhi. It is submitted that after the establishment of permanent Benches at Dharwad and Kalaburagi, by order dated 14.08.2013, the territorial jurisdiction of this Court has been defined in The High Court of Karnataka (Establishment of Permanent Benches at Dharwad and Gulbarga) Order, 2013 dated 14.08.2013. It is therefore contended that in view of the 2013 Order, the territorial jurisdiction of the dispute arising from Bellary district lies with the Dharwad Bench. In this regard, a decision of the Division Bench of this Court in the case of Abdul Wajid Vs. The State of Karnataka reported in ILR 2014 KAR 5805 is pressed into service. The learned Counsel would seek to justify the impugned order on merits too.
6. Heard the learned Counsels for the petitioner and the respondents and perused the writ papers.
7. It is relevant to notice that the petitioner-Union has been espousing the cause of mines workmen from the Bellary district. Several writ petitions including W.P.Nos.9719/2017 & W.P.No.11688/2017, W.P.Nos.18443/2017, 13116/2017 and W.P.No.13115/2017 have been entertained by this Court at the Principal Bench. W.P.No.9719/2017 & W.P.No.11688/2017 were allowed by this Court on 04.07.2017. W.P.Nos.18443/2017 and 13116/2017 were allowed on 14.02.2019. W.P.No.13115/2017 was allowed on 01.03.2019. That being the position, the technical objections raised by the second respondent requires to be rejected. Moreover, when the petitioner-Union raised a dispute before the Regional Labour Commissioner, the second respondent did not raise the issue regarding locus standi of the petitioner-Union.
8. On the objection raised by the second respondent regarding the jurisdiction, the Division Bench in the case of Abdul Wajid (supra), has held that whether the case arises from4one of the specified Districts or not, so as to determine the jurisdictional competence to hear, by reference to territory bifurcated between the principal seat and the Bench, shall be an issue to be decided in an individual case by the Judge or Judges hearing the matter if a question arises in that regard.
Similarly, it was held that if the cause of action can be said to have arisen in part within specified areas in Dharwad Zone or Gulbarga Zone and part outside the specified Dharwad or Gulbarga areas, the litigant will have the choice to institute proceedings either at Dharwad or Gulbarga or Bangalore. Therefore, a part of the cause of action having arisen outside the specified Dharwad zone, the litigant will have the choice to institute proceedings either in Dharwad or Bangalore. Moreover, as noticed above, the dispute raised by the very same petitioner-Union has been entertained by the Principal Bench and there is no reason to discriminate between those writ petitions and the one on hand.
9. We cannot resist but recall to memory the observations of Their Lordships in the case of D.P.Maheshwari Vs. Delhi Administration and Others, reported in AIR 1984 SC 153, wherein it was held as under:
“1. It was just the other day that we were bemoaning the unbecoming devices adopted by certain employers to avoid decision of industrial disputes on merits. We noticed how they would raise various preliminary objections, invite decision on those objections in the first instance, carry the matter to the High Court under Article 226 of the Constitution and to this Court under Article 136 of the Constitution and delay a decision of the real dispute for years, sometimes for over a decade. Industrial peace, one presumes, hangs in the balance in the meanwhile.
.…..Neither the jurisdiction of the High Court under Article 226 of the Constitution nor the jurisdiction of this Court under Article 136 may be allowed to be exploited by those who can well afford to wait to the detriment of those who can ill afford to wait by dragging the latter from Court to Court for adjudication of peripheral issues, avoiding decision on issues more vital to them. Article 226 and Article 136 are not meant to be used to break the resistance of workmen in this fashion.”
10. On the merits of the matter, it is noticeable that the first respondent has entertained several such disputes raised by the workmen of other mines and establishments in Bellary district. In all those disputes, the workmen were denied employment in the year 2011, which is also the case of the workmen in the present petition. Therefore, on the ground of parity, the first respondent having referred the disputes of other workmen, could not have declined to entertain the dispute of the workmen in the present case, on the ground of delay and laches.
11. The Hon’ble Supreme Court in the case of Telco Convoy Drivers Mazdoor Sangh and Anr. Vs. State of Bihar and Ors. reported in AIR 1989 SC 1565, has held that it is now well settled that while exercising power under Section 10(1) of the Industrial Disputes Act, 1947, function of appropriate Government is an administrative function and not a judicial or quasi judicial function and that, in performing this administrative function, the Government cannot delve into the merits of the dispute and take upon itself determination of the lis, which would certainly be in excess of the power conferred on it by Section 10 of the Act. Every opportunity will be available to the respondent- Management to have its say regarding each and every person claiming to be a workman and if the Management disputes that a person is not a workman, it would be on the workman to produce cogent evidence to substantiate his claim that he was a workman under the respondent-Management.
12. In the light of the discussion above, the petition is allowed. The impugned order dated 20.07.2017 at Annexure ‘A’, passed by the first respondent is set aside. The first respondent is hereby directed to reconsider the application/petition filed by the petitioner-Union bearing in mind the reference made by the said authority in the cases of M/s.Bharath Mines and Minerals, Deccan Mining Syndicate Pvt. Limited and M/s.Zeenath Transport Company Ltd. and various other Mines of Bellary District, wherein reference was made by the first respondent.
It is ordered accordingly.
SD/- JUDGE JT/-