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CASE NO.: Appeal (civil)  6462 of 2003

PETITIONER: Umesh Korga Bhandari                                             

RESPONDENT: Mahanagar Telephone Nigam Ltd. & Ors.            

DATE OF JUDGMENT: 08/08/2005

BENCH: ARIJIT PASAYAT & H. K. SEMA

JUDGMENT: J U D G M E N T [With C.A. No.6463/2003 and C.A. No.6464/2003]

ARIJIT PASAYAT, J.

       Challenge 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.   Appellants 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

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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.   

       Learned 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.

       In 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.   According to him the effect of the notifications and office  memorandum were not considered.

       We 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:

"On 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

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Section 10(1) of the Act. On the other hand,  the remedy to approach the constitutional  court under Article 226 is available.  Equally, the remedy under Section 19 of the  Administrative Tribunals Act is available.  But, 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.   

       The 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.

       We, 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.           Let the papers be placed before the Hon’ble Chief  Justice of India for appropriate directions.