UMESH KORGA BHANDARI Vs. MAHANAGAR TELEPHONE NIGAM LTD

JUDGEMENT

(1.) 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 CGITs 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 civil post, the only forum to adjudicate their grievance was the Central Administrative Tribunal (in short Administrative Tribunal) constituted under the Administrative Tribunals 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 vs. A. Srinivasa Rao and Ors. (1997) 8 SCC 767) has held that the views expressed in Bombay Centeen Employees Association vs. 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. vs. Theyyam Joseph and ors. (1996) 8 SCC 489). Both Theyyam Joseph and General Manager, Telecom (supra) were rendered by two-Judge Benches.

(2.) 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.

(3.) 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.