1 WP871.10 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. WRIT PETITION NO. 871 OF 2010 1. Canteen Stores Department Employees’ Union 2. Uttam R. Moraye, Secretary ... Petitioners v/s 1. Union of India through The Secretary, Govt. of India, Ministry of Personnel, Public Grievances & Pensions (Department of Personnel & Training) New Delhi. 2. The Secretary, Govt. of India, Ministry of Defence, South Block, New Delhi. 3. The General Manager, Government of India, Ministry of Defence, Canteen Stores Department, ADELPHI 119, M.K. Road, Mumbai-400 020. ... Respondents Mr.V.V.Kanade with Ms.Tanmayi Gadre i/by R.P.Saxena for the petitioners. Mr.Vinod Joshi for respondents. CORAM: A.M.KHANWILKAR & R. Y. GANOO, JJ. DATED: 3RD AUGUST, 2011 2 WP871.10 P.C.: 1. By this petition under Article 226, the petitioners have assailed the validity of orders dated 11.1.2008 and 5.8.2009 passed by respondent No.3. The principal contention of the petitioners is that the Canteen Stores Department is an industry and the petitioners ought to be excluded from the application of Scheme of 1993. The petitioners had made similar grievance in Writ Petition No.1894 of 2004. The said writ petition however was disposed of on 2.8.2006 by the Division Bench in the following terms:- “(i) Considering Clause 10 of the O.M. Dated 9th November, 1993, the respondents are directed to refer the dispute to the Government. (ii) Before respondents refer the dispute to the Government, the petitioners are permitted to place on record their material to contend that they are an Industrial Establishment and are covered by Office Memorandum dated 4th March, 1997. The respondents while forwarding the matter to the Government to decide the dispute, also to forward the representation made by the petitioner Union. (iii) The Government thereafter to dispose of the dispute and if the petitioners desire to be heard then to give them hearing before deciding the dispute. (iv) The present position to continue till the decision by the Government and for a further period of eight weeks from the communication of the decision by the Government to the petitioners. (v) We have not decided the merits considering the order now passed and it will be open to the parties if still aggrieved to seek appropriate relief in law 3 WP871.10 which they may be entitled to and then raise all contentions as now raised and other contentions which may become available. (vi) Rule made partly absolute accordingly. (vii) No order as to costs.” Clause (iii) of the order provided that the Government should dispose of the dispute and if the petitioners desire to be heard, then they should be given hearing before deciding the dispute. In furtherance of the said liberty, the petitioners made request in writing to the Secretary, Government of India, vide letter dated 28.9.2006 to hold and declare that the Canteen Stores Department is an industrial establishment and before taking any decision on the said issue they should be granted hearing. The concerned authority however disposed of the representation of the petitioners without giving any hearing to the petitioners. The petitioners assailed the said decision by way of Writ Petition No.1204 of 2008. The said writ petition however came to be disposed of with liberty to the petitioners to approach the Regional Labour Commissioner, who, it was understood could decide the issue raised by the petitioners being a competent authority. The said order dated 20.1.2009 reads thus:- “1. Heard. 2. The petitioners seek to withdraw the petition 4 WP871.10 with liberty to approach before the Regional Labour Commissioner, which is a competent authority to adjudicate the dispute. Permitted to withdraw the petition with liberty. 3. The petition is disposed of as withdrawn.” Pursuant to the said order, the petitioners did approach the Regional Labour Commissioner for resolution of the issue that the Canteen Stores Department is an industrial establishment. The Regional Labour Commissioner, however, has ruled that the question of recognition/de- recognition of a Trade Union in the Canteen Stores Department of the Ministry of Defence, which is a Government Department cannot be construed as an industrial dispute. This position has been communicated to the petitioners by letter dated 6.7.2009. The petitioners have therefore filed the present petition so as to assail the original orders dated 11.1.2008 and 5.8.2009 passed by the Secretary, Government of India, Ministry of Personnel Grievance and Pension. 2. The grievance of the petitioners is that, the impugned decision has been reached by the concerned authority without giving opportunity of hearing to the petitioners in spite of peremptory order passed by this Court on 2.8.2006. 5 WP871.10 3. The counsel appearing for the respondents, however, submits that it is not open to the petitioners to now challenge the correctness of the decision dated 11.1.2008 and the subsequent communication dated 5.8.2009 for the said decision of the Secretary of the Department of Canteen Stores Department is binding on the petitioners consequent to withdrawal of Writ Petition No.1204 of 2008. This submission does not commend to us. As mentioned earlier, from the order passed on 20.1.2009 in Writ Petition No.1204 of 2008 the petitioners were merely granted liberty to pursue remedy before the Regional Labour Commissioner. The fact that the petitioners opted for that option does not mean that their challenge to the opinion of the Secretary was accepted by them, as such. The petitioners were required to approach the Regional Labour Commissioner as it was felt that the competent authority to answer the issue as to whether the Canteen Stores Department is an industrial establishment. However, the Regional Labour Commissioner has ruled that the question of recognition or de-recognition of the Trade Union in respect of the Canteen Stores Department establishment construed as an industrial dispute. This, however, is an incidental issue. Whereas, the question as to whether the Canteen Stores Department is an industry or otherwise will have to be decided by the appropriate Authority in the first place on the basis of the settled legal 6 WP871.10 position and more so in keeping with the observation in order dated 2.8.2006 of this Court. The petitioner is relying on the decision of the Apex Court in the case of Radhu K. Kakde v/s Union of India & ors., reported in (1986) 1 SCC 400. The counsel for the respondents would contend that the decision of the Supreme Court will be of no avail to the petitioners as the Canteen Stores Department has been merged in the Minstry of Defence. However, that is a matter to be decided by the appropriate authority in the first instance. We are concious of the fact that the appropriate Authority of the Government of India has already answered the said issue in consultation with the authority which took decision on the earlier occasion which was communicated to the petitioners vide letter dated 11.1.2008, but that decision has been taken without affording hearing to the petitioner in spite of peremptory direction given by this Court in its order dated 2.8.2006. As is noticed from the document at Exh.D to the petition, the petitioners had made written representation to the said authority to afford hearing before taking any decision on the issue under consideration. 4. Accordingly, we have no hesitation in taking the view that the withdrawal of the subsequent writ petition by the petitioner being Writ Petition No.1204 of 2008 will not come in the way of the petitioners in pursuing the present writ 7 WP871.10 petition and to contend that the decision communicated to the petitioner as recorded in letters dated 11.1.2008 and 5.8.2009 is not in conformity with the direction issued by this Court in Writ Petition No.1894 of 2004. 5. Understood thus, this writ petition should partly succeed. We accordingly set aside the impugned decisions/letters dated 11.1.2008 and 5.8.2009 and instead relegate the petitioners before the appropriate Authority of Government of India. The appropriate Authority, in turn shall decide the question afresh keeping in mind the grounds stated by the petitioners in the representation dated 28.9.2006 in accordance with law after affording hearing to the petitioners. That be done as expeditiously as possible and in any case within 12 weeks from today. 6. The petitioners shall appear in the office of the concerned Secretary on 16.8.2011 on which date the said authority may prescribe the schedule of hearing in consultation with the appropriate Authority of Government of India to ensure that fresh decision is rendered on the question as to whether the Canteen Stores Department is an industry, within the specified time. 7. All questions are kept open. ( R. Y. GANOO, J. ) (A.M.KHANWILKAR, J.) 8 WP871.10