Case: Adani Electricity Mumbai Ltd Vs. The Chief Conciliator, under Maharashtra Industrial Relations Act, 1946 and Ors

7. Before we notice the rival submissions based on several notifications that had been issued under the MIR Act, it may not be inapt to preface our decision by giving a narration of the facts as pleaded in the writ petition which preceded its institution.8. The petitioning company is incorporated under the Companies Act and is engaged in the business of power generation, transmission and distribution/supply of electric energy in Mumbai and Mira-Bhayandar. It has a coal-fired thermal power plant at Dahanu in the district of Palghar. Prior to 29th August 2018, the plant and business were owned by and carried out by Bombay Suburban Electric Supply Limited (hereafter BSES Ltd., for short). The name of the said company underwent changes. Initially the name was changed to M/s. Reliance Energy Limited and subsequently to M/s. Reliance Infrastructure Limited. On 29th August 2018, generation, transmission and distribution were transferred to the petitioning company including transmission and distribution licenses assigned in its name by the Maharashtra Electricity Regulatory Commission. On and from that date, the petitioning company has been carrying out the said business in its own name and style. Prior to 1994, BSES Ltd. was engaged only in distribution/supply of electricity but thereafter had been engaged in both generation and distribution/supply of electricity in Mumbai. Although the petitioning company has been maintaining the stand that the provisions of the MIR Act do not apply to it, the Union sent demand letter dated 29th June 2018 seeking a discussion on the charter of demands under the MIR Act. The demand not having been accepted, the Union approached the respondent no. 1 under section 54(1) of the MIR Act and rule 62 of the Maharashtra Industrial Relations Rules (hereafter MIR Rules, for short) for consideration. The respondent no. 1 had initiated conciliation proceedings which culminated in a failure. Accordingly, a notice under section 73A of the MIR Act was issued on 28th August 2019 giving rise to a certificate being issued that the dispute between the petitioning company and the Union was not capable of being settled in course of conciliation. On 21st September 2019, the reference was registered by the Industrial Court being Reference (MIR- 1C) Nos. 6 of 2019 and 7 of 2019. Despite the MIR Act not being applicable to the petitioning company and despite being fully aware of the same, the Union filed its statement of claim before the Industrial Court whereupon the petitioning company responded by filing its written statement. Soon thereafter, the petitioning company sought for and was granted leave to amend its written statement. The Union had also filed an application for interim relief seeking an order of restraint on the petitioning company from negotiating and signing settlement with any other union. Without being extended an opportunity to file reply to the interim application, the petitioning company was compelled to undertake not to carry on discussion or negotiation with any other union till the next date. However, reply was subsequently filed to the application for interim relief. Ultimately, the Industrial Tribunal passed an interim order restraining the petitioning company from negotiating, discussing or settling the demands involved in the reference with any union other than the Union. It is in this factual background that the petitioning company has approached this Court invoking its writ jurisdiction to have the proceedings before the Industrial Court quashed.

Reasoning:
5. We agree with Mr. Cama. The law in this behalf is well- settled. A statutory authority or tribunal cannot assume jurisdiction over a subject matter for a decision, unless the relevant statute confers jurisdiction on it to so decide. If the fact on which jurisdiction depends is decided by the court or tribunal erroneously, the exercise of jurisdiction would stand vitiated; as a consequence whereof, the error of jurisdictional fact would render the order ultra vires and bad. The existence of the jurisdictional fact upon which a reference could be made under the MIR Act being a sine qua non for the Industrial Tribunal to assume jurisdiction once such reference is made and to begin the process of adjudication, a jurisdictional issue which goes to the root of the Tribunals jurisdiction to adjudicate, if raised before the High Court, ought to be addressed without requiring the parties to traverse the entire course of lengthy proceedings before the Tribunal. However, it would stand to reason that in its exercise of discretion, neither the High Courts ought to entertain writ petitions at the instance of employers on the mere asking nor should it pass interim orders stalling the proceedings before the Tribunal for no better reason than that a prima facie case has been set up without being concerned about the balance of convenience, the public interest and a host of other considerations. Each case reaching the High Courts for deciding the point of jurisdiction would require the Courts to separate the grain from the chaff.6. Since we are of the view that the point of jurisdiction raised by Mr. Cama deserves to be considered in some depth and a decision thereon could put a quietus to the larger issue of applicability of the MIR Act that is involved, we have decided not to dismiss the writ petition on the ground of delay, as urged by Mr. Bukhari, but to proceed to decide the point of jurisdiction based on the materials that have been placed on record.9. Since we are not really concerned with the demands raised by the Union in its charter of demands and the dispute is pending before the Industrial Court, we refrain from making any reference to such charter in this judgment.18. Having heard Mr. Cama and Mr. Bukhari and on consideration of the various notifications to which our attention has been invited, we have no hesitation to hold that the reference made under the MIR Act is certainly maintainable and that the provisions of the MIR Act do apply to the petitioning company, neither because of participation of its predecessors in previous proceedings initiated under the MIR Act without demur nor because of any admission made by the petitioning company in its written statement, but by reason of the terms of the notifications issued under the MIR Act. Our observations on the several notifications have had a significant role in reaching the conclusion as above and, therefore, we propose to delineate the same hereunder:Notification dated 4th December 1946 - This notification made the MIR Act applicable inter alia to any industry engaged in supply of electrical energy within the Mumbai Municipal limits by concerns or undertakings situated within the said limits.This notification did not seek to bring any industry engaged in generation of electrical energy within the coverage of the MIR Act. However, this notification was issued under the Bombay Industrial Disputes Act, 1938, prior to the MIR Act coming into force with effect from 15th April 1947.Notification dated 7th April 1954 - This notification, issued in pursuance of section 2(4) of the MIR Act to take effect from 15th April 1954, made provisions of the MIR Act applicable inter alia to concerns or undertakings engaged in the supply of electrical energy situated in all the areas in Greater Bombay in addition to the areas specified in Government Notification dated 4th December 1946 issued by the Political and Services Department. It was explained that Greater Bombay would have the same meaning assigned to it by sub- section 3(21) of the GC Act. The said notification also ordained that nothing contained in it would apply to an industry engaged both in the generation and supply of electrical energy.Notification dated 16th April 1958 - This notification, issued in exercise of powers conferred by section 2(4) of the MIR Act, directed that with effect from 1st May 1958, all the provisions of the MIR Act shall apply, inter alia, to an industry engaged in the supply of electrical energy situated in all the remaining areas of Greater Bombay in addition to the areas thereof specified in the aforesaid notifications dated 4th December 1946 and 7th April 1954. However, it was explained that Greater Bombay shall have the same meaning as assigned to it in section 3(a1) of section 3 of the Bombay Municipal Corporation Act, 1888.Notification dated 14th September 1959 - This is the notification having the fewest number of words as contents but is of vital importance for a decision on this writ petition. The same purported to embrace all industries engaged in the generation and supply of electrical energy in the local area of Greater Bombay. For the first time, the words generation and supply were included in the scheme of coverage under the MIR Act as distinguished from supply only which was part of the earlier notifications.What follows from the notification dated 14th September 1959 is that any industry which is engaged both in the generation and supply of electrical energy would stand covered by the provisions of the MIR Act but has a suffix, namely, in the local area of Greater Bombay, which we are required to interpret and explain.This notification when read in juxtaposition with the notifications dated 4th December 1946 and 7th April 1954 would reveal a significant departure in the intention of the Government. In terms of the earlier two notifications, the concerns or undertakings engaged in the supply of electrical energy were required to be situated in the area specified in such notifications. This is evident from the commonly worded clauses thereof. However, the words situated in the said areas are conspicuous by its absence in the notification dated 14th September 1959.In our considered opinion, the terms of the notification dated 14th September 1959 could be read in a manner to suggest that both generation and supply of electrical energy must occur or happen in the local area of Greater Bombay. However, at the same time, the notification dated 14th September 1959 can also be read to mean that it seeks to cover an industry which, though engaged in the generation and supply of electrical energy, but the supply of such energy is to the local area of Greater Bombay. It is not the requirement of the notification dated 14th September 1959 that the electrical energy must also be generated in the local area of Greater Bombay.Since the notification dated 14th September 1959 on its own terms is amenable to two meanings, we would have to elect that meaning out of the two which advances the cause of the members of the Union and not the cause of the petitioning company. In our view, for the reasons to follow, the said notification holds the field till date despite the subsequent notifications dated 26th April 1984 and 26th July 2019 and, therefore, the petitioning company cannot validly claim an escape route from being covered by the provisions of the MIR Act.Notification dated 26th April 1984 - This notification although superseded notifications dated 4th December 1946 and 7th April 1954, did not proceed that far so as to supersede in express terms the notification dated 14th September 1959. If indeed the Government had any intention to supersede the notification dated 14th September 1959, nothing prevented it from so superseding. It was, thus, a conscious decision of the Government not to supersede the notification dated 14th September 1959. The point of implied repeal urged by Mr. Cama could have weighed in our mind had there been no express reference to supersession of the earlier notifications by this notification. Once the notification dated 26 th April 1984 is found to supersede the two previous notifications but not the immediately preceding notification dated 14 th September 1959, it would not be proper to hold that there has been an implied repeal of the said notification dated 14th September 1959.The decision in Kedia Leather & Liquor Ltd. (supra) relied on by Mr. Cama does more harm to the cause of the petitioning company than good. Paragraph 13 of the decision dwells on the presumption against a repeal by implication. Drawing guidance from paragraph 13, we would hold that the Government on 26th April 1984 was well aware of the notification dated 14th September 1959 being in the field, yet, the notification dated 26th April 1984 not only did not refer to the notification dated 14th September 1959 but proceeded to supersede the earlier notifications dated 4th December 1946 and 7th April 1954 which manifests its clear intent not to supersede the notification dated 14th September 1959.Notification dated 26th July 2019 - This notification simply ordains that the provisions of the MIR Act shall cease to apply to the industries specified in the schedule to the extent relevant to the concerns or undertakings involved in supply of electrical energy situated within the limits of Mumbai Municipal Corporation. These industries are only excluded from the coverage of the MIR Act. The cessor applies to supply and not to generation and supply. Thus, the petitioning company cannot seek to wriggle out of the provisions of the MIR Act based on this notification only.19. It is not in dispute that electrical energy generated by the petitioning company is supplied to the local area of Greater Bombay, now Brihanmumbai. In such view of the matter, the notification dated 14th September 1959 is applicable to the petitioning company and, therefore, it is covered by the MIR Act.20. We have not found any reference to the notification dated 14th September 1959 in the writ petition. There is no allegation of suppression of the said notification against the petitioning company made by the Union. It would not be wrong on our part to assume that the petitioning company was not aware of such notification; hence, it was not even referred to in the writ petition despite being the clinching notification. Be that as it may.21. Since we have returned findings based on our own understanding of the relevant provisions of the notifications issued under section 2 of the MIR Act to hold that the petitioning company is covered thereunder and also find that inconsistent view has not been taken in the other decisions cited by Mr. Cama, we do not consider it necessary to discuss all such decisions separately.22. For the foregoing reasons, we are of the firm view that the provisions of the notifications issued under the MIR Act were so unambiguously clear that at no time in the past either BSES Ltd. or M/s. Reliance Energy Limited or M/s. Reliance Infrastructure Limited ever chose to raise a point in course of proceedings initiated under the MIR Act that the provisions thereof did not apply to it and that the present effort on the part of the petitioning company, as has rightly been contended by Mr. Bukhari, is an effort to tire out the members of the Union in their battle with the petitioning company. We also hold that the Industrial Tribunal does have the jurisdiction to decide the reference. We, therefore, encourage the Industrial Court to decide the reference in accordance with law as well as all connected applications at the earliest without acceding to any unnecessary prayer for adjournment made by either party before it.