Case BriefsHigh Courts

Rajasthan High Court: A Division Bench of S. Muralidhar, CJ and R.K. Pattanaik J. dismissed the petition and upheld the judgment by CGIT, Bhubaneshwar declining the prayer of the Petitioner as regards the maintainability of the dispute before it.

The facts of the case are such that Central Mine Planning & Design Institute Ltd. filed the instant petition questioning an order dated 24-01-2011 passed by the Central Government Industrial Tribunal, Bhubaneswar (CGIT) deciding the preliminary issue of maintainability against the Petitioner and in favour of Opposite Party 2-Workers’ Union. The present dispute has its origins in an order dated 14th September 1992 passed by the Central Government referring the dispute in regard to the benefit of special TA/DA and in the matter of holidays or festivals.

Counsel for the petitioner Mr. N.K. Mishra submitted that Section 7-B (1) of the Industrial Disputes Act, 1947 (ID Act) which sets out the conditions under which the Central Government “may, by notification in the Official Gazette, constitute one or more National Industrial Tribunals for adjudication of the industrial disputes”. The two conditions are that (i) the dispute should involve questions of national importance or (ii) are of such a nature that the industrial establishment situated in more than one State is likely to be interested in or effected by such disputes. According to Mr. Mishra the nature of the dispute referred for adjudication by the Central Government in the present case satisfies both the above requirements. Thus, the word ‘may’ occurring in Section 7-B ID Act should be read as ‘shall’.

It was further submitted by the petitioner’s counsel that Section 7-B of the ID Act should be read with Section 10 (1-A) of the ID Act which states that if an industrial dispute involves question of national importance or is of such nature that industrial establishment situated in more than one State are likely to be interested in or affected by such dispute, the Central Government “may, whether or not it is the appropriate Government in relation to that dispute, at any time, by order in writing referred the dispute for any matter appearing to be connected with, or relevant to, the dispute, whether it relates to any matter specified in the Second Schedule or the Third Schedule, to a National Tribunal for adjudication”.

The Court observed that the expression used both in Section 7-A as well as Section 10 (I-A) of the ID Act is ‘may’ as qualifying what the Central Government can do. It is not mandatory for the Central Government, even if the twin conditionality are satisfied, to refer the disputes for adjudication to a National Tribunal. It may so happen that because of the placement of the parties, the dispute can well be adjudicated by a geographically proximate Tribunal. For instance, in the present case, although the Union which is espousing the workmen’s cause is located in Ranchi, the Petitioner has its Offices in all over India and therefore, vis-à-vis both the parties, a CGIT at Bhubaneswar would be proximate and convenient for them to adjudicate the dispute.

The Court remarked in the present day and age, when there are virtual courts, it is now possible for a Tribunal in Bhubaneswar to examine witnesses virtually all over the country, and therefore that inconvenience is a thing of the past and secondly, this dispute has been pending for more than three decades now and the Court does not consider it expedient at this stage to require the dispute to be referred to a National Tribunal for parties to start all over again before that Tribunal. That would be most inconvenient to all the parties.

The Court further observed that in terms of Section 7-B of the ID Act read with Section 10 (1-A) thereof it is not mandatory for the Central Government to make a reference of a dispute which is of national importance to a National Tribunal.

The Court held “the Court is not persuaded that in the present case, the CGIT has erred in declining the prayer of the Petitioner as regards the maintainability of the dispute before the CGIT, Bhubaneswar.” [Om Prakash Kumawat v. Hero Housing Finance Ltd., S.B. Civil Writ Petition No. 6199/2022, decided on 11-05-2022]


Appearances

For Petitioner(s): Mr. Prahlad Sharma

For Respondent(s): Mr. Pramod Kumar


Arunima Bose, Editorial Assistant has reported this brief.

Uttarakhand High Court
Case BriefsHigh Courts

Uttaranchal High Court: Sharad Kumar Sharma, J. dismissed a writ petition which involved the isuue pertaining to regulating the frontier borders of the country, adjoining to the ‘Line of Actual Control’, which adjoins and shares the boundary lines of our neighbouring country, China, which is approximately about 20 to 25 Kms. only away from the land, in dispute, which is proposed to be acquired for the purposes of meeting out the defence need of the ITBPF, i.e. ITBP.

The Court identified the issue as to whether despite of there being certain limited statutory protection; having being granted to a specified class of reserved community, i.e. the Scheduled Tribes, whether their personal rights, if it is, at all prevailing under law, would prevail over the right and interest of the nation, i.e. our Motherland, particularly, when it calls for defending the critical and strategic border of our Nation, in order to have preparedness, to meet any unprecedented insurgencies or army aggression, by the neighbouring county China.

The petitioners who are the residents of the village “Milam”, where the land in dispute is situated and which is proposed to be acquired for defence purposes. The petitioners contended that since they belonged to a Scheduled Tribes i.e. “Bhotia”, which in itself is a class of Tribes protected by the Constitution of India, as well as, under the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter to be called as Act of 2013), their land ought not to have been acquired, even for the purposes of meeting out the requirement of the defence personnel, as because of their self acclaimed immunity, which they have claimed to have vested in them, in the light of the provisions contained under Section 40 to be read with Section 41 of the Act of 2013.

The Court observed that if the purpose of acquisition, which has been shown in the impugned Notification of 1st August, 2015, itself is taken into consideration, it is exclusively intended to meet the emergent need, for the purposes of establishment of the frontier chauki, i.e. Border Out Post (in short BOP), in Village Milam for the 14th Wing of ITBP. The Court was of the view that defence purposes of the country acquires the drivers seat, and would be predominantly overriding all the restrictive intentions of the Act of 2013, since being contrary to the constitutional intention, for protection of individual rights or even for a right of a class of Society, because no individual rights or even for that matter even public rights, can be at any moment be taken to be the superior rights, than to the right of defence of the Country, because of which, we all citizens are thriving peacefully, because our frontiers areas of the Country, are in the safe hands of our gallant army and para military personnels.

The Court further opined that the area of hearing of objections, under the different heads, which had been provided therein under Section 15 of the Act of 2013, will not be attracted or have its applicability, because the purpose herein as expressed in the notification of 08.08.2015, was for establishment of Border Out Post, adjoining to the Line of Actual Control, would not be an aspect, which at all could be left open for speculations and assessment by the executive or administrative authorities, because it could be best and with utmost perfection be only scrutinized by the defence forces authorities, to suit their need of deployment of armed personnel or establishment of their border out posts, which cannot be left open to be assessed by the executive. The Court relied on the judgment of Supreme Court in Citizens for Green Doons v. Union of India, 2021 SCC OnLine SC 1243 where necessity of the defence of the country was considered in detail. The court further discussed plethora of judgments  in relation to the matters of acquisition of land and found that in the present case since there is an imminent threat nor the case has been projected by the petitioners that they would be deprived of an adequate compensation to be made payable to them as per the provisions of the said Act, the aforesaid principles and the safeguards taken by the Supreme Court in the judgements will come to the rescue to the State to apply the theory of ‘eminent domain’ when there is a deprivation of the property, which has been saved by Article 300A of the Constitution of India.

The theory of “eminent domain” grants an exclusive and inherent dominant power with the Government, which is the supreme owner of any land falling within the territory of the Nation, to take over the land and property, though under the terms and conditions of the given set of law, in order to meet out the emergent country requirement, due to any army aggression, army preparedness to face any sudden enemy insurgency, National calamity or other areas of such emergent need of the country and for the country, where time always plays an important pivotal role and where it is exclusively only the need of the country at large, which is to be considered.

Court was of the view that it could only be assumed to a citizen when they are secured when the country’s defence structure and its strength and its preparedness to meet any sudden, military crisis is augmented by providing, its defence personnel or any other such agencies with sufficient infrastructural facilities, and particularly, at the strategic point, like the one, in question, where India is sharing an international border, which is hardly 20 to 25 km. away from the land in question, adjoining to the Line of Actual Control. Since the land is being acquired for the defence needs, this Court was of the view, that irrespective of whatsoever protection has been marginally granted by the Statute, it cannot be compromised under any set of circumstances to mitigate the defence need of the country, and particularly, when as per the ratios dealt with above, the petitioners right as envisaged by Article 300A are still protected.

The writ petition was dismissed.[Heera Singh Pangtey v. State of Uttarakhand, 2022 SCC OnLine Utt 149, decided on 04-03-2022]


Mr T.A. Khan, Senior Advocate, assisted by Mr Ravi Shankar Kandpal, Advocate, for the petitioners.

Mr V.D. Bisen, Brief Holder, for the State of Uttarakhand.

Mr Rakesh Thapliyal, Assistant Solicitor General, assisted by Mr Pankaj Chaturvedi and Mr Lalit Sharma, Standing Counsel, for the Union of India


Suchita Shukla, Editorial Assistant has reported this brief.