Bombay High Court
Union Of India Thr Secretary Dept Of … vs The Ammunition Factory Workers Union … on 9 April, 2025
Author: A. S. Chandurkar
Bench: A. S. Chandurkar
2025:BHC-AS:17175-DB
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BHARAT
DASHARATH
PANDIT
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Digitally signed by
BHARAT
CIVIL APPELLATE JURISDICTION
DASHARATH
PANDIT
Date: 2025.04.16
WRIT PETITION NO.15036 OF 2023
14:15:47 +0530
1] Union of India through Secretary, )
Department of Defence Production, Ministry of )
Defence, South Block, New Delhi 110001 )
)
2] The Director General Ordnance)
(Coordination & Services) (Formerly the )
Chairman, Ordnance Factories Board) 10-A,)
Shahid Kudhiram Bose Road, Kolkata-700001. )
)
3] The General Manager, Ammunition Factory, )
Kirkee, Pune-03 )
)
4] The Prl. Controller of Accounts (Factories), )
10-A, Shahid Kudhiram Bose Road, Kolkata -)
700001 )
)
5] Munitions India Ltd., Pune having its )
Corporate Office at Nyati Unitree, 2nd Floor,)
Nagar Road, Yarwada, Pune 411006 and having)
its Registered Office at Ammunition Factory, )....Petitioners,
Khadki, Pune - 411003. )
V/s
1] The Ammunition Factory Workers' Union, )
having its office at S.N. Joshi Bhavan, Sl.No.81, )
Dr. Baba Saheb Ambedkar Road, Kirkee, Pune)
411003. )
)
2] Harish Kailas Bhoir, residing at 63, 4, Type- )
II, Ordnance Factory, Dehu Road, Pune-412101 )
)
3] Renjith Radhakrishnan Nair, )
residing at Sl. No.4/1/1/J, Nandanam, Jai )
Malhar, Nagar, Near Khandoba, Mall, Lohegaon, )
Pune - 411047. )....Respondents.
Dr. Uday Warunjikar a/w Ms. Vaishali Chaudhari, Ms. Gargi Warunjikar,
Mr. Ashutosh Mishra, Advocates for the petitioners.
Mr. K. S. Shukla a/w Mr. Vijayan Balakrishnan & Mr. Mohammed Naved
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I. Mulla i/b K.S. Shukla & Associates, Advocates for the Respondents.
****
CORAM : A. S. CHANDURKAR &
M. M. SATHAYE, JJ.
DATE : 9th APRIL, 2025
ORAL JUDGMENT: (Per A. S. Chandurkar, J.)
1] Rule. Rule made returnable forthwith and heard learned counsel
for the parties.
2] The Petitioners are aggrieved by the order dated 28/01/2022
passed by the Central Administrative Tribunal, Mumbai in Original
Application No.694 of 2015. By the said order, a direction has been
issued to the Petitioners to grant benefits to the members of the
Respondent no.1 Union in terms of paragraph 8 of the Original
Application in the form of various compensatory allowances from
01/01/2006. The communications dated 12/09/2015 and 22/09/2015
denying such benefits have been quashed and the Circular dated
26/06/2009 issued by the Ministry of Defence excluding the grant of
such allowances has been held to be illegal.
3] Brief facts relevant for consideration of the challenge as raised
are that the Respondent no.1 is a Union of workers’ engaged at the
Ammunition Factory, Khadki, Pune. Respondent Nos. 2 and 3 are its
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representative members. It is the case of the Respondents that the
Ammunition Factory stands covered under the provisions of the
Factories Act, 1948 (for short, the Act of 1948) and hence the
petitioners are bound to grant all facilities and benefits admissible to
the workers in question. On that basis, it is their case that Overtime
Allowances are to be computed on the ordinary rate of wages which
include house rent allowance, transport allowance, small family
allowance and other such allowances. By Circular dated 26/06/2009,
the Ministry of Defence modified Overtime Allowance and excluded
house rent allowance, transport allowance, small family allowance, etc
for being taken into consideration for computing Overtime Allowance.
The Union of employees working with Heavy Vehicles Factory had
approached the Madras High Court raising a challenge to the order
passed by the Central Administrative Tribunal dismissing the Original
Application challenging the said Circular. However, the Madras High
Court on 30/11/2011 set aside the order of the Tribunal and held that
the Circular dated 26/06/2009 was contrary to Section 59(2) of the Act
of 1948. The present petitioners challenged the said order before the
Supreme Court and the proceedings are stated to be pending there. In
the meanwhile, respondent nos. 2 and 3 moved applications dated
31/07/2015 seeking a clarification on the exclusion of such allowances
while computing Overtime Allowance. The workers’ Union also made a
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representation on 20/08/2015 in that regard. The Chairman,
Ordnance Factories Board by the communication dated 12/09/2015
rejected the representation made by the Union. Thereafter, the General
Manager, Ammunition Factory rejected the applications made by
respondent nos. 2 and 3 on 22/09/2015. Being aggrieved, the
respondents preferred Original Application No. 694 of 2015 challenging
the same. In paragraph 3 of the Original Application, it was stated that
the same was filed within the prescribed limitation under Section 21 of
the Administrative Tribunals Act, 1985 (for short, the Act of 1985).
4] The petitioners filed their affidavit-in-reply and raised a plea that
the Original Application was barred by limitation inasmuch as the
Circular dated 26/06/2009 ought to have been challenged immediately
thereafter. Merely by making representations in the year 2015, the
limitation could not be extended. In further sur-rejoinder filed by the
petitioners, this aspect was reiterated.
On 18/02/2019, the Tribunal disposed of the Original Application
on the ground that the Special Leave Petition filed on behalf of the
Petitioners challenging the judgment of the Madras High Court was
pending and hence as and when the said proceedings were decided, the
Respondents could agitate their claim. Liberty was accordingly granted
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to them.
5] The Respondents being aggrieved preferred Review Petition
No.17 of 2019 before the Tribunal. By the order dated 23/09/2020, the
Tribunal was of the view that the orders passed on similar lines as
passed by the Madras High Court had been implemented in other
jurisdictions. Hence the Tribunal was of the view that the order dated
18/02/2019 ought to be recalled and the Original Application be
restored. Original Application No.694 of 2015 was accordingly restored.
By the impugned order dated 28/01/2022 the Tribunal granted the
reliefs as prayed for by the Respondents, subject to filing an
Undertaking that in case the Supreme Court allowed the Special Leave
Petition, the benefits granted would be recoverable. The Petitioners
being aggrieved by this order, have preferred the present Writ Petition.
6] Dr. Uday Warunjikar, the learned counsel appearing for the
Petitioners inter alia submitted that the Tribunal while allowing the
Original Application failed to take into consideration the stand taken by
the petitioners that the Original Application was barred by limitation.
Though such plea was specifically raised in the reply to the Original
Application, the same was not considered at all. According to him, the
rights of the Respondents stood determined with the issuance of
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Circular dated 26/06/2009. As the Respondents were aggrieved by the
said Circular, they ought to have challenged the same immediately.
Instead of doing so, representations/applications came to be moved in
the year 2015 only to get over the period of delay. In view of the reply
given to the said representations on 12/09/2015 and 22/09/2015,
same was treated as giving a cause of action to the Respondents. He
submitted that merely by making of such representations the period of
limitation would not be extended as the cause for filing the Original
Application had arisen on 26/06/2009 itself. Without considering the
specific objection raised by the Petitioners, the Tribunal proceeded to
grant relief. This resulted in grave prejudice to the Petitioners. The
learned counsel placed reliance on the decisions in State of Uttar
Pradesh and Others vs. Arvind Kumar Srivastava and Others , (2015) 1
SCC 347 and Chairman/Managing Director, U.P. Power Corporation
Ltd. and Others vs. Ram Gopal , 2020 SCC OnLine 101 to substantiate
his contentions. He therefore submitted that the impugned order
passed by the Tribunal was without jurisdiction and thus liable to be set
aside.
7] Mr. K. S. Shukla, the learned counsel appearing for the
Respondents opposed the aforesaid submissions. According to him, the
Original Application as filed was within the period of limitation and that
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the Tribunal was justified in entertaining the said proceedings on
merits. The right to receive Overtime Allowance was a continuing cause
of action and therefore it could not be said that there was any delay
whatsoever in filing the Original Application. As similarly situated
workers were getting the benefit of the judgment of the Madras High
Court, the respondents were also entitled to the same. Reference was
made to various orders passed by the Tribunal granting such relief and
it was thus submitted that there was no reason to interfere with the
impugned order. It was further submitted that despite the interim
directions issued by this Court on 22/11/2024, the said directions had
not been complied with in its true letter and spirit. It was thus
submitted that no interference with the impugned order was called for.
8] Having heard the learned counsel for the parties and having
perused the impugned order, we are of the view that the Tribunal
committed an error in not considering the defence raised by the
Petitioners that the Original Application had been filed beyond the
period of limitation. For this reason, we are of the view that the
impugned order deserves to be set aside and the Original Application
ought to be remitted to the Tribunal to decide the same afresh after
considering the objection raised by the Petitioners that it was barred by
limitation. We say so for the following reasons :-
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(a) In Original Application No.694 of 2015, the
Respondents in paragraph 3 have pleaded that the
application was filed within limitation prescribed by
Section 21 of the Act of 1985 as the communications
dated 12/09/2015 and 22/09/2015 were under
challenge. Perusal of paragraph 8(a) indicates that
besides the aforesaid communications, the
Respondents had also sought a declaration that the
Circular dated 26/06/2009 issued by the Ministry of
Defence was illegal. The Circular dated 26/06/2009
indicates the decision of the Ministry of Defence that
for the purposes of computing Overtime Allowance
under the Act of 1948, the allowances of
compensatory nature would be excluded.
In the affidavit-in-reply filed by the petitioners, it
has been pleaded in paragraph 5 that the claim of
the respondents was barred as the Circular dated
26/06/2009 ought to have been challenged
immediately. The making of representations in 2015
would not give any cause of action to the
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respondents. This stand was reiterated in paragraph
5 of the sur-rejoinder filed by the petitioners.
When the Original Application was initially
decided on 18/02/2019, a reference was made in
paragraph 3(e) to the Petitioners’ contention that
the claim of the Respondents was hopelessly time
barred. The Tribunal however disposed of the
Original Application on the ground that the Special
Leave Petition was pending before the Supreme
Court wherein challenge to the judgment of the
Madras High Court was under consideration. After
this order was reviewed on 23/09/2020, the
Original Application came to be decided by the
impugned order dated 28/01/2022. Perusal of this
order indicates that there is no consideration
whatsoever to the objection raised by the petitioners
on the ground of limitation. When such defence was
specifically raised in the reply, it was necessary for
the Tribunal to have considered the same in
accordance with law before entering into the merits
of the adjudication. Same has however not been
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done.
(b) Section 21(2) of the Act of 1985 creates a
jurisdictional bar for the Tribunal to entertain
proceedings that are filed beyond the prescribed
period of limitation. Thus if the proceedings before
the Tribunal are specifically opposed on the ground
of limitation, it would be incumbent upon the
Tribunal to consider such objection on merits.
Failure to do so raises an issue of jurisdiction thus
giving a cause for this Court to interfere in exercise
of jurisdiction under Article 226 of the Constitution
of India.
9] In the light of the aforesaid discussion, we are of the considered
opinion that it was necessary for the Tribunal to have first considered
the jurisdictional aspect as to whether the Original Application was filed
within limitation. Having failed to do so, the impugned order becomes
unsustainable. We are therefore inclined to remit the proceedings to
the Tribunal to re-consider the Original Application afresh. For this
reason, we have not gone into the aspect as to whether the
representations which were replied to on 12/09/2015 and 22/09/2015,
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would bring the Original Application within limitation. This is for the
reason that Circular dated 26/06/2009 is also under challenge. All
these aspects would be required to be gone into by the Tribunal.
10] For the aforesaid reasons the following order is passed:-
(i) The order dated 22nd January 2022 passed in
Original Application No.694 of 2015 is quashed and
set aside.
(ii) The proceedings in Original Application No.694
of 2015 are remanded to the Central Administrative
Tribunal for fresh adjudication in accordance with
law. The Tribunal shall consider the issue of
limitation alongwith all other issues that arise for
consideration. In case the Tribunal finds that the
Original Application was filed beyond the period of
limitation, an opportunity shall be granted to the
Respondents to seek condonation of delay. It is
clarified that this Court has not examined the
challenge as raised by the respondents on merits.
All points are kept open for adjudication.
(iii) Any payments made by the Petitioners
pursuant to the interim directions issued on
22/11/2024 in the writ petition shall not be
recovered from the Respondents. However, such
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payments would be subject to final outcome of the
Original Application by the Tribunal. The
Undertakings given by the Respondents pursuant to
the aforesaid order would continue to operate,
subject to the decision of the Tribunal.
(iv) Rule is made absolute in aforesaid terms
with no order as to costs.
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