JUDGMENT Nagendra Prasad Singh, J. The petitioners in this writ application have been summoned by an order dated 8.7.1976 passed by the learned Sub-divisional Judicial Magistrate, Katiger, to stand trial for an offence under section 22A of the Minimum Wages Act, 1948 (hereinafter referred to as ‘the Act’) on the allegation that petitioner no. 2 is carrying on the business under the name and style of 'M/s Non-Vegetarian Refreshment Room' at Katihar railway station under an agreement with the then North-East Frontier Railway, and has contravened the provisions of section 18 of the said Act, and rules 25 and 26 of the Rules framed under the Act. 2. Section 18 of the Act, requires every employer to maintain such registers and records giving such particulars of employees employed by him and the wages paid to them. The said section further directs such employer to exhibit notices in the prescribed form containing the prescribed particulars. Section 22A provides that any employer who contravenes any of the provisions of the Act, or any rule or order made thereunder will be punishable with fine which may extend to Rs. 500/-. The petitioners have challenged the legality of the action taken by the respondent Labour Superintendent, primarily on the ground that the provisions of the Act, and Rules framed thereunder are not applicable to the business being carried on by the petitioners. 3. The Act, in question contains provisions for fixing minimum rates of wages in certain employments which have been described as 'scheduled employment'. It also vests power in the appropriate Government to fix minimum rates of wages payable to the employees employed in the employments specified in Part I or Part II of the schedule. Appropriate Government has been defined in sections 2(b) as follows: "(b) 'appropriate Government' means- (i) In relation to any scheduled employment carried on by or under the authority of the Central Government or a railway administration, or in relation to a mine, oilfield or major port, or any corporation established by a central Act, the Central Government, and (ii) in relation to any other scheduled employment, the State Government", In view of section 3 of the Act, the appropriate Government in the manner provided can fix the minimum rates of wages payable to employees employed in an employment specified in Part I or Part II of the schedule. Section 27 is as follows :- "The appropriate Government, after giving by notification in the official Gazette, not less than three month's notice or its intention so to do, may, by like notification, add to either Part of the Schedule any employment in respect of which it is of opinion that minimum rates of wages should be find under this Act, and thereupon the Schedule shall in its application to the State be deemed to be amended accordingly". The Act, as originally enacted had specified different employments in the Schedule of the Act. Later, in exercise of the power conferred by section 27, the State of Bihar by notification dated 19.12.1960, which was published in the Bihar Gazette dated 4.1.1961. added in the said Schedule, employment in 'Hotels. Eating Houses and Restaurants', The effect of this addition was that since that date, employment in Hotels, Restaurants and Eating Houses became a scheduled employment in respect whereof minimum wages could be fixed. The controversy, which has been raised on behalf of the petitioners is that this addition in the scheduled by the State Government and any fixation of Minimum wages in respect of such Hotels and Restaurants shall not be applicable to an employment which is being carried on "by or under the authority of the Central Government or a railway administration" because in respect of such employment the appropriate Government shall be the Central Government and not the State Government. In other words, the business of running the refreshment room at Katihar railway station will be deemed to be carried on either by the railway administration or under the authority of the railway administration, as such only, the Central Government can include employment in respect of such a business in the schedule of the Act, and can fix minimum wages of the employees serving in such refreshment room. 4. There cannot be any dispute that if in respect of the business which the petitioners are carrying, the appropriate Government, is the Central Government, then in exercise of the power under section 27, only the Central Government can include the employment in such refreshment rooms in the Schedule of the Act, and only the Central Government can fix the minimum wages for the employees. As such, the only question which is germane and which has to be answered is as to whether the employment in the refreshment room in question will be deemed to be by or under the authority of the railway administration. 5. Mr. S.B. Sanyal appearing for the petitioners has strenuously argued that the refreshment rooms on different railway stations, although run through contractors, under the terms of the agreement, will be deemed to be carried on by the railway administration. According to learned counsel, in any case, it is carried on, under the authority of the railway administration. In that connection he has placed the agreement, which petitioner no.2 [hereinafter to be referred to as the contractor] had entered with the North-East Frontier Railway, a copy whereof is annexure-3 to the writ application. The salient feature of the said agreement is that the railway administration had permitted the contractor to use and occupy the refreshment room at Katihar Railway Station for Supply of refreshments. It provides that the contractor shall supply and sell refreshments non-vegetarian when demanded in the refreshment room, he shall at all times observe the direction of the railway administration as to times of the opening and closing the Restaurant and serving meals to bonafide passengers including the railway servants and Army personnel in accordance with the menu and rates approved by the railway administration from time to time. The railway administration has also reserved the right to issue directions about the suitability or quality of the food supplied, and the rates the contractor has to charge from the public for meals and refreshment supplied. The railway administration has right to issue direction to the contractor to discharge from the service any employee who in the opinion of the railway administration has misconducted himself or is unfit or unsuitable to be within the premises of the refreshment room, such employees and servants of the refreshment room have to be available at all times properly dressed and in uniform to the satisfaction of the railway administration. The contractor has also to pay fair wages to its employees in accordance with the relevant rules and statutes. He has to indemnify any claim against the railway administration under different Acts and Statutes. The staff engaged in handing food have to be medically examined from time to time and have to produce necessary certificate from the Railway Assistant Surgeon. The contractor has also to pay fair wages to its employees in accordance with the relevant rules and statutes. He has to indemnify any claim against the railway administration under different Acts and Statutes. The staff engaged in handing food have to be medically examined from time to time and have to produce necessary certificate from the Railway Assistant Surgeon. The agreement has also provisions regarding payment of rent and licence fee fixed by the railway, which can be revised if considered necessary by the railway administration. On the basis of these terms, it was submitted by the learned counsel appearing for the petitioners that the business was being carried on under the authority of the railway administration because the railway administration under the terms of the agreement had over-all control and the contractor was merely an agent. It was further emphasised that the rail way either run the refreshment rooms on different stations directly or engage someone to run on their behalf which is necessary for serving meals to the passengers travelling in trains and waiting at the station. In other words, the refreshment rooms on the railway stations are not for a business venture, but are integral part of the railway administration and that is the reason why the railway administration bas kept the whole business under their control and authority. 6. Merely because certain restrictions have been imposed on the mode of carrying a particular business, that will not amount to the business being carried by or under the authority of the person or administration imposing those restrictions. Under the essential Commodities Act, several orders have been framed, providing several restrictions, to ensure proper storage and distribution of essential commodities, that does not mean that all those businesses are being carried on by or under the authority of the Central Government or the State Government, as the case may be. But, if from the terms of an agreement it appears that while employing a person to run a particular business his authority has been reduced to a mere agent or a servant, then different considerations may arise and in the facts and circumstances of a particular case it can be held that he Is merely an agent or servant and is carrying on the business under the authority of another person or administration. 7. 7. While examining this aspect of the matter in connection with the business of refreshment rooms being run by contractors at different railway stations, there is an additional factor, i.e., such contractors shall be deemed to be railway servants under the Indian Railways Act. Section 3 (7) of the Railways Act, defines 'railway servant' to meant any person employed by a railway administration in connection with the service of a railway. Sub-section (2) of section 148 of the Railways Act, is as follows :- “For the purpose of secs. 5, 21, 83, 100, 100A, 100B, 101, 103, 104, 121, 122, 125 and 137, sub-sections (1) and [2] and Sec. 138, the expression 'railway servant' includes a person employed upon a rail way in connection with the service thereof by a person fulfilling a contract with the railway administration.” Section 5 enumerates the power of an Inspector to require attendance before him of any railway servant which means he can require the attendance even of the contractors. Sections 100, 100A, 100B and 101 contain provisions penal in nature which can be imposed against a railway servant who is in state of Intoxication while on duty or abandons any train or responsibility which might be entrusted to him or cause obstruction to any train or while on duty endangers the saftey of any person by rash and negligent act. Section 103 requires a railway servant in charge of a railway to give notice of any accident failing which he is liable to be punished. In view of section 121, if some body obstructs a railway servant in discharge of his duty, he can be punished with imprisonment or fine. Section 137 says that all railway servants shall be deemed to be public servant for purpose of section 409 of the Indian Penal Code and certain other chapters thereof. It also puts a bar on such railway servant purchasing or bidding for himself or any other person any property put up to auction by the railway administration or In entering in trade in contravention of any direction of the railway administration. Section 138 enjoins a railway servant who bas been discharged or suspended to deliver to the railway administration any dwelling house, office or building which he was occupying as railway servant failing which any first class Magistrate may on an application being made, order any police officer to remove such person. Section 138 enjoins a railway servant who bas been discharged or suspended to deliver to the railway administration any dwelling house, office or building which he was occupying as railway servant failing which any first class Magistrate may on an application being made, order any police officer to remove such person. From the aforesaid sections, which have been made applicable by the aforesaid sub-section (2) of section 148 of the Railways Act, even to a contractor engaged by the railway administration for service thereof, it is apparent that for all practical purposes such contractor is a railway servant enjoying the privileges and bound by the restrictions meant for railway servant. Nonetheless, this has been a matter of controversy in courts from time to time. In this connection, reference may be made to the case of S.L. Kapoor V. Emperor. That was a case of a contractor who had been engaged to provide meals for travellers, similar to one with which we are concerned. After termination of the contract, be was asked to vacate the premises which he was occupying pursuant to an agreement. On this refusal, action under the aforesaid section 138 of the Railways Act, was taken. It was urged on behalf of the contractor that as he was an independent contractor, no action under section 138 can be taken against him, as he was not a railway servant. In that connection, It was observed :- "It makes no difference that in that instrument the Agent of the railway is described as lessor and the petitioner as lessee. What has to be seen is the terms of the instrument itself. By that instrument the railway, which has taken Upon itself the duty of providing meals for Hindu passengers, permitted the petitioner to perform that service on their behalf, paying him no remuneration in money and receiving from him no consideration. His remuneration was the profit which accrued from the service of meals, and instead of the railway taking that profit and paying him a wage or commission they allowed him to take it all directly. His remuneration was the profit which accrued from the service of meals, and instead of the railway taking that profit and paying him a wage or commission they allowed him to take it all directly. But it is clear from the agreement that the petitioner had not got a free band in the performance of this service." and, it was held that the contractor was a railway servant within the meaning of section 3 (7) of the Railway Act, and the termination of the agreement amounted to his discharge and action under section 138 could be taken. The Supreme Court in the case of Nanik Awatrai Chainani V. Union of India considered the case of a contractor running a tea stall and a refreshment stall at a railway station under agreements with the railway administration. He had to run the refreshment stall in accordance with the direction of the railway administration. Again, question arose as to whether be was a railway servant and whether action under section 138 could be taken. In that connection, after referring to the aforesaid Lahore Case, it was held as follows :- "The terms which govern the parties expressly reserve to the railway administration extensive power of directing and regulating the appellant's work and also, to an extent, of controlling the manner of doing the work. Keeping in view the purpose and object of these agreements, namely, that of according necessary amenities to the travelling public, retention of this over all power by the railway administration is not only appropriate but necessary. The retention of this power by the railway administration, in our view, constitutes relevant material for sustaining the conclusion of the courts below that the appellant is a railway servant, as defined in s. 3(7) read with s. 148(2), Indian Railway Act, against whom action can be taken under s. 148 of the said Act." The same view was expressed again by the Supreme Court in the case of Union of India and another V. B.N. Prasad in connection with another contractor employed by the railway for supplying food in the refreshment room at Kishanganj railway station under an agreement. The view taken by the Lahore High Court in the aforesaid case was approved and it was held that the contractor in question was a railway servant. The view taken by the Lahore High Court in the aforesaid case was approved and it was held that the contractor in question was a railway servant. A Bench of the Calcutta High Court in the case of State of West Bengal V. T. N. Gupta had also held that the tea stall contractor at railway station was a railway servant. 8. Learned counsel appearing for the respondent Labour Superintendent however, submitted that the contractor may be a railway servant for a limited purpose, but that does not mean that he is carrying on the business under the authority of the railway administration so that for such establishment the appropriate Government shall be the Central Government. In support of this contention, he placed reliance on a Bench decision of Calcutta High Court in the case of Carlsbad Minaeral Water Mfg. Co. Ltd. V. P.K. Sarkar and others. That was a case in which a Company had entered into a contract with the Central Government for selling certain articles on railway premises. A dispute having arisen, reference was made under the Industrial Disputes Act, by the Government or West Bengal. On behalf of the Company it was urged that In view of section 2 (a)(i) or the industrial Disputes Act, 1947, the appropriate Government which could have made the reference was the Central Government because the Company was carrying on the business under the authority of the Central Government. That argument was repelled saying that before it can be held that an Industry is being carried on by or under the authority of the Government, the industry must be owned by the Central Government, as in that case the Company being a limited Company was the owner of the business, it cannot be held that the business was being carried on by or under the authority of the Central Government. The cases, no doubt, supports the contention raised on behalf of the respondent Labour Superintendent, but I shall immediately indicate that one aspect of the matter was not considered in that case, which has since been considered by the Supreme Court in the case of Heavy Engineering Mazdoor Union V. State of Bihar and others. The cases, no doubt, supports the contention raised on behalf of the respondent Labour Superintendent, but I shall immediately indicate that one aspect of the matter was not considered in that case, which has since been considered by the Supreme Court in the case of Heavy Engineering Mazdoor Union V. State of Bihar and others. The Calcutta case simply considered only one aspect of the matter as to who is the owner of the establishment and after having held that the Central Government was not the owner thereof the argument was repelled that the business was being carried under the authority of the General Government. The Supreme Court, however, in the aforesaid case in connection with section 10 of the Industrial Disputes Act, has construed the scope of the word 'authority'. In that connection, it was observed :- "There being nothing in section 2 (a) to the contrary, the word 'authority' must be construed according to its ordinary meaning and therefore must mean a legal power given by one person to another to do an act. A person is said to be authorised or to have an authority when he is in such a position that he can Act, in a certain manner without incurring liability, to which he would be exposed but for the authority, or, so as to produce the same effect as if the person granting the authority had for himself done the act. For instance, if A authorises B to sell certain goods for and on his behalf and B does so, B incurs no liability for so doing in respect of such goods and confers a good title on the purchaser. There clearly arises in such a case the relationship of a principal and an agent. For instance, if A authorises B to sell certain goods for and on his behalf and B does so, B incurs no liability for so doing in respect of such goods and confers a good title on the purchaser. There clearly arises in such a case the relationship of a principal and an agent. The words 'under the authority of' mean pursuant to the authority, such as where an agent or a servant acts under or pursuant to the authority of his principal or master," While laying down that even a business run by an agent or servant can be under the authority of the principal which has to be gathered from the facts and circumstances of each case, about the Heavy Engineering Corporation, it was held that it bad a legal entity of its own and as it was carrying the business of its own, merely because from time to time Central Government could issue directions, shall not denude its independent power so as to amount that it was carrying on the business under the authority of the Central Government. The case of a contractor running a refreshment room at a railway station is different from a company carrying on an independent business, because such a contractor is a railway servant governed by the provisions of the Railway Act. Apart from that, I have already indicated above that the terms of the agreement do not merely reserve the right to issue directions only, rather over-all control of the business of the contractor is with the railway administration. The railway administration has final say in the matter of quality of meal, the prices at which the, arc to be supplied to the railway passengers, the quality of the employees and about their conduct. They have the power to dismiss the employees of the contractor. From all these, it is obvious that the railway administration has reserved the power of controlling the manner of doing the work. In the Lahore case aforesaid, on the basis of this very feature it was held that the relationship was of master and servant and not of a contractor. In my view it was rightly pointed out in that case al the service which the railway was to perform was being performed through the contractor in question and that is why neither the railway was receiving from him any consideration nor paying him any remuneration. In my view it was rightly pointed out in that case al the service which the railway was to perform was being performed through the contractor in question and that is why neither the railway was receiving from him any consideration nor paying him any remuneration. Even in the present agreement, the railway administration is neither receiving any consideration apart from some rent and lincence fee nor paying any remuneration, to the petitioners. 9. Taking all the relevant aspects into consideration, I am of the view that petitioner no.2 is a railway servant and he is carrying on the business under the authority of the railway administration. Once that is held, the necessary corollary shall be that the appropriate Government in relation to the employment in question shall be the Central Government. The Central Government only could have added to the Schedule, in exercise of the powers conferred by section 27 of the Act. In respect of the refreshment room being run at such railway station, only the Central Government can fix the minimum rates of wages payable to employees employed in such establishment. Admittedly no such minimum rates of wages have been fixed by the Central Government for the refreshment room In question. In such a situation, the provisions of the Act, being not applicable there could not have been any contravention or section 18 of the Act, of the Rules framed thereunder. The result will be that the cognizance taken by the learned Subdivisional Judicial Magistrate on a petition of complaint being filed against the petitioners was without jurisdiction and amounts to an abuse of the process of the court, as such, liable to be quashed by this Court. 10. Learned counsel appearing for the respondent Labour Superintendent during the course of argument also submitted that the petitioners should not have invoked the writ jurisdiction of this Court and should have filed an application under section 482 of the Code of Criminal Procedure, 1973. It is well settled that labels of the petitions or sections under which they are filed are not the deciding factor. It is well settled that labels of the petitions or sections under which they are filed are not the deciding factor. It is Immaterial in this case whether the relief in question is granted to the petitioners under Article 227 of the Constitution while exercising supervisory power, on the finding that the court subordinate to this Court bas acted without jurisdiction or in excess of jurisdiction or under section 482 of the Code of Criminal Procedure, 1973, on a finding that the criminal proceeding in question amounts to an abuse of the process of the court. 11. Accordingly, this application is allowed and the prosecution which is pending against the petitioners is quashed. Shivanugrah Narain, J. 12. I agree. As, however, the case involves an interpretation of the expression 'carried by or under the authority of a Railway administration' occurring in section 2 (b) of the Minimum Wages Act, 1948 (hereinafter called 'the Act') and our attention has not been drawn to any direct decision on the point. I wish to add a few words of my own. 13. The learned counsel of the State fairly, and in my opinion, rightly conceded that if the business i.e. the employment carried on by the petitioners was one carried on by or under the authority of a Railway administration, even if all the allegations in the petition of complaint are taken at their face value and accepted in their entirety, the petitioners cannot be held to have contravened the provisions of section 18 of the Act, or Rule. 25 and 26 framed under the Act, because the appropriate Government in relation to the employment would be the Central Government and not the State Government which has by the notification dated 19.12.1960 added Hotels, Eating Houses and Restaurants in the Schedule to the Act, which contains the list of scheduled employments. 14. The petitioners are carrying on the on the business of running in the Refreshment Room at Katihar Railway station the business of supply of refreshment to passengers travelling by the North-East Frontier Railway in accordance with an agreement, a copy whereof is Annexure 3, entered into between the petitioner no. 2, the proprietor of the firm, petitioner no.1 and the North-East Frontier Railway administration. 2, the proprietor of the firm, petitioner no.1 and the North-East Frontier Railway administration. The salient features of the agreement have already been let out in the judgment of my learned brother and it need only be said that under the terms of the agreement the Railway administration had permitted the petitioner no.2, referred to as 'the contractor, in the agreement, to occupy the refreshment Room in Katihar Railway station and to serve refreshment to the travelling passengers and the Railway servants and Arm, personnel the menus and rates to be approved by Railway administration from time to time by servants approved by the Railway administration in consideration of payment of certain fee and rent reserved by the Railway administration. Loss and profits of the business were to be borne wholly by the contractor though the business of supplying refreshment was to be carried on under the strict control and supervision of the Railway administration. As the Railway administration did not share in the profits and losses of the business and did not own it, it is crystal clear that the aforesaid employment of the petitioners was not an employment by the Railway administration. The only question, therefore, is whether it is an employment under the authority of a Rail way administration. 15. The expression 'by or under the authority of the Central Government or a Railway administration' occurs also in the definition of 'appropriate government' in section 2(a) of the Industrial Disputes Act. 1947 and was the subject matter of interpretation by the Supreme Court in H.E.M. Union versus State of Bihar. Construing the expression 'under the authority' occurring in section 2 (a) of the Industrial Disputes Act, in that case the Supreme Court observed : "There being nothing in section 2(a) to the contrary the word 'authority' must be construed according to its ordinary meaning and therefore must mean a legal power given by one person to another to do an act. A person is said to be authorised or to have an authority when he is in such a position that he can Act, in certain manner without incurring liability to which he would be exposed but for the authority or, so as to produce the same effect as if the person granting the authority had for himself done the act. A person is said to be authorised or to have an authority when he is in such a position that he can Act, in certain manner without incurring liability to which he would be exposed but for the authority or, so as to produce the same effect as if the person granting the authority had for himself done the act. For instance, if A authorises B to sell certain goods for and on his behalf and B does so B incurs no liability for so doing in respect of such goods and confers a good title on the purchaser. There clearly arises in such a case the relationship of a principal and an agent. The words 'under the authority of' mean pursuant to the authority, such as where an agent or a servant acts under or pursuant to the authority of his principal or master." And then their Lordships of the Supreme Court posed the question. "Can the respondent Company (in regard to which it was urged that it was carrying on its business under the authority of the Central Government), therefore, be said to be carrying on its business pursuant to the authority of the Central Government." There being nothing in section 2 (b) or other provisions of the Act, to the contrary the expression 'authority' in section 2 (b) of the Act, must also be construed, according to its ordinary meaning and, therefore, must mean "a legal power given by one person to another to do an Act, and the words "under the authority of" in the said section must mean "pursuant to the authority such as where the servant or agent acts under or pursuant to the authority of his principal or master." Therefore, if the two questions, namely, (i) whether the petitioner contractor was acting as the agent of the principal in relation to its business of runing at Katihar Railway station and (ii) whether it can be said to be carrying on the said business pursuant to an authority, of a Railway administration viz, the North East Frontier Railway administration are answered in the affirmative, there can be no doubt that the business of running a Refreshment Room at Katihar carried on by the petitioners is a "scheduled employment carried on under the authority of a Railway administration, namely, the North East Frontier Railway". 16. 16. In my opinion, it is crystal clear that both those questions must be answered in the affirmative. An agent has been defined in section 182 of the Indian Contract Act, as "a person employed to do any Act, for another or to represent another in dealings with third persons". The aforesaid meaning is not an artificial meaning given to the expression agent, but is the ordinary natural meaning of the expression agent. Now it is manifest the petitioner contractor is a person employed by the administration of the North East Frontier Railway to do an act, namely, to provide food and drink etc. to passengers travelling by or to the officers and employees of that Railway. As pointed out in S.L Kapoor. v Emperor "there can be no doubt whatever that the provision of meals for travellers is part of the service of a railway" (at page 548 of the report). Harries, C.J. who spoke for the Bench of the Calcutta High Court in Carisbad M. W. Mfg. Co. versus P.K. Sarkar a decision relied upon by the learned counsel for the State also recognised that a contractor selling soda water and other aerated drinks on Railway station and on trains of the East Indian Railway was doing work which the Railway would normally perform (at page 7 of report). It is, therefore, manifest that in providing refreshment to Railway passengers and Railway servants etc, the petitioners contractor was doing an Act, which ordinarily to be done by the Railway administration, or in other words was performing a service which would otherwise have been rendered by the Railway administration itself. There cannot also be any doubt that the Railway administration bad employed the petitioner Railway contractor to do that Act, for it had entered into a contract with the petitioner under which the petitioner undertook to provide the sere vice. I am fortified in this conclusion by the decion in S. L. Kapoors case (supra) in which it was held that a contractor employed by the Railway for supplying food to rail way passengers and to run in a Refreshment Room of the Railway was a person employed by the Rail way administration in connection with the service of the Railway and, therefore, is a Railway servant within the expression as defined by section 3 (7) of the Railways Act. 17. 17. These is also no room for doubt that in carrying on the business of Railway caterer, the petitioners are carrying on business pursuant to the authority of the Railway administration. Without the authority of the Railway administration concerned, no person can enter upon the premises of the Railway station or the Railway trains with a view to carryon the business of serving meals etc. to the passengers travelling by the railway or occupy the rooms in the Railway station for that purpose. As my learned brother has shown the terms of the contract reserved to the Railway administration extensive power of directing and regulating the catering business carried on by the petitioners and also to some extent controlling the manner of doing the work. In Awat Rai Chainani case the Supreme Court held that retention of such power by the Railway administration constituted relevant materials for sustaining the conclusion that the appellant, a Railway catering contractor was a 'Railway servant' as defined in section 3(7) of the Indian Railway Act. The retention of such power, in the circumstances of the case, in my opinion, makes it clear that the aforesaid catering business or the petitioners is carried on pursuant to the authority of the Railway administration. 18. The decision in Carlsbad M. W. Mfg. Co. (Supra) that no industry owned and carried on by a private person or limited Company can be a business carried on by or under the authority of a Government and that the expression 'any industry carried on by or under the authority of the Central Government' in section 2 (a) of the Industrial Disputes Act, means an industry owned by the Government which is being carried on by Government itself, either through a department or by some authority created by Government to carry on that industry is clearly distinguishable. The expression 'carried on by or under the authority of the Government, occuring in the definition of an appropriate Government in S. 2 (a)(i) of the Industrial Disputes Act, was construed in the context of the definition of an employer in section 2 (g) of the said Act, in which the employer meant in relation to an industry carried on by or under the authority of any department of the Government "the authority prescribed in that behalf or, where no such authority is prescribed, the head of department." As the Supreme Court pointed in H.E.M. Union's case (supra) "the definition or 'employer' in section 2 (g) of the Industrial Disputes Act, suggested that an industry carried on by or under the authority of the Government means either the industry carried on directly by a department of the Government such as the Post and Telegraphs or the Railways, or one carried on by such department through the instrumentality of an agent" (at page 497 of the report). There is no such definition of the expression 'employer' in the instant Act, limiting the meaning of the employer to the authority prescribed or bead of the department.' 19. Nor can support for the argument that in carrying on the catering business at Railway station, the petitioners are not acting as agents of a Railway administration be derived from the observation of the Supreme Court in H.E.M. Union's case (supra) that an inference that the corporation is the agent of the Government may be drawn where it is performing in substance 'governmental and not commercial functions'. (at page 497 of the report). Performance of governmental functions may justify the inference that the person performing that function is the agent of the Government for ordinarily the function that the Government performs is governmental and not commercial function. But the same is not true of a Railway administration. The Railway administration is engaged in the business of transport. The test to determine whether one is the agent of another is whether the person is employed to do a work which ordinarily the principal would have performed himself. As I have already said, the petitioners contractor in running a Refreshment Room is performing a work which the Railway administration would have performed itself. Application allowed.