Garden Reach Shipbuilders And Engineers Ltd. v. Second Industrial Tribunal
2007-09-18
J.K.Biswas
body2007
DigiLaw.ai
JUDGMENT: Jayanta Kumar Biswas, J. 1. BY this writ petition dated March 22, 2005 the petitioner, a Government of India undertaking and hereinafter referred to as "the company", is questioning the order No. 137 of the Second Industrial Tribunal, West Bengal made in Case No. VIII - 20/95 on September 10, 2004 rejecting its an application dated September 15, 1999 (filed on September 17, 1999). 2. THE State Government made an order dated February 7, 1995 referring, under section 10 read with section 2A of the Industrial Disputes Act, 1947 to the Tribunal an existing dispute between the company and its workman, the third respondent. THE issue referred was: "Whether the dismissal of service of Shri Pradip Kr. Ganguly w.e.f. 4.4.94 is justified. What relief, if any, is he entitled to?" By filing the application dated September 15, 1999 the company wanted the Tribunal to hold that since the State Government was not the appropriate Government, and the Central Government was only the appropriate Government, the reference made by order dated February 7, 1995 was not maintainable. By an order dated October 25, 2000 the Tribunal allowed that application and held that the reference, having not been made by the Central Government, the appropriate Government, was not maintainable. Feeling aggrieved, the third respondent moved this Court by filing W.P. No. 3777(W) of 2001, which was allowed by an order dated March 21, 2002. THE order of the Tribunal was set aside, and it was directed to give a fresh decision in me company's application dated September 15,1999, after ascertaining whether there was any conferment of authority on the company by the Central Government to carry on the industry in question. Accordingly the application was again heard by the Tribunal, and by the impugned order it rejected it and fixed date for argument on validity of the domestic enquiry. THE Tribunal rejected the application holding that the company failed to produce anything to show that it was carrying on business under the authority of the Central Government. THE Tribunal, however, held that the company had been able to establish that the Central Government was exercising controlling authority over it. It was, however, never the company's case that the industry was being carried on by the Central Government.
THE Tribunal, however, held that the company had been able to establish that the Central Government was exercising controlling authority over it. It was, however, never the company's case that the industry was being carried on by the Central Government. By order dated July 14, 2005 the writ petition was admitted, and an interim order was made restraining the respondents in the case including the Tribunal from proceeding any further on the basis of the impugned order dated September 10, 2004. The third respondent, the workman, is contesting the case. Relying on the findings of the Tribunal that the company established that the Central Government was exercising control and authority over it, Mr. Ghosh, its Counsel, has submitted that in view of the Apex Court decision in Hindustan Aeronautics Ltd. and Anr. vs. Hindustan Aero Canteen K. Sangh and Ors., 2003(1) LLJ 494, there was absolutely no reason for the Tribunal to hold that with respect to the industrial dispute it was the State Government, and not the Central Government, that was competent to make the reference as the appropriate Government. The question that therefore has arisen is what is meant by the expression "any industry carried on under the authority of the Central Government" used in section 2(a)(i) of the Industrial Disputes Act, 1947. It is to be noted that section 2(a) defines the expression "appropriate Government". According to the definition, appropriate Government means, inter alia, in relation to any industrial dispute concerning any industry carried on by or under the authority of the Central Government, or by a railway company or concerning any such controlled industry as may be specified in this behalf by the Central Government, the Central Government; and in relation to any industrial dispute other than one falling within the meaning of section 2(a)(i), the State Government. Here the company's case is that it has been carrying on the industry under the authority of the Central Government. It, however, could not produce before the Tribunal any authority given to it by the Central Government to carry on the industry. What it rather established by adducing evidence is that the Central Government was exercising control and authority over it. This, according to Mr. Ghosh, was enough to hold that here the Central Government was the appropriate Government.
It, however, could not produce before the Tribunal any authority given to it by the Central Government to carry on the industry. What it rather established by adducing evidence is that the Central Government was exercising control and authority over it. This, according to Mr. Ghosh, was enough to hold that here the Central Government was the appropriate Government. On these facts, Counsel advanced their respective arguments citing to me quite a few authorities to show what the expression concerned actually means. I think it will be convenient to deal with them in chronological order. 3. MR. Dutta, Counsel for the workman, has cited Heavy Engineering Mazdoor Union vs. State of Bihar and Ors., 1969(2) LLJ 548 (SC). In that case certain disputes arising between Heavy Engineering Corporation, a Government company within the meaning of section 617 of the Companies Act, 1956, and its workmen were referred by the Government of Bihar to the Tribunal. The union, by filing a writ petition in the High Court, questioned the validity of the order of reference on two grounds, and the first of them was: the appropriate Government to make the reference was the Central Government, not the State Government. In support of the contention it was shown how the Central Government had control over the affairs of the company. After noticing the case of the union, the Apex Court turned it down saying (p.552): "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. Can the respondent- company, therefore, be said to be carrying on its business pursuant to the authority of the Central Government? That obviously cannot be said of a company incorporated under the Companies Act whose constitution, powers and functions are provided for and regulated by its memorandum of association and the articles of association." Having said so, Their Lordships noticed (p.553); "It is true that besides the Central Government having contributed the entire share capital, extensive powers are conferred on it including the power to give directions as to how the company should function, the power to appoint directors and even the power to determine the wages and salaries payable by the company to its employees.
But these powers are derived from the company's memorandum of association and the articles of association and not by reason of the company being the agent of the Central Government. The question whether a corporation is an agent of the State must depend on the facts of each case." Then it was said (p.553): "In the absence of a statutory provision, however, a commercial corporation acting on its own behalf, even though it is controlled wholly or partially by a Government department, will be ordinarily presumed not to be a servant or agent of the State. The fact that a Minister appoints the members or Directors of a corporation and he is entitled to call for information, to give directions which are binding on the Directors and to supervise over the conduct of the business of the corporation does not render the corporation an agent of the Government." 4. MR. Dutta has then cited Hindustan Aeronautics Ltd. vs. Their Workmen and Ors., 1975(2) LLJ 336 (SO. In that case the Government of West Bengal, qua the appropriate Government, referred an industrial dispute between Hindustan Aeronautics, a Government company under section 617, and its workmen. In support of its contention that the Central Government, not the State Government, was the appropriate Government to make the reference the company argued (para.2): "The memorandum and articles of association of the company unmistakably point out the vital role and control of the Central Government in the matter of carrying on of the industry owned by the appellant." The argument was turned down by Their Lordships applying the ratio of heavy engineering and saying, "The submission so made was identical to the one made before and repelled by this Court in the case of Heavy Engineering Mazdoor Union vs. State of Bihar and Ors.,........." MR. Ghosh has said that Hindustan Aeronautics, relied on by MR. Dutta, cannot be considered a relevant authority, because the question what is meant by the expression "any industry carried on under the authority of the Central Government" used in section 2(a)(i), just did not arise for consideration in it. According to him, as will appear from para. 4 of the report there the question for decision was regarding the territorial jurisdiction, and in that context only in passing it was said that the Central Government was not the appropriate Government for making the reference.
According to him, as will appear from para. 4 of the report there the question for decision was regarding the territorial jurisdiction, and in that context only in passing it was said that the Central Government was not the appropriate Government for making the reference. I am unable to agree with him. It is just apparent on the face of the decision that competency of the State Government to make the reference was the principal matter in issue in that case right from the stage of the Tribunal, and hence it cannot be said that the opinion was expressed by Their Lordships only in passing. In my understanding, the clear ratio of that Apex Court decision rather is that even existence of total control of the Central Government over a company would not go to show that the industry concerned is being carried on by that company under the authority of the Central Government. MR. Dutta has also relied on a Single Bench decision of this Court in Indian Institute of Technology, Kharagpur and Anr. vs. State of West Bengal and Ors., 2001(1) LLJ 868 (decided on September 28, 2000). After considering Heavy Engineering and Hindustan Aeronautics the Single Bench turned down IIT's contention that for referring an industrial dispute in relation to it the Central Government, and not the State Government, was the appropriate Government, since the Central Government had total control over the affairs of the institute. It was held that mere control of the Central Government over the affairs of a corporation created under a statute would not suggest that such corporation would act under the authority of the Central Government. MR. Ghosh has relied on another Single Bench decision of this Court in Hindustan Cables Ltd. vs. State of West Bengal and Ors., 2002 Lab. IC 21 (decided on August 17, 2001). In that, given without considering any of the existing authorities, the learned Judge held as follows (para 6): "I have heard the learned Counsel for the respective parties at length. The petitioner is a Government of India undertaking of which 100% share is held by the Central Government.
IC 21 (decided on August 17, 2001). In that, given without considering any of the existing authorities, the learned Judge held as follows (para 6): "I have heard the learned Counsel for the respective parties at length. The petitioner is a Government of India undertaking of which 100% share is held by the Central Government. Therefore, according to the definition of the 'appropriate Government' under the Industrial Disputes Act, it is the Central Government which is the appropriate Government within the meaning of section 2(a) of the 1970 Act." This was clearly not the law laid down by the Apex Court in Heavy Engineering. Mr. Dutta has next given me the Constitution Bench decision in Steel Authority of India Ltd. and Ors. vs. National Union Water Front Workers and Ors., 2001 Lab. IC 3656 (decided on August 30, 2001). In view of conflict of authority that was noticed in Food Corporation of India, Bombay vs. Transport and Dock Workers Union, 2000 Lab. IC 2114 regarding interpretation of the expression "appropriate Government" appearing in section 2(l)(a) of the Contract Labour (Regulation and Abolition) Act, 1970, and section 2(a) of the Industrial Disputes Act, 1947, the cases in which the Constitution Bench decision was given had been referred by a two-Judge Bench of the Apex Court to a larger Bench. One of the questions for determination of the Constitution Bench was (para.6): "What is the true and correct import of the expression "appropriate Government" as defined in clause (a) of sub-section (1) of section 2 of the CLRA Act." In section 2(l)(a) of the Contract Labour (Regulation and Abolition) Act, 1970 the expression "appropriate Government" has been defined to mean; "(i) in relation to an establishment in respect of which the appropriate Government under the Industrial Disputes Act, 1947 (14 of 1947), is the Central Government, the Central Government; (ii) in relation any other establishment, the Government of the State in which that other establishment is situate." It was argued in that ease (para, 15):.
"that all Central Government Undertakings which fall within the meaning of other authorities in Article 12 are agents or instrumentalities of the State functioning under the authority of the Central Government, as such the Central Government will be the appropriate Government, the Heavy Engineering's case was wrongly decided by the two Judge Bench of this Court which was followed by a three-Judge Bench in the cases of Hindustan Aeronautics Ltd. and Rashtriya Mill Mazdoor Sangh in those cases the judgments of this Court in Sukhdev Singh's case, Ajay Hasia's case. Central Inland Water Transport Corporation's case, C.V. Raman's case and R.D. Shetty vs. International Airport's case were not considered; the approach of the Court in the Heavy Engineering's case was based on private law interpretation and that the approach of the Court ought to be based on public law interpretation, it is submitted that in a catena of decisions of this Court, it has been held that where there is deep and pervative control, a company registered under the Companies Act or a society, registered under the Societies Act would be 'State' and, therefore, it would satisfy the requirement of the definition of "appropriate Government". In para.38 of the report Their Lordships said: "From the above discussion, it follows that the fact of being instrumentality of a Central/State Govt. or being'. 'State' within the meaning of Article 12 of the Constitution cannot be determinative of the question as to whether an industry carried on by a company/corporation or an instrumentality of the Govt. is by or under the authority of the Central Government for the purpose of or within the meaning of the definition of appropriate Government' in the CLRA Act." Then in para.39 of the report Their Lordships held: "To hold that the Central Government is "the appropriate Government" in relation to an establishment, the Court, must be satisfied that the particular industry in question is carried on by or under the authority of the Central Government. If this aspect is kept in mind it would be clear that the Central Government will be the "appropriate Government" under the CLRA Act and the ID Act provided the industry in question is carried on by a Central Government company/an undertaking under the authority of the Central Government. Such an authority may be conferred, either by a statute or by virtue of relationship of principal and agent or delegation of power.
Such an authority may be conferred, either by a statute or by virtue of relationship of principal and agent or delegation of power. Where the authority, to carry on any industry for or on behalf of the Central Government, is conferred on the Government company/any undertaking by the Statute under which it is created, no further question arises. But, if it is not so, the question that arises is whether there is any conferment of authority on the Government company/any undertaking by the Central Government to carry on the industry in question. This is a question of fact and has to be ascertained on the facts and in the circumstances of each case." 5. MR. Ghosh has placed strong reliance on his next case: Hindustan Aeronautics Ltd. and Anr. vs. Hindustan Aero Canteen K. Sangh and Ors., 2003(1) LLJ 494 (decided on July 8, 2002). Since on the basis of this authority he has belaboured the point, I think it will be appropriate to set out the whole of the judgment delivered by Their Lordships of the Apex Court in the case; and it is as follows: "Order. Leave granted. Heard the learned Additional Solicitor General for the appellants and the learned Counsel appearing for the opposite parties. 2. The question that arises for consideration in this case is, whether the High Court was justified in holding that the State Government is the 'appropriate Government' under the provisions of the relevant Act. The Constitution Bench recently has considered the relevant provisions of the Contract Labour (Regulation and Abolition) Act in the case of Steel Authority of India and Ors. vs. National Union Waterfront Workers and Ors., AIR 2001SC 3527 : 2001 (7) SCC 1 : 2001(2) LLJ 1087 and has come to the conclusion that the 'appropriate Government' will be the Government which exercises control and authority over the concerned organization. It is undisputed that the Hindustan Aeronautics Ltd. is an Undertaking of the Central Government and it is the Central Government which exercises full control over the same. Issuance of licence by the State Government is no criteria to come to a conclusion that the State Government would be the "appropriate Government'. The impugned judgment of the High Court therefore is, on the face of it, erroneous in view of the Constitution Bench decision of this Court referred to earlier.
Issuance of licence by the State Government is no criteria to come to a conclusion that the State Government would be the "appropriate Government'. The impugned judgment of the High Court therefore is, on the face of it, erroneous in view of the Constitution Bench decision of this Court referred to earlier. We, therefore, set aside the impugned judgment of the High Court and hold that the Central Government is the 'appropriate Government'. 3. The appeal stands disposed of accordingly." 6. MR. Ghosh has relied on yet another Single Bench decision, an unreported one, of this Court dated December 9, 2003 given in W.P. No.628 of 1999 (Paresh Chandra Roy vs. Govt. of West Bengal. and Ors.). In that case. the Tribunal to which the State Government, in the capacity of the appropriate Government, made a reference, accepted the employer's contention that it was the Central Government, and not the State Government, that was competent to make the order of reference, since the establishment concerned was run by the Central Government. Feeling aggrieved, the employee filed the writ petition that was dismissed upholding the decision of the Tribunal. No authority existing on the question what is meant by the expression "any industry carried on under the authority of the Central Government" used in section 2(a)(i) of the Industrial Disputes Act, 1947 was considered in the case. The learned Judge held as follows: "The writ petitioner has impugned aforesaid decision of the learned Tribunal saying that the decision is wrong on the question of law as whatever may be the superstructure of the aforesaid establishment, the same is virtually run by some persons other than the Central Government agency and/or instrumentality. Therefore, according to him, the decision is erroneous on this question. Learned Tribunal should have decided the matter on merit. MR. Ghosh, Id. Counsel appearing for the company, submits that the petitioner in his written statement before the Tribunal has admitted in paragraph 1 that it is the Central Government undertaking. Moreover. the learned Tribunal has gone in detail inviting evidence. Upon analysis and appreciation of evidence the Tribunal held that it is a Central Government Undertaking. Moreover, he has drawn my attention to the Articles of Association wherein shareholding pattern of this company has been mentioned. It appears out of 1000 shares, 997 shares are being held by the President of India.
Upon analysis and appreciation of evidence the Tribunal held that it is a Central Government Undertaking. Moreover, he has drawn my attention to the Articles of Association wherein shareholding pattern of this company has been mentioned. It appears out of 1000 shares, 997 shares are being held by the President of India. Therefore the holder of almost all shares is the President of India. Nobody can argue that the President of India holds the aforesaid shares in his individual capacity. Under the scheme of the Constitution, the President is bound to act and indeed he acts on the basis of the advice given by the Council of Ministers, headed by the Prime Minister, who runs the Government in real sense. When the President has held a share, it shall be deemed to be held by the Government. Therefore, in my view, no doubt this is a Government undertaking; not only undertaking, in fact, substantially owned by Government of India. The finding arrived at by the Tribunal is not upset by me rather I give supplemental finding to the findings of the Tribunal. Therefore, I uphold the decision of the Tribunal on the preliminary question. The State Government is in error absolutely as it is not a private industry not to speak of the undertaking run by the State Government. I, therefore, dismiss the writ petition.'' The last case on the question has been cited by Mr. Dutta, and it is Indian Iron and Steel Co. Ltd. vs. Ninth Industrial Tribunal, West Bengal and Ors., 2005(3) CHN 481 . The Division Bench said (paras. 3 and 4) as follows: "3. The shares are held by the Union of India through the President. The policy decisions are taken in respect of the company by the Central Government, therefore, according to Mr. Chakraborty it comes within the definition of section 2(a)(1) of the Industrial Disputes Act, 1947 and as such the reference made by the State Government is incompetent. 4. The fact remains that though the company is registered under section 617 of the Companies Act, yet it is a company, a distinct and separate juristic person from its shareholders. Therefore, it was rightly fond by the learned Single Judge that the holding of the shares by the Union of India would not make the company to be carried on by the Union of India or under the authority of Union of India.
Therefore, it was rightly fond by the learned Single Judge that the holding of the shares by the Union of India would not make the company to be carried on by the Union of India or under the authority of Union of India. Taking policy decision of the Central Government or issuing instructions by the Ministry would not amount to carrying on an industry by or under the authority of the Central Government when it is registered as company, a separate and distinct juristic person from the Central Government and managed by its own management. Even if the management follows a policy decision of the Ministry even then it would not be an industry carrying on business under the authority of the Central Government in order to bring the company within the meaning of sub-section 1(a) of section 2 of the 1947 Act........." 7. HERE the case of the company is that it is carrying on the industry under the authority of the Central Government. From Heavy Engineering, first Hindustan Aeronautics, and the Constitution Bench decision in Steel Authority of India, it is evident that a Central Government undertaking or a company even if wholly controlled by the Central Government is not to be automatically treated as a company carrying on any industry under the authority of the Central Government. It was clearly held in those three Apex Court decisions that it must be clearly shown that for carrying on the industry the company concerned had been actually authorised by the Central Government. It was explained that the company carrying on the industry would be considered a company carrying on an industry under the authority of the Central Government, if it had been carrying on the industry as an agent of the Central Government. The arguments made from 1969 to 2001 that deep and pervasive control of the Central Government should be the test for ascertaining whether a public sector, undertaking or a Government company is a company carrying on the industry under the authority of the Central Government, were specifically and authoritatively negatived by the Apex Court repeatedly; and the position was made the Apex Court. But then, Mr. Ghosh thought it necessary to draw my attention to the decision in Suganthi Suresh Kumar vs. Jagdeeshan, JT 2002(1) SC 220, where Their Lordships said (para.
But then, Mr. Ghosh thought it necessary to draw my attention to the decision in Suganthi Suresh Kumar vs. Jagdeeshan, JT 2002(1) SC 220, where Their Lordships said (para. 9): "It is impermissible for the High Court to overrule the decision of the Apex Court on the ground that Supreme Court laid down the legal position without considering any other point. It is not only a matter of discipline for the High Courts in India, it is the mandate of the Constitution as provided in Article 141 that the law declared by the Supreme Court shall be binding on all Courts within the territory of India. It was pointed out by this Court in Anil Kumar Neotia vs. Union of India, AIR 1988 SC 1353 , that the High Court cannot question the correctness of the decision of the Supreme Court even though the point sought before the High Court was not considered by the Supreme Court." 8. THE question before me is when the Constitution Bench decision, just relied on in the second Hindustan Aeronautics, and not explained, did not actually say that control of the Central Government over a Government company would be the real test for ascertaining whether the company is carrying on an industry under the authority of the Central Government, should I follow the Constitution Bench decision, or the decision in second Hindustan Aeronautics given on the basis of the Constitution Bench decision? THE position would have been easier if the second Hindustan Aeronautics were a decision given explaining the Constitution Bench decision. In that case the scope of the Constitution Bench decision would have stood expanded and control of the Central Government would definitely have been a test for answering the question. But as will appear from the decision itself, quoted hereinbefore in whole, THEir Lordships simply said that control test was the ratio of the Constitution Bench decision Since I could not, even after reading the Constitution Bench decision with able assistance of counsel for the parties, find out that the control test is the ratio of the Constitution Bench decision, I think I should follow the Constitution Bench decision, for which I should not be thought of disrespectful to the second Hindustan Aeronautics decision of the Apex Court. As will appear from the Constitution Bench decision (para.
As will appear from the Constitution Bench decision (para. 15) the control test was specifically pressed into service, but THEir Lordships did not accept it (para 38), In view of the Constitution Bench decision (para.39), the company concerned, if it claims that it is carrying on an industry under the authority of the Central Government, must show that such authority has actually been given to it by the Central Government to carry on the industry as an agent of the Central Government. As was said in the Constitution Bench decision in the absence of any express authority given to the company by the Central Government, the answer to the question has to be obtained by examining the facts and circumstances of the case. Before I leave this very important question of law that has arisen in the case, I think it is necessary for me to refer to the decisions of this Court cited to me by Counsel for the parties. While I agree with Mr. Dutta that the two decisions he has given me support the view that mere control of the Central Government is not the conclusive proof to show that the company concerned is carrying on the industry under the authority of the Central Government, I find that Mr. Ghosh is right in his submission that the two decisions he is relying on support the view that control of the Central Government over a Government company or a public sector undertaking is the decisive factor. Relying on U.P. Gram Panchayat Adhikari Sangh and Ors. vs. Daya Ram Saroj and Ors., 2007(2) SCC 138 . Mr. Ghosh has said that judicial discipline is the warrant for an order referring the matter by me to a larger bench, if I am unable to agree with the two coordinate bench decisions in Hindustan Cables and Paresh Ch. Roy. He relies on para. 26 of the report, and it is as follows: "Judicial discipline is self-discipline. It is an inbuilt mechanism in the system itself.
Roy. He relies on para. 26 of the report, and it is as follows: "Judicial discipline is self-discipline. It is an inbuilt mechanism in the system itself. Judicial discipline demands that when the decision of a Coordinate Bench of the same High Court is brought to the notice of the Bench, it is to be respected and is binding, subject or course, to the right to take a different view or to doubt the correctness of the decision and the permissible course then open is to refer the question or the case to a larger Bench. This is the minimum discipline and decorum to be maintained by judicial fraternity." 9. MR. Ghosh is absolutely right in saying that if I am unable to agree with a decision of a Coordinate Bench, I should refer the matter to a larger Bench. The question is whether such a situation exists in the present case. In my view, the question of making a reference arises when there is no binding authority in the field except the prior decision of the coordinate Bench. Here I find that the question that has been raised before me is not only squarely covered by as many as three Apex Court decisions, but one of them is no less than a decision of the Constitution Bench that had the occasion to consider the same question specifically raised before it. As I have already mentioned, the two Single Bench decisions of this Court relied on by MR. Ghosh were given without considering any of the existing binding authorities. At the time Hindustan Cables decision was given the Apex Court decisions in Heavy Engineering Mazdoor Union, and the first Hindustan Aeronautics were in existence, but none of them were considered. The decision in Paresh Chandra Roy was also given without considering any of the existing authorities. By then the Constitution Bench decision had come. It is therefore evident that the two decisions were given in ignorance of the binding authorities. In my view, in such a situation as this there is absolutely no need to refer the matter to a larger Bench, and the question should be answered by me on the basis of the binding decisions of the Apex Court. 10.
It is therefore evident that the two decisions were given in ignorance of the binding authorities. In my view, in such a situation as this there is absolutely no need to refer the matter to a larger Bench, and the question should be answered by me on the basis of the binding decisions of the Apex Court. 10. FROM the foregoing discussion it is apparent that for ascertaining whether the company has been carrying on the industry under the authority of the Central Government what is to be seen is whether the Central Government has authorized it in any way whatsoever to carry on the industry as an agent of the Central Government. The Tribunal has held that no evidence was produced by the company to show that the Central Government had authorised it to carry on the industry. While Mr. Dutta has said that in view of the decisions in P. Kasilingam vs. P.S.G. College of Technology, AIR 1981 SC 789 ; Ranjeet Singh vs. Ravi Prakash, 2004(3) CHN (SC) (Suppl.) 152 and Govt. of A.P. and Ors. vs. Md. Nasrullah Khan, AIR 2006 SC 1214 , there is absolutely no scope for me to exercise the writ powers as an appellate forum, Mr. Ghosh has said that the order of the Tribunal, disclosing no reasons why it was not inclined to consider the control and supervision aspects, being an unreasoned one, is liable to be set aside. He has further said that decisions cited to the Tribunal were not dealt with by it. His further grievance is that not a single piece of evidence was meaningfully considered by the Tribunal that, ignoring and overlooking the large number of documents produced by the company in support of its case, held that nothing was produced by the company to show that the Central Government had conferred on it any authority to carry on the industry. In support of his contentions Mr. Ghosh has relied on Chairman and Managing Director, United Commercial Bank and Ors. vs. P.C. Kakkar, JT 2003(2) SC 78; Damoh Panna Sagar Rural Regional Bank and Anr. vs. Munna Lai Jain, JT 2005(1) SC 70; Woolcombers of India Ltd. vs. Woolcombers Workers Union and Anr.. 1974(1) LLJ 138 (SC) and Mukand Ltd. vs. Mukand Staff and Officers' Association, 2004(1) CLR 1062 (SC).
vs. P.C. Kakkar, JT 2003(2) SC 78; Damoh Panna Sagar Rural Regional Bank and Anr. vs. Munna Lai Jain, JT 2005(1) SC 70; Woolcombers of India Ltd. vs. Woolcombers Workers Union and Anr.. 1974(1) LLJ 138 (SC) and Mukand Ltd. vs. Mukand Staff and Officers' Association, 2004(1) CLR 1062 (SC). The question is whether in the facts and circumstances of the case it can be concluded that the company is carrying on the industry under the authority of the Central Government. Summary of the evidence adduced, before the Tribunal by the company has been given in para 13 of the writ petition. Evidence was led to show that the company that had been carrying on the industry was acquired by the Central Government in 1960; that on acquisition, the properties and assets of the company stood vested in the Central Government; that all the shares of the company are owned by the Central Government; that Directors of the company are appointed by the Central Government; that all activities of the company are connected with jobs assigned to it by the Ministry of Defence of the Central Government; that except executing works given to it by the Ministry of Defence of the Central Government, it does not undertake any other work; that its annual reports are regularly placed before the Parliament; that its working capital comes from the Ministry of Defence of the Central Government; that its standing orders are certified by the Central Government; that it is run according the rules, regulations and instructions framed and issued by the Ministries of the Central Government; that dividend is regularly paid to the Central Government; and that in the memorandum of understanding with the Ministry of Defence provision was made for delegation of power. 11. IT is true that the Tribunal did not consider all the pieces of evidence specifically, and that it just said that the company produced a large number of documents, but failed to show anything in support of its case that the Central Government had authorised it to carry on the industry. I have been invited to interfere on the ground that the Tribunal made an unreasoned order. In ordinary course, it would have been normal to accept the invitation and remit the matter asking the Tribunal to make a reasoned order.
I have been invited to interfere on the ground that the Tribunal made an unreasoned order. In ordinary course, it would have been normal to accept the invitation and remit the matter asking the Tribunal to make a reasoned order. But I do not think this is a case where an order of remand is called for. The Tribunal recorded findings that the company was able to establish that the Central Government was exercising control and authority over its affairs. The only evidence adduced by the company before the Tribunal, and to which I have been referred by Mr. Ghosh, and summary whereof was read out by him and I have also briefly indicated hereinbefore, was for showing that the Central Government had total control over its affairs. There is absolutely nothing to show that the Central Government ever authorised it to carry on the industry. In other words the company failed to produce even a scrap of paper to show that it was carrying on the industry under the authority of the Central Government. During pendency of these proceedings the Central Government wrote a letter to the company asserting that with respect to it the Central Government was the appropriate Government. I only say that no extent of assertion of the Central Government can be the substitute for the thing that will actually show that the company is carrying on the industry under the authority of the Central Government. 12. WHAT the company was required to show before the Tribunal was that it was carrying on the industry actually as an agent of the Central Government. It failed to show that. Admittedly, the Central Government owns all the shares of the company, a company within the meaning of the Companies Act, 1956, and hence a juristic person. It is a distinct and separate legal entity, and there is no reason to say that it is an agent of the Government that is only its shareholder. As a shareholder of the company the Central Government is entitled to get dividend and it is getting it. As holder of all the shares of the company the Central Government is legitimately expected to control and conduct all the affairs of the company, in ordinary course, through the Board of Directors of the company.
As a shareholder of the company the Central Government is entitled to get dividend and it is getting it. As holder of all the shares of the company the Central Government is legitimately expected to control and conduct all the affairs of the company, in ordinary course, through the Board of Directors of the company. The Directors of the Board arc to be appointed by the Central Government as the shareholder, and that cannot lead to the conclusion that it has given authority to the company to carry on the industry qua its agent. There is absolutely no principal- agent relationship between the Central Government and the company. The company is engaged in commercial activities, and in the process it is making profit and giving dividend to the Central Government, the holder of all its shares. Its financial reports are placed before the Parliament, since the Central Government is the owner of all its shares. In course of carrying on business it is getting orders from the defence ministry of the Central- Government. The memorandum of understanding with the ministry of defence and the provision regarding delegation mentioned therein have nothing to do with conferment of any authority by the Central Government on it to carry on the industry. There is no prohibition against executing jobs other than jobs assigned to it by the Ministry of Defence. As an agent of the Central Government it is not getting any commission or remuneration. It cannot terminate the relationship between itself and the Central Government. That is an elementary element available in every case of agency. There is not an iota of evidence in support of the case that it has been carrying on the industry under the authority of the Central Government. This being the position, I do not see how it can be contended that the Central Government, and not the State Government, was the appropriate Government to make the reference in question. In view of section 2(a)(ii) of the Industrial Disputes Act, 1947 the State Government was the appropriate Government, and the reference was appropriately made by it in that capacity. The Tribunal rightly rejected the application, and there is no reason to interfere with its order. For these reasons, I dismiss the writ petition. The reference was made in 1995, and the issue referred was whether the dismissal of the third respondent from service was justified.
The Tribunal rightly rejected the application, and there is no reason to interfere with its order. For these reasons, I dismiss the writ petition. The reference was made in 1995, and the issue referred was whether the dismissal of the third respondent from service was justified. The proceedings before the Tribunal could not progress even an inch, though more than a decade has elapsed. In my view, it is a fit case where the company should be ordered to pay costs. Hence it is ordered to pay Rs.30,000/- costs to the third respondent within a fortnight from the date of communication of this order. It is further ordered that the Tribunal shall dispose of the proceedings within six months from the date of communication of this order. Mr. Ghosh prays for stay. The prayer is opposed. I find no reason to stay the operation of my order. Hence stay is refused. 13. URGENT certified xerox copy of this order shall be supplied to the parties, if applied for, within three days from the date of receipt of the file by the section concerned.