JUDGMENT Hon’ble D.P. Singh, J.—Heard Shri Yashwant Verma for the petitioner and Shri V.C. Mishra, learned Senior Advocate assisted by Vivek Misra for the respondent-workman. 2. This petition is directed against an award of the labour Court dated 17.8.1998 as published on 21.12.1998 answering the reference in favour of the workman and granting him reinstatement with continuity of service and full back wages. 3. The petitioner Institute of Technology is a declared Institution of National Importance established and managed under the Institutes of Technology Act, 1961 (hereinafter referred to as the Act) imparting instruction and research in various branches of Engineering, Technology, Science and Arts where the Board of Governors is responsible for general superintendence, direction and control of the affairs of the Institute and is also empowered to take policy decision with regard to the administration and working of the Institute. 4. In exercise of its powers, Board of Governors decided to set up a Health Centre within the premises of the Institute for the benefit of its students, faculty and employees etc. The respondent workman was appointed as a Compounder in the said Health Centre on a probation of one year vide letter dated 13.5.1975. It is pleaded that no order of confirmation was passed and he continued in service but it was terminated vide order dated 31.12.1977 in exercise of powers under Statute 13 (3) treating his services to be temporary in nature. 5. It is further pleaded that the workman filed a Suit No. 21 of 1978 seeking a declaration that he had become a permanent employee after expiry of the period of probation and, therefore, his termination was null and void. The suit was contested and after contest it was dismissed on merits vide order and judgment dated 25.4.1988 passed by the Additional Civil Judge, Kanpur. The workman subjected the said decision to Appeal No. 198 of 1988 which was also dismissed on merits vide order and judgment dated 12.8.1992. It is further pleaded that thereafter he approached the State Government which treated his termination as a dispute and referred it under Section 4-K of the U.P. Industrial Disputes Act which was registered as Adjudication Case No. 13 of 1995 as to whether the termination was justified. It is further pleaded that thereafter he approached the State Government which treated his termination as a dispute and referred it under Section 4-K of the U.P. Industrial Disputes Act which was registered as Adjudication Case No. 13 of 1995 as to whether the termination was justified. On being summoned the parties led their respective evidence whereafter the impugned award has been rendered holding that the appropriate Government was the State Government; the decision in the civil suit would not operate as res judicata and after expiry of the initial probation the workman stood confirmed on his post. 6. Learned Counsel for the petitioner has raised three principle arguments in support of this petition. Firstly, it is contended that the petitioner Institute is being run by and under the authority of the Central Government and, therefore, the appropriate Government for the purposes of adjudication of industrial dispute was the Central Government. Secondly, it is urged that the judgment rendered by the civil Court would operate as res judicata and the workman or the labour Court cannot be allowed to go behind the said decision especially when the judgment was rendered on merits. Lastly, it is urged that the services of the workman were governed by the Statutes of the Institute and there is no question of automatic confirmation in view of the provisions contained therein and at best the workman could be treated as a temporary employee unless there was an order of confirmation. 7. The term “appropriate Government” has been subject matter of a large number of decisions of various High Courts and the Apex Court. Finally, a Constitution Bench in the Steel Authority of India Ltd. and others v. National Union Waterfront Workers and others, 2001 (7) SCC 1 , examined all the case laws on the issue and settled the matter finally. The term “appropriate Government” has been subject matter of a large number of decisions of various High Courts and the Apex Court. Finally, a Constitution Bench in the Steel Authority of India Ltd. and others v. National Union Waterfront Workers and others, 2001 (7) SCC 1 , examined all the case laws on the issue and settled the matter finally. The Constitution Bench while considering the interpretation of the expression “appropriate Government” as appearing in the Contract Labour (Regulation and Abolition) Act, 1970 (hereinafter referred to as CLRA) which also appears in Section 2(a) of the Industrial Disputes Act, 1947, found that the definition of “appropriate Government” was borrowed from the Industrial Disputes Act into the CLRA and the Bench, after considering in detail the various judgments, distinguished the meaning of “State” as used in Article 12 of the Constitution, went on to hold that : “There cannot be any dispute that all the Central Government companies with which we are dealing here are not and cannot be equated to the Central Government though they may be “State” within the meaning of Article 12 of the Constitution. We have held above that being the instrumentality or agency of the Central Government would not by itself amount to having the authority of the Central Government to carry on that particular industry. Therefore, it will be incorrect to say that in relation to any establishment of a Central Government company/undertaking, the appropriate Government will be the Central Government. 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 the 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. Such an Authority may be conferred, either by a statute or by virtue of the 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 no 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.” 8. The Counsel for the petitioner has referred to several sections of the Act to show that under the aforesaid Statute the Institute is being run for and on behalf of the Central Government and, therefore, there is no question of examining the facts. 9. Section 9 mandates that the President of India shall be the Visitor of the Institute. Section 10 provides that a Board of Governors and other Authorities as declared by the Statutes would be the Authorities of the Institute and Section 11 provides that the Chairman of the Board of Governors is to be nominated by the Visitor. The Director of the Institute is to be appointed by the Council with the prior approval of the Visitor under Section 17. Section 31 provides for the constitution of the Council wherein the Minister incharge of the Technical Education in the Central Government is the Ex. Officio Chairman of the Council while the Director of the Institute; Chairman of the University Grants Commission; the Director General, Council of Scientific and Industrial Research; three persons to be nominated by the Central Government, each representing the Ministry of Technical Education, Ministry of Finance and the third by any other Ministry; a person nominated by all India Council of Technical Education; not less than three but not more than five persons to be nominated by the Visitor; three members of Parliament, two nominated members from the House of Parliament and one by the Council of States, would be its Ex-Officio members. An Officer of the Ministry of Technical Education of the Central Government is to be nominated as the Secretary of the Council. An Officer of the Ministry of Technical Education of the Central Government is to be nominated as the Secretary of the Council. Section 21 further provides that the Central Government shall pay, after due appropriation made by the Parliament, such sums of money to the Institute as it may think fit while under Section 22 the Institute has to maintain a fund where all the money given by the Central Government are to be accredited. Under Section 23 the account of the Institute has to be audited by the Controller and Auditor General of India and the report has to be forwarded to the Central Government and has to be laid before each House of Parliament. The Finance Committee, which is also an Authority under Section 10 of the Act is chaired by the Chairman and consists of two persons each to be nominated by the Central Government and the Board, and the Director of the Institute. The Council, with the previous approval of the Visitor has to frame the first Statute of the Institute under Sections 26, 27, 28 and 29 with the previous approval of the Visitor and the copy has to be laid before each House of Parliament. No amendment can be carried out without the approval of the Visitor. 10. By virtue of Section 33 of the Act, Council is the highest body of the Institute which advises on matters relating to duration of course, degrees etc. lays down policy regarding cadres, methods of recruitment and conditions of service of employees, scholarships, free ships etc. It examines the annual budget and recommends to the Government for allocation of fund for the said purpose. Under Section 35, the Central Government is vested with the power to frame Rules with regard to filling of vacancies, disqualification and for carrying out other objects of the Act. Section 37 empowers the Central Government to remove any difficulty in giving effect to the provision of the Act. 11. A perusal of the Act itself shows that the two most important Authorities, the Board of Governors and the Council, comprise of either of nominees of the President of India or are Ex-Officio nominees of the Central Government or are Government officers as Ex-Officio nominees of the Central Government. It functions as an extended arm of the Government. 11. A perusal of the Act itself shows that the two most important Authorities, the Board of Governors and the Council, comprise of either of nominees of the President of India or are Ex-Officio nominees of the Central Government or are Government officers as Ex-Officio nominees of the Central Government. It functions as an extended arm of the Government. Funds are provided by it and the accounts have to be audited by the Auditor General and report has to be sent to the Government. The Statute of the Institute, which regulates its functioning has to be approved by the Government. Even though the Council and the Board comprises of Government official, but even then the two Authorities are bound by the directions of the Government and they cannot function without its approval even with regard to policy matters. The nature and degree of control that the Government exercises over the Institute, leaves no room of doubt that it is being run by and under the authority of the Central Government. If the ratio of Steel Authority of India (supra) is applied, the only conclusion would be that qua the Institute the “appropriate Government” is the Central Government. 12. However, Shri Misra contends that as the Institute is being run within the State of U.P. and since its name does not find place in Section 2(a) of the Industrial Disputes Act, the “appropriate Government” would be the State Government and for this proposition he has relied upon the decision of the Apex Court rendered in the case of Food Corporation of India Workers Union v. Food Corporation of India and others, AIR 1985 SC 488 . It would be worthy of note that the Constitution Bench has considered the decision in Food Corporation (supra), but that case related to a period when the definition of the expression “appropriate Government” had not been amended and, therefore, the decision rendered therein would not be applicable after its amendment. 13. It is further contended by him that in view of Section 39 of the Central Act, the State Government could exercise the delegated power and refer the dispute to the Labour Court. He has placed reliance upon a notification dated 3.7.1998. 14. No doubt, the State authorities could have made a reference in exercise of delegated power under Section 39 of the Central Act. He has placed reliance upon a notification dated 3.7.1998. 14. No doubt, the State authorities could have made a reference in exercise of delegated power under Section 39 of the Central Act. But, in the present case, the reference has been made under the State Act and also to the Court appointed under the State Act and not under the Central Act. A learned Single Judge of this Court has considered in detail the aforesaid arguments in the case of National Textile Corporation Ltd. v. State of U.P. and others, 2005 L.I.C. 485 and held that while exercising powers under Section 39 of the Central Act, the reference ought to have been made to a Court constituted in accordance with Section 17-A of the Central Act and not to the one appointed under the State Act. 15. However, as the parties have been heard on merits at length, therefore, it appears appropriate to deal with the case on merit also. 16. The question is whether the judgment rendered in the suit filed by the respondent would operate as res judicata on the question of automatic confirmation? 17. It is urged on behalf of the petitioner that this very question arose in the suit filed by the respondent and the Court held that unless an order of confirmation is passed, in the circumstances of the case, there could not be any automatic confirmation and thus, upheld the order of the termination. Mr. Misra contends that he was ill advised to file the suit as it is barred in labour disputes and, therefore, the order would be void and as such it would not operate as a bar. No doubt, where a dispute relates to enforcement of a right under the industrial law or an obligation created therein, the jurisdiction of the civil Court is barred. However, if it is an industrial dispute arising out of a right or liability under the general or common law, the suitor can choose the forum either under the industrial law or before the civil Court. The aforesaid proposition laid down by the Apex Court in the case of Premier Automobiles Ltd. v. K.S. Wadke and others, AIR 1975 SC 2238 holds the field till date. The aforesaid proposition laid down by the Apex Court in the case of Premier Automobiles Ltd. v. K.S. Wadke and others, AIR 1975 SC 2238 holds the field till date. In the case at hand the respondent had chosen the remedy of a civil suit seeking a declaration that his services were deemed confirmed on expiry of the probation and he obtained a judgment on merits which was upheld in appeal, cannot be now allowed to turn around and say that the said judgment was void. From the judgment, it is apparent that he was seeking a declaration under the common law obligation and having once elected to approach the Civil Court he had already exercised his option and, therefore, could not have approached the labour Court as the decision thereon would operate as res judicata. 18. However, it is contended by Shri Misra that once the period of probation mentioned in the appointment letter had expired and he was allowed to continue much beyond that period without passing any order of extension of probation or confirmation, it would be a case of deemed confirmation. Though, it is not open to him to raise the issue again, but in all fairness, let us examine it once again. 19. As already noted, while introducing the facts, that the respondent was appointed on probation of one year vide order dated 13.5.1975 and his services were neither terminated nor confirmed after expiry of the period of one year but he was allowed to continue till his termination in December, 1977. The concept of automatic confirmation is necessarily to be governed by the rules of service or conditions of appointment. It is by now well settled that where the maximum period of probation is either provided under the service rules or in the appointment letter, continuation beyond that period may cloathe the incumbent with quasi permanency and he may be entitled to opportunity prior to his termination. This general principle of labour law was for the first time extended to service jurisprudence by the Constitution Bench decision in the case of State of Punjab v. Dharam Singh, AIR 1968 SC 1210 . 20. Before proceeding further it would be appropriate to examine the appointment letter and the service conditions. 21. This general principle of labour law was for the first time extended to service jurisprudence by the Constitution Bench decision in the case of State of Punjab v. Dharam Singh, AIR 1968 SC 1210 . 20. Before proceeding further it would be appropriate to examine the appointment letter and the service conditions. 21. The respondent was appointed vide order dated 13.5.1975 on a pay scale prescribed under the Rules of the Institute and subject to it on probation for a period of one year, subject to confirmation on satisfactory completion of the probation. There is no maximum period prescribed for probation, and his service could be terminated during probation without any notice or without assigning any reason. It is also common ground that service conditions of the employees of the Institute are governed by its Statutes. The procedure for appointment is provided in Statute 12 while the terms and conditions of service are provided in Statute 13. Sub-clause (2) stipulates all appointments to be made on probation for one year while under clause (3) the appointing authority is empowered to extend the period of probation of any employee for such periods as found necessary. It would be useful to note sub-clause (3) which reads as follows : “13(1) ........................... 13(2) ............................ 13(3) The appointing authority shall have the power to extend the periods of probation of any employee of the institution for such periods as may be found necessary, provided that if after the period of probation the official is not confirmed and his probation is also not formally extended, he shall be deemed to have continued on a temporary basis and that his services may then be terminable on a month’s notice or on payment of a month’s salary in lieu thereof.” 22. It is admitted to the parties that the probation of the respondent was never extended, thus by virtue of operation of sub-clause (3) above, he would be deemed to have continued in temporary employment terminable on a month’s notice or notice pay in lieu thereof. A copy of the termination order is on record which shows that it is a termination simplicitor with one month’s salary in lieu of notice. It is evident that the said termination order was in consonance with the requirement of Statute 13(3). A copy of the termination order is on record which shows that it is a termination simplicitor with one month’s salary in lieu of notice. It is evident that the said termination order was in consonance with the requirement of Statute 13(3). Even if the Statutes had been silent with regard to the status of an employee where no orders are passed even after completion of the initial period of probation, even then the respondent could not have claimed automatic confirmation because the appointing authority has been vested with the power of extension of probation without fixing any limit for further extension. 23. Shri Misra goes on to contend that since the respondent has been removed for unsatisfactory work, it would be stigmatic termination and, therefore, opportunity was necessary. A bare perusal of the termination order shows that no stigma has been attached. Though, advisories were issued to him to improve his working, but neither it has been demonstrated that such advisories are foundation of the order nor such advisories can be said to be stigmatic. His continuation was at best as that on probation. The Apex Court in the case of State of Punjab v. Bhagwan Singh, 2002 (9) SCC 636, as affirmed in Muir Mills Unit of NTC (U.P.) Ltd. v. Swayam Prakash Srivastava and another, 2007 (1) SCC 491 , has held that services of such a person can be determined at any time even on the ground of unsatisfactory work but that would not amount to stigmatic termination and would be valid. 24. In view of the discussions above, the petition succeeds and is allowed and the award dated 17.8.1998 is hereby quashed. In the circumstances of the case, no order as to costs. ————