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2016 DIGILAW 1116 (ORI)

Talcher Fertilizer Labour Union v. Union of India

2016-11-17

SANJU PANDA, SUJIT NARAYAN PRASAD

body2016
JUDGMENT S.N.PRASAD,J. - This writ petition is by the Talcher Fertilizer Labour Union assailing the award dated 11.12.2000 passed in I.D.Case No.42 of 1996 whereby and where under the reference made by the appropriate government has been answered against the workmen. 2. Case of the workmen, who have been represented through the Talcher Fertilizer Labour Union, is that 106 numbers of workmen were selected and recruited by the Talcher Fertilizer Corporation of India Limited, the management, they were being engaged in maintenance work at machineries and equipments in automobile Section, machine shop, central overhauling Section, material handling plant, N.D.T. Section coal preparation plant, urea plant, ammonia plant, steam general plant, central mechanical maintenance Section, central store etc, out of them serial no.10 Santosh Das was a typist typing the letters of the management, serial no.22 Bhikari Biswal, Serial no.45 Ramakanta Sahoo and Serial no.87 Gagan Jena were taking files and other papers of F.C.I. to different Sectional officers in the general office and other places as Messengers. The workmen were working as per the direction, control and supervision of the Technicians and officers of the F.C.I. and the manner and method of working was directed by the Technicians and officers of the F.C.I. They were supplied with tools by the management of F.C.I. and their attendance was also kept by the F.C.I. staff. The leave to the workmen was being granted by the F.C.I. Officers and register of job allotment and execution was being maintained by the F.C.I. Technicians and officers. They were also working overtime as per the orders of the F.C.I. Officers. They were subscribing to the Employees Provident Fund and their subscription was deducted by the F.C.I. from their wages. More than 100 regular semi-skilled employees of the F.C.I. were working with them and were being paid higher wages and were getting other benefits. The workmen were not being paid wages at par with the regular workers of the F.C.I. and were also not getting the benefits like the regular workers. Since the workers being recruited directly by the management and working as per the orders and direction, they had no relation with the contractors. The workmen were not being paid wages at par with the regular workers of the F.C.I. and were also not getting the benefits like the regular workers. Since the workers being recruited directly by the management and working as per the orders and direction, they had no relation with the contractors. On 13.11.94 the Union representing the workmen made a demand that the concerned contractors of 106 workers are name lenders and sham and for that the concerned workers demanded that they shall be absorbed as direct employees by the principal and real employer i.e. M/s Fertilizer Corporation of India Limited, Talcher Unit. The workmen numbering 95 excepting serial no.95,96,97,100,102,103,104 and 106 were not allowed to work on the plea that the contractors M/s Wel-Tech Engineers and M/s Vijaya Contractor had completed their work. In place of those 95 workers new workers have been engaged through succeeding name lenders and sham contractors, so the recruitment of 95 workmen was added to the conciliation proceeding, reference has been made for its adjudication by the Central Government Tribunal. Case of the management i.e. M/s Fertilizer corporation of India Limited, Talcher unit is that reference is not maintainable as the order of reference is made by the State Government which is not the appropriate Government as first party M/s FCI Limited, is wholly owned by the Government of India. It is further their case that the question of regularization of contract labourers under the Contract Labour (Regulation & Abolition) Act, 1970 is equally within the exclusive jurisdiction of the Central Government as per the judgment rendered by the Hon’ble Apex Court in the case of Air India Statutory Corporation –vs- United Labour Union reported in AIR 1997 SC 645 . Reference made by the appropriate Government is also not sustainable on the ground that the act of termination of service or retrenchment being that of M/s Wel-Tech Engineers and M/s Vijaya Contractor, the employers of the concerned workmen, roping in this dispute the management/s FCI Limited, who was never the employer of the workmen, is illegal and beyond jurisdiction. Reference suffers from total non-application of mind on the part of the government as the necessary parties i.e. the real employers of the workmen have not been made parties to the dispute. Reference suffers from total non-application of mind on the part of the government as the necessary parties i.e. the real employers of the workmen have not been made parties to the dispute. It has further been stated that the two contractors namely Wel-Tech Engineers and M/s Vijaya Contractor had never employed 106 workman as alleged as appears on the basis of the official records and information. The management has totally denied the assertion of the workman about their place of work, Section of working, designation, joining date and year of service. It has been stated that the workmen were contract labourers engaged by M/s Wel-Tech Engineers and M/s Vijaya Contractor and such contractors have been given work order in the month of May,1994 and such the workmen had worked under the contractors in between 1.5.1994 till 30.4.1995. 3. The Union, in order to settle the dispute, has approached the Conciliation officer, conciliation having been failed and the appropriate Government has made the following reference. “(1) Whether the retrenchment of 106 workmen (list attached to the order of reference) w.e.f. 1.5.95, by M/s Wel-Tech Engineers and M/s Vijaya Contractor, Contractors of Fertilizer Corporation of India Ltd., Talcher Unit, Talcher is legal and /or justified. If not, what relief they were entitled to? (2) Are they entitled to regular employment in the Fertilizer Corporation of India Ltd., Talcher Unit? If so, with what details ?” 4. Tribunal after recording oral as well as documentary evidence has formulated the following issues: (1) Whether the reference is maintainable? (2) Whether the retrenchment of 106 workmen (list enclosed to the order of reference) w.e.f. 1.5.95 by M/s Wel-Tech Engineers and M/s Vijaya Contractor, Contractors of Fertilizer Corporation of India, Talcher Unit, Talcher is legal and / or justified? (3) Are they entitled to regular employment in the Fertilizer Corporation of India Ltd., Talcher Unit ? If so, with what details ?” (4) To what relief, if any, the second party-workmen are entitled ?” 5. (3) Are they entitled to regular employment in the Fertilizer Corporation of India Ltd., Talcher Unit ? If so, with what details ?” (4) To what relief, if any, the second party-workmen are entitled ?” 5. Tribunal while deciding the issue no.2 which pertains to action of contractors namely M/s Wel-Tech Engineers and M/s Vijaya Contractor in retrenching 106 workmen from service is legal and/or justified, the Tribunal has taken into consideration the evidence of the management witnesses, documentary evidence produced by representative of the management and evidence of the workmen submitted by documentary evidence and came to definite finding that the two contractors namely M/s Wel-Tech Engineers and M/s Vijaya Contractor are real and genuine and not sham lenders, thus reference has been answered in negative against the workman. Issue no.1 which pertains to maintainability of the reference the Tribunal has come to conclusion that the reference itself was not maintainable for the reason that the FCI being under the control of the Central Government hence appropriate government within the parameter of the provision of Section 2(a) of the Industrial Disputes Act and Central Government would be the appropriate government and as such the central government was only competent to make reference being appropriate government but here in this case State Government has made reference, hence reference itself is without any jurisdiction and accordingly reference has been held to not maintainable. 6. We have heard learned counsel for the parties and perused the documents available on record. 7. We have appreciated the arguments advanced on behalf of the parties. Before going through the legality and propriety of the order passed by the Industrial Tribunal it would be relevant to discuss the statutory provisions which have got bearing in this case along with authoritative pronouncements in this regard. Reference in this regard may be made to the statutory provision as contained in Section 2(a) of the Industrial Disputes Act, 1947 which reads as follows:- Section 2 of the I.D. Act, 1947 reads as follows: “2. Reference in this regard may be made to the statutory provision as contained in Section 2(a) of the Industrial Disputes Act, 1947 which reads as follows:- Section 2 of the I.D. Act, 1947 reads as follows: “2. Definitions.- In this Act, unless there is anything repugnant in the subject or context,— (a)”appropriate Government means- (i) 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] or in relation to an industrial dispute concerning [a dock Labour Board established under Section 5A of the Dock Workers (Regulation of Employment) Act, 1948 (9 of 1948 ), or the Industrial Finance Corporation of India Limited formed and registered under the Companies Act, 1956 (1 of 1956)] or the Employees’ State Insurance Corporation established under Section 3 of the Employees’ State Insurance Act, 1948 (34 of 1948), or the Board of Trustees constituted under Section 3A of the Coal Mines Provident Fund and Miscellaneous Provisions Act, 1948 ( 46 of 1948 ), or the Central Board of Trustees and the State Boards of Trustees constituted under Section 5A and Section 5B, respectively, of the Employees’ Provident Fund and Miscellaneous Provisions Act, 1952 (19 of 1952), or the Life Insurance Corporation of India established under Section 3 of the Life Insurance Corporation Act, 1956 (31 of 1956), or [the Oil and Natural Gas Corporation Limited registered under the companies Act, 1956 (1 of 1956), or the Deposit Insurance and Credit Guarantee Corporation established under Section 3 of the Deposit Insurance and Credit Guarantee Corporation Act, 1961 (47 of 1961 ), or the central Warehousing Corporation established under Section 3 of the Warehousing Corporations Act, 1962 (58 of 1962 ), or the Unit Trust of India established under Section 3 of the Unit Trust of India Act, 1963 (52 of 1963 ), or the Food Corporation of India established under Section 3, or a Board of Management established for two or more contiguous States under Section 16, of the Food Corporations Act, 1964 (37 of 1964), or the Airports Authority of India constituted under Section 3 of the Airports Authority of India Act, 1994 (55 of 1994), or a Regional Rural Bank established under Section 3 of the Regional Rural Banks Act, 1976 (21 of 1976), or the Export Credit and Guarantee Corporation Limited or the Industrial Reconstruction Bank of India], [the National Housing Bank established under Section 3 of the National Housing Bank Act, 1987 (53 of 1987)] or [an air transport service, or a banking or an insurance company,] a mine, an oil field, [ a Cantonment Board,] or a major port, any company in which not less than fifty-one per cent. of the paid-up share capital is held by the Central Government, or any corporation, not being a corporation referred to in this clause, established by or under any law made by Parliament, or the Central public sector undertaking, subsidiary companies set up by the principal undertaking and autonomous bodies owned or controlled by the Central Government, and] (ii) in relation to any other industrial dispute, including the State public sector undertaking, subsidiary companies set up by the principal undertaking and autonomous bodies owned or controlled by the State Government, the State Government: Provided that in case of a dispute between a contractor and the contract labour employed through the contractor in any industrial establishment where such dispute first arose, the appropriate Government shall be the Central Government or the State Government, as the case may be, which has control over such industrial establishment.]” An analysis of this his provision shows that the Central Government will be the appropriate Government in relation to an industrial dispute concerning (i) any industry carried on by or under the authority of the Central Government, or by a railway company or (ii) any such controlled industry as may be specified in this behalf by the Central Government or (iii) the enumerated industries (which form part of the definition quoted above and need not be reproduced here). What is evident is that the phrase “any industry carried on by or under the authority of the Central Government” is a common factor in both the un-amended as well as the amended definition. The relevant meaning of the word “authority” as per the definition in Concise Oxford Dictionary is delegated power. In Black’s law Dictionary the meanings of the word “authority” are permission; right to exercise powers – often synonymous with power. The power delegated by a principal to his agent. The lawful delegation of power by one person to another, Power of agent to affect legal relations of principal by acts done in accordance with principal’s manifestations of consent to agent. From the above discussion, it follows that the phrase any industry carried on under the authority of the Central Government implies an industry which is carried on by virtue, of, pursuant to, conferment of, grant of, or delegation of power or permission by the Central Government to a Central Government Company or other Government Company / undertaking. From the above discussion, it follows that the phrase any industry carried on under the authority of the Central Government implies an industry which is carried on by virtue, of, pursuant to, conferment of, grant of, or delegation of power or permission by the Central Government to a Central Government Company or other Government Company / undertaking. The authoritative pronouncement made in this regard is the judgment rendered by the Hon’ble Apex Court in the case of Heavy Engineering Mazdoor Union Vrs. State of Bihar, reported in (1969) 1 SCC 765 wherein at paragraph 5 it has been held by Hon’ble Apex Court as follows:- “5….The question whether a corporation is an agent of the State must depend on the facts of each case. Where a statute setting up a corporation so provides, such a corporation can easily be identified as the agent of the State as in Graham V. Public Works Commissioners, reported in (1901) 2 KB 781 (DC) where Phillimore, J. Said the Crown does in certain cases establish with the consent of Parliament certain officials or bodies who are to be treated as agents of the Crown even though they have the power of contracting as principals. 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 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.” In the said case the Hon’ble Apex Court looked into the definition of ‘employer as given in Section 2(g) of the I.D. Act. As this Section provides, an employer under clause (g) means, an employer in relation to an “industry” carried on by or under the authority of any department of the central Government or the State Government, the authority prescribed in that behalf, or where no such authority is prescribed, the Head of the Department. No such authority was prescribed in regard to the business carried on by the respondent company. No such authority was prescribed in regard to the business carried on by the respondent company. The Hon’ble Apex Court has observed that the definition of the “employer” under the Industrial Disputes Act on the contrary suggests 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 Posts and Telegraphs or Railways, or one carried on by such department through the instrumentality of an agent. All these facts led the Hon’ble Apex Court to hold that Heavy Engineering Corporation could not be said to be an “industry” carried on under the authority of the Central Government. In the judgment rendered by Hon’ble Apex Court in the case of Hindustan Aeronautics Ltd. Vrs. Workmen, reported in (1975) 4 SCC 679 (herein after referred to as HAL-I) the dispute between the Management of Barrackpore Branch of the appellant Government Company situated in West Bengal and its employees. The appellant has challenged the award of the Fifth Industrial Tribunal, West Bengal and one of the challenges was to the competence of the Government of West Bengal to make the reference of the industrial dispute. It was contended that the Barrackpore Branch was under the direct control of the Bangalore division of the company and since it was a government company constituted under Section 617 of the Companies Act, the reference ought to have been made either by the Central Government or by the Government of Karnataka, but the Hon’ble Apex Court negatived the contention by following the judgment rendered in the case of Heavy Engineering Mazdoor Union (supra) and holding at paragraph 4 as follows:- “4….The workers were receiving their pay packages at Barrackpore and were under the control of the officers of the company stationed there. If there was any disturbance of industrial peace at Barrackpore where a considerable number of workmen were working the appropriate Government concerned in the maintenance of the industrial peace was the West Bengal Government. The grievances of the workmen of Barrackpore were their own and the cause of action in relation to the industrial dispute in question arose there. If there was any disturbance of industrial peace at Barrackpore where a considerable number of workmen were working the appropriate Government concerned in the maintenance of the industrial peace was the West Bengal Government. The grievances of the workmen of Barrackpore were their own and the cause of action in relation to the industrial dispute in question arose there. The reference, therefore, for adjudication of such a dispute by the Governor of West Bengal was good and valid.” The Hon’ble Apex Court thus has held that it may be assumed that the Barrackpore Branch was under the control of the Bangalore division of the company, yet it was a separate branch engaged in an industry of repairs of air crafts or the like at Barrackpore. For the purpose of the Act and on the facts of this case the Barrackpore branch was an industry carried on by the company as a separate unit. The workers were receiving their pay packages at Barrackpore and were under the control of the officers of the company stationed there. If there was any disturbance of industrial peace at Barrackpore where a considerable number of workmen were working the appropriate Government concerned in the maintenance of the industrial peace was the West Bengal Government. The grievances of the workmen of Barrackpore were their own and the cause of action in relation to the industrial dispute in question arose there. The reference therefore, for adjudication of such a dispute by the Governor or West Bengal was good and valid. In the case of Rashtriya Mill Mazdoor Sangh Vrs. Model Mills, reported in 1984 Supp. SCC 443 a reference of the demands of the employees for payment of bonus was challenged on the ground that an authorized controller under the Industries (Development and Regulation) Act. 1951 had been appointed in respect of industrial undertaking and since the undertaking was being run by an authorized controller under the authority of a department of the Central Government, the reference under the Bombay Industrial Relations Act, 1946 was not competent. 1951 had been appointed in respect of industrial undertaking and since the undertaking was being run by an authorized controller under the authority of a department of the Central Government, the reference under the Bombay Industrial Relations Act, 1946 was not competent. A Bench of Hon’ble Apex Court comprising of three Hon’ble judges once again referred to the interpretation of the expression “under the authority of “ rendered in Heavy Engineering Mazdoor Union’s case (supra) and reached to the conclusion at paragraph 17 which is being reproduced herein below:- “17… The fact that the authorized controller is appointed by the Central Government and that he has to work subject to the directions of the Central Government does not render the industrial undertaking an agent of the Central Government and therefore, could not be said to be an establishment engaged in an industry carried on by under the authority of the Central Government.” The judgment rendered by Hon’ble Apex Court in the case of Rashtriya Mill Mazdoor Sangh (supra) was followed by the judgment rendered by Hon’ble Apex Court in the case of Workers’ Union Vrs. Food Corporation of India, reported in (1985) 2 SCC 294 . Therein Hon’ble Apex Court was concerned with the writ petition filed by the employees seeking regularization of their services under the Contract Labour (Regulation and Abolition) Act, 1970. In that matter in spite of the fact that FCI is a specified industry under Section 2(a)(i) of the Industrial Disputes Act, 1947, the Hon’ble Apex Court by referring to the definition of “appropriate Government” under the Contract Labour (Regulation and Abolition) Act, 1970 and by placing reliance upon the judgment rendered in the case of Heavy Engineering Mazdoor Union (supra) and Rashtriya Mill Mazdoor Sangh (supra) held that for the regional offices and warehouses which were situated in various States, the State Governments were the “appropriate Governments” and not the Central Government. Thereafter judgment has been pronounced by the Hon’ble Apex Court in the case of Air India Statutory Corporation –v- United Labour Union wherein by reversing the position of law as has been delivered by the Hon’ble Apex Court on 6.12.96 in the cases herein above it has been laid down that the appropriate Government of the public sector undertaking would be the Central Government. All these judgments referred in this case has again been reconsidered by the constitution bench of the Hon’ble Apex Court in the case of SAIL –v- National Union Waterfront Workers dealing with definition of appropriate Government within the meaning of the Industrial Disputes Act has approved the view taken by the Hon’ble Apex Court in the case of Heavy Engineering Mazdoor Union –vs- State of Bihar (supra), Hindustan Aeronautics Ltd. -vs- Workmen (supra), Rashtriya Mill Mazdoor Sangh –vs- Model Mills (supra), Tata Memorial Hospital workers Union Vrs. Tata Memorial Centre and Another(supra) and held at paragraphs 37,38 and 39 which has been reproduced herein below: “37. We wish to clear the air that the principle, while discharging public functions and duties the government companies / corporations / societies which are instrumentalities or agencies of the Government must be subjected to the same limitations in the field of public law – constitutional or administrative law – as the Government itself, does not lead to the inference that they become agents of the Centre /State Government for all purposes so as to bind such Government for all their acts, liabilities and obligations under various Central and / or State Acts or under private law.” “38. From the above discussion, it follows that fact of being an instrumentality of a Central / State Government 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 Government 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. Xxxx further, the definition of ‘establishment’ in the CLRA Act takes in its fold purely private undertakings which cannot be brought within the meaning of Article 12 of the Constitution. In such a case, how is appropriate Government’ determined for the purposes of the CLRA Act or the industrial Disputes Act? In our view, the test which is determinative is: whether the industry carried on by the establishment in question is under the authority of the Central Government. Obviously, there cannot be one test for one part of the definition of ‘establishment’ and another test for another part. In our view, the test which is determinative is: whether the industry carried on by the establishment in question is under the authority of the Central Government. Obviously, there cannot be one test for one part of the definition of ‘establishment’ and another test for another part. Thus, it is clear that the criterion is whether an undertaking / instrumentality of the Government is carrying on an industry under the authority of the Central Government and not whether the undertaking is an instrumentality or agency of the Government for purposes of Article 12 of the Constitution, but it of the Central Government or the State Government.” “39. … 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 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. 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.” In paragraph 41 of the judgment in Steel Authority of India Ltd. Case the Hon’ble Apex Court has examined the judgment in Heavy Engineering Mazdoor Union case and has approved the proposition laid down therein. This is a question of fact and has to be ascertained on the facts and in the circumstances of each case.” In paragraph 41 of the judgment in Steel Authority of India Ltd. Case the Hon’ble Apex Court has examined the judgment in Heavy Engineering Mazdoor Union case and has approved the proposition laid down therein. In paragraph 42 the Constitution Bench of Hon’ble Apex Court has examined the judgment in the case of Hindustan Aeronautics Ltd. and noted that the judgment in Heavy Engineering Mazdoor Union case was followed in Hindustan Aeronautics and taken note of the factor that if there was any disturbance of industrial peace in Barrackpore, the “appropriate Government” concerned for the maintenance of internal peace was the West Bengal Government. In paragraph 43 the Hon’ble Apex Court has examined the judgment in Rashtriya Mill Mazdoor Sangh and held that the undertaking could not be held to be carried on under the authority of the Central Government. At paragraph 44 the Constitution Bench of Hon’ble Apex Court in the said case while examining the ratio laid down in the case of Food Corporation of India held that the State Government was the appropriate Government pertaining to the regional offices and warehouses of FCI under the Contract Labour (Regulation) and Abolition) Act. Thereafter another judgment has come in the case of Hindustan Aeronautics Limited and Another Vrs. Hindustan Aeronautical Canteen Kamgar Sangh and others, reported in (2007) 15 SCC 51 (herein after referred to as HAL-II) wherein it is held that the Hindustan Aeronautics Ltd. Being an undertaking of the Central Government and the Central Government exercises full control over the same and as such the Central Government has been held to be the ‘appropriate Government ‘, but the judgment rendered in the Hal-II case has been taken note by the Hon’ble Apex Court in the case of Nashik Workers Union Vrs. Hindustan Aeronautics Ltd. In Civil Appeal Nos.9332-9333 of 2010 and the Hon’ble Apex Court after taking into consideration the judgment rendered in the cases of Heavy Engineering Mazdoor Union (supra), Hal-I (supra), Rashtriya Mill Mazdoor Sangh (supra), Food Corporation of India Ltd. (supra) and Steel Authority of India Ltd. (supra) has been pleased to hold that the judgment rendered by Hon’ble Apex Court in the case of HAL-II is contrary to the ratio laid down in the cases of Heavy Engineering Mazdoor Union (supra), Rashtriya Mill Mazdoor Sangh (supra), Steel Authority of India Ltd. (supra) and Food Corporation of India Ltd. (supra) and the ratio laid down in those cases since been examined by the Constitution Bench of the Hon’ble Apex Court, as such it has been held in the Nasik workers Union’ Case that the ratio laid down regarding ‘appropriate Government” in HAL-I will be said to be the correct law since been passed upon the ratio laid down in the case of Heavy Engineering Mazdoor Union which has been approved by the Constitution Bench of Hon’ble Apex Court in the case of Steel Authority of India Ltd. Thereafter another judgment dealing with the same issue came in the case of Tata Memorial Hospital Workers Union Vrs. Tata Memorial Centre and Another, reported in (2010) 8 SCC 480 . The Hon’ble Apex Court in that case after taking into consideration all the judgments as discussed herein above has given finding regarding tests for determining the industry as to whether it is carried on under the authority of the State Government or the Central Government and after taking note or all the previous judgments except the judgment rendered in the case of HAL-II has pleased to hold that the industry or undertaking has to be carried under the authority of the Central Government or the State Government, that authority may be conferred either by a statute or by virtue of a relationship of principal and agent, or delegation of Power. When it comes to conferring power by statute, there is not much difficulty. However, where it is not so, and whether the undertaking is functioning under authority is a question of fact. It is to be decided on the facts and circumstances of each case. 8. When it comes to conferring power by statute, there is not much difficulty. However, where it is not so, and whether the undertaking is functioning under authority is a question of fact. It is to be decided on the facts and circumstances of each case. 8. The Union representing the workmen has submitted that the finding arrived at by the Tribunal in this respect is absolutely illegal and without any justification and in order to support his argument he has placed reliance upon the judgments rendered by the Hon’ble Apex Court in the case of Heavy Engineering Mazdoor Union –vs- State of Bihar reported in (1969) 1 SCC 765 , Hindustan Aeronautics Ltd. –vs- Workmen reported in (1975)4 SCC 679 , Rashtriya Mill Mazdoor Sangh –vs- Model Mills reported in 1984 Supp.SCC 443, Workers’ Union –vs_ Food Corporation of India reported in (1985)2 SCC 294 and judgment rendered in the case of Nashik Workers Union –vs- Hindustan Aeronautics Ltd. Reported in (2016)6 SCC 224 . Learned counsel by placing reliance upon the judgments has argued vehemently that the Fertilizer Corporation of India Limited cannot be said to be statutory creation by the Central Government or cannot be said to run under the authority of the Central government rather it is running by way of Memorandum of Understanding as such judgment rendered by the Hon’ble Apex Court in the case of Heavy Engineering Mazdoor Union –vs- State of Bihar (supra), Hindustan Aeronautics Ltd. –vs- Workmen(supra) will be applicable and this judgment has also been approved by the constitution Bench of the judgment in the case of Steel Authority of India Ltd. –vs- National Union Waterfront Workers(supra) and as such the Tribunal while holding that the appropriate Government with respect to the Fertilizer Corporation of India Limited is the Central Government, has not taken into consideration the ratio laid down by the Hon’ble Apex Court in these two cases. Learned counsel representing the management has submitted that the Tribunal has not committed any error it is for the reason that the judgment rendered by the Hon’ble Apex Court in the case of Air India Statutory Corporation –vs- United Labour Union reported in (1997)9 SCC 377 wherein it has been laid down that the appropriate government for such Corporation/public sector undertaking would be the central government. While reverting this argument has been submitted by learned counsel for the workmen that the judgment rendered in the case of Air India Statutory Corporation –vs- United Labour Union(supra) even if rule has been laid down in this regard will not be applicable for the reason that the reference was made on 7.10.1996 while the judgment in the case of Air India Statutory Corporation –vs- United Labour Union(supra) was delivered on 6.12.1996 since any judgment pronounced by any Court of law will have prospective effect. He has further submitted that as on date of issuance of reference i.e.7.10.1996, the judgment rendered by the Hon’ble Apex Court in the cases of Heavy Engineering Mazdoor Union –vs- State of Bihar (supra), Hindustan Aeronautics Ltd. –vs- Workmen(supra), Rashtriya Mill Mazdoor Sangh –vs- Model Mills(supra), Workers’ Union –vs- Food Corporation of India (supra) and judgment rendered in the case of Nashik Workers Union –vs- Hindustan Aeronautics Ltd.(supra) will be applicable and if ratio laid down in these cases will be considered then certainly the appropriate Government in the present reference would be the State Government. 9. So far as the fact of the present case is concerned, the FCI is a public sector undertaking was running by way of Memorandum of Association, Articles of Association has been taken note by the Tribunal in the award and in the manner in which the FCI is running even it is public sector undertaking but it cannot be said to come under the parameter of Section 2(a) of the Industrial Disputes Act as per the ratio laid down in the cases of Heavy Engineering Mazdoor Union –vs- State of Bihar (supra), Hindustan Aeronautics Ltd. –vs- Workmen(supra), Rashtriya Mill Mazdoor Sangh –vs- Model Mills(supra), Tata memorial Hospital Workers Union Vrs. Tata Memorial Center and Another(supra) and the ratio laid down by the Hon’ble Supreme Court in these cases have been approved by the Hon’ble Apex Court by constitution bench of the Hon’ble Apex Court in the case of SAIL –v- National Union Waterfront Workers (supra) and the same has been reiterated even in the case of Nashik Workers Union –v- Hindustan Aeronautics. Limited (supra) and as such the finding given by the Tribunal in this respect cannot be said to be in consonance with the statutory law as well as authoritative pronouncement. Limited (supra) and as such the finding given by the Tribunal in this respect cannot be said to be in consonance with the statutory law as well as authoritative pronouncement. The submission of the learned counsel representing the management that by virtue of notification issued in the year 1998, the appropriate Government of FCI has been declared to be the State Government hence prior to 1998 the appropriate Government will be Central Government, but we are not in agreement with this argument for two fold reasons, one is that prior to 1998 there was no notification as that of the notification declaring Central Government as the appropriate Government and as such prior to 1998 it had to be decided by virtue of the law prevailing on that line and secondly as has already been discussed that there was applicability of the proposition of judgment rendered in this regard by Hon’ble Apex Court i.e. prior to the date of reference in the instant case. In view thereof, we have got no hesitation in holding that the finding given by the Tribunal in this respect is not proper and as such not sustainable and accordingly we hold that the reference has been made by the competent authority i.e. by the State Government. 10. The main emphasis learned counsel representing the management that the judgment rendered by the hon’ble Apex Court in the case of Air India Statutory Corporation –v- United Labour Union(supra) will be applicable but the said judgment will also not applicable for the reason that the said judgment was pronounced on 16.12.1996 while the reference was made by the appropriate government i.e. State of Orissa on 7.10.1996, hence on the date of making reference i.e.7.10.96 the judgments rendered by the Hon’ble Apex Court in the cases of Heavy Engineering Mazdoor Union –vs- State of Bihar (supra), Hindustan Aeronautics Ltd. –vs- Workmen(supra), Rashtriya Mill Mazdoor Sangh –vs- Model Mills(supra), Tata Memorial Hospital Workers Union Vrs. Tata Memorial Centre and Another(supra) were prevalent since these are pronounced prior to date of reference i.e. 7.10.96, as such he ratio of these judgments will be applicable. Tata Memorial Centre and Another(supra) were prevalent since these are pronounced prior to date of reference i.e. 7.10.96, as such he ratio of these judgments will be applicable. The ratio of the judgment in the case of Air India Statutory corporation –v- United Labour Union(supra) will not be applicable since delivered on 7.12.96 and it is settled that any judgment pronounced by any Court of law having binding precedent will be for prospective overruling, hence the arguments advanced in this regard is not sustainable. In view of the reasons discussed herein above, finding given by the Tribunal with respect to the issue no.1. 11. Issue no.2 which pertains to retrenchment of 106 workmen w.e.f. 1.5.2015 by M/s Wel-Tech Engineers and M/s Vijaya Contractor, the Corporation of the FCI, Talcher Unit is legal and/or justified, the Tribunal has answered the issue against the workmen. Learned counsel representing the workmen has submitted that this finding is not based upon material produced before the Tribunal. Specific case has been made out by the workmen that they were engaged by the management of the FCI. They had worked directly under the control of the management of the FCI, they have paid E.P.F. subscription which was deducted by the FCI from the wages. They have annexed copy of the Identity Cards in order to substantial the fact that they have worked for last more than 10 years and as such the work in question is perennial in nature, hence they have to be regularized in service but without considering this aspect of the matter i.e. regarding nature of work and length of service rendered by them, all 106 workmen have been retrenched which is absolutely illegal and improper but the Tribunal after appreciating the ocular as well as documentary evidence produced before it has answered the reference against the workmen. While on the other hand learned counsel representing the management of FCI, has vehemently opposed the argument advanced by learned counsel representing the Union and defended the finding of the Tribunal by submitting that the Tribunal has committed no illegality, rather no such evidence has been produced by the workmen in order to substantiate that they had been engaged directly by the FCI. It has been submitted that it is not a case of prohibition of contract labour as per Section 10(1) of the Contract Labour(Regulation & Aboliation) Act rather it is a case where the contractors had engaged worker having no nexus with the management of the FCI which has been disputed by the workmen by saying that engagement by the contractors is sham and camouflage, but merely by saying this and not proving it by documentary evidence it cannot be said that it is sham and camouflage, taking into consideration the fact that no documentary in this respect has been produced by the workmen since onus is upon them to establish that their engagement by the contractors is sham and camouflage, the Tribunal has come to finding by holding therein that M/s Wel-Tech Engineers and M/s Vijaya Contractor are real and genuine, not name-lenders and sham and thereafter answered the issue against the workman. We have appreciated the argument advanced on behalf of the parties in this regard. We have also gone through the record and from its perusal it is evident that the workmen has laid his evidence as witness No.1 wherein it has been stated that they were directly employed by the FCI and they have denied that were working under M/s Wel-Tech Engineers and M/s Vijaya Contractor. We have examined the record which shows that no document has been filed to substantiate this oral argument. We have found that attendance card has been annexerd which has been marked as Ext.2 and 2/1. Ext.2 is the attendance card having signed by the contractor M/s V.P.Varghese in the month of December, 1991 and Ext.2/1 is the attendance card issued by the Progressive Engineering for the month of April, 1988. We have also examined Ext.3 series, Ext.4, Ext.5, Ext.6 and other exhibits appended to the record but no where we have found that from these documents relationship of principal employer and employee said to be established. It is settled that if the parties are claiming something, onus is upon him to prove. The workman has produced some documents but the same cannot be said to be sufficient to prove it. It is settled that if the parties are claiming something, onus is upon him to prove. The workman has produced some documents but the same cannot be said to be sufficient to prove it. We have gone through the award and while answering the issue the Tribunal after taking into consideration the exhibits produced by the workmen and also after going through the documents produced by the management i.e. Ext.E along with its enclosures some temporary jobs for erection and fabrication were being given to the workmen by tender work vide notice Ext.E. The Tribunal has also taken note of Ext.F along with its enclosures, Ext.F/1 the letter of Intent, Ext.H and the agreement Ext.J. He has also proved the certificate of registration of the FCI which is marked Ext.K, also filed an approval order amending the said certificate marked Ext.L. Exts. M and N are the certificates of M/s Wel-Tech Engineers and M/s Vijaya Contractor. Ext.O is the notice of retrenchment and Exts. P, P/1 and Ext.Q are the retrenchment notices for collection of dues, Ext.R shows receipt of dues by the contract labourers on 13.6.95 in presence of Asst. Labour Officer and the F.C.I. representative. The Tribunal has taken note of the document produced by the workmen witness no.1 which is at sl.no.52 and from its perusal we find that this witness nowhere ha deposed anything to prove this aspect of the matter and thereby as per the opinion of the Tribunal the documentary evidence filed on behalf of the workmen has been said to be not at all convincing to prove that they were directly under the control of the FCI and thereby has come to a definite finding that the contractors M/s Wel-Tech Engineers and M/s Vijaya Contractor are real and genuine and no name-lenders and no name-lenders and sham. We, after going through the finding of the Tribunal which is based upon the relevant documents, cannot disbelieve the same since no evidence has been produced by the workmen to substantiate their claim that they were directly engaged by the FCI and even they not produced any document that they have performed work which is perennial in nature. In view thereof, there is no reason to disagree with the finding with respect to issue no.1. In view thereof, there is no reason to disagree with the finding with respect to issue no.1. In the instant case, it is not in dispute that notification prohibiting contract labour under Section 10(1) of the Contract Labour (Regulation and Abolition) Act has been issued and thereby there cannot be any regular absorption in service of the workmen. The Hon’ble Apex Court in the constitutional judgment rendered in the case of SAIL –v- National Union Waterfront Workers(supra) has laid down proposition that in case of regularization, the same has to be adjudicated by the Industrial Adjudicator with respect to the fact as to whether work in question is perennial in nature or not or the contract is sham and camouflage, but we, after going through the award, have found that no such evidence has been produced in this regard by the workmen. Accordingly, we are in agreement with the finding given by the Tribunal in this regard. 12. With respect to issue no.3 which pertains to entitlement of the workmen for regular employee in the FCI is concerned, since according to us, there is no error in the finding given by the Tribunal with respect to issue no.2, accordingly the finding of the Tribunal regarding issue no.3 is also not improper. We, after going through the materials available on record so far issue nos. 2 and 3 are concerned, have found that same is based upon cogent evidence but so far issue no.1 we have already expressed our view that the said finding is contrary to the law laid down by the Hon’ble Apex Court. We are conscious of the fact that the High Court sitting under Article 226 of the Constitution of India in the matter of issuance of writ of certiorari in excise of power of judicial is very limited. Reference in this regard needs to be made of judgment rendered by Hon’ble Apex Court in the case of Syed Yakoob Vrs. K. S. Radhakrishnan and others, AIR 1964 SC 477 where in it paragraph 7 their Lordships have been pleaded to hold as follows:- “7. The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Art. 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Art. 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior Courts or tribunals; these are cases where orders are passed by inferior Courts or tribunals without jurisdiction, or in excess of it, or as a result of failure to exercise jurisdictions. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court of Tribunal as a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of tact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the. Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence before the Tribunal was’ insufficient or inadequate to sustain the impugned finding. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence before the Tribunal was’ insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Art. 226 to issue a writ of certiorari can be legitimately exercised.” The proposition laid down by the Hon’ble Apex Court in the case of Syed Yakoob (supra) still holds good since the same has been considered by Hon’ble Apex Court recently in the case of M/s.Pepsico India Holding Pvt. Ltd. Vrs. Krishna Kant Pandey, (2015) 4 SCC 270 wherein their Lordships while discussing the scope of Article 226 of the Constitution of India in the matter of showing interference with the finding of the Tribunal has been pleased to hold after placing reliance upon the judgment rendered in the case of Chandavarkar Sita Ratna Rao Vrs. Ashalata S. Guram, (1986) 4 SCC 447 as follows: “17. In case of finding of facts, the Court should not interfere in exercise of its jurisdiction under Article 227 of the Constitution. Reference may be made to the observations of his Court in Bathutmal Raichand Oswal v. Laxmibai R. Tarta where this Court observed that the High Court could not in the guise of exercising its jurisdiction under Article 227 convert itself into a Court of appeal when the legislature has not conferred a right of appeal. The high Court was not competent to correct error of facts by examining the evidence and reappreciating. Speaking for the Court, Bhagwati, J. as the learned Chief Justice then was, observed at p. 1301 of the report as follows: (SCC p. 864, para 7) “The special civil application preferred by the appellant was admittedly an application under Article 227 and it is, therefore, material only to consider the scope and ambit of the jurisdiction of the High Court under that article. Did the High Court have jurisdiction in an application under Article 227 to disturb the findings of fact reached by the District Court? It is well settled by the decision of this Court in Waryam Singh v. Amarnath that the… power of superintendence conferred by Article 227 is, as pointed out by Harries, C.J., in Dalmia Jain Airways v. Sukumar Mukherjee to be exercised most sparingly and only in appropriate cases in order to keep the subordinate Courts within the bounds of their authority and not for correcting mere errors. This statement of law was quoted with approval in the subsequent decision of this Court in Nagendra Nath Bose v. Commr. of Hills Division and it was pointed out by Sinha, J., as he then was, speaking on behalf of the Court in that case: It is thus, clear that the powers of judicial interference under Article 227 of the Constitution with orders of judicial or quasi-judicial nature, are not greater than the power under Article 226 of the Constitution. Under Article 226 the power of interference may extend to quashing an impugned order on the ground of a mistake apparent on the face of the record. But under Article 227 of the Constitution, the power of interference is limited to seeing that the tribunal functions within the limits of its authority.” We, after applying the proposition laid down in these cases, have found that there is no perversity or error apparent on the face of the record with respect to finding of issue nos.2 and 3 is concerned since it is based upon cogent evidence, hence we decline to interfere with the same. However applying the ratio laid down by the Hon’ble Apex Court so far as it relates to issue no.1, since finding in not in consonance with the laid down proposition of the Hon’ble Apex Court on the date of reference, we have found the said finding not proper. 13. Accordingly, the finding given by the Tribunal so far as it relates to issue nos.2 and 3 are concerned, same is hereby confirmed but so far as issue no.1 is concerned, finding being found to be not based upon laid down proposition, hence we, in exercise of power conferred under Article 226 of the Constitution of India, are of the view that the same is not sustainable, accordingly finding related to issue no.1 is reversed. Likewise issue no.4, which has been answered by the Tribunal against the workmen, we find that there is no infirmity in the same in the light of the finding of the Tribunal as has been given with respect to issue nos. 2 and 3. 14. In the result, the writ petition is dismissed on the basis of the reasons and observations made herein above. Petition dismissed.