JUDGMENT Hon’ble Ashwani Kumar Mishra, J.—Petitioner is a Government company registered under the provisions of Section 617 of the Indian Companies Act, 1956. It is engaged in the business of handicrafts and handlooms and also imports bullion. It is asserted that Central Government owns 100% shares and otherwise exercises deep and pervasive control over its affairs, and consequently, it qualifies to be a ‘State’ within the meaning of Article 12 of the Constitution of India. Challenge is laid in this petition to an award passed by Labour Court, Noida, District Gautam Budh Nagar in Adjudication Case No. 2488 of 2008, dated 16.8.2010, whereby reference has been answered in favour of the respondent workmen. 2. Briefly stated facts are that a reference was made to Labour Court, constituted under U.P. Industrial Disputes Act, 1947, by the State Government under Section 4-K, on 25.10.2007, on the question as to whether action of employer in not engaging 31 workmen as per schedule from 1.1.1991 is justified or not and to what relief are they entitled to?. The schedule contains names of 31 workmen, who are stated to be drawing wages of Rs. 1,500/- per month and are stated to be working from 1977 to 1990. A written statement was filed by workmen stating that an industrial dispute has arisen on account of the fact that workmen, who have been permanently working since long, raised demand of regularization whereafter employer started describing such workmen to be employees of respondent No. 9 and stopped taking work from them from 1.1.1991, without passing any order. Prayer consequently was made to declare 31 workmen to be employees of petitioner and to regularize them, apart from declaring petitioner’s action of not taking work from them w.e.f. 1.1.1991 as illegal and unjustified and to reinstate them alongwith back wages. Other service benefits were also claimed. A written statement was filed by the petitioner denying the averments made by the workmen. It was stated that none of the 31 workmen were employed by petitioner and in fact they were employees of respondent No. 9. Existence of employee-employer relationship has been denied. It was also stated that being contractor’s workmen they do not become employees of petitioner and no industrial dispute exists. Various other submissions were also made. An affidavit was also filed by the petitioner stating that petitioner is an establishment of Government of India. Existence of employee-employer relationship has been denied. It was also stated that being contractor’s workmen they do not become employees of petitioner and no industrial dispute exists. Various other submissions were also made. An affidavit was also filed by the petitioner stating that petitioner is an establishment of Government of India. Written and oral evidence was led by the parties, which shall be dealt with later. 3. Labour Court has returned a finding that the workmen are not the employees of respondent No. 9 and they were engaged on different dates from 1977 to 1990. Further finding has been returned that workmen were illegally terminated from 1.1.1991. The argument raised on behalf of petitioner that reference itself was incompetent, as the employer herein is an establishment of Government of India, has not been entertained since no specific plea in this regard was taken by the petitioner in the written statement. Relief of reinstatement alongwith back wages and other service benefits has thus been granted. Cost of Rs. 10,000/- has also been awarded to the workmen. 4. Sri Vinay Saran, learned counsel appearing for the petitioner submits that the entire proceedings culminating in passing of award are wholly without jurisdiction inasmuch as petitioner being a concern of Government of India, the appropriate Government for making of reference was the Government of India and neither the State of Uttar Pradesh had any jurisdiction to refer the dispute nor the Labour Court, Noida, Gautam Budh Nagar, U.P. had any authority to decide the matter. The award is also impeached on merits on the ground that in the absence of any details of appointment, which varies from 1977 to 1990, the appointment itself was not established. It is also argued that there is no finding that any of these workmen have worked for 240 days in a calender year, nor reasons have been specified, on account of which their disengagement is held to be illegal. Various other submissions have also been advanced. 5. Sri Siddharath Singh, learned counsel appearing for the workmen states that the plea of jurisdiction, in making of reference or entertainment of dispute before Labour Court, was not raised in the written statement, and in the absence of any pleading or evidence in that regard, has rightly not been considered by the Labour Court. 5. Sri Siddharath Singh, learned counsel appearing for the workmen states that the plea of jurisdiction, in making of reference or entertainment of dispute before Labour Court, was not raised in the written statement, and in the absence of any pleading or evidence in that regard, has rightly not been considered by the Labour Court. Learned counsel further contends that these workmen had continued for very long and disengagement without payment of retrenchment compensation is bad in law. Learned counsel further submits that the finding that workmen were not employees of respondent No. 9 is based upon correct interpretation of the provisions of Contract Labour (Regulation and Abolition) Act, 1970. 6. The submission raised by the learned counsel for the petitioner on the legality of reference and jurisdiction of Labour Court is taken as first. Perusal of award goes to show that such a plea was raised before the Labour Court, but has been repelled on the ground that it was not raised in the written statement. This Court has perused the written statement of the employer to find that no such plea was actually raised. It is only in the writ petition filed before this Court that a specific plea in that regard has been taken in para 2 and 3. An affidavit although was filed before the Labour Court stating that petitioner is an establishment of Government of India, but validity of reference was not questioned. In the oral statement also, employer’s witnesses claimed that petitioner is an establishment of Government of India. Learned counsel for the petitioner has laid emphasis upon the statement of workers’ witness Sri Mohd. Munsi recorded on 9.5.1997. This witness in his cross-examination has admitted that petitioner is an establishment of Government of India. According to petitioner, such statement clearly amounts to an admission on part of the workmen that petitioner is an establishment of Government of India, and therefore, not only reference by State Government was incompetent but the Labour Court also had no jurisdiction. Learned counsel also contends that specific plea, taken in para 2 and 3 of the writ petition that petitioner corporation is an establishment of Government of India and all its share holding is held by Government of India, has not been denied. 7. Learned counsel also contends that specific plea, taken in para 2 and 3 of the writ petition that petitioner corporation is an establishment of Government of India and all its share holding is held by Government of India, has not been denied. 7. The submission aforesaid is countered by learned counsel appearing for the workmen relying upon Constitution Bench judgment of Apex Court in Steel Authority of India v. National Union Waterfront Workers and others, (2001) 7 SCC 1 , to contend that the issue as to whether establishment is a unit of Central Government or not is essentially a question of fact to be decided by the Industrial Adjudicator, and in the absence of any plea having been setup in the written statement did not merit its examination by the Labour Court. It is also contended that the plea based upon ascertainment of fact need not be entertained for the first time in writ proceedings. Learned counsel for the workmen submits that the dispute has remained pending since 1992 and after expiry of more than 24 years, it would not be appropriate for this Court to entertain a factual issue, which has not been specifically setup as a defence in proceedings before the Labour Court. Argument advanced on behalf of respondents prima facie appears to have force. Having found substance in the contention advanced on behalf of the workmen that no specific plea was raised on behalf of employer before the Labour Court in the written statement regarding incompetence of reference and consequential lack of jurisdiction with the Labour Court, Noida, U.P. as well as the fact that a period of 24 years have expired, the Court has proceeded to examine the award on merits and the issue of jurisdiction was deferred for being examined later, depending upon the outcome of challenge made to the award on merits. 8. The reference itself has been made at the instance of 31 workmen, who claim themselves to have been appointed from 1977 to 1990. There is no specific plea in the written statement as to when exactly these workmen were appointed. It is admitted to them that no appointment letter was ever issued. According to employer, none of these workmen were ever appointed and they were employees of respondent No. 9 Contractor. There is no specific plea in the written statement as to when exactly these workmen were appointed. It is admitted to them that no appointment letter was ever issued. According to employer, none of these workmen were ever appointed and they were employees of respondent No. 9 Contractor. Labour Court in para 12 to 15 of the award has dealt with the case on merits, in following words : 12- i=koyh ds voyksdu ls eSa blh fu"d"kZ ij igqWprk gwW fd izfroknh lsok;kstd ds bl rdZ esa cy izrhr ugha gksrk fd Jfedx.k eSllZ DykFk pSuy uks,Mk ds deZpkjh FksA D;ksafd tks vfHkys[k DyksFk pSuy Bsdsnkj dk izfroknh la[;k&1 dh vksj ls nkf[ky fd;k x;k gS og 26-2-90 dk gS tks izfroknh lsok;kstd la[;k&1 }kjk izn'kZ bZ&2 ds :i esa fl) fd;k x;k gSA tcfd Jfedx.k izfroknh izfr"Bku esa o"kZ 1777 ls lu~ 1990 rd fofHkUu&fofHkUu frfFk;ksa esa fu;ksftr gq, Fks bl ckr dk dksbZ Li"V [k.Mu izfroknh lsok;kstd dh vksj ls ugha fd;k x;k gSA izfroknh la[;k&1 }kjk lacaf/kr Jfedksa }kjk Hksts x;s ekax i= izn'kZ MCyw&1 dk Hkh dksbZ Li"V [k.Mu ugha fd;k gSA izfroknh lsok;kstd ua0&2 dh vksj ls ,d izkFkZuk i= 26-10-07 dk nkf[ky fd;k x;k ftlesa dgk x;k gS fd lacafèkr Jfedx.k izfroknh lsok;kstd ua0&1 ds ;gkW fu;ksftr Fks vkSj izfroknh la[;k&02 ds fo:) dksbZ fookn ugha gSA 13- vr% eS blh fu"d"kZ ij igqWprk gwW fd leLr Jfedx.k izfroknh la[;k&01 ds deZpkjh Fks vkSj mUgksaus Jfedksa }kjk fof/k lEer lqfoèkkvksa dh ekax fd;s x;s tkus ij 1-1-91 ls leLr Jfedksa dh lsok;s vuqfpr ,oa voS/kkfud gks xbZ gSA tcfd Jfedx.k bl vokMZ ds iSjk&8 ds ist 4 esa Jfed dh fu;qfDr n'kkZ;h x;h gS lu~ 77 ls ysdj fofHkUu&fofHkUu frfFk;ksa dk;Zjr FksA Bsdsnkj us Lo;a dgk gS fd eq[; fu;kstu ds deZpkjh Fks vkSj mUgksaus dke djok;k gS blfy, esjk ;g ekuuk gS fd Bsdsnkj dks fn;k x;k Bsdk dkuwuh Bsdk ugha gS] dkuwuh O;oLFkk ugha gS og lse Bsdk gSA blfy, esjk ekuuk gS fd Jfedx.k izfroknh la[;k&1 ds deZpkjh FksA Jfedx.k }kjk Jefof/k lqfo/kkvksa dh ekax djus ds dkj.k izfroknh la[;k&1 }kjk fcuk fof/k lEer iznku fd;s Jfedx.k dh lsok;sa lekIr dj nhA 14- izfroknh la[;k&1 }kjk ;g Hkh rdZ fn;k x;k fd izfroknh la[;k&1 Hkkjr ljdkj dk ,d midze gS blfy, bl U;k;ky; dks lquus dk vf/kdkj ugha gSA izfroknh la[;k&1 }kjk vius IyhfMXl esa dgha ugha dgk x;k gS fd ;g izfr”Bku Hkkjr ljdkj dk midze gSA vr% izfroknh la[;k&1 ds bl rdZ esa dksbZ cy ugha gSA blfy, lsok;kstd ua0&1 dk rdZ ekuus ;ksX; ugha gSA 15- vr% izfroknh lsok;kstd eSllZ fn gS.MhØkV gS.MywEl ,DliksVZ dkjiks0 vkQ bf.M;k fy0] ,&2] 3] 4 o 5 lsDVj&2 uks,Mk dks vknsf'kr fd;k tkrk gS fd bl vokMZ ds lkFk layXu lwph esa vafdr 31 Jfedksa dks iqjkuh ukSdjh ds Øe esa iwoZ iw.kZ osru o vU; leLr fgr ykHkksa lfgr lsok esa cgky djsA okn O;; ds :i esa :i;s nl gtkj dk Hkh Hkqxrku djsaA 9. Labour Court has disbelieved petitioner’s plea of engagement of workmen by Contractor, essentially on the ground that contract executed in favour of contractor, filed as Exhibit E-2 was w.e.f. 26.2.1990, whereas engagement of workmen was from 1977 to 1990 and had not been specifically denied. This observation of labour Court is clearly contrary to record inasmuch as engagement of workmen from 1977 to 1990 by the employer has been specifically denied in the written statement. Employer’s witnesses have disputed it in their oral testimony also. Admittedly, neither any letter of appointment was brought on record nor any finding has been returned by the Labour Court as to which of the workmen has been appointed since when. Workmen had claimed their appointment to have been made from 1977 to 1990, but only 3 out of them had claimed their appointment from prior to 1980. Most of the workers were engaged in 1988, 1989, 1990 whereas their termination is w.e.f. 1.1.1991. Labour Court has also not recorded any finding that these 31 workmen had completed 240 days of working in a calender year so as to render their termination bad for non compliance of Section 6-N of the U.P.I.D. Act. In the absence of any specific pleading with regard to date of engagement of workmen and lack of evidence to substantiate it, Labour Court had clearly erred in holding that workmen were engaged from 1977 onwards. Law is otherwise settled that onus to establish appointment and working of the workmen was upon them. (See Range Forest Officer v. S.T. Hadimani, (2002) 3 SCC 25 ). The labour Court has not examined as to whether a valid contract system was enforce nor material aspect with reference to the provisions of Contract Labour (Regulation and Abolition) Act has been examined and dealt with. The finding that there was no valid contract system and that contract was sham, is also based on irrelevant consideration inasmuch as merely for the reasons that the contract filed before it was from February, 1990 would not lead to such an inference. The labour Court was required to have returned a finding with regard to appointment and working of workmen for more than 240 days in a calender year to justify its conclusion that termination was bad in law, which is non existent. The labour Court was required to have returned a finding with regard to appointment and working of workmen for more than 240 days in a calender year to justify its conclusion that termination was bad in law, which is non existent. There is further no finding of violation of any statutory provision to hold that termination of workmen is bad in law. Upon all relevant aspects, relating to existence or otherwise of contract and continuous working for more than 240 days, appropriate consideration and finding is lacking. In the absence of discussion and finding on relevant aspects, noticed above, the award holding termination to be bad cannot be sustained. 10. For the reasons noticed above, the award of labour Court dated 16.8.2010 is found to be vitiated in law and cannot be sustained and is hereby set aside. 11. At this stage, the issue crops up as to whether the matter be remitted back for a fresh consideration by the Labour Court, Noida, Guatam Budh Nagar, U.P. or the issue of validity of reference and jurisdiction of the Labour Court under the Act of 1947 be examined by this Court exercising its jurisdiction under Article 226 of the Constitution of India? 12. Learned counsel for the petitioner has placed reliance upon a judgment of Apex Court in National Textile Corporation Litmited v. Naresh Kumar Badrikumar Jagad and other, (2011) 12 SCC 695 , in order to contend that a pure legal issue relating to jurisdiction can be raised at any stage of the proceedings. Reliance has also been placed upon judgment of this Court in National Textile Corporation U.P. Limited v. State of U.P., 2004 (2) LBESR 984 . Para 15 of the judgment is reproduced : “15. Reliance has been placed on notification dated 3rd July, 1998 of which notification following extract was quoted by the Presiding Officer in the order dated 17th July 2000, “In exercise of the powers conferred by Section 39 of the Industrial Disputes Act, 1947 (14 of the 1947) Central Government hereby directs that all the powers exercisable by it under that Act and the Rules made thereunder shall...be exercisable also by the State Government”. The Presiding Officer held that since in the present case reference was made after the notification dated 3rd July, 1998, the State Government was competent to refer the matter. The Presiding Officer held that since in the present case reference was made after the notification dated 3rd July, 1998, the State Government was competent to refer the matter. After the order dated 17th July 2000, a review application was immediately filed by the employer in which notification dated 3rd July, 1998 was not denied, rather it was stated that the State Government can exercise delegated power only with regard to references which could have been made by the Central Government under the Industrial Disputes Act, 1947. It was stated in paragraph 5 that reference could have been made to the industrial Tribunal constituted under the Industrial Disputes Act, 1947 by the State Government. In paragraph 6 of the application, it was specifically stated that the State Government has referred the dispute to the industrial Tribunal constituted by the State Government under the U.P. Industrial Disputes Act, 1947. From the materials on the record, it is clear that the reference was made by the State Government vide its order dated 12th November, 1998 exercising jurisdiction under Section 4K of the U.P. Industrial Disputes Act, 1947. Delegated power under Section 39 of Industrial Disputes Act, 1947, the Central Government, which is the appropriate Government for the purposes of present case, could have made a reference to a Court constituted in accordance with Section 17A of the Industrial Disputes Act, 1947. The industrial Tribunal to which the reference was made was a industrial Tribunal constituted for Uttar Pradesh under the U.P. Industrial Disputes Act, 1947. The State Government in the referring order itself referred to its power under Section 4K of U.P. Industrial Disputes Act, 1947. Thus, the stand taken by the Respondents that under Section 39, the State Government can exercise delegated power of the Central Government while making reference cannot be accepted. In the present case, the State Government did not make reference exercising delegated power of the Central Government under Section 39 of the Industrial Disputes Act, 1947, rather it exercised its jurisdiction under Section 4K of U.P. Industrial Disputes Act, 1947. The appropriate Government in the present case being the Central Government, as observed above, the reference could have been made only by the Central Government. The plea of the Respondents that State Government exercised the delegated power under Section 39 of Industrial Disputes Act, 1947 which found favour with the Presiding Officer, Industrial Tribunal, is unsustainable. The appropriate Government in the present case being the Central Government, as observed above, the reference could have been made only by the Central Government. The plea of the Respondents that State Government exercised the delegated power under Section 39 of Industrial Disputes Act, 1947 which found favour with the Presiding Officer, Industrial Tribunal, is unsustainable. The reference made to the industrial Tribunal itself being incompetent, the award falls on the ground due to the said reason. It having been found that the reference itself was incompetent, it is not necessary, for this case, to consider and decide other submissions raised by the counsel for the Petitioners. This writ petition deserves to be allowed on the decision taken on the first submission of counsel for the Petitioners.” 13. No doubt it is true that no specific plea had been raised in the written statement by the petitioner to the effect that petitioner corporation is an establishment of Government of India but the factual aspect that emerges on record is clear. The workmen in the oral statement had admitted that the petitioner is an establishment of Government of India. Statement of Sri Mohd. Munsi, who appeared as workers’ witness, is categorical in stating that petitioner is an establishment of Government of India. Specific pleading made in para 2 to 3 of the writ petition that petitioner is a company under Section 617 of the Companies Act, of which 100% share are held by the Government of India. Para 2 to 3 of the writ petition are reproduced : “2. That the Handicrafts & Handlooms Exports Corporation of India Ltd. ‘Noida Complex’ A-2, Sector-2, Udyog Marg, Noida-201301, Gautam Budh Nagar (U.P.), the petitioner No. 1 herein, is a Government of India undertaking under the Ministry of Textiles and it is a Government Company within the meaning of Section 617 of the Companies Act, 1956 as the Government of India has 100% shares. The petitioner No. 1 carries on business of exports of handicrafts & handlooms. It also imports bullion. 3. That the petitioner No. 1 is an instrumentality of the Central Government and as such it is ‘State’ within the meaning of Article 12 of the Constitution of India. The Central Government has deep and pervasive control over the affairs of the petitioner No. 1. It also imports bullion. 3. That the petitioner No. 1 is an instrumentality of the Central Government and as such it is ‘State’ within the meaning of Article 12 of the Constitution of India. The Central Government has deep and pervasive control over the affairs of the petitioner No. 1. The Central Government provides 100% finance to the petitioner No. 1 to run its affairs and the Central Government sends two nominees on the Board of Directors of the petitioner No. 1.” Para 3 of the counter-affidavit is also reproduced : “3. That the contents of paragraph No. 1, 2, 3, 4 and 5 of the writ petition need no comment.” 14. In view of such admitted position, this Court has no hesitation to hold that petitioner corporation is an establishment of Government of India, and Government of India alone was the appropriate Government for referring the dispute, and therefore, it would be the tribunal constituted under the provisions of Industrial Disputes Act, 1947, which alone had jurisdiction to adjudicate the dispute. This aspect is being examined by this Court only with the object of avoiding any future litigation which may arise between the parties on the aspect of jurisdiction at a later date. 15. It would, therefore, be appropriate to dispose of the writ petition with the direction that in case respondent Nos. 3 and 4, who were the authorized representative of 31 workmen in question, approach the appropriate Government, i.e. Government of India, in respect of their grievance relating to alleged termination of their services, alongwith certified copy of this order, within a period of three weeks from today, the appropriate Government shall refer the dispute to the appropriate Industrial Adjudicator within a further period of two months thereafter. Considering the fact that a period of almost 26 years have expired, it is observed that Industrial Adjudicator would proceed with all expedition and make all endeavours to answer the reference, preferably within a period of one year thereafter. 16. Writ petition is accordingly allowed. ———————