JUDGMENT : 1. Rule returnable forthwith. Learned Assistant Government Pleader Mr. Mayank Chavda and learned advocate Mr. Harsh Raval waive service of notice of rule on behalf of respondent Nos. 1 and respondent no. 2 to 2.4 respectively. 2. This petition is filled seeking following reliefs: - “(A) This Hon’ble Court be pleased to issue a writ of certiorari or a writ, order or direction in the nature of certiorari or any other appropriate writ, order or direction while quashing and setting aside the impugned order dated 6.6.2023 annexed at Annexure-H passed by Respondent No. 1 authority; and (B) Pending hearing and final disposal of this Petition, this Hon’ble Court by way of ad-interim/interim relief be pleased to grant a stay of the order dated 6.6.2023 annexed at Annexure-H passed by Respondent No.1 authority; and (C) This Hon’ble Court be pleased to grant the cost of the Petition; and (D) This Hon’ble Court be pleased to grant such other and further relief as may be considered fit and expedient in the facts of the present case be granted.” 3. It is the case of the petitioner that the order dated 06.06.2023 (Annexure-H, Page No.49) declaring the workman as protected workman is dehors the statutory provisions and without jurisdiction. 4. The facts in brief referred in the petition are as under: - 4.1 On 01.05.2014, the respondent- workmen Nos. 2.1 to 2.4 came to be appointed with Jaypee Corporation Limited (the erstwhile company). 4.2 On 12.06.2014, the service of respondent Nos. 2.1 to 2.4 was absorbed in the petitioner – Company on account of merger of Jaypee Corporation Limited with petitioner – Company. 4.3 Thereafter, an application under the provisions of Industrial Disputes (Gujarat) Rules, 1966 (‘the State Rules’ for short), dated 21.09.2022 was preferred by respondent No. 3 – Union seeking declaration of 8 workmen as ‘protected workmen’. Upon filing of application dated 21.09.2022, notice was issued. The petitioner appeared and filed their reply on 23.01.2023 stating that the State Rules would not be applicable to the petitioner – Company since it falls under the purview of the Rules framed by the Central Government. Upon filing of application dated 21.09.2022, notice was issued. The petitioner appeared and filed their reply on 23.01.2023 stating that the State Rules would not be applicable to the petitioner – Company since it falls under the purview of the Rules framed by the Central Government. In the written submission dated 13.03.2023, it was stated that since the Rules framed by Central Government would be applicable, the application dated 21.09.2022 shall have to be filed as specified under the provisions of the Industrial Disputes (Central) Rules, 1957 (‘the Central Rules’ for short) on or before 30th April of every year. 4.4 Thereafter, upon transfer of respondents No.2.1. to 2.4.- workmen, a complaint No. 1 of 2023 dated 03.05.2023 was filed in Reference No. 06 of 2023, challenging the transfer on the ground that the workmen are protected workmen. An order dated 06.06.2023 was passed accepting the application of respondent No.2-Union, declaring respondent Nos. 2.1 to 2.4 as protected workmen. Aggrieved by the order dated 06.06.2023, declaring the workmen as protected workmen, the present petition is filed. 5. Heard learned Senior advocate Mr. Mihir Joshi assisted by learned advocate Mr. I. G. Joshi for Singhi and Co. on behalf of the petitioner and learned Assistant Government Pleader Mr. Mayank Chavda for respondent No. 1 and learned advocate Mr. Harsh Raval for respondent Nos. 2 and 2.1 to 2.4. 6. Learned Senior advocate Mr. Mihir Joshi for the petitioner submitted that the order dated 06.06.2023, declaring respondent Nos. 2.1 to 2.4-workmen as protected workmen by accepting the application dated 21.09.2022 of Trade Union is erroneous on the following grounds: - 6.1 The petitioner is a Cement Industry and by virtue of Cement Industry being included in the first schedule of Industries (Development and Regulation) Act, 1951 is a Controlled Industry as defined under Section 2(ee) of the Industrial Disputes Act, 1947 (‘the Act’ for short). 6.2 Since the petitioner is a Controlled Industry under Section 2(ee) of the I.D. Act, the appropriate Government in this case would be Central Government as referred under Section 2(a)(i) of the I.D. Act. Since, the Central Rules are applicable, the application by the Trade Union seeking to declare respondent Nos. 2.1 to 2.4 as protected workmen was required to be made within the time limit prescribed under Rule 61 of the Central Rules i.e. by 30th April of the relevant year. Since, the Central Rules are applicable, the application by the Trade Union seeking to declare respondent Nos. 2.1 to 2.4 as protected workmen was required to be made within the time limit prescribed under Rule 61 of the Central Rules i.e. by 30th April of the relevant year. Despite that, the application made on 21.09.2022 was allowed by applying the provisions of the State Rules, where time limit prescribed is 30th of September of the relevant Year. The order dated 06.06.2023 being erroneous deserves to be quashed and setaside. 6.3 Rule 1(2)(c) of the Industrial Disputes (Central) Rules 1957, (‘the Central Rules’ for short) provides that for Controlled Industry as specified under Section 2(a)(i) of the I.D. Act, the Central Rules would be applicable. Therefore, the petitioner being Controlled Industry, Rule 61(1) of the Central Rules would be applicable, where 30th April of the relevant year is the last date for filing application seeking to declare any workman as protected workmen. Admittedly in present case, the application seeking to declare respondent nos. 2.1 to 2.4 as protected workmen was filed belatedly i.e on 21.09.2022. The application being invalid ought to have been rejected. In support, Learned Senior Counsel relied upon decision of this Court in the case of Indian Rayon Karmachari Mandal V/s. Conciliation Officer reported in 1997 GLH (2) 340, to submit that strict compliance of the time limit referred in the said rule is to be made when there is no provision for relaxation . Further, when the Rule is mandatory, one is to act in terms and requirements of the rule (Para 3 and 4). 6.4 The contention of the respondent that in view of notification issued under Section 39 of the I.D. Act, dated 08.12.1977, all the powers exercisable by the Central Government under the Act and the Rules shall be exercisable also by the State Government in relation to Cement Industry and therefore State Government would also be appropriate Government in case of petitioner for consideration of the application seeking declaration of protected workmen, is misconceived. In the present case, by exercising powers conferred under section 39 of the I. D. Act, the Notification dated 08.12.1977, was issued and therefore, only those powers which are available to the Central Government under Act and Rules can be delegated. In the present case, by exercising powers conferred under section 39 of the I. D. Act, the Notification dated 08.12.1977, was issued and therefore, only those powers which are available to the Central Government under Act and Rules can be delegated. 6.5 Referring to Rule 1(2) of the Central Rules, learned Senior Counsel submitted that in the said Rule, no reference has been made to the term ‘appropriate Government’. It only refers to the class of industries where Central Rules are applicable, where it refers to petitioner industry. Therefore any attempt to apply the State Rules by reference to appropriate Government would run counter to the express prescription of the said Rules and would be impermissible under law. 6.6 Moreover, under Section 2(a)(i) of the Act, for controlled Industry, appropriate Government is the Central Government. Once the Act and the Rules make a declared demarcation between classes of industries for whom the appropriate government means the Central Government [under Section 2(a) (i) of the Act] and the industry where the appropriate Government would be the State Government [under Section 2(a)(ii) of the Act], the respective appropriate Government will have to apply the Act and the Rules as applicable to the respective classes of industry. Since, the petitioner is covered under Section 2(a)(i) of the Act, the provisions referred under Section 2(a)(ii) of the Act would not be applicable and the State Government as delegate cannot exercise the powers so as to apply the State Rules. 6.7 The power to delegate under Section 39 of the Act, cannot cover within its ambit a power to frame subordinate legislation under Section 38 of the Act. Accepting the contention of respondent would amount to substituting the Rules or framing of separate Rules under the delegation of powers under Section 39 of the Act and the same is not permissible. In support, Learned Senior Counsel relied upon the decision of Hon’ble Supreme Court in the case of Sidhartha Sarawgi V/s Board of Trustees for the Port of Kolkata and Ors reported in (2014) 16 SCC 248 , to submit that there is a subtle distinction between delegation of legislative powers and delegation of non-legislative/administrative powers. As far as delegation of power to legislate is concerned, the law is well settled: the said power cannot be sub-delegated. As far as delegation of power to legislate is concerned, the law is well settled: the said power cannot be sub-delegated. (para 4 to 10 of judgment) 6.8 The contention of the respondent that the State Government is an appropriate Government cannot be stretched to a point where the delegate can create an entirely new regime distinct from the one its principle was governed. The notification dated 08.12.1977 means that it exercises concurrent power and can exercise all powers which the Central Government could have done. Admittedly, the Central Government cannot entertain the application, if filed beyond 30th April of the year and therefore, the application entertained is bad in law. In support, he relied upon the decision of Chhattisgarh High Court in the case of Larsen and Toubro Ltd. V/s State of C. G. and Ors. reported in 2014 (2) CGLJ 467 . (Para 13 to 15 of judgment) 6.9 The contention of the respondent that it is deemed acceptance of application is also misconceived because any application beyond time is non-est and requires no response and therefore it cannot be given life by purported non-response. 6.10 On the aspect of liberal interpretation to be given to relevant provision, it was submitted that the contention does not deserve acceptance because once the limitation is prescribed under the Rules, the same cannot be read down or modified by process of interpretation more particularly in absence of any ambiguity. He submitted that therefore, the order dated 06.06.2023 is required to be quashed and set aside. 6.11 In Special Civil Application No. 5507 of 1999, identical issue has been considered wherein it is held that the conciliation officer has erred in invoking the provisions contained in the State Rules and in entertaining the application seeking declaration as protected workman. 7. On the other hand, learned advocate Mr. Harsh Raval for respondent Nos. 2.1 to 2.4 submitted that the petition deserves to be rejected on the following grounds: - 7.1 Respondent No.2- Union applied for protection of workmen by an application dated 21.09.2022 to the employer. 7. On the other hand, learned advocate Mr. Harsh Raval for respondent Nos. 2.1 to 2.4 submitted that the petition deserves to be rejected on the following grounds: - 7.1 Respondent No.2- Union applied for protection of workmen by an application dated 21.09.2022 to the employer. Though the said application is to be reverted by communication within 15 days as per the Central and the State Rules, the petitioner employer first raised their objections on 23.01.2023 i.e. almost after 5 months and that too before the State Government and not before the Respondent Union and thus the petitioner had waived its right to challenge alleged illegality and therefore this petition deserves rejection on this ground alone. In support, learned Advocate relied upon decision in the case of R. Balasubramanian and Ors. V/s. Carborundum Universal Ltd. Okha reported in 1976 1 LLN 1976, to submit that inaction and failure to carry out statutory obligation by employer gives automatic protection to the workmen. (Para-10 of judgment) 7.2 The State Government, by virtue of Notification under Section 39 of the Act dated 08.12.1977, automatically becomes appropriate Government as defined in Section 2(a) of the Act. In support, he relied upon the decision of the Hon’ble Supreme Court in the case of Yovan, India Cements Employees Union and Anr. V.s Management of India Cements Ltd. and Ors. reported in (1994) 1 SCC 572 , to submit that both Central and the State Government have concurrent jurisdiction and are appropriate Government. (para 5 to 8 of judgment) 7.3 The State Government is also an appropriate Government and it can exercise all powers exercisable by Central Government which implies that the State Government can also follow its own Rules. If this contention is not acceptable, then the delegation of powers under Section 39 of the Act and power to frame Rules under Section 38 of the Act would lead the various States to make amendments, changes and to frame Rules in the Central Rules. Therefore, the delegated powers were never intended for the purpose of imposition of Central Rules on the State. Thus, the intention of the notification was never to make the Central Rules applicable to the State when the appropriate Government is also a State Government. Therefore, the State Government has the powers to apply its Rules being the appropriate Government. Therefore, the delegated powers were never intended for the purpose of imposition of Central Rules on the State. Thus, the intention of the notification was never to make the Central Rules applicable to the State when the appropriate Government is also a State Government. Therefore, the State Government has the powers to apply its Rules being the appropriate Government. 7.4 Most importantly, the notification dated 08.12.1977 provides that “all powers exercisable by it under that Act and the rules made thereunder shall in relation to the Cement Industry be exercised also by all the State Governments, subject to the condition that the Central Government shall continue to exercise all the powers under the said Act and Rules made thereunder”. Therefore, it provides that the State Government is empowered to exercise all the powers under the Act which includes power to frame Rules and thus the Industrial Dispute (Gujarat) Rules, 1966 would be applicable when the appropriate Government is the State Government . 7.5 Once the delegation is not challenged, exercise of powers by the Appropriate Government cannot be challenged including the power to make Rules under Section 38 of the Act or to follow the Rules of the Centre by the State provided through Notification. Thus, something which is not specifically excluded cannot be read into and such judicial scope cannot be extended by making the Central Rules applicable to the State Government for procedural purposes. 7.6 Rule 61 of the Central Rules and Rule 66 of the State Rules are not contrary and are not in conflict with each other. The purpose and intent of both the Rules is to provide protection to the workmen against the mighty employer. This being a benevolent provision, its interpretation cannot be restricted contrary to the intent. Allowing the petition would amount to transfer of workmen to 1300 kms away from Kutch to Ratnagiri, Maharashtra which is nothing but victimized action of the employer. The Act is a welfare legislation and therefore it requires benignant interpretation. In support, Learned Advocate relied upon the decision of Som Prakash Rekhi V/s. Union of India and Anr. reported in (1981) 1 SCC 449 . (Para 68) 7.7 Lastly, when two Rules are giving the very same protection such compliance or non-compliance of procedural provision cannot destroy the substantial rights available to the party. In support, Learned Advocate relied upon the decision of Som Prakash Rekhi V/s. Union of India and Anr. reported in (1981) 1 SCC 449 . (Para 68) 7.7 Lastly, when two Rules are giving the very same protection such compliance or non-compliance of procedural provision cannot destroy the substantial rights available to the party. The procedural law must be interpreted in a manner so as to subserve and advance the cause of justice rather than to defeat it and no proceedings in a Court of law may be defeated on mere technicalities. When two interpretations are possible, the benignant statue must be accepted. He thus submitted that the order dated 06.06.2023 is appropriate and no interference is called for. He thus prayed to reject the present petition. 8. Considered the submissions and the decisions relied upon. Revisitation of the following facts would be relevant: - 8.1 The petitioner is a Cement Industry and therefore is a controlled industry within the meaning of Section 2(ee) of the I. D. Act. Thus, the appropriate Government would be Central Government as defined under Section 2(a)(i) of the I. D. Act. 8.2 Moreover, under section 2 read with item 35 of First Schedule of the industries (Development and Regulation) Act, 1951 (‘the IDRL Act’ for short), the Cement Industry is also defined as controlled industry and therefore there is no dispute to the fact that the petitioner is a controlled industry as defined under Section 2(ee) of the Act and therefore the appropriate Government would be Central Government under Section 2(a)(i) of the I. D. Act. 8.3 Section 39 of the I. D. Act provides for delegation of powers and Section 38 of the I. D. Act provides power to make Rules. In exercise of powers conferred under section 39 of the I. D. Act, a notification dated 08.12.1977 was published by the Central Government directing that all the powers exercisable by it under the Act and the Rules made thereunder shall in relation to Cement Industry be exercised also by all State Governments, subject to the condition that the Central Government shall continue to exercise all the powers under the said Act and Rules made thereunder. Thus, by virtue of notification dated 08.12.1977, all the powers which the Central Government possess are delegated to the State Government. Thus, by virtue of notification dated 08.12.1977, all the powers which the Central Government possess are delegated to the State Government. Since, the respondent workmen were working with the Cement Industry, against their transfer they filed complaint before the Central Government Industrial Tribunal, Ahmedabad (CGIT) challenging their transfer orders dated 25.04.2023. The respondent No. 2-Union also preferred an application under Sub Rule (1) of Rule 61 of Central Rules, dated 21.09.2022, before respondent No.1 – Assistant Labour Commissioner, Gandhidham – Kutch seeking to declare Respondents No.2.1 to 2.4 as protected workmen. The said application was entertained and allowed declaring the respondent – workmen as protected workmen. 8.4 Rule 1(2)(c) of the Central Rules reads as under: - “1. Title and application— (1) These rules may be called the Industrial Disputes (Central) Rules, 1957. (2) They extend to Union territories in relation to all industrial disputes and to the States in relation only to an industrial dispute concerning— (a) XXXXX or (b) XXXX (c) any such controlled industry as may be specified under section 2(a)(i) of the Act by the Central Government:” Thus, under Rule 2(1)(c) also, the Central Government would be the appropriate Government. Rule 61 (1) of the Central Rules provides that recognition of protected workmen is to be given on or before 30th April of every year. In the decision dated 03.07.1997, in the case of Indian Rayon Karmachari Mandal (supra), this Court while deciding the issue of belated application preferred seeking recognition as protected workman has held that strict compliance is to be made when there is no provision for relaxation of time. When the rule is mandatory, time specified in the rule is to be adhered to. Therefore, date referred in Rule 61(1) of the Central Rules has its own significance and should be followed. 8.5. Now for the application of the Central Rules or the State Rules, it would be profitable to refer to the decision of this Court dated 29.09.1999 in the case of Shree Digvijay Cement Co. Ltd. V/s. Assistant Labour Commissioner and Conciliation Officer, in Special Civil Application No. 5507 of 1999 wherein it is held as under: - “6. The Notifications dated 8th November, 1997 and 2nd June, 1999 [Annexures `A' and `B' respectively] do not leave a doubt that the cement industry is declared to be a controlled industry for the purpose of the Act. The Notifications dated 8th November, 1997 and 2nd June, 1999 [Annexures `A' and `B' respectively] do not leave a doubt that the cement industry is declared to be a controlled industry for the purpose of the Act. In view of Section 2 (a)(i) of the Industrial Disputes Act, 1947, the Central Government shall be the appropriate government for the cement industry. What is delegated under the Notification dated 8th December, 1977 is the power which is otherwise exercisable by the Central Government, being the appropriate government. Thus, in view of the delegation of power, the State Government could not have exercised the powers which were not exercisable by the Central Government. The Conciliation Officer, therefore, could not have relied upon the State rules. It is undisputed that under the Central rules, the application ought to have been made before 30th April of the concerned year. It is also not disputed that the application in question was made after 30th April. The same, therefore, could not have been entertained, as having been made after the date prescribed under the rules. The Conciliation Officer has erred in invoking the provisions contained in the State rules and in entertaining the said application. 7. Petition is, therefore, allowed. The impugned order dated 14th June, 1999; Annexure-F to the petition, is quashed and set-aside. Rule is made absolute. The parties shall bear their own costs.” In view of above decision, in the opinion of this Court, the issue is answered holding that any application made after the date prescribed under the Central Rules and entertained by conciliation officer by invoking state Rule is erroneous. 8.6. Heavy reliance has been placed by Learned Advocate for the respondents on notification dated 08.12.1977, to submit that the Central Government has delegated it’s power as referred under Section 39 of the Act and directed that all the powers exercisable under the Act or Rules would be exercisable by the State Government in relation to the Cement Industry, and therefore there is no error in the order dated 06.06.2023, by applying State Rule. The said contention does not merit acceptance for the following reasons. The said contention does not merit acceptance for the following reasons. (a) In the decision relied upon by respondents in the case of Yovan, India Cements Employees Union [supra] reported in 1994 (1) SCC 572 it is held by the Hon’ble Supreme Court that the Central and the State Government have concurrent jurisdiction and are appropriate Government, however, in the opinion of this Court it would not mean to conclude that by delegation of powers, the State can apply its Rules which are framed under Section 2(a)(ii) of the Act. Therefore, reliance placed on the decision that both Central and State have concurrent jurisdiction would not amount to mean that by exercise of powers as delegated by notification, the State can follow its own Rules, because it was not the intention of the legislation to follow the State Rules. Even, the language used in the Notification dated 08.12.1977 that “… subject to the condition that the Central Government shall continue to exercise all the powers under the said Act and rules made thereunder- “would be rendered meaningless. (b) Further, reliance placed by learned advocate for the respondent in the decision in the case of R. Balasubramanian [supra] in Special Civil Application No. 1066 of 1973 in the opinion of this Court has no application because it was in relation to non-communication by employer. (c) The contention raised by learned senior advocate for the petitioner that Rule 1(2) of the Central Rules refers to applicability of the Central Rules in case of Controlled industry as specified under Section 2(a)(i) of the Act and therefore once the appropriate Government is the Central Government for the industry specified under Section 2(a)(i) of the Act, applying State Rules would run contrary to the statutory Rules and in the opinion of this Court is not permissible and therefore the contention of the petitioner merits acceptance. (d) In relation to delegation of powers under Section 39 of the I.D. Act, it is noticed that Section 2(a)(i) of the I. D. Act provides that the appropriate Government is the Central Government and State Government is conferred with the powers which are exercised by the Central Government by virtue of delegation of powers. (d) In relation to delegation of powers under Section 39 of the I.D. Act, it is noticed that Section 2(a)(i) of the I. D. Act provides that the appropriate Government is the Central Government and State Government is conferred with the powers which are exercised by the Central Government by virtue of delegation of powers. However, it cannot be ignored that the I.D. Act and Rules make clear demarcation between classes of industry to whom the appropriate Government would be the Central Government under Section 2(a)(i) of the Act and State Government under Section 2(a)(ii) of the Act. Therefore, the respective appropriate Government have to apply the Acts and the Rules applicable to the respective classes of industry. The contention of the respondent that though the petitioner is an industry declared as a controlled industry for which the appropriate Government as defined under Section 2(a)(i) of the Act is Central Government despite that the Rules of State Government as classified under Section 2(1)(ii) would be applicable, would make the provisions not workable. In other words, the State Government as a delegate cannot exercise powers which the Central Government could not and seek to apply the State Rules. In the decision of Hon’ble Supreme Court in the case of Sidhartha Sarawgi [supra] - 2014 (16) SCC 248 , the Hon’ble Court in relation to delegation of powers in Paras 4 to 9 has held that the powers to delegate under Section 39 of the Act cannot cover within its ambit a power to frame subordinate legislation under Section 38 of the Act since it would amount to sub-delegation of legislative powers which would be impermissible. 8.7 Further, the contention of the respondent that the State Government is also appropriate Government cannot be acceptable because the delegate cannot create an entirely new regime distinct from the principle. The delegation of powers mean that it exercises concurrent power and can exercise all powers which the Central Government could have done. In other words, the powers which the Central Government does not possess in the present case to entertain the application after 30th April of the relevant year, the entertaining of the application even filed belatedly after 30th April is not acceptable being an invalid application. In other words, the powers which the Central Government does not possess in the present case to entertain the application after 30th April of the relevant year, the entertaining of the application even filed belatedly after 30th April is not acceptable being an invalid application. On the aspect that since no response is received from the petitioner – Company in relation to the application and it would amount to deemed acceptance, this Court is of the opinion that when the application filed itself was invalid, no response is required. 8.8 In relation to the submission that liberal interpretation is to be given in case of benevolent legislation, this Court is of the opinion that this is not a case where two views or interpretation are possible and therefore no question of liberal interpretation is required. There being no ambiguity in the provision, the contention of respondent is not acceptable. 9. In view of above, this Court is of the opinion that the application filed by the respondent – workmen seeking to declare respondents No. 2.1 to 2.4, as protected workmen since was filed after 30th April of the relevant year being an invalid application, the order dated 06.06.2023, declaring the said respondents as protected workmen is erroneous and deserves to be quashed and set aside. 10. In view of above, the order dated 06.06.2023 is hereby quashed and set aside. The petition is therefore allowed. Rule is made absolute. 11. Consequentially, Civil Application (for vacating interim relief) also stands disposed of. 1. Mr. Harsh Raval, learned advocate for respondent Nos.2.1 to 2.4, at this stage requested that the order dated 06.03.2024 may be stayed. In the alternative, he requested that statement made by learned advocate for the petitioner and recorded in the order dated 06.11.2023 may be continued. The statement recorded in the order dated 06.11.2023 reads as under: “Learned advocate Mr.I.G.Joshi further submitted that the petitioner shall not object for granting adjournment in complaint filed by respondents before the Central Government Industrial Tribunal (Complaint No.1 of 2023) during the pendency of this petition.” 2. Since the petition has been disposed of, the request made is rejected. 3. Direct service is permitted.