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Judgment
D.P. Singh, J.—Heard Sri Vijai Ratan Agrawal learned Senior Advocate for the Petitioner and Sri V.R. Dwivedi for the Respondent workman in the leading petition and the Counsel for the parties in the connected petition.
The outcome of the second writ petition largely depends on the decision of the first petition and as such the writ petition No. 14581 of 2006 shall be the leading petition.
This petition is directed against a Labour Court award dated 22.12.2005 answering the reference in favour of the workman and reinstating him with continuity of service and back wages from the date of the reference.
The Respondent workman was appointed as a Helper in 1978 in the Petitioner Institute and after passage of time he was promoted to the post of Lower Division Clerk in the Metallurgical Engineering Department. During his service, he was issued several advisories and warnings including letter dated 3.1.1992 and an adverse entry in the Confidential Repont was also recorded for the period ending 31.3.1993. He applied for 26 days of leave between 4.10.1993 to 29.10.1993 followed by another application upon which he was granted leave for the period 1.11.1993 to 3.12.1993. He again applied for leave for 366 days on 10.2.1994, with retrospective effect from 4.10.1993 to 4.10.1994 on medical ground but as he did not submit a medical certificate of the appropriate authority, it was not granted and vide order dated 18.3.1994 issued by the Administrative Officer he was asked to get himself examined in the Health Centre of the Institute. Instead of complying with the order, he submitted a joining report dated 11.4.1994. He was again advised to appear before the Chief Medial Officer of the Institute vide letter dated 15.4.1994 bur instead he absented from 25.4.1994 without any information and thus, the Departmental Head informed the Administrative Officer about his unauthorized absence.
The Director of the Institute issued a show cause notice dated 16.8.1994 asking him to explain his previous poor conduct and his continued unauthorized absence. This evoked no response, therefore, another letter dated 5.9.1994 was issued asking him to explain his absence within seven days, failing which, the matter was placed before the Disciplinary Authority. During the period of his service, he was allotted a residential quarter No. 73-A, Type 1-A in the campus itself but when, the special messenger of the Institute went there to serve a copy of the aforesaid letter, he was informed that he no longer lives within the campus and stays at his Kalyanpur residence, where also several attempts were made to serve him, but in vain and even the family members refused to co-operate. Thus, the Institute was forced to issue a charge-sheet through a memorandum dated 17.2.1995 and when it was sought to be served through the special messenger, workman refused to accept it on the ground of legal advice which was duly reported by the special messenger of the Institute leading to appointment of a Enquiry Officer, who, through a letter dated 6.3.1995 asked him to name his defence assistant and this letter was sent to three different addresses of the workman but all returned with the endorsement that he was not available. Thereafter, a registered letter at the three different addresses were sent by the Enquiry Officer asking him to appear on 27.3.1995 but again the letters returned unserved. A special messenger was again sent to serve a copy of the said letter, but as he was not available, it was served on the brother of Respondent No. 2 but yet he did not appear before the Enquiry Officer who again sent a letter on 1.5.1995 through registered post at the three different addresses asking him to appear on 15.5.1995 but the letters returned with the endorsement that he was not available. Thus, the Enquiry Officer had no option but to proceed ex-parte and submitted his enquiry report after examining the witnesses. On the basis of the enquiry report, a show cause notice dated 24.7.1995 was again sent through registered post and was also published in the daily newspaper ''Swatantra Bharat'' on 14.9.1995. Thereafter, a letter dated 22.9.1995 was sent to him for submission of no cues certificate but he did not receive it.
After about seven years, the Petitioner came to know upon receipt of notice that he had filed a claim u/s 33-C-2 of the Industrial Disputes Act (here-in-after referred to as the Central Act) on 27.11.2001 claiming wages from 1.10.1993 to 31.10.2001. The institute immediately filed its reply stating that he had been absenting without intimation or permission with effect from 25.4.1995 and that his services were terminated after enquiry. Thereafter, the workman approached the Conciliation Officer on 23.8.2002 claiming that his termination was illegal where preliminary objections including delay were raised by the Institute. Whereafter, his termination was referred as a dispute u/s 4-K of the U.P. Industrial Disputes Act (here-in-after referred to as the State Act) to the Labour Court, Kanpur which registered it as Adjudication Case No. 20 of 2004.
Learned Counsel for the Petitioner firstly urged that the appropriate Government in the case of the Petitioner establishment was the Central Government and as such the reference u/s 4-K of the State Act was vitiated and the consequent award is also void. He has gone on to urge that it was a stale dispute raised after 9 years and, therefore, the Court ought not to have entertained the dispute. Lastly, it is urged that the Labour Court has erroneously held that the enquiry conducted by the Petitioner was vitiated.
Before the Court deals with any other argument, it would be appropriate to deal with the first argument and only if it goes against the Petitioner, the remaining argument may be considered.
The term "appropriate Government" has been subject matter of a large number of decisions of various High Courts and the Apex Court. Finally, a Constitution Bench in the Steel Authority of India Ltd. and Others etc. etc. Vs. National Union Water Front Workers and Others etc. etc., examined all the case laws on the issue and settled the matter finally. The Constitution Bench while considering the interpretation of the expression "appropriate Government" as appearing in the Contract Labour (Regulation and Abolition) Act 1970 (hereinafter referred to as CLRA) which also appears in Section 2(a) of the Central Act, 1947, found that the definition of "appropriate Government" was borrowed from the Industrial Disputes Act into the CLRA and the Bench, after considering in detail the various judgments, distinguished the meaning of "State" as used in Article 12 of the Constitution, went on to hold that:
There cannot be any dispute that all the Central Government companies with which we are dealing here are not and cannot be equated to the Central Government though they may be "State" within the meaning of Article 12 of the Constitution. We have held above that being the instrumentality or agency of the Central Government would not by itself amount to having the authority of the Central Government to carry on that particular industry. Therefore, it will be incorrect to say that in relation to any establishment of a Central Government company/ undertaking, the appropriate Government will be the Central Government. To hold that the Central Government is "the appropriate Government" in relation to an establishment, the Court must be satisfied that the particular industry in question is carried on by or under the Authority of the Central Government. If this aspect is kept in mind it would be clear that the Central Government will be the "appropriate Government" under the CLRA Act and the ID Act provided the industry in question is carried on by a Central Government company/an undertaking under the authority of the Central Government. Such an Authority may be conferred, either by a statute or by virtue of the relationship of principal and agent or delegation of power. Where the authority, to carry on any industry for or on behalf of the Central Government, is conferred on the government company/any undertaking by the statute under which it is created, no further question arises. But, if it is no so, the question that arises is whether there is any conferment of authority, on the government company/any undertaking by the Central Government to carry on the industry in question. This is a question of fact and has to be ascertained on the facts and in the circumstances of each case.
The Counsel for the Petitioner has referred to several sections of the Act to show that under the aforesaid statute the Institute is being run for and on behalf of the Central Government and, therefore, there is no question of examining the facts.
Section 9 mandates that the President of India shall be the Visitor of the Institute. Section 10 provides that a Board of Governors and other Authorities as declared by the Statutes would be the Authorities of the Institute and Section 11 provides that the Chairman of the Board of Governors is to be nominated by the Visitor. The Director of the Institute is to be appointed by the Council with the prior approval of the Visitor u/s 17. Section 31 provides for the constitution of the Council wherein the Minister incharge of the Technical Education in the Central Government is the Ex. Officio Chairman of the Council while the Director of the Institute; Chairman of the University Grants Commission; the Director General, Council of Scientific and Industrial Research; three persons to be nominated by the Central Government, each representing the Ministry of Technical Education, Ministry of Finance and the third by any other Ministry; a person nominated by all India Council of Technical Education; not less than three but not more than five persons to be nominated by the Visitor; three members of Parliament, two nominated members from the House of Parliament and one by the Council of States, would be its Ex-Officio members. An Officer of the Ministry of Technical Education of the Central Government is to be nominated as the Secretary of the Council. Section 21 further provides that the Central Government shall pay, after due appropriation made by the Parliament, such sums of money to the Institute as it may think fit while u/s 22 the Institute has to maintain a fund where all the money given by the Central Government are to be accredited. u/s 23 the account of the Institute has to be audited by the Controller any Auditor General of India and the report has to be forwarded to the Central Government and has to be laid before each House of Parliament. The Finance Committee, which is also an Authority u/s 10 of the Act is chaired by the Chairman and consists of two persons each to be nominated by the Central Government and the Board, and the Director of the Institute. The Council, with the previous approval of the Visitor has to frame the first Statute of the Institute under Sections 26, 27, 28 and 29 with the previous approval of the Visitor and the copy has to be laid before each House of Parliament. No amendment can be carried out without the approval of the Visitor.
By virtue of Section 33 of the Act, Council is the highest body of the Institute which advises on matters relating to duration of course, degrees etc. lays down policy regarding cadres, methods of recruitment and conditions of service of employees, scholarships, free ships etc. It examines the annual budget and recommends to the Government for allocation of fund for the said purpose. u/s 35, the Central Government is vested with the power to frame Rules with regard to filling of vacancies, disqualification and for carrying out other objects of the Act. Section 37 empowers the Central Government to remove any difficulty in giving effect to the provision of the Act.
A perusal of the Act itself shows that the two most important Authorities, the Board of Governors and the Council, comprise of either of nominees of the President of India or are Ex-Officio nominees of the Central Government or are Government officers as Ex-Officio nominees of the Central Government. It functions as an extended arm of the Government Funds are provided by it and the accounts have to be audited by the Auditor General and report has to be sent to the Government. The Statute of the Institute, which regulates its functioning has to be approved by the Government. Even though the Council and the Board comprises of Government official, but even then the two Authorities are bound by the directions of the Government and they cannot function without its approval even with regard to policy matters. The nature and degree of control that the Government exercises over the Institute, leaves no room of doubt that it is being run by and under the authority of the Central Government. If the ratio of Steel Authority of India (supra) is applied, the only conclusion would be that qua the Institute the "appropriate Government" is the Central Government.
Even factually, it is evident from the record that the Central Government through Ministry of Human and Resource Development controls day-to-day functioning of the institute. Several letters have been annexed jointly as Annexure-3 which demonstrate the complete control the Government has over the Institute. A letter dated 27.12.2005 refers to a meeting between the Government and officials of the Institution with regard to implementation of the Block Grants Scheme of the Government. The Government further, vide letter dated 30.1.2006 directed for preparation of outcome and performance budget for different years. A perusal of the letters dated 13.9.2002 and 2.9.2002 show that even question regarding the age of superannuation etc. are decided with the approval of the Central Government.
It is further contended by him that in view of Section 39 of the Central Act, the State Government could exercise the delegated power and refer the dispute to the Labour Court. He has placed reliance upon a notification dated 3.7.1998.
No doubt, the State authorities could have made a reference in exercise of delegated power u/s 39 of the Central Act. But, in the present case, the reference has been made under the State Act and also to the Court appointed under the State Act and not under the Central Act. A learned Single Judge of this Court has considered in detail the aforesaid arguments in the case of National Textile Corporation Ltd. v. State of U.P. and Ors. 2005 (107) FLR 1 (Sum) : 2005 LIC 485, and held that while exercising powers u/s 39 of the Central Act, the reference ought to have been made to a Court constituted in accordance with Section 17-A of the Central Act and not to the one appointed under the State Act.
Since the reference was void, the consequential award is also rendered void and therefore it would not be appropriate to deal with other arguments raised by the Petitioners
For the reasons above, this petition succeeds and is allowed and the impugned award dated 22.12.2005 is hereby quashed. For the same reason, the second writ petition whereby full back wages has been sought is dismissed.
In the circumstances of the case, no order as to costs.