The Jackson Co-operative Credit Society of the Employees of Western Railway Ltd. and Another vs Hemant Kumar Saraswat

M.N. Bhandari, J.—By this writ petition, a challenge is made to the award of Central Government Industrial Tribunal-cum-Labour Court, Jaipur. The petitioner-the Jackson Co-operative Credit Society of the Employees of the Western Railway Ltd. (for short "the Society") has raised manifold grounds to challenge the award. The learned counsel for the petitioner pressed the issue of competence of the Central Government to make reference of dispute to the Court below.

It is submitted that if the aforesaid issue is decided in favour, of the petitioner-society, then it may not require to argue other grounds at present.

Accordingly, learned counsel for both the parties argued the issue regarding competence of Central Government to make reference of dispute to the Court below.

Learned counsel submits that petitioner Society was created under the provisions of Multi State Co-operative Societies Act, 2002 (for short "Act of 2002") by the employees of western railway. It is not a creation by an Act or under the Authority of Central Government. It is not even carried on by or under the authorities of the Central Government so as to treat it to be "appropriate Government" as defined u/s 2A of the Industrial Disputes Act, 1947 (for short "Act of 1947"). The Act of 2002 is a State Act of Maharashtra and the Society was created under the said Act. The perusal of bye-laws of the Society reveals not only the object to its membership but provisions for governance and finances. The Central Government is nowhere in picture either for finance or management. In fact, it is not carried on by or under the authority of Central Government, thus reference of dispute by Central Government was not legal and proper. The issue aforesaid was raised at all the stages and specially before the Court below. It has been decided without going into relevant aspects and even ignoring the judgment of Hon''ble Supreme Court. Thus, reference be declared to be incompetent so as the award. It is otherwise a case where cause of action arose at Ratlam, however, the Central Government referred the matter to CGIT, Jaipur in a illegal manner.

A reference of various provision of bye-laws of other issue was given while arguing the matter.

Learned counsel for the respondent/s, on the other submits that the Central Government was competent to make reference of dispute as the Society was created under the Act of 2002. The management of Society lies with the officers of railway, thus it is carried on by or under the authority of Central Government. He has referred judgment of Hon''ble Apex Court in the case of Steel Authority of India Ltd. and Others etc. etc. Vs. National Union Water Front Workers and Others etc. etc., another judgment referred by learned counsel is in the case of Indian Institute of Technology Vs. The Presiding Officer, Labour Court-II, State of U.P., Municipal Corporation of Delhi Vs. Mahavir,

It is further urged that issue of competence of Central Government to refer the dispute cannot be raised now after the award, rather it should have been raised at the initial stage itself by maintaining a writ petition. The petitioner-society, having been failed to do so, should not be allowed to raise it now at this stage. The ground aforesaid was raised but not pressed by the counsel for respondent/s. It is in the light of the fact that Hon''ble Apex Court held that a writ petition should be entertained at the intervening period and pending dispute before the labour Court or the Tribunal. It delays adjudication of dispute.

I have considered the submissions made by learned counsel for the parties and perused the record.

It is a case where the respondent-employee while working as a clerk in the branch office of Ratlam, remained absent thus, after causing notice and when he failed to resume the duties, treated to be on unauthorized absent. He resumed the duties thereupon but again remained absent in the year 1999. Treating it to be case of abandonment of service, the order was passed. The respondent-employee then raised a dispute before Conciliation Officer and when, no settlement could take place and on failure report, the Central Government referred the dispute to CGIT, Jaipur.

The question for my consideration is as to whether the Central Government can be "appropriate Government" in the present case.

Before averting to the facts of this case, it would be gainful to refer a Larger Bench''s judgment of Hon''ble Apex Court on the issue.

A Larger Bench judgment of Apex Court in the case of Steel Authority of India Ltd. and Others etc. etc. Vs. National Union Water Front Workers and Others etc. etc., is relevant thus, referred. The legal issue was discussed and has been decided after considering all the judgments on the issue. When "Central Government" would be appropriate Government is decided on the touchstone of the issue as to whether industry is carried on by or under the authority of Central Government. The power conferred should be either by statute or by virtue of relationship of principal and agent or delegation of power to hold it to be under the authority of Central Government. Para Nos. 20 to 43 of the judgment in the case of Steel Authority of India Ltd. and Others etc. etc. Vs. National Union Water Front Workers and Others etc. etc.,

Before embarking upon the discussion on the first limb, it will be apt to advert to the amended definition of ''appropriate Government'' which bears the same meaning as given in Clause (a) of Section 2 of the Industrial Disputes Act, quoted hereunder:

(a) "appropriate Government" means:

(i) in relation to any industrial disputes 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 u/s 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 u/s 3 of the Employees'' State Insurance Act, 1948 (34 of 1948), or the Board of trustees constituted u/s 3A of the Coal Mines Provident Fund and Miscellaneous Provisions Act, 1948 (46 of 1948), or the Central Board of Trustees and the Sate Boards of Trustees constituted u/s 5A and Section 5B, respectively, of the Employees'' Provident Fund and Miscellaneous Provisions Act, 1952 (19 of 1952), or 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 Insurance and Credit Guarantee Corporation established u/s 3 of the Deposit Insurance and Credit Guarantee Corporation Act, 1961 (47 of 1961), or the Central Warehousing Corporation established u/s 3 of the Warehousing Corporation Act, 1962(58 of 1962), or the Unit Trust of India established u/s 3 of the Unit Trust of India Act, 1963 (52 of 1963), or the Food Corporation of India established u/s or a Board of Management established for two or more contiguous State u/s 16 of the Food Corporations Act, 1964 (37 of 1964), or the (Airports Authority of India constituted u/s 3 of the Airports Authority of India Act, 1994 (55 of 1994), or a Regional Rural Bank established u/s 3 of the Regional Rural Banks Act, 1976 (21 of 1976), or the Export Credit and Guarantee Corporation Limited or the Industrial Reconstruction Corporation of India Limited). Or (the National Housing bank established u/s 3 of the National Housing Bank Act, 1987 (53 of 1987) or (the Banking Service Commission established u/s 3 of the Banking Service Commission Act, 1975) or (an air transport: service, or a banking or an insurance company), a mine, an oil field), (a Cantonment Board) or a major port, the Central Government; and

(ii) in relation to any other industrial dispute, the State Government:

An analysis of this provision show''s that the Central Government will be the appropriate Government in relation to an industrial dispute concerning:

(1) any industry carried on by or under the authority of the Central Government, or by a railway company; or

(2) any such controlled industry as may be specified in this behalf by the Central Government; or

(3) 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 unamended as well as the amended definition.

It is a well settled proposition of law that the function of the Court is to interpret the Statute to ascertain the intent of the legislature-parliament. Where the language of the Statute is clear and explicit the Court must give effect to it because in that case words of the Statute unequivocally speak the intention of the legislature. This rule of literal interpretation has to be adhered to and a provision in the Statute has to be understood in its ordinary natural sense unless the Court finds that the provision sought to be interpreted is vague or obscurely worded in which event the other principles of interpretation may be called in aid. A plain reading of the said phrase, under interpretation, shows that it is lucid and clear. There is no obscurity, no ambiguity and no abstruseness. Therefore the words used there in must be construed in their natural ordinary meaning as commonly understood.

We are afraid we cannot accept the contention that in construing that expression or for that matter any of the provisions of the CLRA Act, the principle of literal interpretation has to be discarded as it represents common law approach applicable only to private law field and has no relevance when tested on the anvil of Article 14, and instead the principle of public law interpretation should be adopted. To accept that contention, in our view, would amount to abandoning a straight route and of treaded road in an attempt to create a pathway in a wilderness which can only lead astray. We have not come across any principles of public law interpretation as opposed to private law interpretation for interpreting a statute either in any authoritative treatise on interpretation of statutes or in pronouncement of any Court nor is any authority of this Court or any other Court brought to our notice. We may, however, mention that there does exist a distinction between public law and private law. This has been succinctly brought out by the Rt. Hon. Sir Harry Woolf (as he then was, now Lord Woolf) in The Second Harry Street Lecture delivered in the University of Manchester on February 19, 1986. The learned Law Lord stated:

I regard public law as being the system which enforces the proper performance by public bodies of the duties which they owe to the public. I regard "private law as being the system which protects the private rights of private individuals or the private rights of public bodies. The critical distinction arises out of the fact that it is the public as a whole, or in the case of local Government, the public in the locality, who are the beneficiaries of what is protected by public law and it is the individuals or bodies entitled to the rights who are the beneficiaries of the protection provided by private law.

The divide between the public law and the private law in material in regard to the remedies which could be availed when enforcing the rights, public or private but not in regard to interpretation of the Statutes. We are not beset with the procedural mandate as in the R.S.C. Order 53 of 1977 of England which was the subject-matter of consideration by the House of Lords in O. Reilly v. Mackman (1983) 2 AC 237. In that case the appellant sought declaration by ordinary action that the order passed by the Prison''s Board of visitors awarding penalty against him was void and no effect. The House of Lords, dismissing the appeal filed against the judgment of the Court of Appeal, held that where a public law issue arises, the proceedings should, be brought by judicial review under R.S.C. Order 53 and not by private law action which would be abuse of the process of Court.

Now, going back to the definition of the said expression, it combines three alternatives, viz. (a) any industry carried on by the Central Government; (b) any industry carried on under the authority of the Central Government; and (c) any industry carried on by a railway company. Alternatives (a) and (c) indicate cases of any industry carried on directly by the Central Government or a railway company. They are too clear to admit of any polemic. In regard to alternative (b), surety, an industry being carried on under the authority of the Central Government cannot be equated with any industry carried on by the Central Government itself. This leaves us to construe the words "under the authority of the Central Government". The key word in them is ''authority''.

The relevant meaning of the word "authority" in the 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. In Corpus Juris Secundum (at p. 1290) the following are the meanings of the term "authority" in its broad general sense, the word has been defined as meaning control over power jurisdiction; power to act, whether original or delegated. The word is frequently used to express derivative power; and in this sense, the word may be used as meaning instructions, permission, power delegated by one person to another, the result of the manifestations by the former to the latter of the former''s consent that the latter shall act for him, authority in this sense-in the laws of at least one state, it has been similarly used as designating or meaning an agency for the purpose of carrying out a state duty or function; some one to whom by law a power has been given. In "Words and Phrases" we find various shades of meaning of the word "authority" at pp. 603, 606, 612 and 613; Authority, as the word is used throughout the Restatement, is the power of one person to affect the legal relations of another by acts done in accordance with the other''s manifestations of consent to him, an agency of one or more participating Governmental units created by statute for specific purpose of having delegated to it certain functions Governmental in character; the lawful delegation of power by one person to another, power of agency to affect legal relations of principal by acts done in accordance with principal''s manifestations of consent to him.

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. To put it differently, if there is lack of conferment of power or permission by the Central Government to a Government company or undertaking it would disable such a company/undertaking to carry on the industry in question.

In interpreting the said phrase, support is sought to be drawn by the learned counsel for the contract labour from the cases laying down the principles as to under what circumstances a Government company or undertaking will fall within the meaning of State or other authorities in Article 12 of the Constitution. We shall preface our discussion of those cases by indicating that for purpose of enforcement of fundamental rights guaranteed in Part III of the Constitution the question whether a Government Company or undertaking is State within the meaning of Article 12 is germane. It is important to notice that in these cases the pertinent question is appropriateness of the Government-which is the appropriate Government within the meaning of CLRA Act; whether, the Central or the State Government, is the appropriate Government in regard to the industry carried on by the Central/State Government Company or any undertaking and not whether such Central/State Government company or undertaking come within the meaning of Article 12. The word ''State'' is defined in Article 12 "In this part, unless the context otherwise requires, "the State" includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within, the territory of India or under the control of the Government of India" which is quoted in the footnote.

In Sukhdev Singh, Oil and Natural Gas Commission, Life Insurance Corporation, Industrial Finance Corporation Employees Associations Vs. Bhagat Ram, Association of Clause II. Officers, Shyam Lal, Industrial Finance Corporation, this Court, in the context whether service Regulations framed by statutory corporations have the force of law, by majority, held that the statutory corporations, like ONGC, IFFCO, LIC established under different statutes fell under "other authorities" and were, therefore, State within the meaning of that term in Article 12 of the Constitution. The Court took into consideration the following factors (a) they were owned, managed and could also be dissolved by the Central Government; (b) they were completely under the control of the Central Government and (c) they were performing public, or statutory duties for the benefit of the public and not for private profit; and concluded that they, were in effect acting as the agencies of the Central Government and the service Regulations made by them had the force of law, which would be enforced by the Court by declaring that the dismissal of an employee of the, corporation in violation of the Regulations, was void.

In Ramana Dayaram Shetty Vs. International Airport Authority of India and Others, a three-Judge Bench of this Court laid down that Corporations created by the Government for setting up and management of public enterprises and carrying out public functions, act as instrumentality of the Government, they would be subject to the same limitations in the field of constitutional and administrative laws as Government itself, though in the eye of law they would be distinct and independent legal entities. There, this Court was enforcing the mandate of Article 14 of the Constitution against the respondent a Central Govt. Corporation.

Managing Director, Uttar Pradesh Warehousing Corporation and Another Vs. Vijay Narayan Vajpayee, dismissal of the respondent-employee of the appellant Corporation in violation of the principles of natural justice. There also the Court held the Corporation to be an instrumentality of the State and extended protection of Articles 14 and 16 of the Constitution to the employee taking the view that when the Government if bound to observe the equality clause in the matter of employment the corporations set up and owned by the Government are equally bound by the same discipline.

In Ajay Hasia and Others Vs. Khalid Mujib Sehravardi and Others, the question decided by a Constitution Bench of this Court was: Whether Jammu & Kashmir Regional Engineering College, Srinagar, registered as a society under the Jammu & Kashmir Registration of Societies Act, 1898, was ''State'' within the meaning of Article 12 of the Constitution so as to be amenable to writ jurisdiction of the High Court. Having examined the Memorandum of Association and the Rules of the Society, the Court decided that the control of the State and the Central Government was deep and pervasive and the society was a mere projection of the State and the Central Government and it was, therefore, an instrumentality or agency of the State and Central Government and as such an authority-State within the meaning of Article 12.

The principle laid down in the aforementioned cases that if the Government acting through its officers was subject to certain constitutional limitations, a fortiori the Government acting through the instrumentality or agency of a corporation should equally be subject to the same limitations, was approved by the Constitution Bench and it was pointed out that otherwise it would lead to considerable erosion of the efficiency of the Fundamental Rights, for in that event the Government would be enabled to override the Fundamental Rights by adopting the stratagem of carrying out its function through the instrumentality or agency of a corporation while retaining control over it. That principle has been consistently followed and reiterated in all subsequent cases-See Delhi Transport Corporation Vs. D.T.C. Mazdoor Congress and Others, Som Prakash Rekhi Vs. Union of India (UOI) and Another, ; Manmohan Singh Jaitla Vs. Commissioner, Union Territory of Chandigarh and Others, ; P.K. Ramachandra Iyer and Others Vs. Union of India (UOI) and Others, ; A.L. Kalra Vs. Project and Equipment Corporation of India Ltd., ; Central Inland Water Transport Corporation Limited and Another Vs. Brojo Nath Ganguly and Another, ; C.V. Raman Vs. Management of Bank of India and Another, ; Lucknow Development Authority Vs. M.K. Gupta, , Star Enterprises and Others Vs. City and Industrial Development Corporation of Maharashtra Ltd. and Others, , LIC of India and Another Vs. Consumer Education and Research center and Others, and G.B. Mahajan and others Vs. The Jalgaon Municipal Council and others, We do not propose to burden this judgment by adding to the list and referring to each case separately.

We wish to clear the air that the principle, while discharging public functions and duties the Govt. Companies/Corporations/Societies which are instrumentality 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, do not lead to the inference that they become agents of the center/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.

From the above discussion, it follows that the fact of being instrumentality of a Central/State Govt. 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 Govt. 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. Take the case of a State Government corporation/company/undertaking set up and owned by the State Government which is an instrumentality or agency of the State Government and is engaged in carrying on an industry, can it be assumed that the industry is carried on under the authority of the Central Government, and in relation to any industrial dispute concerning the industry can it be said that the appropriate Government is the Central Government? We think the answer must be in the negative. In the above example if, as a fact, any industry is carried on by the State Government undertaking under the authority of the Central Government, then in relation to any industrial dispute concerning that industry, the appropriate Government will be the Central Government. This is so not because it is; agency or instrumentality of the Central Government but because the industry is carried on by the State Govt. Company/Corporation/Undertaking under the authority of the Central Government. In our view, the same reasoning applies to a Central Government undertaking as well. Further, the definition of establishment in 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 purpose of CLRA Act or 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 Govt.? Obviously, there cannot be one test for one part of definition of establishment and another test for another part. Thus, it is clear that the criterion is whether an undertaking instrumentality of Government is carrying on an industry under the authority of the Central Government and not whether the undertaking is instrumentality or agency of the Government for purposes of Article 12 of the Constitution, be it of Central Government or State Government.

There cannot be any dispute that all the Central Government companies with which we are dealing here are not and cannot be equated to 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 for 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 any 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 I.D. 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 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.

We shall refer to the cases of this Court on this point.

In Heavy Engineering Mazdoor Union Vs. State of Bihar and Others, the said expression (appropriate Government) came up for consideration. The Heavy Engineering Corporation is a Central Government company. The President of India appoints Directors of the company and the Central Government gives directions as regards the functioning of the company. When disputes arose between the workmen and the management of the company the Government of Bihar referred the disputes to the Industrial tribunal for adjudication. The union of the workmen raised an objection that the appropriate Government in that case was the Central Government, therefore, reference of the disputes to the Industrial Tribunal for adjudication by the State Government was incompetent. A two-Judge Bench of this Court elaborately dealt with the question of Appropriate Government and concluded that the mere fact that the entire share capital was contributed by the Central Government and the fact that all its shares were held by the President of India and certain officers of the Central Government, would not make any difference. It was held that in the absence of a statutory provision, a commercial corporation acting on its own behalf even though it was controlled, wholly or partially, by a Government Department would be ordinarily presumed not to be a servant or agent of the State. It was, however, clarified that an inference that the corporation was the agent of the Government might be drawn where it was performing in substance Governmental and not commercial functions. It must be mentioned here that in the light of the judgments of this Court, referred to above, it is difficult to agree with the distinction between a governmental activity and commercial function of Government companies set up and owned by Government, insofar as their function in the realm of public law are concerned. However, the contention that the decision in that case Heavy Engineering Mazdoor Union Vs. State of Bihar and Others, is based on concession of the counsel for the appellant is misconceived. This Court summed up the submission in para 4 thus:

The undertaking, therefore, is not one carried on directly by the Central Government nor by any one of its departments as in the case of posts and telegraphs or the railways. It was, therefore, rightly conceded both in the High Court as also before us that it is not an industry carried on by the Central Government. That being the position, the question then, is, the undertaking carried on under the authority of the Central Government?

It is evident that the concession was with regard to the fact that it was not an industry carried on by the Central Government and not in regard to "was the undertaking carried on under the authority of the Central Government?". Indeed that was the question decided by the Court on contest and it was held that the undertaking was not carried on by the Central Government company under the authority of the Central Government and that the appropriate Government in that case was the State Government and not the Central Government. From the above discussion, it is evident that the Court correctly posed the question whether the State Government or the Central Govt. was the appropriate Government and rightly answered it.

In Hindustan Aeronautics Ltd. Vs. The Workmen and Others, this Court was called upon to decide the question as to whether the expression "appropriate Government", as defined in Section 2(a)(1) of the Industrial Disputes Act, was the State Government or the Central Government. In that case dispute arose between the management of the Barrackpore branch (West Bengal) of the appellant and its employees. The Governor of West Bengal referred the dispute to Industrial Tribunal u/s 10 of the I.D. Act. The competence of the State Government to make the reference was called in question. A three-Judge Bench of this Court relying on the decision in Heavy Engineering''s case (supra) held that the reference was valid. The Court took note of the factors, viz., if there is 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; that Barrackpore Industry was a separate unit, the cause of action in relation to the industrial dispute arose at Barrackpore. Having regard to the definitions of the terms "appropriate Government" and ''establishment'', in Section 2 of CLRA Act, it cannot be said that the factors which weighed with the Court were irrelevant. It was also pointed out therein that from time to time certain statutory corporations were included in the definition but no public company of which the shares were exclusively owned by the Government, was roped in the definition. What we have expressed above about Heavy Engineering''s case (supra) will, equally apply here.

The afore-mentioned phrase an industry carried on by or under the authority of the Central Government again fell for the consideration of a three-Judge Bench of this Court in Rashtriya Mill Mazdoor Sangh, Nagpur Vs. Model Mills, Nagpur and Another, The case arose in the context of Section 32(iv) of the Payment of Bonus Act, 1965, which provides that noting in that Act shall apply to employees employed by an establishment engaged in any industry carried on by or under the authority of any department of the Central Government or a State Government or a local authority, u/s 18A of the Industries (Development and Regulation) Act. 1951 the Central Government appointed an authorized Controller to replace the management of the respondent Model Mills. That was done to give effect to the directives issued by the Central Government u/s 16 of the said Act. On behalf of the respondent it was contended that substitution of the management by the Controller appointed u/s 18A of the Industries (Development & Regulation) Act would tantamount to the industry being run under the authority of the department of the Central Government. Negativing the contention it was held:

While exercising power of giving directions u/s 16 the existing management is subjected to regulatory control, failing which the management has to be replaced to carry out the directions. In either case the industrial undertaking retains its identity personality and status unchanged. On a pure grammatical construction of sub-section (4) of Section 32, it cannot be said that on the appointment of an authorised controller the industrial undertaking acquires the status of being engaged in any industry carried on under the authority of the department of the Central Government.

Food Corporation of India, Bombay''s case (AIR 2000 SCW 2075: 2000 Lab IC 2114) (supra) is the only case which arose directly under the CLRA Act. The Food Corporation of India (FCI) engaged, inter alia, the contract labour for handling of food grains. Complaining that their case for departmentalization was not being considered either by the Central Government or by the State Government, nor were they extended the benefits conferred by the CLRA Act, a representative action was initiated in this Court by filing a writ petition under Article 32 of the Constitution seeking a writ of mandamus against the Central/State Government to abolish contract labour and to extend them the benefits under that Act. The FCI resisted the claim for abolition of contract labour on the ground that the operations of loading/unloading food grains were seasonal, sporadic and varied from region to region. However, it pleaded that the State Government and not the Central Government was the appropriate Government under the CLRA Act. In view of the unamended definition of the expression ''appropriate Government'' under CLRA Act, which was in force on the relevant date, it was pointed out that the FCI was not included in the definition by name as it was done under the Industrial Disputes Act. Following the judgment of this Court in Heavy Engineering''s case (supra) and referring to the decision of this Court in Rashtriya Mill Mazdoor Sangh''s case (supra), the Court took the view that the same principle would govern the interpretation of the expression ''appropriate Government'' in the CLRA Act and held that the State Government was the appropriate Government pertaining to the regional offices and warehouses which were situate in various States. We find no illegality either in the approach or in the conclusion arrived at by the Court in these cases.

It was in that background of the case law that the Air India Statutory Corporation, etc. Vs. United Labour Union and others [overruled], came to be decided by a three-Judge Bench of this Court. The Air India Corporation engaged contract labour for sweeping, cleaning, dusting and watching of the buildings owned and occupied by it. The Central Government having consulted the Central Advisory Board constituted u/s 3(1) of the CLRA Act issued notification u/s 10(1) of the Act prohibiting employment of contract labour on and from 9-12-1976 for sweeping, cleaning, dusting and watching of the buildings owned or occupied by the establishment in respect of which the appropriate Government under the said Act is the Central Government. However, the Regional Labour Commissioner, Bombay opined that the State Government was the appropriate Government under the CLRA Act. The respondent Union filed writ petition in the High Court at Bombay seeking a writ of mandamus to the appellant to enforce the said notification prohibiting employment of contract labour and for a direction to absorb all the contract labour doing sweeping, cleaning, dusting and watching of the buildings owned or occupied by the Air India with effect from the respective dates of their joining as contract labour with all consequential rights/benefits. A learned single Judge of the High Court allowed the writ petition on November 16, 1989 and directed that all the contract labour should be regularised as employees of the appellant from the date of filing of the writ petition. On appeal, the Division Bench by order dated April 3, 1992, confirmed the judgment of the learned single Judge and dismissed the appeal. On further appeal to this Court, it was held that the word ''control'' was required to be interpreted in the changing commercial scenario broadly in keeping with the constitutional goals and perspectives; the interpretation must be based on some rational and relevant principles and that the public law interpretation is the basic tool of interpretation in that behalf relegating common law principles to purely private law field. In that view of the matter, it concluded that the two-Judge Bench decision in Heavy Engineering''s case narrowly interpreted the expression ''appropriate Government; on the common law principles which would no longer bear any relevance when it was tested on the anvil of Article 14. It noted that in Hindustan Aeronautics Ltd.; Rashtriya Mill Mazdoor Sangh, and Food Corporation of India, the ratio of Heavy Engineering formed the foundation but in Hindustan Aeronautics Ltd. there was no independent consideration except repetition and approval of the ratio of Heavy Engineering case which was based on concession; in Food Corporation of India the Court proceeded on the premise that warehouses of the corporation were situate within the jurisdiction of the different State Governments and that led to conclude that the appropriate Government would be the State Government. Thus, distinguishing the afore-mentioned decisions, it was held therein (Air India''s case) that from the inception of the CLRA Act the appropriate Government was the Central Government.

We have held above that in the case of a Central Government company/undertaking an instrumentality of the Government, carrying on an industry, the criteria to determine whether the Central Government is the appropriate Government within the meaning of the CLRA Act, is that the industry must be carried on by or under the authority of the Central Government and not that the company/undertaking is an instrumentality or an agency of the Central Government for purposes of Article 12 of the Constitution, such an authority may be conferred either by a statute or by virtue of relationship of principal and agent or delegation of power and this fact has to be ascertained on the facts and in the circumstances of each case. In view of this conclusion, with due respect, we are unable to agree with the view expressed by the learned Judges on interpretation of the expression ''appropriate Government'' in Air India''s case (supra). Point No. 1 is answered accordingly.

The perusal of the paras quoted above reveals that first judgment on the issue was in the case of Heavy Engineering Mazdoor Union Vs. State of Bihar and Others, followed By judgment in the case of Hindustan Aeronautics Ltd. Vs. The Workmen and Others, and judgment the case of Rashtriya Mill Mazdoor Sangh, Nagpur Vs. Model Mills, Nagpur and Another, and lastly in the case of AIR India Vs. Nergesh Meerza and Others, In all the cases referred to above, the State Government was held to be "appropriate Government" except in the case of Air India (supra). The judgment in the case of Air India (supra), however, not approved by the Larger Bench and therein also, the State Government was treated to be ''appropriate Government''. In para No. 43, the Hon''ble Apex Court concluded the issue. The Central Government would be ''appropriate Government'' if the industry is carried on by or under the authority of Central Government and not that the company/undertaking is an instrumentality or an agency of the Central Government for the purpose of Article 12 of the Constitution of India. The authority may be conferred either by the statute or by virtue of relationship of principal and agent or by delegation of power. The view taken by the Hon''ble Apex Court in the case of Air India (supra) was not approved.

The other judgment referred by learned counsel for the respondents need not to be elaborated in the light of the Larger Bench judgment of Hon''ble Apex Court, as it will govern the issue.

If the facts of this case are looked into, the society is not carried on by or under the authority of Central Government. What has been stated by learned counsel for the respondents is that officers of the Railway are ex-officio members of the board and they are governing the society. It is not run by or under the authority of the Central Government. In view of judgment of Hon''ble Apex Court in the case of Steel Authority of India Ltd. & Ors. (supra), the Central Government will be "appropriate Government" provided industry is carried on by or under its authority conferred either by a statue or by virtue of relationship of principal and agent or delegation of power. None of the aforesaid factor "exists herein. The relevant provisions of Bye-laws of the Society, referred by the parties, are quoted hereunder to find as to whether it is run by or under the authority of Central Government:

Name and Area of Operation:--

The society shall be called the Jackson Cooperative Credit Society of the Employees of the Western Railway Limited and its area of operation shall be the entire Western Railway, KTT Divn. of West-Central Railway and erstwhile sub-division of Agra of North-Central Railway and JP & All Divisions of North-Western Railway including Workshops. Any change in the address shall be notified to the Central Registrar within 15 days of its change and also publish in local news papers and shall be made by an amendment of its Bye-laws after following the procedures laid down in Section 11 of Multi State Co-operative Societies Act, 2002.

Objectives and Functions:--

The objectives and functions of the Society are as follows:

(a) to encourage Thrift, self-help and Cooperation amongst the members

(b) to create funds for the purpose of making advances to members of the Society at moderate rate of interest,

(c) to receive sums on deposits at such rate of interest or rates of interest and on such terms as may be decided by the Board of Directors and;

(d) Generally to carry on the business of Co-operative Credit Society, but subject always to provisions of Multi-State Co-operative Societies Act, 2002 and the rules framed there under.

(e) The society shall organize Co-operative education programmes for its members, Directors and employees of the society.

(f) to organize welfare activities for staff and members of the Society.

Membership:--

The Society shall have the following categories of Members:

(a) Regular Members.

(b) Nominal Members.

Regular Membership:--

Membership of the Society shall open to all the employees of the Western Railway, KTT Div. of West-Central Railway and erstwhile sub-division of Agra of North-Central Railway and JP & A1 Divisions of North-western Railway including Workshops subject to the condition that he or she should be competent to contract u/s 11 of the Indian Contract Act, 1872.

Share Capital:--

(a) The authorized Share Capital of the Society is Rs. 50/- crores divided into Rs. 5/- crore shares of Rs. 10/- each.

(b) Money on shares be paid in full at one time and Share Certificates shall be issued on realization of the full amount subscribed for.

(c) The Society at its General Meeting, may from time to time, increase the authorized share capital by creation of new shares of such number and amount as may be deemed expedient with the prior approval of the Central Registrar.

(d) No member other than the authorities referred to in clauses (c) to (g) of sub-section (1) of Section 25 of the Act, shall hold more the Society.

Note: Shares shall be issued only at the value of Rs. 10/- each. The existing members holding share of Re. 1/- only shall however continue but no dividend shall be paid on such shares till such time these shares are raised to the value, of Rs. 10/- and no further loan shall be granted to such shareholders, until they hold a minimum one share of Rs. 10/-.

Management of the Society:

(1) The management of the Society shall vest in the hands of Board of Directors consisting of the following:

(a) 19 Directors elected by the members of the Society i.e. General Body.

(b) 1 Director nominated by the Railway Administration by virtue of Section 48 of the MSCS Act, 2002.

(c) The Chief Executive is Ex-Officio Member on the Board of Directors and does not have any voting right.

(d) Apart from the above, the Board may Co-opt. Two Directors as per Section 41(3) of the MSCS, 2002. The Co-opted Directors also does not have any voting right. They can tender their advice on various issues which may or may not be accepted by the Board of Directors.

(e) The Board may also invite two members as a special Invitee in the Board of Directors Meeting.

(2) The elected Directors shall hold office for a period of 5 years from the date of election.

I find that the Court below had not gone into the question properly, inasmuch as, finding recorded on the aforesaid issue is in few lines and for ready reference, para No. 15 of the said order is quoted hereunder:

The next contention of the learned representative on behalf of the non-applicant that the reference has not been made by appropriate Government is also not tenable. It is an admitted fact that the society is a registered co-operative society under the Maharashtra Co-operative Societies Act, 1960 & is governed by the Multi State Co-operative Societies Act, 2002 & conducted its operation in different states, therefore, it cannot be said that Central Government is not a appropriate Government in this matter.

The only reason for finding Central Government to be ''appropriate Government'' is that society is governed by the Act of 2002 and otherwise, registered under the Act of 1996. The Court below had not gone into the issues in reference to the judgment referred above. The perusal of record and Bye-laws, quoted above, does not show that society is carried on by or under the authority of the Central Government. In the case of Bharat Heavy Electricity, Hindustan Aeronautics and many other companies, the ''appropriate Government'' was treated to be State Government, though therein shareholding and control was even of Central Government to some extent but then also, it was not held to be appropriate Government.

In view of above, the reference of dispute by the Central Government was not competent, thus only issue argued before me is decided in favour of the petitioner-society and against the employee.

The impugned award is accordingly set aside. The respondent-employee would be at liberty to raise a dispute with the Conciliation Officer of the State and if, any dispute is raised, it would be expected from the Conciliation Officer to make an effort to settle it. In case of failure, send it to the appropriate Government for early reference and then quick disposal by the labour Court.

It is further made clear that finding recorded by the Court below on other issues has not been touched in view of arguments by the parties only on the issue. In view of the aforesaid, if reference of dispute is made by the State Authorities, labour Court would decide the issues without being influenced by the award impugned herein. With the aforesaid, the writ petition stands allowed so as the stay application.