Bombay High Court
Indian Council Of Agricultural ... vs Union Of on 23 November, 2010
Bench: S.A. Bobde, P. D. Kode
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
Letters Patent Appeal No. 464/2009 in
Writ Petition No. 1434/1997 (D)
1. Indian Council of Agricultural Research
(ICAR), Krushi Bhavan, New Delhi,
through its Secretary.
2. National Research Centre for Citrus
(NRCC), Amravati Road, Nagpur,
through its Director. .....APPELLANTS
...V E R S U S...
1. Shri Duryodhan Hiraman Ingole,
aged about 29 years, r/o Sanjay Nagar,
Pandhrabodi, Nagpur.
2. Shri Prahakar Wamanrao Uike,
aged about 30 years, r/o Sanjay Nagar,
Pandhrabodi, Nagpur.
3. Shri Shehsrao Parasram Dhone,
aged about 30 years, r/o Gorle Layout,
Jaitala Road, Nagpur.
4. Shri Arun Chinduji Kangale,
aged about 26 years, r/o Sanjay Nagar,
Pandhrabodi, Nagpur.
5. Shri Kandu Vyankatrao Mandavgade,
aged about 30 years, r/o Khandgaon,
Tah. And Dist. Nagpur.
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2
6. Shri Tulsiram Kawduji Bante,
aged 27 years, r/o New Futala Basti,
Amravati Road, Nagpur. ....RESPONDENTS
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Mr. A. R. Atrey, Advocate for appellants.
Mr. M. V. Mohokar, Advocate for respondents.
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CORAM:- S. A. BOBDE & P. D. KODE, JJ.
rd
DATE :-
November
, 2010
ORAL JUDGMENT (Per:- S. A. Bobde, J.)
1. Heard. Admit. Heard finally by consent of the parties.
2. This appeal is preferred against judgment dated
04.05.2009, by which the learned Single Judge has held that the
appropriate Government in respect of the appellants is the State
Government and, therefore, the Labour Court and Industrial Court
have jurisdiction under the provisions of the Maharashtra
Recognition of Trade Unions and Prevention of Unfair Labour
Practice Act, 1971 (For short "MRTU & PULP Act") to entertain the
dispute against the appellants. The respondents are agricultural
labourers, who were employed for agricultural work in the farm of
the appellant nos. 2 National Research Centre For Citrus
(For short "NRCC"), which body is under the administrative and
financial control of appellant no.1 i.e. ICAR. The respondents
challenged the termination of their services in a complaint under
the MRTU & PULP Act before the Labour Court. This Act is,
admittedly, applicable to the industries in relation to which the
appropriate Government is the State Government. In fact, the
appellants, in the complaint alleged that though the NRCC is an
undertaking functioning under the authority of the Central
Government, the appropriate Government is the State Government
because the office of the NRCC is located at Nagpur. The
appellants resisted the complaint on the ground that the
appropriate Government in respect of the appellants is the Central
Government and, therefore, the Labour Court had no jurisdiction
to entertain the complaint. They also contended that there was no
employer-employee relationship between the appellants and the
respondents since the respondents were engaged by a Contractor
i.e. Vidarbha Security and Consultancy Services, Nagpur for doing
agricultural work in their farm. The Labour Court accepted the
contention of the appellants in relation to the appropriate
Government and dismissed the complaints of the respondents. The
revision applications filed by the respondents were also dismissed
by the Industrial Court.
3. The respondents challenged the judgment of the
Industrial Court by filing Writ Petition before this Court. The
learned Single Judge held that the appellant-ICAR is not an
industry carried out by or under the authority of the Central
Government and, therefore, the appropriate Government in
relation to the ICAR is not the Central Government. Accordingly,
the Industrial Court and Labour Court had jurisdiction to deal with
the complaints under the provisions of the MRTU & PULP Act.
Hence, this appeal.
4. Section 2 of the MRTU & PULP Act makes the Act
applicable to industries in relation to which the appropriate
Government is the State Government under the Industrial Disputes
Act, 1947 and the industries to which the Bombay Industrial
Relations Act applies. The provision, to the extent it is relevant,
reads as follows:-
"2. Extent, commencement and application.
(1) This Act extends to the whole of the State of
Maharashtra.
(2) .....
(3) Except as otherwise hereinafter provided, this Act
shall apply to the industries to which the Bombay
Industrial Relations Act, 1946 (Bom XI of 1947), for the
time being applies, and also to any industry as defined in
clause (j) of section 2 of the Industrial Disputes Act,
1947 (XIV of 1947), and the State Government in
relation to any industrial dispute concerning such
industry is the appropriate Government under that Act"
This position, when read with Section 2 (a) of the
Industrial Disputes Act, 1947 make the Act applicable to all
individual disputes concerning any industry in relation to which
the appropriate Government is the State Government. The
Industrial Disputes Act defines appropriate Government as the
Central Government in relation to industrial dispute in any
industry carried on by or under the authority of the Central
Government and those specified therein and in relation to all other
industries, including those set up by the State Government, the
State Government. The said provision, as amended by the Act No.
24 of 2010, reads as under:-
"2. In the Industrial Disputes Act, 1947 (hereinafter
referred to as the principal Act), in Section 2,-
(i) in clause (a),-
(a) in sub-clause (i), for the words "major port, the
Central Government, and", the words "major port, any
company in which not less than fifty-one per cent, of the
paid-up share capital is held by the Central Government,
or any corporation, not being a corporation referred to
in this clause, established by or under any law made by
Parliament, or the Central public sector undertaking,
subsidiary companies set up by the principal
undertaking and autonomous bodies owned or
controlled by the Central Government, the Central
Government and" shall be substituted;
(b) for sub-clause (ii), the following sub-clause
shall be substituted, namely:-
"(ii) in relation to any other industrial dispute,
including the State public sector undertaking, subsidiary
companies set up by the principal undertaking and
autonomous bodies owned or controlled by the State
Government, the State Government:
Provided that in case of a dispute between a
contractor and the contract labour employed through
the contractor in any industrial establishment where
such dispute first arose, the appropriate Government
shall be the Central Government or the State
Government, as the case may be, which has control over
such industrial establishment."
It is the contention of the appellants that the ICAR is an
industry in relation to which the appropriate Government is
Central Government and, therefore, vide Section 2 above, the Act
has no application. There is no dispute between the parties that
the ICAR and NRCC are industries. Thus, the character of and the
manner in which the ICAR functions assume importance. The
ICAR is a society registered under the Societies Registration Act and
is wholly financed by the Government of India. At its inception,
the taxing power of the State was invoked to make it financially
viable. After independence, the Research Institutes set up by the
Government of India were transferred to the ICAR and the ICAR
has set up National Bureaux, National Research Centres, Project
Directorates and various Institutes like Crop Sciences, Horticulture,
Soils, Agronomy and Agroforestry, Animal Sciences, Fisheries,
Agricultural Engineering and Technology and also Training
Institutes, throughout the length and breadth of the country. The
NRCC is as one such institute set up for research in Citrus fruits,
initially set up under the administrative control of the Indian
Institute of Horticultural Research, Bangalore and later as an
independent unit of the ICAR with its own Director.
5. The origin of the ICAR and its development into its
present position as a Society registered under the Societies
Registration Act is not in dispute. The history and present character
of the ICAR is set out in great detail in the judgment of the
Supreme Court in P. K. Ramchandra Iyer and ors. ..vs.. Union of
India and ors.; AIR 1984 Supreme Court 541. Suffice it to say at
this stage that the Supreme Court has noted that the history of
ICAR shows that as a matter of form, it is a Society registered
under the Societies Registration Act but when set up, it was
substantially an adjunct of the Government of India and has not
undergone any noteworthy change. It began as Imperial Council of
Agricultural Research in June-1929. A decision was taken that it
should be an attached Office and not a department of Government
though the entire staff was to be comprised of Government
servants and were paid from the grants to be given by the State
Government. In July-1929, ICAR was registered as Society with its
office in Secretariat as Secretariat. By resolution dated
04.08.1930, the Government of India directed that the ICAR
should be a regular department of the Government of India under
the Hon'ble Minister incharge of the Department of Education,
Health and Lands. After independence, the Imperial Council was
designated as Indian Council of Agricultural Research and there is
no dispute that the recruitment rules to the ICAR have been
enacted by its governing body with approval of the Government of
India. The Supreme Court in P. K. Ramchandra Iyer and ors.,
concluded as follows:-
"10. Apart from the criteria devised by the judicial
dicta the very birth and its continued existence over half
a century and its present position would leave no one in
doubt that ICAR is almost an inseparable adjunct of the
Government of India having an outward form of being a
Society, it could be styled as a Society set up by the State
and, therefore, would be an instrumentality of the State.
11. ICAR started as a Department of the
Government of India having an office in the Secretariat
even though it was a Society registered under the
Societies Registration Act. It was wholly financed by the
Government of India. Its budget was voted upon as part
of the expenses incurred in the Ministry of Agriculture.
Even when its status underwent a change, it was declared
as an attached office of the Government of India. The
control of the Government of India permeates through all
its activities and it is the body to which the Government
of India transferred Research Institutes set up by it. In
order to make it financially viable, a cess was levied
meaning thereby that the taxation power of the State was
invoked, and the proceeds of the tax were to be handed
over to ICAR for its use. At no stage, the control of the
Government of India even financed and since its inception
it was set up to carry out the recommendations of the
Royal Commission on Agriculture. In our opinion, this
by itself is sufficient to make it an instrumentality of the
State."
6. Mr. Atrey, the learned counsel for the appellants,
submitted that the issue; whether functioning of the ICAR as an
Industry is carried out by or under the authority of the Central
Government; is substantially concluded by virtue of the fact that it
has been held to be an instrumentality of the State for the purposes
of Article 12 of the Constitution of India. This contention cannot be
accepted in view of the observations of the Supreme Court in Steel
Authority of India Ltd. & Ors. Etc. ..vs.. National Union Water
Front Workers & Ors. Etc.; 2001 III CLR 349, where the
Supreme Court observed that the Government Companies,
Corporation, Societies, which are instrumentalities of the
Government, must be subjected to the same limitations in the field
of public law as the Government itself does not lead to inference
that they become agents of the Central or the State Government for
all purposes so as to bind the State Government for all their acts,
liabilities and obligations under the various laws. The Supreme
Court further observed that; to hold that the Central Government is
an appropriate Government in relation to a workman, the court
must be satisfied that the industry in question is carried on by or
under the authority of the Central Government. Further, the
Supreme Court, in para 39 observed as under:-
"39. ...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
an industry for or on behalf of the Central Government is
conferred on the Government company, 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."
7. It is, therefore, necessary to enquire into whether the
ICAR functions under the authority of the Central Government.
The word "authority" must be construed in the sense of a legal
power given by one to another to do an act and the term "under
the authority of" must be construed as pursuant to the authority,
such as in the case of an agent pursuant to the authority of a
Principal, vide Heavy Engineering Mazdoor Union ..vs.. State of
Bihar and ors.; AIR 1970 SC 82. There is no doubt that the ICAR
is a Society registered under the Societies Registration Act. The
question is; whether the ICAR relates to the Central Government in
such a way that it can be said that the former functions under the
authority of the Central Government and whether the control and
presence of the Central Government in the functioning of the ICAR
is so pervasive as to warrant a conclusion that it functions on
behalf of the Central Government. We have also noted the
accepted position about the purpose of the creation of ICAR from
the judgment of the Supreme Court in P. K. Ramchandra Iyer and
ors...vs..Union of India and ors.; (supra). The extent of infusion
of powers of the Central Government in ICAR-the Society, as
enumerated in Rule 3 of the Rules and Bye-Laws of the Indian
Council of Agricultural Research Society, is as follows:-
"I. Society
3. The office of the Society shall be situated at the
Headquarters of of the Government of India."
The membership of the society is described in Rule 4
of the Rules and Bye Laws, which is as follows:-
"4. The Society shall have the following members:-
(i) Minister-in-charge of the portfolio of Agriculture in
the Union Cabinet-President of the Society.
(ii) Minister of State in the Union Ministry of
Agriculture dealing with the Indian Council of
Agricultural Research-Vice-President.
(iii) Union Ministers holding charge of Finance,
Planning, Science & Technology. Education and
Commerce (in case the Prime Minister is holding any of
these portfolios, the Minister of State in the Ministry/
Department concerned).
(iv) Other Ministers in the Union Ministry of
Agriculture.
(v) Ministers in the State in-charge of
Agriculture/Animal Husbandry/ Fisheries.
(vi) Member, Planning Commission, in-charge
Agriculture.
(vii) Six members of Parliament-four elected by Lok
Sabha and two elected by Rajya Sabha.
(viii)Director-General, Indian Council of Agricultural
Research.
(ix) All Secretaries in the Ministry of Agriculture.
(x) Secretary, Planning Commission.
(xi) Chairman, University Grants Commission.
(xii) Chairman, Atomic Energy Commission (or Director,
Bhabha Atomic Research Centre, if nominated by the
Chairman, Atomic Energy Commission).
(xiii)Member, Finance (Secretary/Additional Secretary)
in the Ministry of Finance, Government of India.
(xiv)Four vice-Chancellors of Agricultural Universities,
nominated by the President.
(xv) Five technical representatives, namely Agricultural
commissioner, Horticultural Commissioner, Animal
Husbandry Commissioner, Fisheries Development
Commissioner, from the Union Ministry of Agricultural
and Inspector-General of Forests, Government of India.
(xvi)Fifteen scientists from within and outside the
Council including one from the Indian Council of Medical
Research, nominated by the President.
(xvii)Three representatives of commerce and industry,
nominated by the President.
(xviii)One farmer from each region of the country as
mentioned in Rule 60 (a) and four representatives of
rural interests, nominated by the President.
(xix)Four Directors of the Indian Council of Agricultural
Research Institutes, nominated by the President.
(xx) Secretary, Indian Council of Agricultural Research-
Member Secretary.
The representation may be by name or by
designations, as may be appropriate provided that the
membership of the Society may be changed by the
Government of India from time to time."
8. Rule 16 of the Rules and Bye Laws subjects the powers
of the Society to restriction, imposition by the Government of India
and subject to its guidelines is as follows:-
"II. Authorities of the Society:-
The following shall be the authorities of the Society:-
13. .....
14. .....
15. ....
16. The Society shall have, subject to such restrictions as
the Government of India may impose and subject to such
guidelines as the Government of India may issue from
time to time in this behalf, full authority to perform all
acts and issue such directions as may be considered
necessary, incidental or conducive to the attainment of
the objects enunciated in the Memorandum of Association
of the Society."
Also, it is necessary to see the powers and functions of
the Director General, under Rule 22 of the Rules, which are as
under:-
"V. Director-General
22.(a) Subject to any order that may be passed by
the Government of India, the President, the Vice-President
and decisions of the Governing Body, the Director-
General as the Principal Executive Officer of the Society
shall be responsible for:-
i) the proper administration of the affairs and funds of
the Society.
ii) prescribing the duties of all employees of the
Council.
iii) exercising supervision and disciplinary control over
the work and conduct of all employees of the Council.
iv) co-ordinating and exercising general supervision
over all research activities in agriculture and animal
husbandry and other activities of the Council, and
v) advising the Government of India, State
Governments and the Administrations of the Union
Territories on all matters connected with agriculture and
animal husbandry referred to him.
(b) Subject to these Rules and Bye-Laws, the Director-
General shall, in respect of matters under his charge,
have the same powers as a Secretary to the Government
of India.
(c) The Director-General may, in writing, delegate such
of his powers as he may consider necessary to any officer
of the Council."
The composition of Governing Body of the ICAR is
described in Rule 35, which reads as follows:-
"IX. Governing Body
35. The Governing Body shall have the following
members of the Society:-
i) Director-General.....Chairman.
ii) Member, Finance.
iii) Secretary, Planning Commission.
iv) Secretary, Agriculture.
v) Chairman, University Grants Commission.
vi) Chairman, Atomic Energy Commission (or Director,
Bhabha Atomic Research Centre, if nominated by the
Chairman, Atomic Energy Commission)
vii) Four Scientists including one Management Expert,
who are not employees of the Indian Council of
Agricultural Research nominated by the President.
viii) Three Vice-Chancellors of Agricultural Universities
nominated by the President.
ix) Three Members of Parliament-Two from Lok Sabha
and one from Rajya Sabha-nominated by the President.
x) Three farmers/representatives of rural areas
nominated by the President.
xi) Three Directors of Research Institutes of the Council
nominated by the President.
xii) Secretary, Indian Council of Agricultural Research-
Member-Secretary.
Note:1) One of the Secretaries or Additional Secretaries
in the Ministry of Finance will be Member, Finance for
financial matters concerning the Council. He shall be
nominated by the Ministry of Finance, Government of
India.
2) The membership of the Governing Body shall be
regulated mutatis mutandis in accordance with the
provisions of Rules 6 to 11 above."
Rule 38 (a) of the Rules deals with the powers of the
Governing Body. It restricts the exercise of executive and financial
powers of the Society subject nevertheless to such special
limitation as Government of India may from time to time impose.
Rule 38(a) reads as follows:-
"38(a)The Governing Body shall exercise all executive
and financial powers of the Society including those vested
in or conferred or to be conferred on it by or under any
statute subject nevertheless in respect of expenditure of
such limitations as the Government of India from time to
time may impose."
Rule 40 of the Rules, deals with the power to frame,
amend or repeal bye-laws reads as follows:-
"40. Subject to the provisions of these Rules and with the
approval of the Government of India, the Governing Body
shall have the power to frame-amend or repeal bye-laws
for the administration and management of the affairs
and funds of the Society and in particular to provide for
the following matters.
i) preparation and sanction of budget estimates,
sanctioning expenditure, execution of contracts,
investment of funds of the Society, purchase sale or
change of such investments and maintenance of accounts
and their audit.
ii)
procedure for recruitment and training,
examination, assessment, clearance or probation,
confirmation and promotion of personnel to and in the
service of the Council.
iii) terms and tenures of appointments and assignments,
emoluments, allowances, rules of discipline and other
conditions of service of the employees of the Council.
iv) terms and conditions governing:-
a) the grant of scholarships, fellowships etc.
b) deputations within the country and abroad.
c) grants-in-aid for research schemes and projects, and
d) establishment of research centres.
v) such other matters as may be necessary or incidental
to the administration of the affairs and funds of the
Society."
Rule 80 of the Rules deals with the provision for
Annual Report of the Society. Rule 80 is reproduced as under:-
"80. An annual Report of the proceedings of the Society
and all work undertaken during the year shall be
prepared by the Governing body for the information of
the members of the Society alongwith the Auditor's report
thereon shall be placed before the Society at its Annual
Central Meeting and also on the table of the Houses of
Parliament."
Having regard to the intent and purport of the Rules,
we find that the Central Government exercises sufficient authority
and power in the actual functioning of the ICAR so as to warrant
the inference that the ICAR functions under the authority of the
Central Government. The composition of the society, the
limitations on the exercise of the powers of the society subject to
guidelines issued by the Government of India and restriction on the
exercise of financial powers strongly suggests the inference that the
ICAR functions under the authority of the Central Government
within the meaning of Section 2(a) of the Industrial Disputes Act.
As the dynamics of the functioning goes, the Members of the
Society are mainly Ministers in the Central Government, Members
of Parliament, Secretaries in the various Central Government
Departments, Chairman and Members of Various Commissions,
such as Planning Commission, University Grants Commission,
Atomic Energy Commission. The ICAR has full authority to
perform all its acts, incidental and conducive to attainment of
objects of the society subject to guidelines issued by the
Government of India and to such restrictions as the Government of
India may impose vide Rule 16. The responsibility is conferred by
the Rules and Bye-Laws of the ICAR on the President, Vice
President and Director General subject to any order that may be
passed by Government of India vide Rule 12-A. The Director
General is conferred with the same powers as a Secretary to the
Government of India. The Governing Body comprises of the
members, who are mainly taken from the Government or
Government agencies such as the Secretary, Planning Commission;
Secretary, Ministry of Agriculture; Chairman, University Grants
Commission; Chairman, Atomic Energy Commission; three
members of the Parliament, Directors of Research Institutes of the
ICAR, Secretary or Additional Secretary of the Ministry of Finance
etc. vide Rule 35. All the executive and financial powers of
society can be exercised subject to limitations imposed by
Government of India, Parliament, vide Rule 38-A of the Rules.
Even, the power to amend bye laws is subject to the provision of
the Government of India. The annual report and the proceedings
also are tabled in both the Houses of Parliament and Society can
change its name only with the approval of the Government of
India.
9. Thus, all these factors, such as; the Society i.e. ICAR
though a separately registered body, is predominantly
governmental in its composition and, therefore, in its character and
that its functioning is subjected to the limitations and directions
imposed and issued by the Government of India lead to the
conclusion that it is a society which is set up by, and functions
under the authority of the Government of India.
10. It is significant to note that considering the matter
negatively, there is nothing in the composition, character or
functioning of the ICAR which suggests any relationship to the
State Government. It is neither a State public sector undertaking
nor an autonomous body owned or conducted by the State
Government vide Section 2 (9) (ii). It is, therefore, not possible to
take a view that the State Government is appropriate Government
in relation to any industrial dispute concerning the ICAR. The
ICAR mainly conducts its activities by reason of the fact that it was
set up by the Central Government and even today is guided and
restricted by the authority of the Central Government, throughout
the country.
11. Mr. Mohokar, the learned counsel for the respondents,
however, strongly relied on the judgment of the Supreme Court in
Tata Memorial Hospital Workers Union ..vs.. Tata Memorial
Centre and anr.; 1010 III CLR 151, where the Supreme Court
came to the conclusion that the appropriate Government in
relation to the Tata Memorial Centre, Mumbai is the State
Government and not the Central Government even though initially
the hospital and trust were maintained from the grants made
available from time to time by the Central Government and the
Government of Bombay. According to Mr. Mohokar, the learned
counsel for the respondents, the Supreme Court came to this
conclusion even though the Constitution of the Council of the
society, which is also registered under the Societies Registration
Act, shows that some of the members were appointed by the
Government of India. We find that there is a marked difference
between the circumstances of the case of the Tata Memorial Centre,
Mumbai whose function and area of operation is restricted to the
city of Mumbai in the State of Maharashtra and the present case.
On the contrary, the present case deals with the case of ICAR,
which has large number of Institutes and Research Centres
established in all parts of the country. There is no doubt that the
mere fact that the Ministers appoint the members and Directors of
the Corporation and are entitled to give directions, which are
binding on the Directors and to supervise over the conduct of the
business of the Corporation, does not render the Corporation as an
agent of the Government as observed in paragraph 22 of the
judgment. It is equally important to note the subsequent
observations, which reads as under:-
"22. ...Such an inference that the corporation is the
agent of the Government may be drawn where it is
performing in substance governmental and non-
commercial functions.(of London County Territorial and
Auxiliary Forces Association v. Nocholos) [1948] 2 ALL
E.R. 432."
12. We are satisfied from the undisputed facts pertaining
to the character, composition and functioning of the ICAR that its
function is purely non commercial having regard to the the objects,
for which the ICAR is established. The of the ICAR are given in
Rule 2 of the Rules. They are as follows:-
"2. The objects for which the Indian Council of
Agricultural Research is established are:
(a) To undertake, aid, promote, and co-ordinate
agricultural and animal husbandry education, research
and its application in practice, development and
marketing in India and its Protectorates and any other
areas in or in relation to which the Government of India
has an exercises any jurisdiction by treaty, agreement,
grant usage, sufferance or other lawful means by all
means calculated to increase secure its adoption in every
day practice.
(b) To act as a clearing house of information not only in
regard to research but also in regard to agricultural and
veterinary matters generally.
(c) For the purposes of the Society to draw and accept
and make and endorse discount and negotiate
Government of India and other promissory notes, bills of
exchange, cheques or other negotiable instruments.
(d) To invest the funds of, or money entrusted to, the
Society upon such securities or in such manner as may
from time to time be determined by the Governing Body
and from time to time to sell or transpose such
investments.
(e) To purchase, take on lease, accept as a gift or
otherwise acquire, any land or building, where situate in
India which may be necessary or convenient for the
Society.
(f) To construct or alter any building which may be
necessary for the Society.
(g) To sell, lease exchange an otherwise transfer all or
any portion of the properties of the Society.
(h) To establish and maintain a research and reference
library in pursuance of the objects of the Society with
reading and writing rooms and to furnish the same with
books, reviews, magazines, newspapers and other
publications.
(i) To do all to her such things as the Society may
consider necessary, incidental or conducive to the
attainment of the above objects."
13. It is also necessary to bear in mind the context in which
meaning of the term "appropriate Government" falls for
consideration of the Court. The Industrial Disputes Act and certain
other Acts such as MRTU & PULP Act, the Bombay Industrial
Relations Act, etc. have made elaborate provisions for settlement of
industrial disputes. Industrial disputes have an impact on several
aspects of society, which are relevant for governance, such as law
and order in a particular industrial unit, law and order in the entire
industry, unrest in the society caused by disruptions of production
and unemployment. It is well known that industrial disputes also
have an impact on the economy and trade etc. It is, therefore,
necessary for the Government, under whose broad jurisdiction a
particular industry functions, to be aware of the industrial dispute,
which affect its functioning and policies and take steps for their
resolution. Thus, Section 10 of the Industrial Disputes Act,
empowers the appropriate Government to refer a dispute to
appropriate authority such as Boards, Courts or Tribunals where it
is of the opinion that any industrial dispute exists or is
apprehended. It, therefore, stands to reason that appropriate
Government in respect of the industrial dispute, which arose in an
industry, which is functioning throughout the country should be
the Central Government and not the various State Governments,
which are likely to take their own particular view of the industrial
dispute. It would, therefore, be appropriate to hold that where an
industry is carried on in several States on national level and
functions under the broad authority of the Central Government
and functions in such a way that it affects the Central Government,
the appropriate Government must be held to be the Central
Government.
14. Indeed, it cannot also be said that a welfare State is not
entitled to undertake research, which is absolutely imperative for
the progress of a nation and that undertaking such research makes
the function non governmental. We are thus, of the view that the
ICAR is an "Industry" which is carried on under the authority of the
Central Government and the "appropriate Government" in relation
to such an industry is the "Central Government". We are not in
agreement with the observations of the learned Single Judge that
merely because the research activity is carried on by the ICAR is
not a core governance function, the activity itself cannot be said to
be carried on under the authority of the Central Government.
15. The learned counsel for the respondents relied upon
on the case of Heavy Engineering Mazdoor Union ..vs.. State of
Bihar and ors., (supra). In that case it was held that a commercial
Corporation acting on its own behalf even though it is controlled
wholly or partially by a Government department and though a
Minister appoints Members or Directors of the Corporation, cannot
be presumed to be a servant or agent of the State.
In the present case, the ICAR, which is an independent
society governed by its own governing body and rules, cannot be
held to be a society functioning under the authority of the Central
Government.
There is also no doubt that in the case of Heavy
Engineering Mazdoor Union ..vs.. State of Bihar and ors.,
(supra), the Supreme Court held that the mere fact that the entire
share capital of the Company was contributed by the Central
Government and the fact that all its shares are held by the
President and certain officers of the Central Government, does not
make any difference since the Company and shareholders are
distinct entities and, therefore, it cannot be said to be an agent
either of the President or the Central Government. The statement
on behalf of the respondents, however, overlooks a crucial
difference between a Government company and a society
registered under the Societies Registration Act. Unlike a company, a
society does not have an independent personality distinct from its
shareholders. The personality of a society is hardly distinguishable
from its members. It is not a body corporate or juristic person.
16. For proper adjudication of this crucial point, it is also
necessary to consider a judgment the Supreme Court in Illachi
Devi (dead) by LRs. and Ors. ..vs.. Jain Society, Protection of
Orphans India and ors.; (2003) 8 Supreme Court Cases 413. In
this matter, the Supreme Court observed the difference between a
Company registered under the Companies Act, 1956 and a Society
registered under the Societies Registration Act, 1860. It is held that
a society could not be treated at par with the company for the
purposes of Sections 223 and 236 of the Succession Act, 1925. The
Court, in para 23, observed as under:-
"23. Although admittedly, a registered society is endowed
with an existence separate from that of its members of
certain purposes, that is not to say that it is a legal person
fro the purposes of Sections 223 and 236 of the Act.
Whereas a company can be regarded as having a complete
legal personality, the same is not possible for a society,
whose existence is closely connected, and even contingent,
upon the persons who originally formed it. Inasmuch as a
company enjoys an identify distinct from its original
shareholders, whereas the society is undistinguishable, in
some aspects, from its own members, that would qualify as
a material distinction, which prevents societies from
obtaining Letters of Administration."
The Supreme Court further pointed out that the
property of a Society vests in the Government body or society and
it can be sued in the name of the President, Chairman of the said
trust as may be determined by rules and regulations. It may also
be noted that suits instituted against societies do not abate upon
the death etc. of the person joined in the suit but continued in the
name of or against the successor of such a person, thus
demonstrating the units of the identity of the society and its
mechanism vide Section 7. When this distinction is borne in mind
and applied to the present case, it would appear that the ICAR,
which is wholly comprised of governmental functionaries or their
nominees has no independent existence apart from such members,
who constitute it and the function of such members is controlled
and guided by the Central Government and, therefore, in the
present case, it is not possible to apply the ratio of the judgment of
the Supreme Court in Heavy Engineering Mazdoor
Union..vs..State of Bihar and ors.;(supra).
In these circumstances, we find ourselves unable to
relieve the respondents of their plight in having approached the
wrong Court.
13. In this view of the matter, judgment of the learned
Single Judge in Writ Petition No.1434/1997 dated 17.04.2009 is
hereby set aside and the complaints filed by the respondents are
dismissed for want of jurisdiction.
At this stage, Mr. Mohokar, the learned counsel for
respondents, prays for stay of this order. However, we do not see
any reason to grant stay. The request is, therefore, rejected.
JUDGE JUDGE
kahale
