JUDGMENT
R.L. Khurana, J.
1. The common question involved in the above noted three writ petitions is :–
“Whether the Central Government or the State Government is the ‘Appropriate Government’ for the purpose of making the reference under Section 10, of the Industrial Disputes Act, 1947 concerning the dispute between the respondent Corporation and its workmen”.
2. The detailed facts of the present cases need not be reproduced by us as they are not relevant for the purpose of controversy involved. Suffice to say that the petitioners are working in various capacities under the respondent Corporation in their Baira Siul project and Chamera Project. Certain disputes arose between the respondent Corporation and its workmen, namely, the petitioners. The State Government vide three separate notifications, referred the dispute to the Industrial Tribunal for; adjudication. During the course of pendency of the proceedings before the Industrial Tribunal, an objection was raised on behalf of the respondent Corporation as to the validity of the reference made by the State Government under, Section 10 of the Industrial Disputes Act, 1947. If was alleged by the respondent Corporation that the appropriate Government for making a reference of the dispute to the Industrial Tribunal was the Central Government. Therefore, the, reference made by the State Government was not valid. The Industrial Tribunal upheld the objection raised on behalf of the respondent Corporation vide its three separate orders dated November 11, 1994 (subject-matter of C. W. P. No. 1200 of 1995), dated November 11, 1994 (subject-matter of C. W.P. No. 1543 of 1995) and dated April 19, 1995 (subject-matter of C.W.P. No. 1199 of 1995). It was held that the references in question were illegal having been made without jurisdiction and that the dispute could not be adjudicated upon.
3. By virtue of present writ petitions, the petitioners have approached this Court seeking issuance of necessary writ, order or direction for, quashing the impugned order of the Industrial Tribunal as at Annexure P-1 to the writ petitions. It was averred that the State Government was the ‘appropriate Government’ for making the necessary reference of the dispute to the Industrial Tribunal under Section 10 of the Industrial Disputes Act, 1947.
4. The respondent Corporation in its reply affidavit has taken the stand that the impugned order of the Industrial Tribunal was passed on the basis of ajudgment of this Court in Civil Writ Petition No. 132 of 1991, N. H. P. C. v. State of Himachal Pradesh, wherein it was held that the ‘appropriate Government for N. H. P. C., that is, the respondent Corporation is the Central Government and not the State Government’.
5. We have heard the learned Counsel for the parties and have also gone through the record of the case.
6. A Division Bench of this Court in C.W.P. No. 132 of 1991, decided on July 19, 1993, held in the following terms :–
“Petitioner is a concern and authority of the Central Government. As per the provisions of Section 2 (a) (i) of the Industrial Disputes Act, 1947, ‘appropriate Government’, in relation to any industrial dispute concerning any industry carried on by or under the authority of the Central Government is the Central Government. As per Sub-clause (ii), in relation to any other industrial dispute, the ‘appropriate Government’ is the State Government.
Since in the instant case Industrial Dispute pertains to an industry carried on by the petitioner-Corporation under the authority of Government of India namely the Central Government, it is that Government alone who could have made a reference to Labour Court appointed by it. In this view of the matter we hold that reference made by respondent No. 1 as well as the award made thereupon by respondent No. 2 (Annexure P-2) are wholly without jurisdiction and the same are liable to be quashed.”
7. Against the said judgment of this Court, the State of Himachal Pradesh had gone up in appeal before the Hon’ble Supreme Court being SLP (Civil) No; 14257 of 1995. The said Special Leave Petition was disposed of by an order dated November 3, 1995. The question whether the Central Government or the State Government was the ‘appropriate Government’ in terms of Industrial Disputes Act, 1947 was left open to be decided in some appropriate proceedings.
8. It is pertinent to note that after the decision of this Court in C.W.P. No.132 of 1991 (N.H.P.C, v. State of Himachal Pradesh), a clarification was given by the Ministry of Labour, Government of India, vide letter No. S-11011/1/94-IR (PL) dated June 7/8, 1994 to the effect that the ‘appropriate Government in respect of the respondent Corporation under the Industrial Disputes Act, 1947 is the State Government’. Though this letter was also brought to the notice of Industrial Tribunal, no reliance was placed thereon by the Tribunal and it was held that the said letter was only an opinion of the Officer.
9. Insofar as it is material for the purpose of the present case, under Section 2 (a) Industrial Disputes Act, 1947, “Appropriate Government” means (i) in relation to any industrial dispute concerning an industry carried on by or under the authority of the Central Government, the Central Government, and (ii) in relation to any other industrial dispute the State Government. It is an undisputed fact that the respondent Corporation is a company incorporated under the Companies Act, 1956 and it is the company so incorporated which carries on the undertaking. The undertaking, therefore, is not one carried on directly by the Central Government or by any of its Department.
10. The question whether a Corporation is an agent of the State depends upon facts of each case. When a statute setting up a Corporation. so provides, such a Corporation can easily be identified as the agent of the State. In the absence of a statutory provision, however, a commercial Corporation acting on its own behalf, even though it is controlled wholly or partially by a Government Department, will be ordinarily presumed not to be the servant or agent of the State. In Abdul Rehman, Abdul Gafur v. Mrs E. Paul, (1962-II-LLJ-693), a question arose before the High Court of Bombay whether the State of Maharashtra or the Central Government was the appropriate Government under Section 2 (a) (i) of the Industrial Disputes Act, 1947 for the purpose of commencing the conciliation proceedings between the Mazgaon Dock Ltd. Bombay and its workmen, It was held that the phrase “under the authority of the Central Government” contained in Section 2 (a) (i) of the Industrial Disputes Act must mean and is intended to apply to the industries carried on directly under the authority of the Central Government and the industries carried on by incorporated commercial companies cannot be described as “carried on by or under the authority of the Central Government”, even if the Central Government controls such companies, because these Corporations are independent legal entities and run the industries for their own purpose. This view taken by the High Court of Bombay was followed by Patna High Court in Heavy Engineering Mazdoor Union v. State of Bihar, (1968-I-LLJ-241). The view taken by the Patna High Court was approved by the Hon’ble Apex Court in appeal having been carried against the decision of the Patna High Court, reported as Heavy Engineering Mazdoor Union v. State of Bihar, (1969-II-LLJ-548) (SC).
11. Again in Hindustan Aeronautics Ltd. v. The Workmen and Ors., (1975-II-LLJ-336), where on a dispute having been arisen between the management of Hindustan Aeronautics Ltd. and its workmen, a reference was made under Section 10 of the Industrial Disputes Act by the State of West Bengal and a question arose whether the State of West Bengal or the Central Government was the appropriate Government within the meaning of Section 2 (a) (i) of the Industrial Disputes Act, 1947. It was held that the State of West Bengal was the appropriate Government and the reference made by it under Section 10 of the Industrial Disputes Act, 1947 was valid.
12. As stated above, the respondent Corporation is a commercial Corporation having been incorporated under the Companies Act, 1956. It is governed by its own Constitution. It has an independent legal entity and it runs its projects for its own purposes. Even if the Central Government is said to own the entire share capital, the industries (projects) carried on by it are still working under the authority of its own Constitution and/ or charters. Therefore, the business of the respondent Corporation cannot be described as carried on by or under the authority of the Central Government. We, therefore, hold that the ‘appropriate Government’ for making a reference under Section 10 of the Industrial Disputes Act, 1947 in respect of a dispute between the respondent Corporation and its workmen is the State Government and not the Central Government as held by the Industrial Tribunal.
13. For the foregoing reasons, the present writ petitions are allowed. The impugned orders dated November 11, 1994 and April 19, 1995 are set aside. The references made by the State Government under Section 10 of Industrial Disputes Act, 1947 in respect of the disputes between the petitioners and the respondent Corporation are held to be valid. The Industrial Tribunal shall proceed to adjudicate upon the references in accordance with law. The parties are left to bear their own costs.