JUDGMENT
Nishita Mhatre, J.
1. This writ petition challenges the award of the Labour Court No. 2 at Mumbai in reference No. 472 of 1995, wherein it has been held that appropriate Government for Engineering Export Promotion Council, that is respondent No. 1 herein, is not State Government but the Central Government.
2. The facts giving rise to the issue are as follows :
The petitioners joined service with respondent No. 1 as clerks and were working as such till their services were terminated on 2-5-1994. According to the petitioners, their services were terminated on 2-5-1994. According to the petitioners, their services were terminated orally, without assigning any reasons for the same. Legal dues of the petitioners were also not paid. The petitioners complained about their wrongful termination and submitted their respective demand for reinstatement with continuity of service and full back wages with effect from 2-5-1994. The demands were referred for adjudication by the State Government in Reference (IDA) No. 155, 463, 472, 473 of 1995 before the Labour Court, Mumbai. Statements of Claim were filed by each of the petitioners justifying their demand. The respondent No. 1 raised a preliminary issue, common in all the references, that the Central Government being the appropriate Government, the references were not maintainable. The Labour Court decided the preliminary issue by concluding that the Central Government and not the State Government was the appropriate Government as defined under Section 2(a) of the I.D. Act, 1947.
3. The short question, therefore, for determination is whether respondent No, 1 is an industry in respect of which the appropriate Government is the Central Government or the State Government.
4. A few relevant provisions of the Memorandum and Articles of Association will have to be considered in order to determine the issue involved in the petition. Respondent No. 1 is a registered company under the Companies Act and is established to support, protect, maintain, increase and promote the exports of engineering goods and such methods as may be necessary or expedient to keep in constant communication with mercantile and public bodies throughout the world with a view to take appropriate and necessary measures for maintaining or increasing the exports of engineering goods; to enunciate just and equitable principles to govern the trade in engineering goods or to set up a code to wholesome target for the general guidance of manufacturers; to advise or represent the Government, Local Authorities and Public bodies or policy matters to purchase, hire or otherwise acquire and maintain suitable buildings for the establishment of showrooms, emporium, etc. in different countries; to establish and maintain museums, libraries, etc. to edit, print, publish, circulate books, papers regarding engineering goods, etc.
Clauses 4 and 5 of the Memorandum of Association state that the liability of a member is limited as it states that on winding up of the company after satisfaction of the debts and liabilities, the assets would be distributed at the discretion of the Government. If the assets in question have been acquired only or substantially from Government grants they shall be given or transferred to some other institutions having similar objects as may be determined by the Court. Clause 9 provides that no charge or alteration or modification in the
Memorandum shall be made without the prior concurrence of the Government, that is the Union Government. The Articles of Association of respondent No. 1 provided that the term “Government” means the Union Government. They further provide that the working committee which is set up, shall with the concurrence of the Government, draw up Rules and Regulations as it may consider necessary for admission of the members to the Council, as also for regulating the terms and conditions of the membership.
Clause 3(a)(iii) provides that individuals may be nominated by the Government or other organizations on the working committee. Clause 11 stipulates that the working committee shall consist several members — four of whom are to be nominated by the Government out of which one is to be nominated from the Department of Banking, Ministry of Finance. 3 top exporters of Engineering goods who are not nominated by the Government are also considered as members of the working committee. Clause 12 provides that Government appointees are not liable to retire by rotation and shall hold office on the working committee during the tenure of the pleasure of the Government.
The budgetary estimates on supplementary assets are to be drawn up by the Committee of Administration every year for the ensuing year and are to be submitted not only to the Working Committee but also to the Union Government. No expenditure can be incurred until budget is sanctioned by working committee after obtaining approval from Government. The budget has to be in a form as the working committee in consultation with the Government will direct from time to time. Supplementary estimates of expenditure have to be approved by the Government before they are sanctioned by the working committee. The custody and disbursement of accounts have to be kept in any bank or security approved by the Union Government. The Union Government further has power to give directions to the Council in matters involving national security or substantial public interest, which the Council is bound to accept. The Government also has powers to call for reports, returns and other informations with respect other property and activities of the Council as may be required from time to time. Any arrangements made between the Council and foreign collaborators are first to be approved by the Government. No articles of the Council can be changed, altered without the prior concurrence of the Union Government.
5. Mr. Ganguli urges that although the provisions of Memorandum of Association and Articles of Association may show that there is control over the industry, it cannot lead to the conclusion that the Central Government is the appropriate Government under Section 2(a) of the Industrial Disputes Act. He contends that this is not a controlled industry as defined under Section 2(ee) of the said Act and therefore, the appropriate Government cannot be the Central Government. He seeks to distinguish “controlled industry” from an industry “carried on by or under the authority of the Central Government”. He submits that respondent No. 1 is not an industry “carried on by or under the authority of the Central Government” and hence, it cannot be termed as an industry for which the appropriate Government is the Central Government.
6. Mr. Pai, learned Counsel appearing on behalf of respondent No. 1, drew my attention to the budgetary estimates which were approved by Central Government before any budgetary allocation could be made by the Council itself.
He further relies on the decision of the Calcutta High Court in writ petition No. 949 of 1999, wherein in Calcutta High Court was concerned with the payment of the gratuity to an employee of respondent No. 1. The Calcutta High Court directed the workman to avail of an alternate remedy for payment of gratuity under the Payment of Gratuity Act. The workman thereafter approached Regional Labour Commissioner (Central) and therefore, Mr. Pai contends that the appropriate Government for the Council is Central Government and not State Government.
7. Mr. Pai placed strong reliance on the judgment of this Court in the case of Nehru Science Centre v. National Council of Science Museum Employees Union reported in 1998(2) All. MR 786. The learned Judge (R.M. Lodha, J.) after citing the judgment of the Supreme Court in the case of Air India Statutory Corporation, etc. v. United Labour Union and Ors. reported in 1997 Lab.IC 365 has considered as to whether the National Council of Science Museum was an industry of which the appropriate Government is the State Government. Mr. Pai submits that the constitution of respondent No. 1 is similar to the Nehru Science Centre as discussed in the aforesaid judgment. He submits that a plain reading of the Articles of Association and Memorandum of Association demonstrate that respondent No. 1 is being carried on by or under the authority of the Central Government and therefore, the Central Government is the appropriate Government.
He submits that although this may not be a controlled industry as defined under Section 2(ee) of the Industrial Disputes Act, it as an industry which is carried on by or under the authority of the Central Government and therefore, falls within Clauses 7 and 8 of the examples given in the judgment of the Supreme Court in the Air India’s case (supra). He submits that respondent No. 1 is an arm of the Government and therefore, the appropriate Government would be Central Government.
8. After perusing the provisions of the Memorandum of Association and Articles of Association as stated hereinabove, I am of the view that although respondent No. 1 is not a controlled industry, it certainly is an industry which is carried on “under the authority of the Central Government”. I am unable to accept the submission made by the Mr. Ganguli that it is an industry which is neither carried on “by the Central Government” nor “under the authority of the Central Government”. The word “or” which separates the word ‘by’ from the word “under” makes it amply clear that the industry must be carried on by the appropriate Government or under the appropriate Government. Either one of the eventualities must exist for for the appropriate Government to be the Central Government. The Labour Court has therefore rightly concluded that the appropriate Government is the Central Government.
9. The workmen in the present case have been out of employment for a long period and their disputes were referred for adjudication before the State Government. The Central Government which is now held to be the appropriate Government shall consider their disputes expeditiously and make a reference within two months of the workman submitting a justification statement.
10. Rule discharged with the aforestated directions. No order as to costs. All concerned to act on an ordinary copy of this order duly authenticated by the Court Associate.