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international Airports Authority Vs. P.K. Srivastava - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberWrit petition No. 1748/81
Judge
Reported in1986(1)BomCR335; [1986(52)FLR91]; (1987)ILLJ242Bom; 1986MhLJ491
ActsIndustrial Disputes Act, 1947 - Sections 2, 2A and 10
Appellantinternational Airports Authority
RespondentP.K. Srivastava
Excerpt:
.....state government not competent to make reference - appropriate government for said purpose was central government - labour court negatived contention of petitioner - international airport authority of india is industry carried on under authority of central government - held, appropriate government for making reference is central government. - - the statement of objects and reasons annexed to the bill which was subsequently enacted states that for the successful implementation of the programme relating to the development of the four international airports of delhi, bombay, calcutta and madras and for success in spending effectively the requisite large outlays for the creation of the requisite facilities, speed and flexibility is required. it was created for the purpose of more..........of the 1st respondent.2. it seems that initially the respondents nos. 1 and 2 had approached the central government for the purpose of making a reference under the industrial disputes act, 1947. the central government by its letter dated 9th november, 1976 informed respondents nos. 1 and 2 that the central government was not the appropriate government and hence no reference was being made by the central government. thereafter the state government made a reference of the said dispute to the labour court under the provisions of the industrial disputes act, 1947. the petitioner contended before the labour court that the state government was not competent to make the reference in question. according to the petitioners the appropriate government for this purpose is the central government......
Judgment:

1. This petition is filed by the International Airports Authority of India challenging an order dated 16th September, 1981 passed by the Presiding Officer, 6th Labour Court, Bombay in reference No. 544/1977 holding on a preliminary point that the State Government was the Appropriate Government for making a reference under the provisions of the Industrial Disputes Act of 1947. The 1st respondent was an Airport Ticket Clerk in Bombay. After the constitution of the International Airports Authority of India under the International Airports Authority Act of 1971 the 1st Respondent was delegated as an employee to the International Airports Authority of India, the petitioners herein. He was absorbed as an employee of the petitioners on 21st August, 1975 with retrospective effect. Thereafter the services of the 1st respondent were terminated by the petitioners on 20th September, 1975. The dispute which is the subject matter of the reference in the present petition relates to this order of termination of the 1st respondent.

2. It seems that initially the respondents Nos. 1 and 2 had approached the Central Government for the purpose of making a reference under the Industrial Disputes Act, 1947. The Central Government by its letter dated 9th November, 1976 informed respondents Nos. 1 and 2 that the Central Government was not the appropriate Government and hence no reference was being made by the Central Government. Thereafter the State Government made a reference of the said dispute to the Labour Court under the provisions of the Industrial Disputes Act, 1947. The petitioner contended before the Labour Court that the State Government was not competent to make the reference in question. According to the petitioners the appropriate Government for this purpose is the central Government. The Labour Court negatived this contention of the petitioner. The present writ petition challenges this order of the Labour Court.

3. Under section 10 of the Industrial Disputes Act, 1947 where the appropriate Government is of opinion that any industrial dispute exists or is apprehended it may at any time by order in writing refer the dispute to the appropriate authority referred to in that section. The term 'appropriate Government' is defined in section 2(a) of the Industrial Disputes Act, 1947. The definition has been amended with effect from 21st August, 1984 as a result of the Industrial Disputes (Amendment) Act of 1982. Prior to this amendment the material part of the definition was as follows :-

2(a) 'Appropriate Government' means - (1) in relation to any industrial dispute 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 the Industrial Finance Corporation of India established under section 3 of the Industrial Finance Corporation Act, 1948 (15 of 1948) or ....., the Central Government; and (ii) in relation to any other industrial dispute, the State Government.'

The portion of the definition which is not reproduced above enumerates certain statutory corporations. The name of the International Airports Authority does not figure in this enumeration.

4. After the amendment of 1982 which came into force in August 1984 the enumeration of various statutory corporations and other bodies has been considerably enlarged. The name of the International Airports Authority of India figures in this enlarged definition. As a result of the amendment there can be no doubt that the appropriate Government for the purpose of making a reference in respect of a dispute between the International Airports Authority of India and its workmen would be Central Government. The present reference however, was made on 27th of June, 1977 prior to the said amendment. It is, therefore, necessary to consider whether the present industrial dispute can be said to be concerning any industry carried on by or under the authority of the Central Government. If so, the appropriate Government for making the reference will be the Central Government. Otherwise the State Government is competent to make a reference.

5. International Airports Authority Act, 1971 (hereinafter referred to as the said Act) constitutes the International Airports Authority of India. The Statement of Objects and Reasons annexed to the bill which was subsequently enacted states that for the successful implementation of the programme relating to the development of the four international airports of Delhi, Bombay, Calcutta and Madras and for success in spending effectively the requisite large outlays for the creation of the requisite facilities, speed and flexibility is required. Keeping in view the compulsions of Government procedures it was felt necessary to constitute a separate statutory authority for the development and management of the four International Airports.

6. Under section 3 of the said Act Central Government has constituted an Authority to be called the International Airports Authority of India. Under sub section (2) the Authority shall be a body corporate having perpetual succession and a common seal, with power, subject to the provisions of this Act, to acquire, hold and dispose of property both movable and immovable and to contract. It shall by the said name sue and be sued. Under sub section (3) the Authority shall consist of (a) a Chairman to be appointed by the Central Government (b) the Director-General of Civil Aviation, ex-officio; and (c) not less than six and not more than thirteen members to be appointed by the Central Government. Thus the appointment of the said Authority is entirely under the control of the Central Government.

7. Under section 12 of the said Act all properties and other assets vested in the Central Government for the purposes of the airports and administered by the Director-General of Civil Aviation immediately before such day shall vest in the said Authority. All debts, obligations and liabilities incurred by the Central Government prior to the constitution of the said Authority shall be deemed to have been incurred by the said Authority. Similarly all amounts due to the Central Government in relation to the airports are deemed to be due to the said Authority. All litigation by and against the Central Government can also to be continued by or against the said Authority. Under section 12 sub section (c) all non-recurring expenditure by the Central Government for or in connection with the purposes of the airports and declared to be capital expenditure by the Central Government shall be treated as the capital provided by the Central Government. Under sub-section (f) every employee holding any office under the Central Government mainly for or in connection with such affairs of the airports as are relevant to the functions of the Authority shall be treated as on deputation with the Authority and shall continue to do so until the Central Government either recalls such employee to its service or until the Authority, with the concurrence of the Central Government duly absorbs such employees in its regular service, whichever is earlier.

8. Under section 13 any land required by the Authority for discharging its functions under the said Act shall be deemed to be needed for a public purpose and such land can be acquired for the Authority under the relevant Act. Under section 15 certain types of contracts require previous approval of the Central Government. Under section 18 the Central Government may after due appropriation made by Parliament in this behalf provide any capital over and above that provided under section 12(1)(c) for the discharge by the Authority of its functions under the Act. Under section 20 sub section (2), after making certain provisions as prescribed therein the Authority is required to pay the balance of its net annual profits to the Central Government. The borrowing powers of the Authority are also subject to the consent of the Central Government and they can be exercised in accordance with the terms of any general or special authority given to it by the Central Government. Under section 28 Officers and Employees of the Authority are deemed to be public servants within the meaning of section 21 of the Indian Penal Code. Under Section 33 the Central Government has the power in the public interest to divest the Authority from the management of any airport while under section 34 the Central Government has the power to supersede the said Authority, in public interest or under certain other circumstances. Under section 35 the Authority in the discharge of its functions and duties is bound by such directions on the question of policy as the Central Government may give in writing to it from time to time. The decision of the Central Government whether a question is one of policy or not shall be final. All these provisions read as a whole show that the International Airports Authority constituted under the said Act is created by and functions under the authority of the Central Government. It was created for the purpose of more efficiently carrying out certain functions which were previously discharged by the Civil Aviation Ministry. The manner in which the Authority is set up under the said Act and its powers, duties and functions indicate that it functions and carries out its various obligations under the control and authority of the Central Government. The said Authority is, therefore, covered by the first part of the definition of the 'appropriate government' under section 2(a)(i) of the Industrial Disputes Act, being and industry carried on by or under the authority of the Central Government.

9. In the case of Heavy Engineering Mazdoor Union V. State of Bihar and others : (1969)IILLJ549SC the Supreme court was required to consider whether Heavy Engineering Corporation Limited, Ranchi was an industry carried on under the authority of the Central Government. The Supreme Court observed that the word 'authority' must be construed according to its ordinary meaning and, therefore, must mean a legal power given by one person to another to do an Act. It said that the words 'under the authority' mean pursuant to the authority, such as where an agent or a servant acts under or pursuant to the authority of his principal or master. The Supreme Court held that Heavy Engineering Corporation Limited was a company incorporated under the provisions of the Companies Act. It had a separate juristic existence distinct from its members. The fact that the share capital of the said Corporation was controlled by the Central Government did not make any difference. The Company and its shareholders were distinct entities and the company was controlled by its own memorandum and articles of association. Hence Heavy Engineering Corporation Limited could not be considered as being under the authority of the Central Government. The Supreme Court came to this conclusion because it was of the view that powers of control which the Central Government had over the Corporation were powers which were derived from the company's Memorandum of Association and Articles of Association and not by reason of the company being the agent of the Central Government. The Court, however, went on to observe that the question whether a corporation is an agent of the State must depend on the facts of each case. Where from a statute setting up a corporation it can easily be identified as the agent of the State, the Corporation may be considered as functioning under the authority of State. The present case is such a case of a corporation set up by a statute which, from the provisions of the statute, has to act under the authority of the Central Government.

10. In the case of Regional Provident Fund Commissioner V. Workmen, General Secretary, Karnataka Provident Fund Employees Union and another 1984 II LLJ 503 the provisions of section 2(a) of the Industrial Disputes Act were again interpreted in connection with the office of the Regional Provident Fund Commissioner. The Court held that the activity carried on under the Provident Fund Act is an activity carried on by or under the authority of the Central Government as provided therein. The Supreme Court referred to the case of Heavy Engineering Mazdoor Union V. State of Bihar Supra and observed that the activity carried on by the Central Board or the State Board under the Provident Fund Act could not be compared to the activity carried on by any private trade or manufacturing business as in the case of Heavy Engineering Corporation Limited.

11. In the present case the statutory corporation has been set up to discharge some of the functions previously discharged by the Civil Aviation Department. The provisions of the said Act also clearly indicate that it is expected to carry on its duties and functions and to exercise powers under the authority of the Central Government. It is, therefore, covered by the first part of the definition under section 2(a)(i).

12. Learned advocate for the respondent lays emphasis on the subsequent amendment made in the definition of 'appropriate Government' as a result of which the first part of the definition now expressly includes the International Airports Authority of India as an industry in relation to which the appropriate Government for making a reference is the Central Government. He submitted that the very fact that there was no express reference to the International Airports Authority of India in the previous definition would show that previously it was not covered under the first part of the definition of the appropriate Government under section 2(a). It was on account of this difficulty that this Authority was specially included in the first part of the definition under section 2(a) by an amendment. According to him the definition, therefore, prior to its amendment could not have included the International Airports Authority of India in the first part. In support of his contention he relies upon certain observations of the Supreme Court in the case of Food Corporation of India Workers' Union V. Food Corporation of India and others 1985 II LLJ 4. In that case the Supreme Court was concerned with the interpretation of the Contract Labour (Regulation and Abolition) Act of 1970. Section 2(a) of the Contract Labour (Regulation and Abolition) Act defines 'appropriate Government' in that Act. This definition also uses the phrase 'any industry carried on by or under the authority of the Central Government'. In considering this phrase the Supreme Court made a reference to the provisions of section 2(a) of the Industrial Disputes Act 1947. One of the arguments advanced before the Supreme Court was that under the amended definition of 'appropriate Government' under section 2(a) of the Industrial Disputes Act 1947, the Food Corporation of India was specifically included in the first part of the definition. It was submitted before the Supreme Court that, therefore, the Food Corporation of India should also be considered as an industry carried on by or under the authority of the Central Government for the purpose of the Contract Labour (Regulation and Abolition) Act 1970. While negativing this contention the Supreme Court observed that the Food Corporation of India was expressly included in the amended definition in part (i) of section 2(a) of the Industrial Disputes Act, 1947. Hence prior to the amendment it was not covered by the earlier part of the definition as an industry carried on by or under the authority of the Central Government. The Supreme Court examined the nature of the activity carried on by the Food Corporation of India and came to the conclusion that the Food Corporation of India could not be said to be an industry carried on by or under the authority of the Central Government. This decision does not lay down that any of the statutory corporations and other bodies which are expressly included in section 2(a)(i) of the Industrial Disputes Act 1947 either originally or by virtue of the amendment of 1982 cannot be said to be an industry carried on 'by or under the authority of the Central Government'. This question will have to be decided on the facts and circumstances of each case depending upon the manner in which the statutory Corporation in question is set up and the manner in which it functions and discharges its obligations. It is possible that in a given case a Corporation would not have been considered as an industry carried on by or under the authority of the Central Government. But by virtue of its express inclusion in section 2(a)(i), a reference in case of such a corporation is required to be made by the Central Government. It is equally possible that in the case of another Corporation, on the facts and circumstances relating to that Corporation it can be seen that it is an industry carried on by or under the authority of the Central Government. Its express inclusion in section 2(a)(i) will not make the first part of section 2(a)(i) inapplicable to it. It would not, therefore, be correct to say that because the International Airports Authority of India is subsequently expressly included in section 2(a)(i) it cannot be considered as an industry carried on under the authority of the Central Government.

13. It was submitted by Mr. Talsania, learned advocate for the petitioner, that the subsequent amendment of section 2(a)(i) as a result of which the International Airports Authority of India is added to the list of statutory corporations in section 2(a)(i) is an amendment which is clarificatory in nature. He relied upon the Statement of Objects and Reasons relating to the said amendment, where it is stated that this part of the amendment is being made in order to remove certain difficulties which have been experienced. He, therefore, submitted that since the amendment merely clarifies what was already contained in the definition the amendment must be given a retrospective effect and should be applied even in cases of a reference which was made prior to the coming into operation of the amendment. This submission does not appear to be correct. In the first place there is nothing to show that the amendment is merely clarificatory. The Statement of Objects and Reasons shows that the amendment was made in order to remove certain difficulties. It is, therefore, more curative than clarificatory. Such a curative amendment, in the absence of any express words to that effect in the amending statute, cannot be given a retrospective operation.

14. Mr. Talsania relied upon a decision of the Supreme Court in the case of Ruston & Homsby (I) Ltd. v. T. B. Kadam : (1975)IILLJ352SC In that case the facts which gave rise to the industrial dispute had occurred prior to the amendment of the Industrial Disputes Act as a result of which section 2A was inserted in the Industrial Disputes Act. The reference was made after Section 2A was added to the statute and the reference was in terms under the provisions of section 10 read with section 2A of the Industrial Disputes Act. It was argued before the Supreme Court that since the fact which gave rise to the industrial dispute arose before the amendment, new section 2A would not apply to such a dispute. The application of section 2A in such a case would be retrospective. This argument was negatived by the Supreme Court which held that in such a situation there was no question of applying section 2A retrospectively. The conditions which gave rise to the reference were existing at the time when the reference was made under section 10 read with section 2A. This decision can have no application to the present case. At the time when the reference was made, amendment to section 2(a)(i) had not been effected. Any later amendment cannot govern a reference already made.

15. Similarly the decision in the case of Channan Singh and another V. Smt. Jay Kaur : [1970]1SCR803 is also of no assistance to the petitioners. In that case the amendment of Punjab Pre-emption Act was held to be merely clarificatory in nature and hence was given retrospective effect. Since the Supreme Court held that the provisions of the amendment were already entailed in the unamended Act, the Supreme Court applied the amendment retrospectively. Such is not the present case.

16. The petitioners also relied upon a decision of the Supreme Court in the case of M/s. Krishnamurthi & Co. V. State of Madras : [1973]2SCR54 where an amendment to the Madras Sales Tax Act was expressly made retrospective in operation. The retrospective operation of this amendment was the subject matter of challenge in that case. The Supreme Court upheld the statutory provision which made the amendment retrospective on the ground that the amendment was meant to cure an infirmity in the existing statute. An amendment of this nature can be made retrospective. This case can have no application to the present case where the amendment is not made expressly retrospective. This aspect of the argument advanced by the petitioner must, therefore, be rejected.

17. Since however, International Airports Authority of India is an industry carried on by or under the authority of the Central Government the appropriate Government for making a reference in the present case is the Central Government. It is unfortunate that the initial application of the workman to the Central Government was turned down by the Central Government. It is hoped that in case the workman approaches the Central Government for a reference the application will be disposed of expeditiously in view of the special circumstances of the case.

18. In the premises the rule is made absolute in terms of prayers (a) and (b). The judgment and order dated 16th September, 1981 are set aside and the third respondent is prohibited from proceeding with the reference No. IDA 505 of 1977. In the circumstances of the cases there will be no order as to costs.


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