G.P. Singh, C.J.
1. Hari Shanker Namdeo, who is respondent No. 1 in this petition, was employed as a temporary lower division clerk in the Security Paper Mill, Hoshangabad, which is a paper mill established by the Central Government for manufacture of paper for printing currency-notes. Under the Rules of the Paper Mill, a person, before he is employed, is required to fill in a form known as 'Attestation Form' wherein he is required to furnish details of his antecedents including all previous employments. The attestation form contains a warning that if the fact that false information has been furnished or that there has been suppression of any factual information in the attestation form comes to notice at any time during the service of the person, his services would be liable to be terminated. Respondent No. 1 in his attestation form did not disclose that he was employed temporarily as a lower division clerk in the office of the District & Sessions Judge, Hosahngabad, during the period from 28th April, 1962 to 26th October, 1964. An enquiry was held against the respondent for suppression of this information and he was dismissed from service by order dated 23rd November, 1973. The respondent challenged the order of dismissal before the High Court in Miscellaneous Petition No. 369 of 1974 which was allowed by a Division Bench by order dated 25th August, 1975 on the ground that the respondent was not given reasonable opportunity to meet the charge on which he was dismissed. A fresh enquiry was thereafter held against the respondent and he was again dismissed by order dated 23rd November, 1976. At the time when the second order of dismissal was passed, an application made by the respondent under Section 33C(2) of the Industrial Disputes Act, 1947 was pending before the Labour Court. The General Manager of the Security Paper Mill applied to the Labour Court under Section 33(2)(b) for approval of the order of dismissal. The respondent contended before the Labour Court that he was a 'protected workman' and so his case fell under Section 33(3) and that the order of dismissal was passed mala fide to victimize him for his trade union activities. Both the contentions raised by the respondent were accepted by the Labour Court and the application made by the General Manager was dismissed by order dated 4th May, 1977. It is this order which the General Manager challenges by this petition under Article 226 of the Constitution.
2. The first contention raised by the learned Counsel for the petitioner is that the Labour Court had no jurisdiction to grant or refuse approval or permission to the petitioner for dismissing the respondent under Sub-section (2) or (3) of Section 33 of the Act and the entire proceeding taken by the petitioner for obtaining the approval or permission by the Labour Court was without jurisdiction. The learned Counsel for the petitioner submitted that the Labour Court had no jurisdiction for two reasons: (1) that the Security Paper Mill, Hoshangabad, being an undertaking established by the Central Government in the exercise of its sovereign functions, was not an 'industry'; and (ii) that there was no conciliation proceeding before a conciliation officer or a Board or any proceeding before an arbitrator or a Labour Court or Tribunal or National Tribunal in respect of an industrial dispute pending within the meaning of Section 33(1) on the date when the petitioner dismissed the respondent. The first hurdle before the learned Counsel for the petitioner in advancing the contention of want of jurisdiction is that the petitioner himself made the application before the Labour Court for approval of the dismissal order and did not at any stage question the jurisdiction of the Labour Court. It was only when the decision of the Labour Court went against the petitioner that he took up the point of want of jurisdiction in this petition before us.
3. In Pannalal Binjraj v. Union of India : 1SCR233 , it was held by the Supreme Court that if the petitioners, acquiesced in the jurisdiction of the Tribunal, their conduct would disentitle them to any relief on the ground of want of jurisdiction. More recently in Sohan Singh v. General Manager, Ordinance Factory, Khamaria, Jabalpur, C.A No. 914 of 1972, D/- 18-3-1975, the Supreme Court again held that if the jurisdiction of the Labour Court is not challenged, the point of want of jurisdiction cannot be raised for the first time in the High Court under Article 226 of the Constitution. The conduct of the petitioner in filing the application under Section 33 of the Act for approval of the dismissal order and in pursuing that application till the end without raising any objection as to jurisdiction completely disentitles the petitioner to challenge the jurisdiction of the Labour Court in passing the impugned order. Had the petitioner not filed the implication under Section 33 of the Act or had he withdrawn it on the ground that no permission for or approval of the dismissal order was necessary for the reason that there was no proceeding in respect of an industrial dispute pending within the meaning of Section 33 on the date when the dismissal order was passed, the respondent could have challenged the order by raising an industrial dispute under Section 2A of the Act and could have obtained a decision on the dispute under Section 11A. If the petitioner is now allowed to contend that the conditions for the applicability of Section 33 were not satisfied and, therefore, the application made by him ought to have been dismissed by the Labour Court, that would seriously prejudice the respondent. In our opinion, therefore, the petitioner cannot be allowed to contend before us that the Labour Court had no jurisdiction to entertain the application made by the petitioner as there was no proceeding in respect of an industrial dispute pending before it at the time when the order of dismissal was passed.
4. The jurisdiction of the Labour Court is, however, also attacked on the ground that the Industrial Disputes Act as a whole had no application because the Security Paper Mill in which the respondent was employed is not an 'industry' as it is being run by the Central Government in the exercise of its sovereign functions. The learned Counsel for the petitioner submitted that this argument became available to the petitioner in view of the decision of the Supreme Court in the Bangalore Water Supply and Sewerage Board v. A. Rajappa : (1978)ILLJ349SC , after passing of the order by the Labour Court. There is seme authority for the proposition that if an objection as to jurisdiction goes to the root of the matter and is based on a decision rendered after the impugned order, non-raising of the objection before the Labour Court or Tribunal does not stand as a bar for raising that objection under Article 226 of the Constitution; Arunachalam Pillai v. Southern Roadways Ltd. : 3SCR764 end Moon Mills Ltd. v. M.R. Meher, President, Industrial Court, Bombay A.I.R. 1967 S.C. 1450, at pp. 1453 and 1454. In view of these authorities, we have to examine the question whether the Security Paper Mill is an 'industry' or not.
5. As earlier stated, the learned Counsel for the petitioner strongly relied upon the decision of the Supreme Court in the Bangalore Water Supply and Sewerage Board's case (supra) for the proposition that undertakings of the Government of India in the exercise of its sovereign functions do not fall within the definition of 'industry'. Our attention in this connection was drawn to propositions IV(b) and IV(c) in the judgment of K. Iyer, J. at page 596 of the report. These propositions read as follows:
IV. The dominant nature test:
(a) x x x x x x x x x x x(b) Notwithstanding the previous classes, sovereign functions, strictly understood (alone) qualify for exemption, and not the welfare activities or economic adventures undertaken by Government or statutory bodies.
(c) Even in departments discharging sovereign functions, if there are units which are industries and they are substantially severable, then they can be considered to come within Section 2(j) .
The learned Counsel for the petitioner did not dispute that it is open to the Legislature to include even undertakings established by the Government in the exercise of its sovereign functions within the definition of 'industry'. The general observations of K. Iyer, J., quoted above, cannot be read to mean that even if an industry is expressly or by necessary implication included in the definition of 'industry', it should be excluded on the ground that it is an undertaking established in the exercise of sovereign functions. It is only when there is no express or necessarily implied mention of a Governmental undertaking as an industry that the tests laid down by K. Iyer, J., have to be applied. The definition of 'industry' as given in Section 2(j) of the Act does not expressly exclude the Governmental undertakings established in the exercise of sovereign functions. Section 2(H) of the Act defines 'public utility service'. Sub-clause (vi) of this definition includes within it any industry specified in the First Schedule which the appropriate Government may, if satisfied that public emergency or public interest so requires, by notification in the Official Gazette, declare to be a public utility service for the purposes of the Act, for such period as may be specified in the notification. The First Schedule to the Act contains a list of industries which may be declared to be public utility services under Sub-clause (vi) of Section 2(n). Items 8, 11 and 12 of the First Schedule specify defence establishments, India Government Mints and India Security Press respectively as the industries which can be declared to be public utility services. Even assuming that these industries are established by the Central Government in the exercise of its sovereign functions, yet it is clear that the intention of the Act was to include them within the definition of 'industry', otherwise they would not have been mentioned in the First Schedule. By necessary implication, therefore, Defence establishments, India Government Mints and India Security Press are industries within the Act. The Security Paper Mill is included within 'India Security Press' mentioned at item No. 12 in the First Schedule as is clear from the Notification, dated 13th April, 1973, under which the Central Government declared the Security Paper Mill to be a public utility service under Sub-clause (vi) of Section 2(n). We may also mention that Chandrachud, C.J., in the Bangalore Water Supply and Sewerage Board's case A.I.R. 1978 S.C. 969, at pp. 972, 973, observed that he sought no justification for excepting the categories of public utility activities in the definition of 'industry '. He further observed that it should make no difference whether, on the one hand, an activity is undertaken by a corporate body in the discharge of its statutory functions or, on the other, by the State itself in the exercise of its inalienable functions. He then stated:
If the Water Supply and Sewerage Schemes or fire fighting establishments run by a municipality can be industries, so ought to be the manufacture of coins and currency, arms and ammunition and the winning of oil and uranium The fact that these latter kinds of activities are, or can only be undertaken by the State does not furnish any answer to the question whether these activities are industries. When undertaken by a private individual they are industries. Therefore, when undertaken by the State, they are industries'. He also observed that items 8, 11, 12, 17 of the First Schedule, read with Section 2(H)(vi), rendered support to this view. We may also refer to the observations of Beg, C.J., in the same case where he said that he was ' impressed by the argument that certain public utility services which are carried out by governmental agencies or corporations are treated by the Act itself as within the sphere of industry . (p. 556 of the report)
We are not here concerned with the general principle enunciated by K. Iyer, J., that principle as earlier stated, has no application where a governmental undertaking is, by express or necessary implication, treated as an 'industry' by the provisions of the Act. As pointed out by us, the Security Paper Mill, with which we are concerned here, is, by necessary implication, included as an 'industry' under the Act. The application of the Act of this governmental undertaking cannot be excluded on any general principle that it is undertaken in fulfilment of the State's sovereign functions. We may also mention that a Division Bench of this Court in the case of Management of Bank Note Press, Dewas v. Central Government Industrial Tribunal-cum-Labour Court, M.P. No. 80 of 1978, D/- 6-5-1978 held that the Bank Note Press, Dewas was an 'industry' within the meaning of the Act. We have, therefore, no hesitation in rejecting the argument that the Labour Court lacked jurisdiction on the ground that the Security Paper Mill is not an 'Industry.'
6. The learned Counsel for the petitioner next contended that the finding of the Labour Court that the order of dismissal was mala fides is contrary to the finding reached by the High Court earlier in Miscellaneous Petition No. 369 of 1964. The Labour Court in support of its finding relied on the following circumstances: The information that the respondent was employed in the office of the District & Sessions Judge, Hoshangabad at some stage prior to his entering service in the Security Paper Mill was an innocuous information. The record of service of the respondent from 1968 to 1973 when the disciplinary proceedings were first started against him for omission to give the aforesaid information in the attestation form was entirely satisfactory. There was nothing on the record to show as to how the Management became interested in the history of the respondent and how and why an occasion arose for seeking a verification of the attestation form. Digging out a technical omission to furnish an innocuous stale factual information followed by the most severe penalty of dismissal from service was certainly shocking and such a shocking punishment was clear evidence of victimisation. The Labour Court further observed that in its opinion the punishment was harsh, unjust and oppressive and was indicative of mala fides and unfair labour practice, the ulterior motive being to victimize the employee for his trade union activities even when he was performing his official duties faithfully and with devotion. In the earlier writ petition which was decided by the High Court the respondent challenged the first order of dismissal also on the ground of mala fides. The High Court observed that the organisation where the respondent was employed dealt with the manufacture of paper for being used as currency-notes and that in such an organisation it was expected that persons would be allowed to enter into service only after thorough and strict scrutiny about their antecedents. It was also observed that had the petitioner disclosed that he was earlier employed in the District Court establishment, his conduct and antecedents during that period could have been got verified and that it did not matter that the respondent's service was terminated as no longer required. The Court further observed that it was not possible to hold that the action taken by the Management was mala fide in any manner. The argument of the learned Counsel for the petitioner as that this finding of the High Court in respect of the first order of dismissal of the respondent should have been accepted by the Labour Court for deciding the application made by the petitioner under Section 33. We are unable to agree. The jurisdiction of the High Court under Article 226 of the Constitution in adjudging the validity of an order of dismissal of a Government servant is not the same which the Labour Court exercises in deciding whether permission or approval regarding an order of dismissal of an employee should or should not be granted under Section 33. The jurisdiction of the Labour Court is much wider. The Labour Court can go into the question whether the dismissal of an employee amounts to victimization or unfair labour practice. It is in this context that the finding of mala fides has been reached by the Labour Court. The questions of victimization and unfair labour practice are not matters for adjudication under Article 226 of the Constitution when a writ petition is filed by a Government servant. In our opinion, the Labour Court was not concluded by the finding reached in the earlier writ petition and could examine the question whether the order of dismissal, in the circumstances of the case, amounted to victimization or unfair labour practice and was, therefore, tainted with mala fides. The reasons given by the Labour Court for holding that it was a case of victimization are cogent. Even before us the learned Counsel for the petitioner was unable to say as to how the omission to state in the attestation form that the respondent was previously employed in the District Court establishment, Hoshangabad, was so serious a lapse that it justified the award of the severest penalty of dismissal after sufficiently long service which was otherwise without any blemish. It was also not explained as to what was wrong with the respondent's antecedents and as to how the omission in the attestation form was dug out in 1973. The Labour Court had thus enough material to conclude that the respondent was being victimised for his trade union activities. In Federation of Indian Chamber of Commerce and Industry v. R.K. Mittal : (1971)IILLJ630SC , it was held by the Supreme Court that when the punishment was so disproportionate that no reasonable employer would ever have imposed it in like circumstance, the Tribunal may treat the imposition of such punishment as itself showing victimization or unfair labour practice. In holding so, the Court relied upon its earlier decision in Hind Construction and Engineering Co. Ltd. v. Their Workmen : (1965)ILLJ462SC . In our opinion, the Labour Court acted within its jurisdiction in holding that the dismissal of the respondent amounted to victimization or unfair labour practice and in rejecting the application for approval.
7. The petition fails and is dismissed with costs. Counsel's fee Rs. 100 if certified. The balance amount of the security deposit shall be refunded to the petitioner.