S.B. Sinha, C.J.
1. These three LPAs involving similar questions of law and fact were taken for hearing together and are being disposed of by this common judgment.
The fact of the matter however is being noticed from LPA 413/2002
The respondent herein was employed in horticulture department as a Mali. He was transferred to Civil Lines Zone in October 1983. His services were terminated on November 10, 1984 without assigning any reason. According to the respondent on November 15, 1984 while he was going back to his house after performing his duties, he sustained injuries in a fight with another villager and remained confined to Hindu Rao Hospital. He was treated as out door patient for two months. A case under Section 307/324 IPC was registered against him. After his recovery he reported for duty but he was not allowed to do so. In the criminal case, however, he was acquitted.
An industrial dispute in relation to the order of retrenchment was raised, inter alia, on the ground that the same was contrary to the provisions of the Industrial Disputes Act. As the conciliation proceeding ended in failure, Delhi Administration referred the matter to the Labour Court on December 5, 1988.
2. An award on the said Industrial dispute was made by the second respondent on April 19, 1998. In the writ petition questioning the said award a single Judge relying on Rule 2(f) of the Industrial Disputes (Central) Rules held that the same was not without jurisdiction as the Delhi Administration had the requisite power to refer the Industrial Disputes for adjudication.
3. The respondent No. 2 in LPA 490/2002 was posted in Ludhiana office of the appellant. He did not mark his attendance and remained absent on various dates. He allegedly left during working hours without permission. A charge-sheet was issued against him which was followed by a departmental enquiry. He was dismissed from service on completion of the enquiry. An industrial dispute was raised before the Labour Authorities of Delhi Administration, Delhi.
4. That the appellant herein allegedly raised the jurisdictional question as regards the authority of Delhi Administration to deal with the matter. Despite such objections a reference was made before the Industrial Tribunal No. 1 New Delhi for adjudication of the disputes. Upon considering the pleadings of the parties the first respondent inter alias framed an issue regarding the validity of reference. According to the appellant, the question as regards the jurisdiction should be decided as a preliminary issue. However, by an order dated March 15, 1999, the first respondent fixed July 13, 1999 for proceeding on merit with the matter. Questioning the same a writ petition has been filed. By reason of the impugned judgment the learned single Judge relying upon his decision in the earlier case dismissed the same.
5. Similarly in CW 2079/97, a short question which arises for decision is as to whether the Central Government is the appropriate Government in relation to the disputes in question.
6. Mr. S.K. Taneja the learned counsel appearing for the appellant in LPA 490/2002, inter alia, submitted mat as the appellant carries on trade and business in export and import of apparels, the same being an activity coming within Entry No. 41 of the Eighth Schedule of the Constitution, the Central Government would be appropriate Government. Furthermore, the Council is working under the Ministry of Commerce. It is contended that having regard to the nature of business carried out by the petitioner the Central Government is the appropriate Government and, in the event it is held, that the State Government is appropriate Government, the employees of the Council being posted all over India, the same may lead to serious consequences.
7. The learned counsel would contend that for the said purpose even the notification dated February 3, 1998 issued under Section 39 of the Industrial Disputes Act would not be applicable as in the instant case the appellant Council is not included therein.
8. Learned counsel appearing on behalf of M.C.D., would submit that the Corporation is creature of the Parliament and thus the Central Government is the appropriate Government in relation thereto.
9. Counsel for the respondent on the other hand, would contend that the writ petition has been filed by the M.C.D. after a long time. It has been pointed out that reference was made in the year 1988 whereas the writ petition was filed two years thereafter. According to the learned counsel, reliance on the notification issued under Section 39 of the Act by the Central Government is of no consequence inasmuch as in terms of the Central Government can delegate its power in favor of the State Government and not in favor of Union Territory.
10. In the instant case the contention of the appellant is not that their activities do not come within the purview of the Industrial Disputes Act. The activities are industrial in nature. In these writ petitions Delhi Administration or Union of India are not parties. Had the Union of India or Delhi Administration been parties to this writ petition they could have shown that the power of the Central Government had been conferred upon Delhi Administration by reason of a valid notification. However, despite the same we may consider the matter on merit on the basis of the material placed before us.
Section 2(a) of the Industrial Disputes Act reads thus;
'2. Definitions. - In this Act, unless there is anything repugnant in the subject or context,-
(a) 'appropriate Government' means-
(i) 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 a Dock Labour Board established under Section 5A of the Dock Workers (Regulation of Employment) Act, 1948 (9 of 1948) or the Industrial Finance Corporation of India Limited formed and registered under the Companies Act, 1956 (1 of 1956) or the Employees' State Insurance Corporation established under Section 3 of the Employees' State Insurance Act, 1948 (34 of 1948), or the Board of Trustees constituted under Section 3A of the Coal Mines Provident Fund and Miscellaneous Provisions Act, 1948 (46 of 1948), Trustees constituted under Section 5A and Section 5B respectively of the Employees' Provident Fund and Miscellaneous Provisions Act, 1952 (19 of 1952), or the Life Insurance Corporation of India established Under Section 3 of the Life Insurance Corporation Act, 1956 (31 of 1956), or the Oil and Natural Gas Corporation Limited registered under the Companies Act, 1956 (1 of 1956) or the Deposit Insurance and Credit Guarantee Corporation established under Section 3 of the Deposit Insurance and Credit Guarantee Corporation Act, 1961 (47 of 1961), or the Central Warehousing Corporation established under Section 3 of the Warehousing Corporations Act, 1962 (58 of 1962), or the Unit Trust of India established under Section 3 of the Unit Trust of India Act, 1963 (52 of 1963) or the Food Corporation of India established under Section 3, or a Board of Management established for two or more contiguous States under Section 16 of the Food Corporations Act, 1964 (37 of 1964) or the Airports Authority of India constituted under Section 3 of the Airports Authority of India Act, 1994 (55 of 1994) or a Regional Rural Bank established under Section 3 of the Regional Rural Banks Act, 1976 (21 of 1976), or the Export Credit and Guarantee Corporation Limited or the Industrial Reconstruction Bank of India Limited, the National Housing Bank established under Section 3 of the National Housing Bank Act, 1987 (53 of 1987), or an air transport service, or a banking or an insurance company, a mine, an oil-field, a Cantonment Board, or a major port, the Central Government, and
ii) in relation to any other industrial dispute, the State Government;'
11. Section 38 of the said Act provides for rule making power. In exercise of the said power the Central Government has framed rules known as Industrial Disputes (Central) Rules which came into effect from March 10, 1957. These rules apply o Union Territories and States in relation to industries situated therein in respect whereof the Central Government may be the Appropriate Government. Rule 2 appears with the expression 'in these rules'.
Rule 2(f) of the said Rules reads thus:
'(f) in relation to an industrial dispute in a Union territory, for which the appropriate Government is the Central Government, reference to the Central Government or the Government of India shall be construed as a reference to the Chief Labour Commissioner (Central), Regional Labour Commissioner (Central) and the Assistant Labour Commissioner (Central) shall be construed as reference to the appropriate authority, appointed in that behalf by the Administrator of the territory;'
12. By reason of the said rule the power which can be exercised by the Central Government has been delegated to the Lt. Governor. The Government of National Capital Territory of Delhi has appointed conciliation officers. An officer appointed by Administration as conciliation officer may also deal with such industrial disputes wherefor the Central Government would be the appropriate Government. It is also not in dispute that the Delhi Administration has constituted the Labour Courts and Industrial Tribunals.
Section 4 of the Act authorises the Central Government to appoint Conciliation Officers. In the instant case virus of Rule 2(f) of the Rules is not in question. Rules, as is well known, when validly become part of the Act. By reason of the said Rules and Central Government only intended to create a machinery for the purpose of enforcing the provisions of the Act having regard to definition of the Central Government as contained in Section 3(8) of the General Clauses Act.
13. In terms of Article 239 of the Constitution, all Union Territories are to be administered by the President to the extent it thinks fit. Administrators are to be appointed by the President of India. By reason of Article 239AA a special provision has been made with regard to the UT of Delhi which is now knows as National Capital Territory of Delhi. Powers have been conferred upon the Lt. Governor by the President of India to do various acts and perform various functions.
14. In Goa Sampling Employees' Association v. Central Superintendence Co. : (1987)IILLJ217SC the Apex Court has clearly held that the President would act through an Administrator appointed by him. The Administrator is thus the delegate of the President.
15. It we retrace the history in relation to the Union territory it would appear that Government of India Act, 1919 dealt with the legislation for India. In terms of Section 73 thereof the power of legislation was conferred on the Chief Commissioners of the provinces. Section 94 of the Government of India Act, 1935 defines a Chief Commissioner's Province as:
'The following shall be the Chief Commissioner's Province that is to say heretofore existing Chief Commissioner's province Delhi, Azmir, Mewara, Coorg and Andaman and Nicobar Islands, the areas known as Panthpiploda and such other Chief Commissioners province as may be created by the Act.
(i) Aden shall cease to be part of India.
(ii) The Chief Commissioner's province shall be administered by Governor General acting to such extent as he thinks fit and proper, the Chief Commissioner may be appointed by him in his discretion.'
16. The definition of the Central Government in terms of the General Clauses Act will have to be considered in the foregoing backdrop.
17. Having regard to the fact that the Lt. Governor is the agent of the President of India, he for all intent and purport would be the Central Government in relation to statutes which are applicable to NCT of Delhi including Industrial Disputes Act.
18. No notification expressing a contrary intention has been brought to our notice. So held, having regard to the definition of the Central Government as contained in the General Clauses Act it would be deemed to be incorporated in the Industrial Disputes Act, and on that basis it can be held that the administrator has its jurisdiction to act as the Central Government may do in such matters. He could thus also appoint Conciliation Officers and set up Labour Courts and Tribunals.
19. Section 2(f) of the Central Rules must be construed to be a valid piece of legislation and thus it can be inferred that thereby the only person authorised to act has been mentioned and no power as such has been delegated.
Rule (f) also covers subject matters envisaged under Section 10(1) of the Industrial Disputes Act. In Goa Sampling case (supra), upon which counsel has relied upon was held that the administrator is not a Government and a UT does not satisfy the definition of State Government and as such the Central Government was the appropriate Government to refer the disputes.
20. It may be that in certain areas two parallel machineries are functioning but only by reason thereof, Rule 2(f) cannot be said to have become redundant. What would not really matter as to who is the Conciliation Officer but what would matter is who is appropriate Government to make a reference under Section 10(1). We may also add that the Central Government has framed the aforementioned rules for giving effect to the provisions to the said Act.
21. In Union of India v. Labour Court, Jullundur whereupon also reliance has been placed by the counsel for the appellant, the fact of the matter was absolutely different. Therein, in terms of Section 80 of the Punjab Reorganisation Act, the work of Beas Dam was to be carried out by the Central Government and in that view of the matter it was held that the Central Government is the Appropriate Government.
22. In FACT Employees' Association v. FACT Ltd. 1994 III LLJ (Supp) 736 (Ker), a question which arose for consideration was as to whether in the fact situation obtaining therein the Andhra Pradesh Government or the Kerala Government would be the appropriate Government.
23. In Indian Oil Corporation v. Lt. Governor, Delhi 1998 III LLJ (supp) 827 (Delhi) in relation to matters of Indian Oil Corporation, the Central Government was held to be the Appropriate Government. The said decision does not contain any reason.
24. In Steel Authority of India Ltd. v. National Union Waterfront Workers and Ors. : (2001)IILLJ1087SC , it was held at p. 1106 of LLJ:
'36. From the above discussion, it follows that the fact of being an instrumentality of a Central/State Government or being State within the meaning of Article 12 of the Constitution cannot be determinative of the question as to whether an industry carried on by a company/ corporation or an instrumentality of the government is by or under the authority of the Central Government for the purpose of or within the meaning of the definition of 'appropriate Government': in the CLRA Act. Take the case of a State Government corporation/ company/undertaking set up and owned by the State Government which is an instrumentality or agency of the State Government and is engaged in carrying on an industry, cannot be assumed that the industry is carried on under the authority of the Central Government, and in relation to any industrial dispute concerning the industry, can it be said that the appropriate Government is the Central Government? We think the answer must be in the negative. In the above example, if, as a fact, any industry is carried on by the State Government undertaking under the authority of the Central Government, then in relation to any industrial dispute concerning that industry, the appropriate Government will be the Central Government. This is so not because it is an agency or instrumentality of the Central Government but because the industry is carried on by the State Government/company/ corporation/ undertaking under the authority of the Central Government. In our view that same reasoning applies to a Central Government undertaking as well. Further the definition of 'establishment' in the CLRA Act takes in its fold purely private undertakings which cannot be brought within the meaning of Article 12 of the Constitution. In such a case, how is appropriate Government' determined for the purposes of the CLRA Act or the Industrial Disputes Act? In our view, the test which is determinative is: whether the industry carried on by the establishment in question is under the authority of the Central Government, Obviously, there cannot be one test for one part of the definition of 'establishment' and another test for another part. Thus, it is clear that the criterion is whether an undertaking/ instrumentality of the Government is carrying on an industry under the authority of the Central Government and not whether the undertaking is an instrumentality or agency of the Government for purposes of Article 12 of the Constitution, be it of the Central Government or the State Government.'
Thus even if in a case where Central Government is the appropriate Government in relation to the disputes arising within the jurisdiction of NCT the latter can also take action in terms of Rule 2(f) of the Rules. We may also consider the merit of the matter. The services of the concerned workman had been terminated without complying with the provisions of Section 25-F of the Industrial Disputes Act.
25. In State of Bombay v. Hospital Mazdoor Sabha : (1960)ILLJ251SC , it was held that Section 25-F is mandatory in nature.
In Sain Steel Products v. Naipal Singh : (2001)ILLJ1345SC , it was held that once an order of termination does not conform to Section 25-F of the Act, the same would be bad in law.
26. In the case of MCD, the Labour Court has, inter alia, held that summary dismissal of the workman was illegal, and contrary to law. As noticed hereinbefore, before the learned single Judge no serious contention has been raised regarding the jurisdiction of the NCT. In that view of the matter the merit of the award must be held to have attained finality.
27. Furthermore the writ petition was filed two years after making the award and on this ground also the writ petition shall not be entertained as the writ petitioners were guilty of serious delay and laches on their part.
28. The appellant also never raised any contention with regard to lack of jurisdiction on the part of the Government of NCT. Although in a given case the Court may entertain such a plea although raised for the first time in a case or this nature, the Court may not intervene in the event it is found that substantial justice has been done to the parties. In Sohan Singh v. G.M., Ordnance Factory : AIR1981SC1862 such a question of I jurisdiction was not permitted to be raised. These Letters Patent Appeals and the writ petition are, thereforee, dismissed No costs.