Case: Tata Memorial Centre, Mumbai Vs. Tata Memorial Hospital Kamgar Sanghatana & Others

Oral Judgment: D.K. Deshmukh, J.1. By the present appeal, the appellants challenge the order dated 29th October 2001 passed by the learned Single Judge of this Court in writ petition No.2148 of 2001. By that order, the learned Single Judge dismissed the writ petition filed by the appellants. The appellants had filed that petition challenging the order dated 29th June 2001 passed by the Industrial Court, Mumbai in application (MRTU) No.15 of 1994 and application (MRTU) No.16 of 1994. Application (MRTU) No.15 of 1994 was filed by Tata Memorial Kamgar Sanghatana which is a registered trade union for its recognition as majority trade union on the establishment of the appellants. The other application viz. application (MRTU) No.16 of 1994 was filed for cancellation of the recognition. The principal question to be decided in that application was whether the application filed for recognition under the MRTU and PULP Act was maintainable under that Act. It was the contention of the appellants that the State Government cannot be said to be appropriate Government and therefore, the application is not maintainable under the said Act. Sub-section 3 of section 2 of the said Act provides that the provisions of the Act apply to all industries to which Bombay Industrial Relations Act 1946 and the Industrial Disputes Act 1947 applies provided the State Government is appropriate Government in relation to those industries. In other words, an industry in relation to which State Government is not an appropriate Government, the provisions of the Act do not apply. Therefore, the issue that arose for consideration was whether in relation to the appellants, the State Government can be said to be appropriate Government or the Central Government can be said to be the appropriate Government. That issue was decided by the order of the Industrial Court dated 29th June 2001. The Industrial Court held that the Central Government cannot be said to be appropriate Government in relation to the appellants, the State Government is appropriate Government and therefore, the application is maintainable. Writ petition was filed by the appellants against that order before this Court which was registered as writ petition No.2148 of 2001. That writ petition was dismissed by order dated 29th October 2001 and the finding of the Industrial Court referred to above was endorsed by this Court. The present challenge is to both the order, one passed by the Industrial Court and the other passed by the learned Single Judge of this Court. Therefore, the question that arises for consideration in this appeal is whether in relation to the appellants, the appropriate Government is Government of India or the State Government. The appellants are a Public Trust registered under the Bombay Public Trusts Act 1950 and is also a Society under the Societies Registration Act 1860. It manages the Tata Memorial Hospital which is a Cancer Research Institute of its own kind in the country. According to the appellants, the land and the building where the institution is run vests in the Government of India. The management of the institution also vests in Government of India. According to the appellants, the appellants have been formed to manage the institution and the Government of India has delegated its function of managing the institution to the appellants and therefore, it is the Central Government which is appropriate Government in relation to the appellants. On the other hand, it is the case of the respondents that the Central Government cannot be said to be appropriate Government in relation to the appellants because the appellants are autonomous body, in the management of the institution and it does not work under the control of the Central Government.2. The learned counsel appearing for appellants relying on the judgment of the Supreme Court in the case of Steel Authority of India and ors. v/s National Union Waterfront Workers and ors., reported in (2001) 7 SCC 1 submits that as per the law laid down by the Constitution Bench, for determining which is the appropriate Government in relation to an industry, what is to be considered is whether that industry is being carried on under the authority of the Government of India. If the industry is being carried on as a delegate or under the authority as Central Government, then the appropriate Government is Central Government. The learned counsel took us through the agreement dated 6th January 1966 between the Government of India and Jehangir Ruttonji Dadabhoy Tata, Rustum Dossabhoy Choksi, Jehangir Dossabhoy Choksi and Darab Ratanji Dadabhoy Tata, who were trustees of Sir Dorabji Tata Trust, to contend that in view of this agreement, the property of Sir Dorabji Tata Trust which consisted of the building where the Institution and Hospital were being run including the functions of the Trust of managing the Institution stood vested in the Central Government. He further contended that then the Central Government decided to constitute a body of trustees i.e. the appellants for delegating its functions of managing the Institution. The learned counsel referred to various provisions in the Rules and Regulations of the Centre to point out that the management by the appellants of the Institution is on behalf of the Central Government as a delegate of the Central Government. The learned counsel submitted that even assuming that there is no interference by the Central Government in day-to-day running of the management of the Institution, still the character of the appellants is as delegates in so far as the management of the Institution is concerned. The learned counsel submitted that the Central Government is appropriate Government in relation to the appellants.3. The learned counsel appearing for respondents, on the other hand, relied on the judgment of the Supreme Court in the case of Heavy Engineering Mazdoor Union v/s State of Bihar and others, reported in 1969 (II) LLJ (SC) 549 and contended that as the appellants are autonomous body, its affairs are not controlled by the Central Government and therefore, according to the learned counsel, the Central Government cannot be said to be appropriate Government in relation to the appellants.4. Now, for deciding the question referred to above, it is necessary to refer to the judgment of the Supreme Court in Steel Authority of India Ltd.s case (supra) in which the term appropriate Government as appearing in the Industrial Disputes Act 1947 is quoted in paragraph 22 and that provision is analysed in paragraph 23. Paragraph 23 reads as under :- "23. An analysis of this provision shows that the Central Government will be the appropriate Government in relation to an industrial dispute concerning(1) any industry carried on by or under the authority of the Central Government, or by a railway company; or (2) any such controlled industry as may be specified in this behalf by the Central Government; or(3) the enumerated industries (which form part of the definition quoted above and need not be reproduced here).". What is relevant for the present purpose is that if an industry is carried on by and under the authority of the Central Government, then the Central Government becomes appropriate Government in relation to an industrial dispute concerning such industry. In paragraph 30 of the same judgment, the Supreme Court observes thus :-"30. From the above discussion, it follows that the phrase any industry carried on under the authority of the Central Government implies an industry which is carried on by virtue of, pursuant to, conferment of, grant of, or delegation of power or permission by the Central Government to a Central Government company or other government company / undertaking. To put it differently, if there is lack of conferment of power or permission by the Central Government to a government company or undertaking, it would disable such a company / undertaking to carry on the industry in question."Perusal of the above paragraph makes it clear that if an industry is being carried on by virtue of delegation of power by the Central Government to a body, then it can be safely said that Central Government is appropriate Government in relation to such industry. The Supreme Court thereafter referred to various judgments of the Supreme Court on the question and observed in paragraphs 38 and 39 thus :-"38. ........ 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.39. There cannot be any dispute that all the Central Government companies with which we are dealing here are not and cannot be equated to the Central Government though they may be State within the meaning of Article 12 of the Constitution. We have held above that being the instrumentality or agency of the Central Government would not by itself amount to having the authority of the CentralGovernment to carry on that particular industry. Therefore, it will be incorrect to say that in relation to any establishment of a Central Government company / undertaking, the appropriate Government will be the Central Government. To hold that the Central Government is the appropriate Government in relation to an establishment, the court must be satisfied that the particular industry in question is carried on by or under the authority of the Central Government. If this aspect is kept in mind it would be clear that the Central Government will be the appropriate Government under the CLRA Act and the ID Act provided the industry in question is carried on by a Central Government company / an undertaking under the authority of the Central Government. Such an authority may be conferred, either by a statute or by virtue of the relationship of principal and agent or delegation of power. Where the authority, to carry on any industry for or on behalf of the Central Government, is conferred on the government company / any undertaking by the statute under which it is created, no further question arises. But, if it is not so, the question that arises is whether there is any conferment of authority on the government company / any undertaking by the Central Government to carry on the industry in question. This is a question of fact and has to be ascertained on the facts and in the circumstances of each case."From the observations of the Supreme Court, it is clear that if an industry is being run because of delegation of power by the Central Government, then in relation to that industry, the Central Government becomes appropriate Government. So far as the judgment relied on by the learned counsel appearing for respondents in the case of Heavy Engineering Mazdoor Union (supra) is concerned, that judgment has been considered by the Supreme Court in its judgment in Steel Authority of India Ltd.s case in paragraph 41 and therefore, since the judgment in the case of Steel Authority of India Ltd. is a subsequent judgment and delivered by a larger Bench, we will have to go by that judgment. Now, in order to answer the question that falls for consideration in this case what is to be seen is whether it can be said that the appellants are managing the Institution as delegates of the Central Government or not. In our opinion, paragraph 6 from the agreement dated 6th January 1966 is relevant. It reads thus :-"6. AND WHEREAS the Trustees of the Sir Dorabji Tata Trust being desirous of dedicating this Hospital to the Nation with all its assets including the Cancer Infirmary Fund and the three plots Nos.107, 108 and 109 of Scheme No.60, Naigaum Estate, requested the Government of India to take over the control and management of the said Hospital with effect from the First Day of April One Thousand Nine Hundred and Fifty Seven and the Government of India agreed to do so and to manage the same at their own expense as from the said date onwards upon the terms and conditions set forth in the Agreement made on the Fourth Day of February One Thousand Nine Hundred and Fifty Seven (hereinafter called the Hospital Agreement)."Perusal of the above paragraph makes it clear that the entire property where the Institution is being run vested in the Trust by name Sir Dorabji Tata Trust and it was that Trust which was managing the Institution. The said Trust decided to request the Government of India to take over the control and management of the Hospital and the Government of India agreed to do so and also agreed to manage the Institution at their own expenses and therefore, by virtue of this agreement, the property of the Trust stands transferred to the Government of India. This position also becomes clear from the decree passed by this Court in suit No.568 of 1957. That suit was filed for framing scheme under the Bombay Public Trusts Act 1950. The relevant portion of that decree reads thus :- "AND THIS COURT DOTH FURTHER ORDER that the properties to be conveyed, transferred and assigned by the Trustees to the Government of India being the immovable properties particularly described in Schedule B hereto be and they are hereby vested in the Government of India" The relevant part of the scheme, which was filed in the Bombay City Civil Court, reads thus :- "The Trustees of Sir Dorabji Tata Trust shall hand over to the Government of India and the Government of India shall take over the control and management of the Tata Memorial Hospital and shall manage the same at their own expenses as and from 1st April 1957." Thereafter the scheme provides that for the purpose of management of the Institution, a Governing Board shall be constituted. It is thus clear that because of the agreement and consequent scheme sanctioned by this Court, the entire property and the management of the Institution vested in the Central Government. Along with the property, the duty to manage the Institution also vested in the Central Government. The Central Government retained the control over the property itself but decided to delegate its power to manage the Institution to a body constituted as per the scheme. It is thus clear that the Governing Board constituted under the scheme which is managing the Institution is doing it as a delegate of the Central Government. It is clear from the Rules and Regulations that though there is a provision in the Rules and Regulations for the transfer of property at the discretion of the Government, the property has not been transferred by the Government and it vests in the Central Government. In view of the agreement entered into between the Trust and the Government of India, duty to manage the Institution was of the Central Government and that power and duty has been delegated by the Central Government to the Governing body which is the appellants and therefore, in our opinion, the appellants are managing the Institution as delegates of the Central Government and therefore, following the law laid down by the Supreme Court in its judgment in the case of Steel Authority of India Ltd., it is the Central Government which is appropriate Government in relation to the appellants.

Decision:
1[ds]From the observations of the Supreme Court, it is clear that if an industry is being run because of delegation of power by the Central Government, then in relation to that industry, the Central Government becomes appropriate Government. So far as the judgment relied on by the learned counsel appearing for respondents in the case of Heavy Engineering Mazdoor Union (supra) is concerned, that judgment has been considered by the Supreme Court in its judgment in Steel Authority of India Ltd.s case in paragraph 41 and therefore, since the judgment in the case of Steel Authority of India Ltd. is a subsequent judgment and delivered by a larger Bench, we will have to go by that judgment. Now, in order to answer the question that falls for consideration in this case what is to be seen is whether it can be said that the appellants are managing the Institution as delegates of the Central Government or not. In our opinion, paragraph 6 from the agreement dated 6th January 1966 is relevant. It reads thusAND WHEREAS the Trustees of the Sir Dorabji Tata Trust being desirous of dedicating this Hospital to the Nation with all its assets including the Cancer Infirmary Fund and the three plots Nos.107, 108 and 109 of Scheme No.60, Naigaum Estate, requested the Government of India to take over the control and management of the said Hospital with effect from the First Day of April One Thousand Nine Hundred and Fifty Seven and the Government of India agreed to do so and to manage the same at their own expense as from the said date onwards upon the terms and conditions set forth in the Agreement made on the Fourth Day of February One Thousand Nine Hundred and Fifty Seven (hereinafter called the Hospital Agreement)."Perusal of the above paragraph makes it clear that the entire property where the Institution is being run vested in the Trust by name Sir Dorabji Tata Trust and it was that Trust which was managing the Institution. The said Trust decided to request the Government of India to take over the control and management of the Hospital and the Government of India agreed to do so and also agreed to manage the Institution at their own expenses and therefore, by virtue of this agreement, the property of the Trust stands transferred to the Government of India. This position also becomes clear from the decree passed by this Court in suit No.568 of 1957. That suit was filed for framing scheme under the Bombay Public Trusts Act 1950. The relevant portion of that decree reads thusTHIS COURT DOTH FURTHER ORDER that the properties to be conveyed, transferred and assigned by the Trustees to the Government of India being the immovable properties particularly described in Schedule B hereto be and they are hereby vested in the Government ofrelevant part of the scheme, which was filed in the Bombay City Civil Court, reads thusTrustees of Sir Dorabji Tata Trust shall hand over to the Government of India and the Government of India shall take over the control and management of the Tata Memorial Hospital and shall manage the same at their own expenses as and from 1st Aprilthe scheme provides that for the purpose of management of the Institution, a Governing Board shall be constituted. It is thus clear that because of the agreement and consequent scheme sanctioned by this Court, the entire property and the management of the Institution vested in the Central Government. Along with the property, the duty to manage the Institution also vested in the Central Government. The Central Government retained the control over the property itself but decided to delegate its power to manage the Institution to a body constituted as per the scheme. It is thus clear that the Governing Board constituted under the scheme which is managing the Institution is doing it as a delegate of the Central Government. It is clear from the Rules and Regulations that though there is a provision in the Rules and Regulations for the transfer of property at the discretion of the Government, the property has not been transferred by the Government and it vests in the Central Government. In view of the agreement entered into between the Trust and the Government of India, duty to manage the Institution was of the Central Government and that power and duty has been delegated by the Central Government to the Governing body which is the appellants and therefore, in our opinion, the appellants are managing the Institution as delegates of the Central Government and therefore, following the law laid down by the Supreme Court in its judgment in the case of Steel Authority of India Ltd., it is the Central Government which is appropriate Government in relation to the appellants.