Case: Tata Memorial Hospital Workers Union Vs. Tata Memorial Centre &amp; Another

the Hospital and the Research Centre is independently with the first respondent. As far as the control and management are concerned, it is clear from the facts referred to above that the Central Government has the power to appoint four nominees on the Governing Council of the first respondent. We have already seen, as held in Heavy Engineering Mazdoor Union Case (Supra), mere power to appoint the Directors does not warrant a conclusion that the particular undertaking is a Central Government Undertaking. The question is whether the undertaking is functioning as the agent of the Central Government. In the instant case, the society was created to entrust the control and management of the Hospital and the Research Centre to the Society. Recital No.9 of the agreement of the 1966 specifically states as follows: "9) AND WHEREAS the Government of India and the Trustees of the Sir Dorabji Tata Trust are now desirous of amalgamating the two institutions and entrusting their control and management to a society." 58. Consequently, Rule - 3 of the Society, which has been referred to earlier, also lays down that the administration and the management vests in the Governing Council. It is also to be noted that as per Rules and Regulation Nos.3 and 4 which have been quoted earlier, the administration and management of the Centre is vested in the Council which is declared to be an executive body of the center. As per the foreword to the bye-laws of the Tata Memorial Centre – "the final decision on the extent of applicability of these rules to all Tata Memorial Centre employees rests with the Tata Memorial Governing Council. Its decision on the interpretation of these rules adopted for Tata Memorial Centre employees will be final". Thus, as per the Rules and Regulations, the entire administration and management of Tata Memorial Centre is with the Governing Council. 59. It has clearly come in the evidence of Mr.Muthusamy, the Chief Administrative Officer of the first respondent that there was no interference of the Central Government in the day to day activities of the first respondent. The decisions were taken by the directors of the first respondent itself. As can be seen from the bye-laws of the first respondent, the appointments and the service conditions were modelled on the pattern of Department of Atomic Energy, but the pay, allowances and pension, etc. are on the pattern of the Mumbai Municipal Corporation, and which are fixed by the decisions of the Governing Council of the first respondent. The material and the evidence as referred to above clearly show that the entrustment of the management and control of the Hospital and the Research Centre to the Society was complete and it has been so functioning thereafter.60. Besides, as observed in Heavy Engineering Mazdoor Union Case (supra), if we look to the definition of `employer under the Industrial Disputes Act, in a case where an industry is carried on by or under the authority of the Government, the employer is defined as the authority prescribed in this behalf or Head of the Department. In the instant case, no such authority has been prescribed, nor any head of the department notified by the Central Government. On the contrary, right from the time the society was created, its administration and management is completely under its Governing Council and it is functioning independently. No contrary evidence has been produced. The evidence of Mr. Muthusamy, the Chief Administrative Officer of the Tata Memorial Centre establishes the independent functioning of the first respondent under its Governing Council. It is the Governing Council which has been exercising the executive powers of the employer.61. It was then submitted that mentioning of the Tata Memorial Centre in the Rules for Allocation of Business of Government of India is a pointer to the control of the Central Government. Insofar as the Rules of business of the Government of India are concerned, they are for the purpose of allocation of business between various departments of Government of India whenever the Government of India has to take a decision. As rightly held by a Division Bench of Bombay High Court in their own case in Tata Memorial Centre Vs. Sanjay Verma reported in 1997 (75) Indian Factories and Labour Reports Page -4 mere allocation of business under any department would not in any manner decide the issue as raised in the present case as to whether a particular industry is under the control of the Central Government. The business rules cannot be conclusive to show that any institution or organization listed under the allocation of business, would be part of any department of the Government of India. Besides, as noted in Heavy Engineering Mazdoor Union (supra) even if a Minister appoints the directors, gives directions, calls information or supervises business, that will not make the industry an agent of the Government.62. Hence we have to conclude that even on the test of control and management of the Hospital and the Centre, they are functioning independently under the 1st respondent Society. They cannot be said to be `under the control, of the Central Government. In the circumstances the State Government shall have to be held as the appropriate government for the 1st respondent for the purpose of I.D. Act consequently the MRTU & PULP Act.63. It is material to note that until the present litigation, neither the Central Government nor the Dorabji Tata Trust or even the Governing Council of the first respondent ever disputed the application of the MRTU and PULP Act to the first respondent establishment. Prior to the Applications leading to the present appeal, the respondent - 1 has also filed Complaints under the MRTU and PULP Act. Neither the appellant nor the second respondent - rival union ever disputed the application of the Act. In fact, the first respondent has in a way, by its own conduct acquiesced into the application of the Act, and the appellant - Union has been recognized under the Act right from 1985.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]46. It is also material to note that this exercise is to be done basically in the context of an industrial dispute to find out as to whether in relation to any industrial dispute concerning that industry, Central Government is the `appropriate government or the State Government is the `appropriate government. Oxford dictionary defines word `concerning as `involving or `about. The word `concerning, according to Websters Dictionary means `relating to, `regarding or `respecting proximate, intimate and real connection with the establishment. It is to be noted that the Industrial Dispute Act is an act for investigation and settlement of industrial disputes and the MRTP and PULP Act 1971 is for recognition of trade unions for facilitating collective bargaining for certain undertakings with which we are concerned in the present matter, and for prevention of certain unfair practices amongst other objectives. This being the position it is to be noted that the examination of the issue as to which government is the `appropriate government is to be carried out in this context.How is the property of the first respondentcan be seen from the facts, which have come on record, the Tata Memorial Hospital was set up by Sir Dorabji Tata Trust. It was being maintained out of the funds of the Trust itself as well as from the grants made over by the Central Government as well as by the State Government. The Indian Cancer Research Centre was set up by the joint collaboration of Sir Dorabji Tata Trust and the Central Government by an agreement dated 07.10.1953. The initial grant for the Center was given by the Central Government and it was meeting the expenses of the Centre though it was set up on the land belonging to the Trust. In 1957 Sir Dorabji Tata Trust decided to dedicate to the nation the property on which the Tata Memorial Centre stands. An agreement was entered in that year between the trustees and the Central Government. The control and the management of the hospital was transferred to the Central Government and a vesting order was passed in the same year to that effect by the City Civil Court in appropriate proceedings. In the year 1966, the Central Government and the Dorabji Tata Trust entered into an agreement by virtue of which Tata Memorial Hospital and the Indian Cancer Research Centre were amalgamated and the first respondent society was created and the administration and the management of the Centre was vested in the Governing Council of the said Society. The first respondentCentre was registered as a Society under the Societies Registration Act, 1860 as well as under the Bombay Public Trust Act, 1950.53. The first respondent heavily relied upon the test of vesting of the property as the main criterion for ascertaining as to who controls the first respondent for the purpose of deciding as to which Government is the Appropriate Government. It was emphasized that under the agreement of 1957, the Dorabji Tata Trust handed over the property to the Central Government and that vesting had been continued in the agreement of 1966 also. It is, however, to be noted that as per this very agreement, the future acquisitions were to vest in the Governing Council of the Society.In this behalf, we must keep in mind, the raison detre of the above referred to Section5 that once a trust is established and a society is registered for the administration of the trust, the statute contemplates that the society should be fully autonomous and that the lack of actual transfer of property of the trust should not prevent the governing body in its administration. Law recognizes that it would be proper to regard that as done which ought to have been done. The deeming provision creates a fictional vesting in favour of the Governing Council and not in favour of the Society or the Trust. This is also for the reason that society is not a body corporate which has also been held by this Court in the Board of Trustees, Ayurvedic and Unani Tibia College, Delhi Vs. The State of Delhi and Another [AIR 1962 SC 458 ] and reiterated in Illachi Devi (D) by L.Rs. and Others Vs. Jain Society, Protection of Orphans India and Others [AIR 2003 SC 3397 ]. Since the society cannot hold the property in its name, vesting of the property in the trustees is likely to hinder the administration of the trust property, particularly, where the trustees themselves or their legal representatives claim adversely to the trust. It is for this reason that the law vests the property belonging to the society in its Governing Body.56. The phrase `property belonging to a person has two general meanings (1) ownership, (2) the absolute right of user (per Martin B in Att. Gen. vs. Oxford & C. Railway Co. 31 L.J. (1862) 218 at 227) `Belonging connotes either ownership or absolute right of user ( Wills J in The Governors of St. Thomas, St. Bartholomews, and Bridewell Hospital vs. Hudgell (1901) 1 KB 381. The Centre has an absolute right of user over its immovable properties which it has been exclusively exercising all throughout. Section 5 of the Societies Registration Act clearly declares that the property belonging to the society, meaning under its user, if not vested in the trustees shall be deemed to be vested in the Governing Council of the society. In the present case, it is nobodys case that the property remains vested in the Trustees of the Dorabji Tata Trust. It has been canvassed on behalf of the first respondent that the property is vested in the Central Government. However, the Central Government has never claimed any title to the property adverse to the first respondentSociety.57. Whether the Control and Management of the Hospital and the Research Centre is independently with the first respondent. As far as the control and management are concerned, it is clear from the facts referred to above that the Central Government has the power to appoint four nominees on the Governing Council of the first respondent. We have already seen, as held in Heavy Engineering Mazdoor Union Case (Supra), mere power to appoint the Directors does not warrant a conclusion that the particular undertaking is a Central Government Undertaking. The question is whether the undertaking is functioning as the agent of the Central Government. In the instant case, the society was created to entrust the control and management of the Hospital and the Research Centre to the Society.3 of the Society, which has been referred to earlier, also lays down that the administration and the management vests in the Governing Council. It is also to be noted that as per Rules and Regulation Nos.3 and 4 which have been quoted earlier, the administration and management of the Centre is vested in the Council which is declared to be an executive body of the center.It has clearly come in the evidence of Mr.Muthusamy, the Chief Administrative Officer of the first respondent that there was no interference of the Central Government in the day to day activities of the first respondent. The decisions were taken by the directors of the first respondent itself. As can be seen from theof the first respondent, the appointments and the service conditions were modelled on the pattern of Department of Atomic Energy, but the pay, allowances and pension, etc. are on the pattern of the Mumbai Municipal Corporation, and which are fixed by the decisions of the Governing Council of the first respondent. The material and the evidence as referred to above clearly show that the entrustment of the management and control of the Hospital and the Research Centre to the Society was complete and it has been so functioning thereafter.60. Besides, as observed in Heavy Engineering Mazdoor Union Case (supra), if we look to the definition of `employer under the Industrial Disputes Act, in a case where an industry is carried on by or under the authority of the Government, the employer is defined as the authority prescribed in this behalf or Head of the Department. In the instant case, no such authority has been prescribed, nor any head of the department notified by the Central Government. On the contrary, right from the time the society was created, its administration and management is completely under its Governing Council and it is functioning independently. No contrary evidence has been produced. The evidence of Mr. Muthusamy, the Chief Administrative Officer of the Tata Memorial Centre establishes the independent functioning of the first respondent under its Governing Council. It is the Governing Council which has been exercising the executive powers of the employer.61. It was then submitted that mentioning of the Tata Memorial Centre in the Rules for Allocation of Business of Government of India is a pointer to the control of the Central Government. Insofar as the Rules of business of the Government of India are concerned, they are for the purpose of allocation of business between various departments of Government of India whenever the Government of India has to take a decision. As rightly held by a Division Bench of Bombay High Court in their own case in Tata Memorial Centre Vs. Sanjay Verma reported in 1997 (75) Indian Factories and Labour Reports Page4 mere allocation of business under any department would not in any manner decide the issue as raised in the present case as to whether a particular industry is under the control of the Central Government. The business rules cannot be conclusive to show that any institution or organization listed under the allocation of business, would be part of any department of the Government of India. Besides, as noted in Heavy Engineering Mazdoor Union (supra) even if a Minister appoints the directors, gives directions, calls information or supervises business, that will not make the industry an agent of the Government.62. Hence we have to conclude that even on the test of control and management of the Hospital and the Centre, they are functioning independently under the 1st respondent Society. They cannot be said to be `under the control, of the Central Government. In the circumstances the State Government shall have to be held as the appropriate government for the 1st respondent for the purpose of I.D. Act consequently the MRTU & PULP Act.63. It is material to note that until the present litigation, neither the Central Government nor the Dorabji Tata Trust or even the Governing Council of the first respondent ever disputed the application of the MRTU and PULP Act to the first respondent establishment. Prior to the Applications leading to the present appeal, the respondent1 has also filed Complaints under the MRTU and PULP Act. Neither the appellant nor the second respondentrival union ever disputed the application of the Act. In fact, the first respondent has in a way, by its own conduct acquiesced into the application of the Act, and the appellantUnion has been recognized under the Act right from 1985.