Sunil Ambwani, J.@mdashThe Banaras Hindu University has filed this writ petition against an Award of the Labour Court, Varanasi dated 10.7.1988 in Adjudication Case No. 31 of 1995, Banaras Hindu University v. B.N. Bhattachrya, reinstating Shri Brij Nath Bhattacharya Respondent No. 2, with continuity in service and back wages from the date of reference. The Labour Court further directed that in case the post of Fuse-Man is still vacant, the Respondent no, 2 shall be appointed against the said post, and if there is no vacancy, he may be adjusted on an equivalent post.
2. By an interim order dated 28.7.1999, the operation of the award was stayed, provided the Petitioner goes on paying Respondent No. 2 month by month an amount equivalent to the wages last drawn by him. The writ Petition was heard in the absence of parties, and was dismissed on 17.7.2002 and the interim order was vacated. The Petitioner were directed to reinstate Respondent no, 2 forthwith, within one month and to pay his arrears of salary and other benefits to which he would have been made entitled in terms of the award.
3. The Banaras Hindu University challenged the order in Civil Appeal No, 10274 of 2003. The Civil Appeal was allowed by the Supreme Court on 27.10.2005:
Heard parties.
In the impugned judgment itself, it has been set out that the list was revised and that neither party appeared before the Court. Instead of adjourning the matter or dismissing for default, the High Court proceeded to deliver a detailed judgment even citing case laws and then distinguishing those cases.
Before us both parties admit that the list had been revised and therefore the advocate could not remain present.
Under the circumstances, we set the impugned judgment and remit the Writ Petition back to the High Court for decision on merits. The High Court shall dispose of the Writ Petition as expeditiously as possible and in any event within three months from today.
Interim order, if any, passed by the High Court during the pendency of the Writ Petition will continue to operate till the disposal of the Writ Petition.
The Appeal stands disposed of accordingly. There will be no order as to costs.
Sd/-(S.N. Variava)
Sd/-(A.R. Lakshman)
Sd/-(S.H. Kapadia)
4. The matter was thereafter adjourned on several dates. The Banaras Hindu University engaged Shri V.B. Singh and thereafter Shri Dinesh Kakker to argue the matter. The Court adjourned the case on 14.08.2007 and then again on 23.08.2007 for a possible settlement. It was thereafter nominated to some other bench. Finally it was heard on 08.12.2008.
5. Heard Shri Dinesh Kakker appearing for the Banaras Hindu University (in short the ''University'') and Shri Manish Goyal for the Respondent No. 2 workman.
6. Briefly stated the facts, giving rise to this writ petition, are that Respondent-workman was working as Fuse-Man under the Chief Engineer, Electricity and Water Supply w.e.f. 1.4.1982. His services were terminated without assigning any reason on 6.7.1991. The Respondent-workman alleged that he had requested for the regular pay scale and other service benefits, on which the employee were annoyed with him. He was appointed by the Selection Committee after interviews on permanent basis. He sent letters for reconsideration of the decision to terminate his services. The employee however did not give any response.
7. The University stated in its written statement that the Banaras Hindu University is a Central University and is run and managed from the funds received from the Central Government. It is known as a Central University. The reference therefore could be made only by the Central Government and not by the State Government. The Respondent-workman was appointed as a Fuse-Man only for three months i.e. 1.4.1982 to 30.06.1982. His appointment was extended for six months on each occasion and that his last extension was given on 1.11.1990 to 30.04.1991. The Respondent-workman thereafter did not attend to work, nor his service were extended. He absented thereafter without any explanation. A letter was sent to him on 11.6.1991 for explaining his unauthorized absence from 1.2.1991 to 9.3.1991; 22 .3.1991 to 1.4.1991 and 3.4.1991 to 11.6.1991, but he did not reply.
8. The parties filed their documents in evidence. The workman examined himself. Shri Ram Singh, Senior Workshop Assistant was examined on behalf of the employer. Shri K.S. Gupta, Assistant Supervisor, Electricity and Water Supply examined himself and Shri Lal Chandra, Deputy Registrar (Administration-II) were also examined. The Labour Court found that it was not clear whether the post of Fuse-Man was advertised. The Respondent workman had applied for appointment. An appointment letter was issued on 22.7.1981, which shows that the workman was appointed for a period of three months from 1.4.1982 to 30.6.1982 on a vacancy caused temporarily on the promotion of Shri S.N. Srivastava. The workman was qualified in the electrician trade and holds a certificate from Industrial Training Institute. His service were extended upto 31.12.1985. permanently, he should be adjusted on the post. A notice was sent on 11.6.1991 to the workman on his office address for explaining his absence from 1.2 .1991 to 9.3.1991; 23.3.1991 to 1.4.1991 and 3.4.1991 to 11.6.1991.
9. The documentary evidence for the last extension of service for a period between 1.5.1990 to 31.10.1990 bearing the signatures of the workman was filed by the employer.
10. The workman examined himself to depose and prove the facts stated in his written statement. Shri Ram Singh, Senior Workshop Assistant appearing on behalf of the employer stated that the workman had worked upto 22.3.1991 and then absented from duties. His name continued in the register upto July 1991 and was scored out in August, 1991. He stated that he has no knowledge whether there is any post of Fuse-man and did not produce the attendance register. Shri K.S. Gupta, Assistant Supervisor stated that there was no suspension after 30.4.1991 and that the workman had worked regularly from 1.4.1982. Shri Lal Chand, Deputy Registrar (Administration) stated that the Registrar has powers of appointment only for a period of six month.
11. The Labour Court found that the Respondent-workman was asked to give explanation for failing to attend duties on 30.4.199, which makes it clear that the Respondent workman was given the extension of service even beyond that period but that the suspension letter was not produced by the employer. Even if a person was engaged by the employer for 5-6 years, it was not just and proper to remove him in the absence of any further extension for his continuance. The provisions of Section 25F of Industrial Dispute Act were attracted. And that the removal of the workman''s name from the attendance register amounted to his retrenchment. The University is an autonomous body, which receives its entire grants from the Central Government and thus it will be treated to be a Central Government Establishment. A number of cases have been decided by the Labour Court in respect of the employees and the workmen. The Labour Court found that the Respondent workman is entitled to reinstatement with continuity in service. Since the workman did not give his representation for wages, he will be entitled to the wages from the date of reference i.e. 29.3.1995 and the appointment. If the post of the Fuse-man has been filled up, the employer shall adjust him on any other equivalent post.
12. Shri Dinesh Kakker, learned Counsel appearing for the University would submit that the University was established under the Banaras Hindu University Act 1915 to establish and incorporate a teaching and residential Hindu University of Banaras. The University is an autonomous body. The President of India is the Visitor of the University u/s 5(i) of the Act with Executive council as the highest executive body. The Chancellor elected by the Court is the Head of the University u/s 7-A. The Vice Chancellor is a whole time salaried officer u/s 7B of the Act. The condition of service of officers and teachers is provided under a written contract u/s 16B. The Act provides for Statutes u/s 17, and Ordinances u/s 18 and the powers to make regulation u/s 19. The Statutes, Ordinances and Regulations do not provide for service conditions of the employees of the University. They are appointed on contract and that their services come to an end on the expiry or termination of the contract.
13. Shri Kakker submits that the University receives its entire funds from the Central Government and thus the appropriate government for making a reference for any industrial dispute u/s 2A of the Industrial Dispute Act is the Central Government, and not the State Government and thus the reference dated 27.3.1995 made by the State of Uttar Pradesh was bad in law. He would further submit that without prejudice his first submission, the employment on contract under proviso to Section 2(oo)(bb) of Industrial dispute Act, 1947, the termination of service of the workman as a result of non-renewal of the such contract being terminated under a stipulation in that behalf, is not included within the meaning of the term ''retrenchment''. The contract of the Respondent workman was not renewed and thus the termination of his service will not be treated as a retrenchment.
14. Shri Kakker submits that the question, as to whether the reference in respect of Central Government establishment can be made by the Central Government or the State Government in whose jurisdiction the cause of action has arisen, was considered and decided by a Constitution Bench of the Supreme Court in
15. Shri Dinesh Kakker would submit, relying upon the supplementary rejoinder affidavit of Shri CM. Chakraborty, Senior Assistant, Legal Cell, Banaras Hindu University, that the University is run under the control of the Central Government. The framing of the Statutes and Ordinances are required to have the approval of the Central Government. The decisions are subject to the final orders of the Visitor. The selection process also involves nominee of the Government. The autonomous character of the University does not imply that it has any independence of control or that it does not function under the authority of the Central Government. The funds of the University Grant Commission are paid to it by the Central Government and that the recommendations/directions of the University Grants Commission are based upon the policy and directions of the Central Government. He would submit that there is no delegation of powers u/s 39 of the U.P. Industrial Disputes Act, 1947, and that since the University is a Central Government with ultimate control of the financial and administration with the Central Government, the reference could only be made by the Central Government.
16. Shri Kakker has then relied upon the judgments in
17. For reinstatement with back wages, Shri Kakker has relied upon Judgments in Indian Institute of Technology, Kanpur v. Presiding Officer, Labour Court Ii, Kanpur Nagar 2008 (7) ADJ 122 in which this Court held that by virtue of the operation of Section 13(3) of the Institute of Technology Act, 1961, the employee, whose probation was never extended, would be deemed to have continued in temporary employment, terminable on one month''s notice and that the re-engagement with full back wages should not have been allowed.
18. Shri Kakker submits, that the Labour Court could not have directed regulation on the post or any equivalent post. He submits that in Regional Manager, State Bank of India v. Mahatma Mishra (2006) 13 SCC 727, the Supreme Court held that the Labour court could only award reinstatement with back wages. It could not have directed regularisation giving permanent status to a casual workers and that orders cannot be passed on sympathetic consideration.
19. Shri Manish Goyal, on the other hand, submits that the ''appropriate government'' u/s 2(a) of the Industrial Dispute Act, 1947 in relation to any industrial disputed u/s 2(a)(i) concerning any industry carried on by or under the authority of the Central Government is the Central Government and in relation to any other industrial dispute under (ii) is the State Government. The legal position on this regard has been settled in Steel Authority of India (supra) which has affirmed the Heavy Engg. Mazdoor Union v. State of Bihar (1969) 1 SCC 769 and
�the criteria to determine whether the Central Government is the appropriate government within the meaning of the CLRA Act, is that the industry must be carried on by or under the authority of the Central Government and not that the company/undertaking is an instrumentality or an agency of the Central Government for purposes of Article 12 of the Constitution; such an authority may be conferred either by a statute or by virtue of relationship of principal and agent or delegation of power and this fact has to be ascertained on the facts and in the circumstances of each case. In view of this conclusion, with due respect, we are unable to agree with the view expressed by the learned judges on interpretation of the expression ''appropriate government'' in Air India''s case. Point No. 1 is answered accordingly.
20. Shri Goyal would submit that there is no administrative, financial and functional control exercised by the Central Government under the Banaras Hindu University Act, 1915. It is not run under the authority of the Central Government and is autonomous in its operations. The University is not required to seek approval of the Central Government for discharging its functions.
21. Shri Goyal would further submit that the U.P. Legislature has deliberately excluded, clause(bb) in the definition clause of the U.P. Industrial Dispute Act, 1947 to define the term ''retrenchment'' as it is contained in the Central Act and therefore the provisions of Section 2(oo)(bb) of Central Act is not applicable to the present case. He has relied upon the judgment in U.P. State Sugar Corporation Ltd. v. Om Prakash Upadhyay 2002 (93) FLR 606 to submit that the decision in Jai Kushum v. Uttar Pradesh Co-operative Bank Ltd., 1989 UPLBEC 149 is to be preferred as against the decision of the same High Court in
22. On merits Shri Goyal submits that E.W.I. Admitted that the Respondent workman had worked continuously from 1.4.1982 until he was given extension. There was no break in his work. Shri Ram Singh stated that he had no knowledge about the extension and that Shri Lal Chandra admitted that the Banaras Hindu University has not filed any paper after paper No. 62, which is incomplete. He would submit that the Respondent workman was given extension from time to time and that the fact, that he was given a show cause notice as to why he is not attending to work, would clearly show and was correctly interpreted by the Labour Court to mean that the workman was given further extension but that his service were illegally and arbitrarily terminated before the last extension came to an end.
23. The question, that calls for consideration of the court, is whether the reference in this case by the State Government was competent. The Banaras Hindu University is a University established and incorporated by a Statute. The Central Act dissolved the Hindu University Society registered under the Societies Regularisation Act, 1860 and vested all the rights, which were vested in the said society in the University. A survey of the provisions of the Act would show that President of India is the Visitor of the University u/s 5 with powers to cause an inspection to be made by such person as he may direct. He may address the Vice Chancellor under Sub-section (4) and that the Executive Council is authorized to communicate with the Visitor through the Vice Chancellor under Sub-section (5). The Chancellor is appointed by the Court to hold office for three years u/s 7 and is the Head of the University u/s 7A. The Vice Chancellor is appointed by the Visitor on the recommendations of the Selection Committee, constituted by the Visitor u/s 7B to be a whole time salaried officer of the University under Sub-section (2). He is the principal executive and academic officer of the University u/s 7C and ex-officio Chairman of the Executive Council; the Academic Council and the Finance Committee. The Court the executive Council; the Academic Council; the finance Committee; the faculties and such other authorities as may be declared by the Statutes to be the authorities of the University are the authorities of the University u/s 8A. The Court is an advisory body u/s 9. The Executive revenue and property of the University u/s 10. The University is required to maintain permanent reserves to cover recurring charges u/s 14 and the corpus of Rs. 45 lacs permanent endowment to meet the recurring charges of the University other than charges in respect of scholarships, prizes and rewards provided that (1) any Government securities, as defined by the Indian Securities Act 1920 which may be held by the University shall be reckoned at their face value; and (2) the sum of Forty-five lakhs shall be reduced by such sum at the commencement of the Banaras Hindu University (Amendment) Act 1966. The Central Government shall, declare to be the total capitalised value, for the purposes of grants of money which have been made, to the University any Ruler of an Indian State, and the total income accruing from immovable property which has been transferred to the University. The university has to constitute Pension or Provident fund or insurance scheme u/s 16A for the benefit of its officers, teachers and other employees. The conditions of service of officers and teachers shall be under a written contract to be lodged with the University to Tribunal of Arbitration consisting of one member appointed by the Executive Council, one member nominated by the officer or the teachers concern and an umpire appointed by the Visitor. The decision of the Tribunal or Arbitration shall be final and shall not be questioned in any court of law under Sub-section (3) of Section 16B. The University functions through the Statute and Ordinance made u/s 17 and 18 of the Act to be made by the Executive Council and approved by the Visitor and regulation with regard to the procedure to be observed in the meetings of all other matters which by the Act, the Statutes or Ordinances are to be prescribed by the Regulations.
24. It is submitted that the entire grant is received by the University from the Central Government on the allocation by the University Grants Commission. The Executive Council is to consist of the Vice Chancellor, Ex-Officio and 8 persons nominated by the Visitor under Statute 14(1) and that the Executive Council has a right to manage and regulate the finances, accounts, investments, property business and other administrative affairs of the University. The University is for all practical purposes an instrumentality of the State for which the entire finances are provided by the Central Government. The President of India as the Visitor appoints the Vice Chancellor on the recommendation of the selection committee to be the whole time salaried officer and that the Executive Council is headed by Vice Chancellor and 8 persons to be nominated by the Visitor to perform the entire financial and administrative function of the University. Every new statute or its amendment or repeal u/s 17(iv) requires previous approval of the Visitor and that every Ordinance has to be submitted u/s 18(6) to the Visitor who may disallow any such Ordinance or remit it to the Executive Council for further consideration. The President of India as an executive of the Union acting under the aid and advice of the Cabinet exercises full and complete control on the University. The University as such is a extended hand of the Central Government. It has always been treated so, and is also called as a Central University.
25. In Hindustan Aeronautics Ltd (supra) the Supreme Court following the Steal Authority of India''s case (supra) held:
The question that arises for consideration in this case is, whether the High Court is justification holding that the State Government is the "Appropriate Government" under the provisions of the relevant Act. The Constitution Bench recently has considered the relevant provisions of the Contract Labour regulation act in the case of
26. The Labour Court held that the Banaras Hindu University is an autonomous body and it is getting financial grants from the Central Government. It shall not be treated as part of the Central Government and that a number of cases of Banaras Hindu University have been decided by the Labour Court and no such issue has been raised. The State Government was thus competent to refer the matter.
27. The finding of the Labour Court completely overlook the admitted facts that the entire grant is received by the University from the Central Government and that the Executive Council which control with the finances and administrative under the supervision of the Visitor of the University and the Vice Chancellor is the full time salaried officer of the University and executive head appointed by the Visitor. The Banaras Hindu University has not only a central character but is a University which is controlled and managed by the Central Government. The State Government as such did not have the authority to make a reference nor any such authority was delegated to it by the Central Government u/s 39 of the U.P. Industrial Disputes Act. The reference u/s 4k by the State Government as such was not competent and thus the proceedings in pursuance of the reference are liable to be set aside.
28. The Contract, on which the Respondent workman was appointed has not been brought on record and thus the argument that the matter could only be refereed to Arbitrator cannot be appreciated and accepted by the Court.
29. In view of the findings on the first question, that the reference u/s 4K by the State Government was not competent, it is not necessary for the Court to decide the other issues.
30. The writ petition is allowed. The award dated 10.7.1998 passed by the Labour Court, Varanasi in Adjudication Case No. 31 of 1995 Banaras Hindu University and Ors. v. Brij Nath Bhattacharya published on 15.3.1999 is set aside. There shall be no order as to costs.
