M.L. Bhat, J.@mdashThe question for consideration in this writ petition is whether the Government of State of Uttar Pradesh can be treated as the appropriate Government u/s 2(a) of the Industrial Disputes Act, 1947 in relation to any industrial dispute concerning the office of the Petitioner.
2. The facts of the case, set up by the Petitioner in the writ petition, are briefly stated. The food Corporation of India is a body incorporated under the Food Corporation Act of 1964. The Respondent No. 2 was appointed as messenger (watchman) by the District Manager, Food Corporation of India, Agra on a purely adhoc basis His services were liable to be terminated without any notice. He was transferred to the Food Storage Depot, Mathura. A copy of the appointment letter of the Petitioner is marked as Annexure 1 to the writ petition. On 24-4-1974 the services of the Respondent No. 2 were terminated with effect from 30-4-1974 under Regulation 19 of the Food Corporation of India Staff Regulation of 1971. He was asked to take payment of 90 days'' salary in lieu of notice. A copy of this order is Annexure 2 to the writ petition. However, the Respondent No. 2 did not reach the office of the Petitioner for taking the payment which was sent to him by money order after making permissible deductions. The State Government seems to have referred the dispute to the Respondent No. 1 by its order dated 7-11-1975 which was received by the Respondent No. 1 on 21-11-1975 The dispute was referred u/s 10(1)(c) of the Industrial Disputes Act, 1947. A copy of this order is contained in Annexure 3 to the writ petition. The Labour Court had to decide whether the order of termination of the services of the Respondent No. 2 was legal and what relief could be granted to him if the order was found to be illegal. On receipt of the reference the Respondent No. 1 seems to have issued a notice to the Petitioner. The Petitioner appeared and thereafter the case was transferred from the Labour Court, Kanpur to the Labour Court at Agra. The Labour Court gave its award on 28-3-1979, copy whereof was placed on the notice board on 24-4-1979. A copy of the award is contained in Annexure 4 to the writ petition. The Labour Court seems to have allowed the claim of the Respondent No. 2 and set aside the termination order.
3. The Petitioner has filed this petition under Article 226 of the Constitution challenging the award of the Labour Court on the ground that the reference made by the State Government was incompetent as it could not refer the dispute to the labour court because it was not the appropriate Government in respect of the employees of the Petitioner. The appropriate Government as defined u/s 2(a) of the Industrial Disputes Act, which has the competence to refer the dispute to the Labour Court, was the Central Government. The order of reference, therefore, is said to be without jurisdiction and liable to be quashed. This was the only point argued before the court which, if accepted, will go to the root of the award and the award shall have to be declared without jurisdiction.
4. Before the Labour Court the parties appear to have filed pleadings and the Petitioner did not raise this point there. On facts some disputes were raised by the Respondent No. 2 which have been considered by the Labour Court. This Court is concerned only with the question of jurisdiction of Respondent No. 1 to pass the award.
5. u/s 10 of the Industrial Disputes Act, 1974 the Government has the powers, interalia to refer the dispute to a court for enquiry. The appropriate Government is defined u/s 2(a) of the said Act In relation to Food Corporation of India established u/s 3 of the Act or for a Board of Management established for two or more contiguous States u/s 16 of the Act, the appropriate Government is the Central Government. The learned Counsel for the Petitioner submitted that the Food Corporation Act was passed in 1964 and the amendment was made in 1967 in the said Act, which prescribes as follows:
Liberty is being taken to declare the Central Government as an appropriate Government under the Industrial Disputes Act, 1947 in relation to Food Corporation of India-Vide Gazette of India dated 25-7-1968 Part II Ser. 2 Extra page 613.
6. By Act No. 57 of 1968 in Section 2 of the Industrial Disputes Act an amendment was made and the Food Corporation of India established u/s 3 of the Food Corporation Act or Board of Management established for two or more contiguous states u/s 16 of the Act was incorporated. By this definition, the appropriate Government in relation to an employee of the Food Corporation of India established under Sections 3 and 16 of the Food Corporation Act was the Central Government and not the State Government.
7. u/s 3 of the Food Corporation Act it is provided that the Central Government may by notification in the official gazette establish for the purpose of the Act a corporation known as Food Corporation of India which shall be a body corporate with the aforesaid name having perpetual succession and common seal with power to acquire, hold and dispose of property and to contract and sue and be sued in the name of Food Corporation of India.
8. u/s 16 of the Central Government may on a request received in this behalf from the State Government or Governments concerned or otherwise, by notification in the official gazette, establish a Board of Management for a State or two or more contiguous States, if no State Food Corporation is functioning in such State or States. It prescribes the constitution of the Board and empowers the Food Corporation of India to appoint such staff as it considers necessary after consultation with the Board of Management.
9. However, there is another provision contained in Section 17 of the Food Corporation Act which authorises the Central Government to establish a Food Corporation after consultation with the Government of the State. The management of the State Food Corporation is to be entrusted to a Board of Directors, who are to be appointed by the food corporation of India after consultation with the Central Government and the State Government.
10. The State Food Corporation constitutes u/s 17 of the Food Corporation Act is excluded from the purview of Section 2(a) of the Industrial Disputes Act.
11. From the aforesaid discussion it would be seen that in respect of the employees of the Food Corporations which are constituted u/s 3 or 16 of the Food Corporation Act the appropriate Government u/s 2(a) of the Industrial Disputes Act will be the Central Government and in respect of the employees of the State Food Corporation constituted u/s 17 of Food Corporation Act Section 2(a) of the Industrial Disputes Act will have no application because the Central Government will not be the appropriate Government for the State Food Corporations set up u/s 17 of the Food Corporation Act. Express exclusion of State Food Corporations from the definition of Section 2(a) of the Industrial Disputes Act would make it clear that the framers of the law did not intend that the Central Government should make a reference in respect of the employees of such Corporation. Therefore, Section 2(a) of the Industrial Disputes Act places the Food Corporation established under Sections 3 and 16 of the Food Corporation Act in one compartment and the State Food Corporation constituted u/s 17 of the Act in another. The compartmentalisation of the various types of Food Corporations which can be set up under the Food Corporation Act is discernible from the exclusion of the employees of State Food Corporation set up u/s 17 of that Act from the definition of 2(a) of the Industrial Disputes Act.
12. Now it is to be seen as to under what category the Petitioner�s corporation would fall. If it falls under Sections 3 and 16 of the Food Corporation Act, the contention of the Petitioner is to be upheld. If it falls u/s 17 of the Food Corporation Act then the petition on the ground of jurisdictional error is to be rejected. For this purpose it is necessary to examine the writ petition and find out whether or not the State Government is the appropriate Government in relation to the Petitioner�s Corporation for referring the dispute u/s 10 of the Industrial Disputes Act. Before this question is considered it is useful to consider another argument of the Petitioner with regard to his right to take objection to the jurisdiction for the first time in the writ petition because admittedly he did not take any objection to the jurisdiction of the Respondent No. 1 to decide the matter on a reference made by the State Government to it and he raised this objection for the first time in this writ petition.
13. The learned Counsel for the Petitioner relied on the case of
14. In respect of the Office of the Regional Provident Fund Organisation established under the Provident Funds Act it was held by the Supreme Court in the case of
15. Having regard to the aforesaid provision of law and authorities it may be held that the Petitioner has a right to raise objection for the first time in the writ petition by which he can show that the reference made by the State of U.P. to the Respondent No. 1 in the case at hand was without jurisdiction because if the plan is removed the whole supre-structure is likely to fall. If the reference was without jurisdiction the award given on that reference will also fall to the ground. There is no law which prohibits a court to consider a provision whereby a tribunal has acted in violation of its authority or has exercised jurisdiction which it did not possess. Lack of inherent jurisdiction in the tribunal, therefore, can be pleaded for the first time in the writ petition it is to be made clear that lack of jurisdiction is not the same thing as wrong exercise of jurisdiction. In the latter case jurisdiction, which is possessed by tribunal, may have been exercised wrongly, but in the former case if there is no jurisdiction the question of its exercise does not arise.
16. Having considered the provisions of law and authorities it is necessary to find out whether or not the Petitioner has brought his case within the purview of definition of Section 2(a) of the Industrial Disputes Act.
17. It is stated that the Food Corporation is a. statutory body corporate under the Food Corporation Act, 1964. It is also stated that the Government of U.P. has no jurisdiction to refer any dispute u/s 10 of the Industrial Disputes Act to the Respondent No. 1. The writ petition does not state whether the Petitioner�s Corporation is established u/s 3 or 16 of the Food Corporation Act or Section 17 of the Act. It was imperative for the Petitioner to plead expressly that the Petitioner�s corporation was set up either u/s 3 or 16 of the Food Corporation Act if he wanted it to be brought within the ambit of Section 2(a) of the Industrial Disputes Act. If that was pleaded no reference could be made by the State of TJ. P u/s 10 of the Industrial Disputes Act Reference could be made by the Central Government alone and not by the State Government. The Petitioner has not pleaded that the Petitioner�s corporation is not established u/s 17 of the Food Corporation Act. He could have negatively also pleaded that Section 17 of the Food Corporation Act is not applicable to the Petitioner�s corporation. If Section 17 of the Act was not applicable to the Petitioner�s Corporation, then the State Government would not be competent to make a reference u/s 10 of the Industrial Disputes Act. It is not enough to say that the Food Corporation is set up under the Food Corporation Act and will not attract the provisions of Section 10 of the Industrial Disputes Act at the instance of the State Government. There is no pleading, worth the name, which would indicate that the Petitioner�s corporation was not set up u/s 17 of the Food Corporation Act. That being so, it cannot be ruled out that the Petitioner�s corporation is set up u/s 17 of the Food Corporation Act because the application of Section 17 of the Act to the Petitioner�s Corporation is not excluded in the writ petition. When this point was brought to the notice of the learned Counsel for the Petitioner he at once suggested that let an enquiry be conducted by the Labour Court with regard to this aspect of the matter. But in my opinion, it will be harsh if after 16 years this case is sent back to the Labour Court for a de novo trial. Reference was made to the labour court in 1975 and it concluded the award in 1979. So the dispute has actually commenced from 1975. Therefore, it will be against the equities to allow the Petitioner�s prayer.
18. Reference made by the State Government cannot be said to be incompetent because in all probability the Petitioner�s corporation seems to have been incorporated u/s 17 of the Food Corporation Act. The Petitioner has not denied this fact in his writ petition either expressly or by necessary implication. In respect of the Corporations set up u/s 17 of the Food Corporation Act. the State Government is the appropriate Government to make reference to a Labour Court for enquiry u/s 10 of the Industrial disputes Act The reference is, therefore, made by the appropriate Government and there is no jurisdictional error discernible from the pleadings in respect of the order of reference and the award in pursuance thereof cannot be set aside.
19. For the reasons given in this judgment and the view I have taken the objection of the Petitioner with regard to the jurisdiction of the State Government of U.P. to make a reference is over-ruled The U.P. Government has jurisdiction to make the reference.
20. The writ petition is accordingly dismissed with costs.
