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Judgment
By this petition under Article 226 of the Constitution of India, the petitioner, a Cement Company, has assailed the legality and validity of its prosecution at the instance of respondent No. 2 purporting to act as the appropriate Government under the Contract Labour (Regulation and Abolition) Act, 1970 (for short "C.L.R.A. Act"). The petitioner has further prayed that it be declared that the Central Government is the appropriate Government in so far as implementation of C.L.R.A. Act is concerned. Factual matrix giving rise to the instant petition are in narrow encompass and are stated infra--
The petitioner is a Company registered under Companies Act having a cement project called Hirmi and is an establishment of cement industry engaged in manufacture and sale of cement. According to the petitioners, for the purposes of execution of work of the project, the contractors have been engaged for various works of construction, fabrication and execution of plant and colony.
It is the case of the petitioner that the petitioner being a Cement Industry, the appropriate Government in relation to the petitioner industry in the matter of application and enforcement of C.L.R.A. Act is the Central Government and not the State Government. The petitioner has got itself registered with the Competent Authority of the Central Government namely Assistant Labour Commissioner (Central), Raipur, who has issued necessary registration certificate (Annexure A). Similarly, the contractor, who has been allotted the work, has also got registered under the provisions of C.L.R.A. Act with the A.L.C. (Central) and the registration certificate has been issued in favour of the contractor.
The grievance of the petitioner arose when in September, 1992, Inspector in the Office of Assistant Labour (State), Raipur Division inspected the establishment and intimated the petitioners to apply for registration under the provisions of C.L.R.A. Act vide its letter (Annexure D). The petitioner submitted letter on 28-11-92 (Annexure E) stating that in relation to their establishment, the appropriate Government is the Central Government and the petitioner has already obtained registration u/s 7 of the C.L.R.A. Act. Therefore, it has not violated any provisions with regard to the registration. However, the petitioner''s reply was not found satisfactory and prosecution was launched by filing a complaint before the Competent Magistrate on the ground that the petitioner has violated the provisions of C.L.R.A. Act in not getting itself registered with the Assistant Labour Commissioner of the department of Labour of the State Government.
Learned Counsel for the petitioner argued that the petitioner is carrying out the activity of manufacture and sale of cement, which is a controlled industry. Under the Industrial Disputes Act, as the Central Government has issued a notification on 8-11-77 (Annexure H) and this position has been clarified by the Central Government vide another letter dated 29-6-87 (Annexure C). Learned Counsel for the petitioner relied upon the decisions in the cases of Steel Authority of India Ltd. and Others etc. etc. Vs. National Union Water Front Workers and Others etc. etc., , N.T.P.C. and Others Vs. Badri Singh Thakur and Others, , Workmen of Bagalkot Udyog Ltd. Vs. Bagalkot Udyog Ltd. and Others, and order dated 18-5-05 passed by the High Court of Madhya Pradesh in Misc. Petition No. 2982/93, Associated Cement Co. Ltd., Kymore v. State of Madhya Pradesh and others and batch of writ petitions.
On the other hand, learned State Counsel for respondent Nos. 1 and 2 submits that when inspection was carried out in the establishment, it was found that the petitioner has not obtained requisite registration certificate from the State Authorities as required u/s 7 of the C.L.R.A. Act from the appropriate Government, which is punishable u/s 24 of the said Act and accordingly, the concerned Inspector launched prosecution before the Labour Court at Raipur for violation of Section 7 of the C.L.R.A. Act against the petitioner. According to him, in view of the provisions contained in Section 110 of the Chhattisgarh Industrial Relations Act, 1960 (for short "C.I.R.A. Act, 1960"), none of the provisions except Chapters V-A, V-B and V-C with respect to lay of retrenchment compensation, special provisions relating to lay of retrenchment and closure in certain establishment and unfair labour practice of Industrial Disputes Act, 1947 have application to any industry to which C.I.R.A. Act, 1960 applies. Therefore, in respect of any other establishment, provisions contained in Section 2(1)(a)(ii) will become applicable and consequently the Government of the State in which the establishment is situated would become the appropriate Government. Learned State Counsel has further relied upon common order dated 16-12-10 passed by the Division Bench of this Court in Writ Petition No. 3973/04 and W.P. No. 3333/05, in support of his contention that for the purposes of applicability of the provisions of the C.L.R.A. Act, 1970, the appropriate Government is the State Government. The respondent/State has also raised argument against the tenability of this petition that as the prosecution has already been launched before the Magistrate, it is open for the petitioner to lead a defence therein that the provisions of the Act are not applicable instead of assailing the institution of the proceedings at the threshold when the summons have been issued.
The return and reply of respondent Nos. 3 and 4, functionaries of the Central Government, is supported by the submissions of learned Assistant Solicitor General of India that as per circular, dated 29-6-87 (Annexure R-1), the Central Government alone is the appropriate Government under C.L.R.A. Act in respect of the cement industry. Therefore, the officials of the State Government can neither inspect the industry in order to verify the implementation of C.L.R.A. Act nor they can insist the petitioner-Company to obtain registration from the State Government by submitting to its jurisdiction as appropriate Government under C.L.R.A. Act.
The challenge to institution of criminal proceedings against the petitioner at the instance of respondent Nos. 1 and 2 is founded only on the legal submission that it is the Central Government and not the State Government, which is the appropriate Government for the purposes of C.L.R.A. Act in relation to a cement industry. Therefore, institution of criminal proceedings against the petitioner has been challenged on the ground that there is no requirement of law to obtain registration with the State Government and the petitioners have already obtained registration with the Central Government authorities as required u/s 7 of the C.L.R.A. Act. The issue raised before this Court is a pure question of law, decision of which does not require enquiry into any disputed questions of fact. Moreover, initiation of criminal proceedings are challenged mainly on the ground of absence of authority in initiating prosecution as there being no requirement of law to get the petitioner registered with State Government. Therefore, the objection with regard to the maintainability of the petition is rejected.
The sole issue which arises for consideration in this petition is whether in relation to the cement industry, the State Government is the appropriate Government as defined u/s 2(1)(a) of C.L.R.A. Act. If the answer is in affirmative, the petition must fail and the petitioner is required to face the prosecution. However, if it is held that it is the Central Government, who is the appropriate Government, the entire basis of prosecution that petitioners have failed to obtain registration from the State functionaries, must fall to the ground.
In order to decide the pivotal issue as to which is the appropriate Government in relation to a cement industry for the purposes of C.L.R.A. Act, 1970, it is apposite to reproduce hereinbelow, relevant provisions contained in Section 2(1)(a) of the C.L.R.A.
Section 2(1)(a).--''appropriate Government'' means--
(i) in relation to an establishment in respect of which the appropriate Government under the Industrial Disputes Act, 1947 (14 of 1947), it is the Central Government;
(ii) in relation to any other establishment, it is the Government of the State in which that other establishment is situated.
A bare perusal of the aforesaid provision clearly provides that in relation to an establishment in respect of which the appropriate Government under the Industrial Disputes Act, 1947 is the Central Government, it is the Central Government which would be the appropriate Government for the purposes of the Act. In relation to any other establishment, it is the Government of the State in which the establishment is situated which would be appropriate Government.
Therefore, it is required to be examined with reference to the provisions contained in the Industrial Disputes Act dealing with the definition of appropriate Government for the purposes of the said Act.
Section 2(a) of the Industrial Disputes Act reads as follows:--
(a) ''appropriate Government'' means--
(i) in relation to any industrial disputes concerning any industry carried on by or under the authority of the Central Government, or by a Railway Company or concerning any such control 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 u/s 5-A 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 u/s 3 of the Employees'' State Insurance Act, 1948 (34 of 1948), or the Board of Trustees constituted u/s 3-A of the Coal Mines Provident Fund and Miscellaneous Provisions Act, 1948 (46 of 1948), of the Central Board of Trustees and the State Board of Trustees constituted u/s 5-A and Section 5-B respectively, of the Employees'' Provident Fund and Miscellaneous Provisions Act, 1952 (19 of 1952), or the Life Insurance Corporation of India established u/s 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 u/s 3 of the Deposit Insurance and Credit Guarantee Corporation Act, 1961 (47 of 1961), or the Central Warehousing Corporation established u/s 3 of the Warehousing Corporations Act, 1962 (58 of 1962), or the Unit Trust of India established u/s 3 of the Unit Trust of India Act, 1963 (52 of 1963), or the Food Corporation of India established u/s 3, or a Board of Management established for two or more contiguous states u/s 16, of the Food Corporations Act, 1964 (37 of 1964), or the Airports Authority of India constituted u/s 3 of the Airports Authority of India Act, 1994 (55 of 1994), or a Regional Rural Bank established u/s 3 of the Regional Rural Banks Acts, 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 u/s 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.
In exercise of powers conferred hereinabove, the Central Government issued a Notification No. 6.0 757 (E), dated November 8, 1977 Annexed as Annexure H along with rejoinder. The notification reads as under:--
MINISTRY OF LABOUR NOTIFICATION New Delhi, the 8th of November, 1977
6.0 757 (E).-- In pursuance of sub-clause (i) of clause (a) of Section 2 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby specifies for the purposes of that sub-clause, the controlled industry engaged in the manufacture of production of cement, this has been declared as a controlled industry u/s 2 of the Industries (Development and Regulation) Act, 1951 (65 of 1951).
In view of issuance of above notification, undoubtedly, in respect of the cement industry, the Central Government became the appropriate Government in-relation to any industrial dispute concerning the said industry. Therefore, by virtue of this notification declaring Central Government as the appropriate Government in relation to cement industry for the purposes of-Industrial Disputes Act, the Central Government become the appropriate Government as defined u/s 2(1)(a) of the C.L.R.A. Act, 1970.
Submission of learned Counsel for the State that by virtue of provisions contained in Section 110 of the C.G.I.R. Act, 1960, the Industrial Disputes Act will have no application except for the limited purposes enumerated therein and therefore, declaration of Central Government as appropriate Government in relation to the Cement Industry, for the purposes of Industrial Disputes Act, will have no application as cement industry is included in the schedule appended to C.G.I.R. Act, 1960, is completely misconceived in law.
Inclusion of cement industry in the schedule appended to the C.G.I.R. Act, 1960 making applicable provisions of C.G.I.R. Act, 1960 to a cement industry does not exclude operation of provisions contained in Section 2 of the C.L.R.A. Act, 1970 for the purposes of declaration as to which Government would be the appropriate Government for the purposes of implementation and enforcement of C.L.R.A. Act, 1970. In order to ascertain as to which would be the appropriate Government for the purposes of C.L.R.A. Act, 1970, one has to apply the provisions contained in Section 2(1)(a) of C.L.R.A. Act, 1970 and there is no escape. Merely because the applicability of the provisions of the Industrial Disputes Act has been restricted in relation to certain industry to which C.G.I.R. Act, 1960 has been made applicable, does not mean that in relation to cement industry, provisions of Industrial Disputes Act have no application at all. As a matter of fact, the Central Government has issued notification in exercise of powers under sub-clause (i) of clause (a) of Section 2 of the Industrial Disputes Act, 1947 specifying the controlled industry engaged in the manufacture or production of cement, which has been declared as a controlled industry u/s 2 of the Industries (Development and Regulation) Act, 1951. The other submission of learned State Counsel that the Division Bench judgment of this Court in W.P. No. 3973/04 and W.P. No. 3333/05, concludes the issue, is also not correct. In those cases, the Division Bench, in Para 23 of its order held that the entry of cement industry in the schedule of C.G.I.R. Act, 1960 does not stand impliedly repealed/amended after issuance of notification dated 8-11-77 by the Central Government. In order to come to the said conclusion, the Division Bench relied upon the judgment of the Supreme Court in the case of Shri Yovan, India Cements Employees Union and another Vs. Mangement of India Cements Ltd. and others, . In Yovan''s case (supra), an industrial dispute referred by the Government of Tamil Nadu u/s 10(1)(c) of the Industrial Disputes Act in relation to the cement industry was rejected by the Labour Court, Madurai on the ground that in relation to the cement industry, the Central Government is the appropriate Government and therefore, the State Government could not have made the reference. On appeal preferred by the employees'' Union, the Supreme Court, after referring to Section 2(a)(i) of the Industrial Disputes Act, the notification dated November 8, 1977, issued thereunder, Section 39 of the Industrial Disputes Act and the delegation notification dated December 8, 1977 held that the State Government was also competent to make questioned reference and allowed the appeal of the employees union. It was under this context of examining the authority of the State to make reference as the delegate of the appropriate Government being the Central Government, that the Supreme Court observed that the Central Government and the State Government are appropriate Government under the Act. Those observations made by the Supreme Court in Yovan''s. case (supra), have to be understood in the context in which those observations were made and not de hors the context. Merely, because the State Government was delegated the power exercisable by the Central Government as appropriate Government under the Industrial Disputes Act, it cannot be held that the State Government is also an appropriate Government for the purposes of application and enforcement of the provisions of C.L.R.A. Act, 1970. The judgment of the Division Bench of this Court is not an authority for the proposition that by virtue of delegation of power of appropriate Government to the State under the provisions of the Industrial Disputes Act, the State would also become appropriate Government along with the Central Government for the purposes of application and enforcement of the provisions contained in C.L.R.A. Act, 1970. The view taken by this Court is supported by the judgment of the Division Bench of the Karnataka High Court in the case of Workmen of Bagalkot (supra) and order dated 18-5-05 passed by the High Court of Madhya Pradesh in the case of Associated Cement Co. Ltd. (supra).
In view of the above analysis, further contention of the State Counsel that by virtue of delegation of power u/s 39 of the Industrial Disputes Act, the State Government also becomes appropriate Government, must also fail.
The Constitution Bench of the Supreme Court has also settled the legal position in this regard in its authoritative pronouncement in the case of Steel Authority of India (supra), by summing up its conclusions in Para 125 of its judgment as under:-- (only relevant clauses are reproduced)
The upshot of the above discussion is outlined thus:--
(1) (a) Before 28-1-1986, the determination of the question whether the Central Government or the State Government is the appropriate Government in relation to an establishment, will depend, in view of the definition of the expression ''appropriate Government'' as stood in the C.L.R.A. Act, on the answer to a further question, is the industry under consideration carried on by. or under the authority of the Central Government or does it pertain to any specified controlled industry, or the establishment of any railway, cantonment board, major port, mine or oilfield or the establishment of Banking or Insurance Company? If the answer is in the affirmative, the Central Government will be the appropriate Government; otherwise in relation to any other establishment the Government of the State in which the establishment was situated, would be the appropriate Government;
(b) After the said date in view of the new definition of that expression, the answer to the question referred to above, has to be found in clause (a) of Section 2 of the Industrial Disputes Act; if (i) the Central Government Company/undertaking concerned or any undertaking concerned is included therein no nominee, or (ii) any industry is carried on (a) by or under the authority of the Central Government, or (b) by a Railway Company; or (c) by a specified controlled industry, then the Central Government will be the appropriate Government; otherwise in relation to any other establishment, the Government of the State in which that other establishment is situated, will be the appropriate Government.
(a) ****
(b) ****
(3) ****
(4) ****
(5) ****
(6) ****
In the result, it has to be held that in relation to the cement industry, it is the Central Government, which is the appropriate Government as defined u/s 2(1)(a) of the C.L.R.A. Act, 1970. The prosecution of the petitioner at the instance of respondent Nos. 1 and 2 for non-registration with the State Authorities is held illegal and quashed. The petition is accordingly allowed. No order as to costs.