Calcutta High Court
The Central Agricultural Research ... vs The Presiding Officer, Labour Court & ... on 3 February, 1998
Equivalent citations: (1998)3CALLT209(HC)
JUDGMENT G. R. Bhattacharjee, J.
1. In this writ petition under Article 226 the wril petitioners have challenged the award dated the 29th August, 1996 passed by the Labour Court, Andaman and Nicobar islands at Port Blair as published in the Andaman and Nicobar Gazette dated the 3Ist December, 1996, Annexure-G to the writ petition. The said award was passed by the Labour Court on a reference made to the said court by the Lieutenant Governor, Andaman and Nicobar administration on 6th December, 1994 under section 10(1) read with section 12, 15) of the industrial Disputes Act. 1947. The notification about the said reference is Annexure-D to the writ petition. The matter that was the subject of reference was formulated in the said notification by the Lieutenant Governor (Administrator). Andaman and Nicobar islands in the following form:
Whether the action of the management of Central Agriculture Research institute in retrenching 42 Majdoors as per annexure with effect from 1.8.86 is legal and justified. If not, to what relief are the concerned workmen entitled?'
2. The said reference was disposed of by the Labour Court by passing the following award after hearing:
"That the action of the management of Central Agriculture Research institute in retrenching 42 Majdoors as per annexure to the reference with effect from 1.8.86 is illegal and unjustified. The 42 first parly workmen cannot be treated to be disengaged from 1.8.86.The second party will give employment to those of 42 first party workmen who have not been given job after 31.7.86 on daily rated basis. They should be treated as regular employees as and when regular vacancy arises. As regards the back wages the second party will pay Rs. 10.000 (Rupees Ten Thousand Only) to each of the workmen in full and final settlement of their claim towards back wages."
3 The concerned 42 workmen of the Central Agricultural Research institute, Port Blair were represented before the Labour Court through their union, namely, the Plantation Crops Workers Union, the said reference was contested by the management, namely, the management of the Central Agricultural Research institute. In the present writ petition the said institute is the writ petitioner No. 1 and its Director is the writ petitioner No.2. The case of the concerned workmen before the labour court was that the concerned workmen being daily wage workers were engaged under the Director of Central Agricultural Research institute in different agricultural farms on different dates, mostly starling from 1.7.80 and all of them continued Ihcir services till 31.7.86 and that as they completed 240 days continuous service in a year they were entitled to get themselves registered under the nominal master rolls, but the management did not give the benefit which the workmen were entitled to and their union approached the management and the Labour Commissioner but the management never turned up in the conciliation proceeding arranged by the Labour Commissioner and the Workers' Union representing the daily raled workers took recourse to strike on 30.7.86 after giving one months notice to the management for one day strike. it was also the case of the workers that the management did not allow them job on and from 31.8.86 and rather recruited new persons in place of those workers and published advertisement in newspaper for taking more workers and although the Majdoors under reference approached the management once again they were not recruited, and instead new Majdoors from Kamraj Multipurpose Labour Contracts Cooperative Society Ltd. were recruited. it was also the allegation of the concerned workers that the management was in constant need of Majdoors and the jobs performed by the workers under reference were permanent in nature and those Majdoors were entitled to get increased pay wilh effect from 1.4.83 in terms of circular dated 5.3.83. The allegation of violation of the provisions of sections 25N, 25F, 25B and 25G of the industrial Disputes Act was also made against the management.
4. The management contested the reference before the Labour Court alleging that the reference being a second reference on the same point which was earlier disposed of by an award was not maintainable. it was contended on behalf of the management before the labour court that none of the workers under reference had completed continuous service of 240 days as per the provisions of section 25B of the industrial Disputes Act and therefore the contention raised by the concerned workmen that they were retrenched from service was not tenable and they were nol entitled to get any relief under section 25. The management also categorically denied that 7 named workmen out of the oncemed workmen were ever in the employment of the management.
5. In disposing of the reference the labour court held that all the concerned workmen including the disputed seven were engaged by the management and they were also daily rated labourers under the management. The labour court also held that all the 42 workmen were the employees under the management and they were not in employment since 1.8.86 and that they were disengaged en and from 1.8.86 and such disengagement amounted to retrenchment. it was further held that such retrenchment was illegal and unjustified and they should not be treated to be disengaged. Ultimately, on the basis of its findings the labour court passed the award which 1 have already quoted earlier.
6. In challenging the said award the writ petitioner has taken up several points. One of the principal contentions raised by the learned Advocate for the writ petitioner is that the Lieutenant Governor. Andaman and Nicobar islands is not the 'appropriate Government" under the industrial Disputes Act. He submits that in view of section 2|a) I.D, Act. 1947 the appropriate government in relation to any industrial dispute concerning any industry carried on by or under the authority of the Central Government is the Central Goyernment and not the Lieu tenant-Governor. Andaman and Nicobar islands. it is submitted by him that before independence and till the advent of the Constitution, Andaman and Nicobar islands was administered as Chief Commissioner's province under the Govern or-General in terms of section 94(3) of the Government of india Act. 1935 and thereafter this territory was administered by the President of india through Chief Commissioner under Article 243(1) till 30.10.56 when the Constitution (Seventh Amendment), Act, 1956 came into force with effect from 1.11.56. it is his further submission that on the commencement ol the 7th Amendment of the Constitution with effect from 1.11.56 Andaman and Nicobar islands became a Union Territory and came to be administered by the President under Article 239(1) through an administrator designated as the Chief Commissioner till the llth November. 1982. it may be mentioned here that with effect from the 12th November. 1982 the designation of the administrator for the Union Territory of Andaman and Nicobar islands has been changed to 'Lieutenant Governor' from 'Chief Commissioner'. it has already been noted that under the Government of india Act, 1935 Andaman and Nocobar islands was administered as a Chief Commissioner's province. Section 94(3) of the Government of india Act, 1935 provided that a Chief Commissioner's province would be administered by the Governor-General acting, to such extent as he might think fit, through a Chief Commissioner to be appointed by him in his discretion. In the Constitution of india, when it came into force on 26.1.50, Andaman and Nicobar islands was included as a territory under Part-D of the First Schedule of the Constitution. Article 243(1) as it stood at that time was as follows:
"243 : (1) Any territory specified in Part-D of the First Schedule... shall be administered by the President acting, to such extent, as he thinks fit, through a Chief Commissioner or other authority to be appointed by him.
(2) The President may make regulations for the peace and good Government of any such territory and any regulation so made may repeal or amend any law made by Parliament or any existing law which is for the time being applicable for such territory and when promulgated by the President, shall have the same force and effect as an act of Parliament which applies to that territory."
7. At that time Article 239 related to Part-C States, such as. Azmir. Bhopal. Bilaspur, Durg, Delhi etc.. but not Andaman and Nicobar islands which was included in Part-D.-It was provided in Article 239(1) as it existed at the time that subject to the other provisions of that part a State specified in Part-C of the First Schedule would be administered by the President acting, to such extent as he thought fit, through a Chief Commissioner or a Lieutenant Governor to be appointed by him or through the Government of a neighbouring Stale. Subsequently, the 7th Amendment of the Constitution came into force with effect from 1.11.56. By that Amendment Part-C and Part-D were abolished inter alia and in their place Union Territory was created. Andaman and Nicobar islands was included therein as a Union Territory.Since Part-C and Part-D of the First Schedule were abolished with creation of Union Territory. Article 239 and Article 240 were also suitably modified by the 7th Amendment of the Constitution and the Article 239(1) as it now stands after the 7th Amendment of the Constitution runs thus:
"S. 239 (1) Save as otherwise provided by the Parliament by law every Union Territory shall be administered by the President acting, to such extent as he thinks fit, through an administrator to be appointed by him with such designation as he may specify."
8. By that Amendment Article 240 was also amended and on such amendment Article 240 stands thus:--
1"240: (1) The President may make regulations for the peace, progress and good Government of the Union Territory of (a) the Andaman and Nicobar islands, (2) Any regulation so made may repeal or amend any Act made by Parliament or any other law, which is for the (ime being applicable to the 'Union Territory' and. when promulgated by the President, shall have the same force and effect as an Act of Parliament which applies to that Territory."
9. Article 243 was repealed by the 7th Amendment but section 29(2) of the Constitution (7th Amendment) Act. 1956 made it clear that notwithstanding the repeal of Article 243 all regulations made by the President under that Article and which were in force immediately before such repeal would continue in force until altered or repealed or amended by a competent legislature or other competent authority.
It is argued by the learned Advocate for Ihe petitioner that in view of the existing provision of Article 239(1) every Union Territory including the Andaman and Nicobar islands is now administered by the President acting. to such extent as he thinks fit, through an administrator to be appointed by him with such designation as he may specify, and therefore the Lieutenant -Governor as administrator appointed by the President will have only such power as may be assigned to him by the President under Arlicle 239(1) but the cannot exercise any power which has not been so assigned or delegated to him by the President under the said Arlicle. He further submits that since the power of making reference for adjudication of an industrial dispute under the I.D. Act in respect of a dispute relating to an establishments under the control or the Central Government rests with the Central Government in view of section 2(a) read with section 10 of the I.D. Act it is the Central Government which can make the reference in respect of such dispute and not by the Lieutenant-Governor, particularly when there has been no delegation of such power in favour of the Lieutenant-Governor after the introduction of the existing Article 239 by the 7th Amendment of the Constitution. He further submits that since the Lieu tenant-Governor is not the successor of the erstwhile Chief Commissioner exercising power before the 7lh Amendment of the Constitution, the power which might have been delegated to the Chief Commissioner earlier before the advent of the 7th Amendment of the Constitution, will not be available to the administrator appointed under Article 239 after the introduction of the 7th Amendment. In this connection he also relies upon the decision of the Supreme Court in Express Newspaper (P) Ltd. v. Union of India. wherein it was held that the Ueutenant-Governor (of Delhi) was not the successor of the Chief Commissioner. In our present case however the question whether the Lieutenant-Governor. Andaman and Nocobar islands can make a reference in respect of an industrial dispute relating to a Central Government establishment can be decided even accepting the position that the administrator of Andaman and Nicobar islands is not a successor of the Chief Commissioner acting before the 7th Amendment of the Constitution. In view of Article 367 of the Constitution, the General Clauses Act, 1897 applies for the interpretation of the Constitution. In view of this constitutional provision read with section 3(58)(b) 'State' also includes Union Territory. Section 3(59)(c) of the General Clauses Act defines 'State Government' to mean the Central Government in a Union Territory as respect anything done or to be done after the commencement of the Constitution (7th Amendment) Act, 1956. Be that as it may, since in this case the 'appropriate Government' for making reference under the industrial Disputes Act is the Central Governmenl the question is whether the Lieutenant-Governor. Andaman and Nicobar islands has the power to make such reference.The learned advocate for the petitioner attracts my attention to the notification of the impugned reference dated the 6th December, 1994 Annexure-D to the writ petition and submits that in the said notification, a notification dated the 28th June, 1947 of the Government of india, Department of Labour has been referred to by the Lieu tenant-Cover nor (Administrator) as a source of the power he was exercising in making that reference and it is submitted that the Lieutenant Governor cannot avail of any such notification of 1947 because he is not a successor of the erstwhile Chief Commissioner and there has not been any fresh authorisation in his favour after the commencement of the 7th Amendment of the Constitution. it is however now a settled proposition of law that a wrong reference to any provision of law or notification while exercising a power will not make such exercise per se bad or unlawful if it is found that such power really exists in law although not expressly mentioned while exercising that power. Therefore even if it is assumed that the 1947 notification referred to in the impugned reference was available to the Lieutenant-Governor yet the reference will not be bad for that reason alone if it is found that such power of reference actually rests with the Lieulenant-Governor in law. The notification dated the 28th June. 1947 referred to in the inpugned reference of the Lieutenant-Governor runs thus:--
"New Delhi, the 28th June, 1947.
Notification No.LR-(9): In pursuance of sub-section (3) of section 94 of the Government of India Act, 1935, and in supersession of the notification of the Government of india in the Department of Labour No.LR 1(9) dated the 14th May. 1947, the Governor-General in Council is pleased to direct that the functions of the provincial Government under the industrial Disputes Act. 1947 (XIV of 1947) with the exception of the functions discharged under section 38 (hereof, shall, in respect of every Chief Commissioner's province other than British Baluchistan, be discharged by the Chief Commissioner."
10. There is however a subsequent notification also dated the i3th December. 1955 which runs thus:--
"Dated, New Delhi, the 13th December, 1955.
Notification No. LR.1 (59): in pursuance of clause (1) of Article 243 of the Constitution, the President hereby directs that the Cnlef Commissioner. Andaman and Nicobar islands, shall, subject to the'control of the President, exercise the powers and discharge the functions of the Central Government under the industrial Disputes Act, 1947 (XIV of 1947)exeept section 38 thereof."
11. This notification is therefore a clear delegation of power in favour of the Chief Commissioner. Andaman and Nicobar islands to make a reference under the industrial Disputes Act by exercising the powers and functions of the Central Government under the said Act. But the learned Advocate for (he petitioner contends that no such power was subsequently delegated to the administrator after the commencement of the 7th Amendment of (he Constitution which came into force on 1.11.56.As we have seen, earlier Article 243 contained provisions relating to the administration of Andaman and Nicobar islands as a territory included in Part-D of the First Schedule. The above-mentioned notification dated (he 13th December. 1955 authorising the Chief Commissioner. Andaman and Nicobar islands to exercise the powers and functions of the Central Government under the I.D.Act was issued in pursuance of Article 243(1). By 7th Amendment of the Constitution which came into force on l.l 1.56 Article 243 was however repealed and therefore it is contended by the learned advocate for the petitioner that the authorisation under Article 243 in favour of the Chief Commissioner which was made earlier was no more available after the 7lh Amendment of the Constitution by which the Article 243 was itself repealed. This contention at the first blush no doubt appears forceful. But I must say that it fails to bear close scrutiny. it will be seen that although by the 7th Amendment of the Constitution Arliclc 243 was repealed yet the provisions contained therein were re-enacted with some modification and incorporated in Articles 239 and 240 by the same 7th Amendment of the Constitution .That being so. even had there been no fresh authorisation after such amendment in favour of the administrator of Andaman and Nicobar islands under Article 239 yet in view of the principle of section 24 of the General Clauses Act the earlier authorisation by notification dated the 13th December. 1955 in favour of the Chief Commissioner for exercising the powers of the Central Government under the I.D.Act would have continued to operate as if issued under the re-enacted provision of Article 239 authorising the administrator of Andaman and Nicobar islands to exercise the powers of the Central Government under the I.D.Act. and this is the position irrespective of the fact that the administrator appointed under Article 239 after the 7th Amendment is not the successor of the Chief Commissioner through whom the President used lo administer the territory under Article 243 as it existed before the 7th Amendment. However, in the instant case we do not even require the aid of section 24 of the General Clauses Act, because there was a specific and fresh notification authorising the Chief Commissioner of the Andaman and Nicobar islands of the post-7th Amendment era to exercise the same power which the Chief Commissioner of the pre-7th Amendment era was empowered to exercise. This notification is the notification dated the 1st November. 1956 which has been quoted in the Supreme Court decision in Express Newspaper v. Union of india, . The Notification runs thus:--
"New Delhi-2, the 1st November. 1956.
S.R.O. In pursuance of Clause (1) of Article 239 of the Constitution as amended by the Constitution (Seventh Amendment) Act. 1956 and all other powers enabling him in this behalf, the President hereby directs as follows:
Where, by virtue of any order made in pursuance of Article 239 or as the case may be. Article 243 of Ihe Constitution as in force immediately before the 1st day of November, 1956 or any other power under the Constitution, any powers and functions were, immediately before that day, the powers and functions of-
* * * * *
(c) the Chief Commissioner of the Andaman and Nicobar islands.
Such powers and functions shall, on and after the said day. be exercised and discharged respectively by-
* * * * *
(iii) the Chief Commissioner of the Andaman and Nicobar islands.
subject to the like control by the President, as were excrcisable by him before the said day over the Lieutenant Governor or as the case may be. the Chief Commissioner referred to in clause (a), (b) or (c)."
12. It may be noted here that the expression 'Chief Commissioner as used in the said notification with reference to the Andaman and Nicobar islands of the post-7th Amendment era is an assigned designation for the consUtulionally contemplated 'administrator' in Article 239(1). That assigned designation of the 'administrator' was subsequently changed as Lieutenant-Governor in 1982. it is needless lo say that such change of assigned designation does not effect the identity of the constitutionally contemplated 'ad minis Ira tor' under Article 239(1) and the power delegated to such 'administrator (describing him by his assigned designation at any particular point of time. This notification dated the 1st November. 1956 authorising the adminislrator (Chief Commissioner) of Andaman and Nicobar islands to exercise the same powers as were delegated to the Chief Commissioner earlier is a complete answer to negative the contention of the learned Advocate for the petitioner that after the 7th Amendment the adminislrator of Andaman and Nicobar Islands has not been authorised afresh to exercise any delegated power of the Central Government under the I.D. Act. Therefore even without the aid of section 24 of the General Clauses Act the administrator, whether designated as Chief Commissioner or Lieutenant- overnor, continued to enjoy the same powers as were earlier delegated to the Chief Commissioner before the 7th Amendment of the Constitution. As I have already noted, in 1982 the designation of the administrator was changed by the President as 'Lieutenant-Governor' in place of the earlier designlion 'Chief Commissioner'. Such change of nomenclature, it is to be reiterated, obviously does not effect the power which was vested in the administrator after the 7th Amendment of the Constitution by the notification dated the 1st November, 1956 continuing the authorisation earlier made. In the result 1 find that the Lieu ten ant-Cover nor, even without being the successor of the erstwhile Chief Commissioner existing before the 7th Amendment of the Constitution, continued to enjoy the powers of the Central Government under the I.D. Act in view of the authorisation made by the President in 1955 and continued by the President by a fresh notification dated 1.11.56 in the backdrop of the 7th Amendment of the Constitution. I therefore, find that the Lieutenant-Governor acting as an appropriate Government, with due authority, validly made the impugned reference under the I.D.Act.
13. The learned advocate for the petitioner also submits that in this case the Concilialion Officer had not the authority to discharge the function of the Conciliation Officer in view of certain notification of the Central Government, namely, the notification dated 29.1.91 and as such, the reference made on consideration of such report is bad in law. it is however to he noted here (hat this point that the Conciliation Officer had not the authority in this case to act as Conciliation Officer was however not taken not only before the Labour Court but also in the writ petition or in the supplementary affidavit filed in this writ proceeding. That being so, this point in my opinion cannot be properly considered as the same has been taken up only during the hearing, particularly during the reply in course of hearing. In this connection the learned advocate for the petitioner also referred to an unreported decision of a learned Judge of this court dated 31.7.97 in C.O. 42(W) of 1997 (Chief Engineer v. Lieutenant-Governor and Ors.). That decision. it appears, did not specifically examine as to what will be the effect of the reference even if the person acting as the Conciliation Officer was not the authorised person for the purpose. Section 10(1) of the I.D.Act empowers the appropriate Government to make the reference if it is of opinion that any industrial dispute exists or is apprehended. Section 12 relates to the duties of the Concilialion Officer. Sub-section (5) of section 12 however provides that the appropriate Government may make a reference after considering the report of the Conciliation Officer. Reading seclion 10{1) and section 12 together it will appear that there is no mandatory requirement that before making the reference the appropriate Government must take into consideration the report of the Conciliation Officer. The appropriate Government can form an opinion and refer a dispute under section 10(1) for adjudication by the industrial tribunal/lab our court even without any report from the Conciliation Officer. Report of the Conciliation Officer is not a sine qua non for referring the matter for adjudication. Reference of a dispute under section 10(1) LD.Act can be made by the appropriate Government if it 'is of opinion that any industrial dispute exists or is apprehended'. There is no restriction on the method of forming the requisite opinion except the implied restriction that such opinion must be based on consideration of matters germane to the issue. Section 12 relates to the duties of the Conciliation Officers. Sub-section (1) of section 12 says lhat where an industrial dispute exists or is apprehended the Conciliation Officer may or where, the dispute relates to a public utility service and notice under seclion 22 has been given, shall hold conciliation proceedings in Ihe prescribed manner. it will thus be seen that the conciliation process is also not a mandatory requirement except if at all in a limited case mentioned thtrein. Sub-section (5) of section 12 says that if on consideration of the report of the Conciliation Officer the appropriate Government is satisfied that there is a case for reference, in that case it may make such reference. The power to make a reference under section 10. it has lo be appreciated, is not dependent upon compliance of section 12. Seclion 12 is an independent procedure which allows an opportunity to bring about a settlement of dispute, if possible, through the instrumentality of the Conciliation Officer who submits his report to the appropriate Government. On consideration of that report the appropriate Government may make a reference. In the Delhi High Court decision in Sifai Prasad Jain v. Punjab National Bank. 1982(44) FLR 242 it has been held that it is well settled that the powers conferred on the appropriate Government under seclion 10 of the Act is an administrative power and that the formation of the opinion as to the factual existence of an industrial dispute as a preliminary step to the discharge of its functions does not make it any the less an administrative acl and that the jurisdiclional fact on which the appropriate Government may act or Ihe formation of an opinion that an industrial dispute exists or is apprehended undoubtedly is a subjective one. but the next step of making a reference is an administrative step and further that the adequacy or sufficiency of the material on which the opinion was formed is beyond the pale of judicial scrutiny. In the Delhi High Court decision in New Delhi Tailoring Mazdoor Union v. S.C.Sharma and Co. 1979(39) FLR 195 also it was held that Ihe forming opinion of the Government before referring the dispute with regard to its existence or apprehension is an administrative power and there must be some material before the Government on which it forms its opinion and that Ihe adequacy or sufficiency of the material on which the opinion was formed is beyond the pale of judicial scrutiny. In the Bombay High Court decision in Jaslok Hospital v. B.V. Chavan 1983(46) FLR 209 it was held thai under the second proviso to sub-seclion (1) of section 10 it is open for the Government to make a reference to the appropriate authority for adjudication even though the conciliation proceedings had not commenced or had commenced but are not slill disposed of. 11 was also observed lhat even assuming lhat the holding of conciliation proceedings prior to making of order of reference was necessary, still, the provisions must be construed as merely directoiy and not mandatory and. therefore, failure to hold conciliation proceedings would not result into the award being null and void. if thai is so in respecl of a case filling under the second proviso lo seclion 10(1). that is even more so in respect of a case falling outside the scope of the said second proviso. In the Calcutta High Court decision in Machinery Manufacturers Corpn. Lid. v. State of West Bengal 1982(44) FLR 304 (at 307) decided by G.N.Ray. J. (as his Lordship then was) it was observed thus:--
"In my view, there was no necessity for the State Government asking for a report and views of the Labour Commissioner on the basis of the subsequent representation made by the Union. The power under section 10 can be exercised even without having any conciliation proceeding and even in a case where the Stale Government at some point of time held the view that no reference was warranted."
14. On a careful consideration oT the matter I am in respectful agreement with the above noted decisions in the matter. it is also to be noted here that in the unreported decision in C.O.42 [WJ of 1997 (supra) all these decisions referred to above and their effect have not been at all considered, apart from the fact that the said decision did not deal with the question as to what would be the effect of the consideration of the report of a Conciliation Officer not authorised to act as such Conciliation Officer in the mailer. The said unrcported decision has therefore no binding effect and this decision is a decision per incuriam. On a proper study of the relevant provisions of the 1.13.Act and supported by the other judicial pronouncements referred to above. 1 am of the clear opinion that reference under section 10(1) can be made even without a report from the Conciliation Officer and that being so even if in any particular case the report submitted by the Conciliation Officer is one rendered by an officer not empowered to act as Conciliation Officer yet consideration of that report by the appropriate Government will not per se make the reference bad in law. The cardinal point of requirement in this context is the formation of 'opinion' by the appropriate Government based on matters germane to the issue and not the authority of the Conciliation Officer submitting report.
15. However, the most formidable point that has been urged on behalf of the petitioner is that the petitioner, the Central Agricultural Research institute. Port Blair [CAR1, for short) is not an industry within the meaning of the term defined in the industrial Disputes Act and therefore the industrial Disputes Act is not at all applicable in this case and that being so the impugned reference, award of the labour court and the entire proceedings are bad in law being wholly without jurisdiction. There is no doubt that if CARI is not an industry within the meaning of the term as defined in the I.D.Act in that case the concerned dispute between the CARI and the private-respondents will not come within the sweep of industrial dispute under the I.D.Act and the labour court to which the impugned reference was made also will have no jurisdiction to embark upon an adjudication of any such dispute and therefore the whole proceeding before the labour cc-.irt and the award passed by the labour court will be wholly without jurisdiction and will be liable to be quashed for that reason alone. The objection regarding the jurisdiction of the labour court on ground that CARI is not an industry however was not taken by CARI before the labour court and this objection for the first time is taken in this wril proceeding by filing a supplementary affidavit with the leave of the court. The question whether such objection can be taken in the writ court when any such objection was not taken before the labour court and whether any such question if raised before the writ court can be entertained and decided by the writ court will however be dealt with by me latter. But at the present moment I proceed to discuss and decide the question as to whether CARI is an 'industry' within the meaning of Il.D.Act. In paragraph I of the wril petition it has been averred that CARI is a registered society having its registered office at Port Blair and is under the control and supervision of the indian Council of Agricultural Research, New Delhi UCAR, for short) which is also a registered society, being run by the authority of the Central Government. It may be mentioned here that the official respondents, representing the Andaman and Nocobar administration, have not affirmed any affidavit-in-opposition. The private respondents 4 to 12 however affirmed an affidavit-in-op position.
16. In paragraph 4 of the said affidavlt-in-opposition it is expressly stated that the contents of paragraph 1 of the writ petition are admitted. So the admitted position is that CARI having its registered office at Port Blair is a registered society under the control and supervision of the ICAR which is run by the authority of the Central Government. The substance of what is stated in paragraph 3 of the writ petition is that CARI being a branch of ICAR is 'State' within the meaning of Article 12 of the Constitution. These averments of paragraph 3 of the writ petition arc also expressly admitted in paragraph 5 of the affidavit-in-opposition. So it is also an admitted position that CARI is a branch of the ICAR. In paragraph 5 of the writ petition it is averred that CARI mainly undertakes agriculture based function in and around various places throughout the territory of Andaman and Nicobar islands and same times it requires to engage some outside labourers apart from its permanent/ regular labourers to meet the exigencies occurring in a particular season and these labourers are engaged purely on contract basis as and when required. These averments of paragraph 5 of the writ petition are also admitted in paragraph 6 of the affidavit-in-opposilion. In paragraph 6 of the writ petition it is stated that CARI being basically a research institute which is mainly engaged in research activities in the field of crops, plantation, animal husbandry and fisheries in these islands of Union Territory of Andaman and Nicobar islands has had to use daily rated contract labourers to assist scientists in various disciplines in executing manual work in specific and time-bound works required from time to lime and that these mazdoors are neither taken on permanent and/or temporary basis but they are hired to the extent of field work and disengaged as soon as the particular Job is completed. This paragraph 6 of the writ petition has been specifically dealt with in paragraph 7 of the affidavlt-in-opposition wherein it is stated that 'the respondents dispute and deny the statement of the petitioner in paragraph 6 of the petition to the effect that the mazdoors are neither taken on permanent and/or temporary basis but they are hireu io the extent of field work and are disengaged as soon as the particular job is completed'. So. the denial in paragraph 7 of the affidavit-in-opposition is only confined to that part of the averments made in the paragraph 6 of the writ petition which relates to engagement and disengagement uf mazdoors. There is no denial of the averment that CARI is basically a research institute mainly engaged in research activities in the field of crops, plantation, animal husbandry and fisheries in Andaman and Nicobar islands. The learned advocate for the petitioner relies on the decision of the Supreme Court in Naseem Baitu v. State of U.P., 1993 Supp (4) SCC 16 in support of his submission that the doctrine of 'non-traverse' is applicable where a specific averment in the pleading is not denied by the other side as a result of which the averment not denied specifically is taken to be accepted and admitted by the other side. There is no doubt that in view of the settled position of law in this respect the learned advocate for the petitioner is right in his submission on this point, and the relevant averments of paragraph 6 of the writ petition not have been denied specifically or even impliedly by the respondents stand accepted and admitted. The admitted position thus comes to this that CARI is basically a research institute mainly engaged in research activities in the field of crops, plantation, animal husbandry and fisheries in Andaman and Nicobar islands.
17. It may also be noted here that Annexure-A to the writ petition is a letter issued by the Assistant babour Commissioner (Central), to the petitioner No. 2. the Director. CARI on 7th October. 1988 granting a Certificate of Registration in favour of CARI under the Contract Labour (Regulation and Abolition) Act. 1970 so that it can execute 'seasonal agricultural research' through contractors. In paragraph 7 of the affidavit-in-re ply it is asserted that CARI in carrying out its scientific agricultural research work has had to engage seasonal mazdoors on daily wage basis for intermittent periods covering certain days and/or months and they were and are taken neither on temporary nor on permanent basis but hired to the extent of research works in the field and disengaged as soon as the particular research work in field is completed. it is also asserted in the said paragraph 7 of the affldavlt-in-reply that CARI. being a branch of ICAR, is carrying on activity of research in agricultural field and none of Us activities can be said to be an undertaking analogous to business or trade and it is also not engaged in commercial/ industrial activity and cannot be described as economic venture or a commercial enterprise as it is not its object to produce and distribute services which would satisfy wants and needs of the consumer community and as such CARI cannot be treated as industry within the meaning of section 2(j) of the industrial Disputes Act. 1947 and is not amenable to the jurisdiction of any labour court under the industrial Disputes Act. In paragraph 11 of the affidavit-in-reply (at page 6) it is specifically contended that the Labour Court. Port Blair hacked inherent Jurisdiction to decide the subject case since CARI is engaged only in scientific agricultural research and is not an industry within the meaning of section 2(J) of the industrial Disputes Act and as such the impugned award is illegal.
18. In paragraphs I to 10 of the supplementary affidavit filed on behalf of the writ petitioner also it has been highlighted that the ICAR and its affiliates (CARI being an affiliate)-are instrumentalities or agencies of the State and are run by or under the authority of the Central Government and since the CARI has been created to look after the research needs for overall agricultural development of Andaman and Nicobar islands, and being an instrumentality of the State it is discharging the sovereign functions of the Stale in implementing certain Directive Principles of State Policies specified in Part-IV of the Constitution. it is also stated that ICAR and its affiliate CARI are not engaged in commercial activity and are discharging governmental functions and are domestic enterprises. In paragraph 9 of the supplementary affidavit it is slated that the purpose of research of CARI is to acquire knowledge about the agriculture, animal husbandry and fisheries for its proper application in the Andaman and Nicobar islands which is a backward territory far awary from the mainland lacking proper facilities and all the functions and activities of CARI are meant for obtaining knowledge for the benefit of this union territory and not to render service or benefit to others. it is also contended that CARI cannot be treated as industry and the labour court lacked inherent jurisdiction to pass the impugned award. Annexure-S-1 to the supplementary affidavit is a SAIC publication published by the Director. SAARC Agricultural information Centre (SAIC) in 1991/1993 in which ICAR has been described as an autonomous apex body responsible tor the organisation and management for research and education in the fields of agriculture, animal sciences and fisheries in india. The petitioner CAR! also finds place in that publication and the areas of research of CARI also have been mentioned therein. Annexure-S-2 to the supplementary affidavit is the annual report of CAR! for 1995-96. In that report the institute has been described as a multidisciplinary institute. it is also stated therein that CARI has, in absence of any State Agricultural University in the islands, a special area responsibility to look after the research needs for overall agricultural developmenl of Andaman and Nocobar islands, compassing the major areas of crops, soils, livestock, acquatlc resources and the socio-economic upliflment of the local people. its mandate and its research locations also have been mentioned in that report. The admitted and established position thus comes to this that CARI is a branch and affiliate of ICAR which is under the control of the Central Government. its main function is to carry on research works in agriculture, animal husbandry and fisheries for the benefit of the Andaman and Nocobar islands which is a backward territory.
19. In this factual background regarding the status of CARI which is admittedly and functionally a research institute the question that has to be decided now is whether it can be treated as industry within the; meaning of the I.D.Act. The meaning and sweep of the term "industry1 received a searching examination of the Supreme Court in the decision in Bangalore Water Supply v. A. Rajappa. . The definition of the term 'industry' as was in existence at that time in section 2(j) of I.D.Act was thus:-
"(j) 'industry' means any business, trade, undertaking, manufacture or calling of employers and includes any calling service, employment, handicraft or industrial occupation or avocation of workmen."
20. In the background of that definition and making a searching survey of all the earlier judicial pronouncements (he Supreme Court in paragraph 161 in Bangalore Water Supply inter alia laid down certain tests for identifying an 'industry' as defined in section 2(j). In the following language:
"Where (i) systematic activity, (ii) organised by cooperaiion between employer and employee (the direct and substantial element is chimerical), (iii) for the production and/or distribution of goods and services calculated to satisfy human wants and wishes (not spiritual or religious but inclusive of material things or services geared to celestial bliss i.e.. making on a large scale,Prasad or food) prima facie, there is an 'industry' in that enterprise".
21. It was also made clear by the Supreme Court that professions, clubs, educational institutions, cooperatives, research institutes, charitable projects and other kindred adventure, if they fulfilied the triple tests listed above could not be exempted from the scope of section 2(j). There fore in view of the Supreme Court decision in Bangalore Water Supply even a research institute would come within the sweep of the definition of 'industry' under section 2(j) as it existed at that lime if such institute would have fulfilled the specified triple tests, namely, the tests of systematic activity organised by corporation between the employer and employee for the production and/or distribution of goods and services calculated to satisfy human wants and wishes. In paragraph 160 of the decision in Bangalore Water Supply it was however made clear that although not exhaustively, the Supreme Court was yet speaking authoritatively to the extent convered by the debate at the bar, until overruled by a large bench or superseded by the legislative branch. In paragraph 161 of that decision also the Supreme Court specifically observed {al page 596) that constilulional and competently enacted legislative provisions might well remove from the scope of the Act categories which otherwise might be convered thereby. Subsequent to the decision of the Supreme Court in Bangalore Water Supply Parliament made an amendment of section 2(j) I.D. Act by redefining the term 'industry' by the industrial Disputes (Amendment) Act, 1982 (Act 46 of 1982). As the object of that amending bill it was infer alia stated that the Supreme Court in the decision in Bangalore Water Supply had, while interpreting the definition of 'industry' as contained in the Act. observed that Government might restructure this definition by suitable legislative measure, and it was accordingly proposed to redefind the term 'industry'. it was also stated in that connection that while so redefining the term 'industry' it was proposed to exclude from the scope of this expression, certain institutions like hospital and dispensaries, educational, scientific, research or training institutes, institutes engaged in charitable; social and philanthropic services, etc. In view of the need to maintain in such institution an atmosphere different from that in industrial and commercial undertakings and to meet the special needs of such organisations. The object also proposed to exclude sovereign functions of Government including activities relating to atomic energy, space and defence research from the purview of the term 'industry'. However, keeping in view the special characteristics of these activities and the fact that their workmen also needed protection it was proposed to have a separate law for the settlement of the individual grievances as well as collective disputes in respect of the workmen of those institutions and all those had been taken into account and the term 'industry' had been made more specific while making the coverage wider.
22. Now, under the amended provision as introduced by the Amendment Act of 1982 the term 'industry' stands redefined in section 2(j), as it now stands, in the following way:
'Industry' means any systematic activity carried on by cooperation between an employer and his workmen (whether such workmen are employed by such employer directly or by or through any agency. Including a contractor) for the production, supply or distribution of goods or services with a view to satisfy human wants or wishes (not being wants or wishes which are merely spiritual or religious in nature), whether or not,--
(i) any capital has been invested for the purpose of carrying on such activity ; or
(ii) such activity is carried on with a motive to make any gain or profit, and includes-
* * * * * but does not include-
* * * * * (2) hospitals or dispensaries: or (3) educational, scientific, research or training institutions; or (6) any activity of the Government relatable to the sovereign functions of the Government including all the activities carried on by the departments of the Contra; Government dealing with defence-research, atomic energy and space, or * ****
23. It may be noticed that the triple tests formulated by the Supreme Court in Bangalore Water Supply was almost bodily lifted by the Parliament for redefining the term 'industry'. But at the same time has also to be noticed that under the guidelines of the Supreme Court laying down triple tests for determining whether an activity is 'industry', even a research institute was included within the term 'industry' if it satisfied the said triple tests, while definition of 'industry' as subsequently restructured by the Parliament-(and such legislative restructuring was within the scope of the possibility contemplated by the Supreme Court in its decision, as we have seen)-also provides the same triple tests for determining whether an activity is an 'industry' as formulated by the Supreme Court but at (he same iime exempting filler alia research institutes from the scope of thai definition. The difference between the guidelines laid down by the Supreme Court and the restructured definition of industry' as introduced by legislational amendment is. thai under the Supreme Court guidelines the triple tests determining the status of an activity bring within the sweep even a research institute as 'Industry' if it satisfies those triple tests, but in the legislatively restructured definition of 'industry', while those triple tests have been accepted for determining the status, yet an unqualified exception has been made inler alia in favour of research institute even if such research institute satisfies the triple tests. This difference will have to be borne in mind while examining the question as to whether an entity or an activity is an 'industry' in the light of the present definition of the term in section 2(j) as it stands after the amendment introduced by the Parliament after the Supreme Court decision in Bangalore Water Supply. The result is that after the amendment a research institute will be outside the scope of the definition of 'industry' in section 2(j) even if it satisfies the triple tests laid down by the Supreme Court and adopted in the amended definition of section 2(j). Consequently once it is found--as it has been--that CARI is a research institute it will be outside the definition of 'Industry' even if it satisfies the triple tests. In other words. now that once it has been found thai CAR] is a research institute, it does nol become necessary thereafler to examine whether it satisfies the triple tests because by legislative definition research institute has been exempted expressly from the pale of the term 'industry'. The conclusion therefore is inescapable that CARI. being basically and functionally a research institute, is not an industry and consequently the reference of the matter relating to CAR! for adjudication under the industrial Disputes Act and the entire proceedings before the labour court and the award passed therein are all wholly .without jurisdiction.
24. As I have already mentioned the question whether CARI is an industry was however not raised by the petitioner earlier before the labour court and they have taken this plea for the first time in this writ proceeding by filing a supplementary affidavit with the leave of the court. it has been submitted by the learned advocate for the petitioner that since this question goes to the very root of the jurisdiction of the labour court to entertain the impugned reference for adjudication, the same can be (aken up for the first time in the writ proceeding although not specifically taken earlier before the labour court. it is his contention that since CARI is not an industry, the reference of the matter relating to CARI for adjudication under the industrial Disputes Act is wholly without jurisdiction and the whole proceedings before the labour court and the award passed in the matter by such court under the I.D. Act are also without jurisdiction and void, and that being so the same can be challenged before Ihe writ court on that ground although no such plea was taken before the labour court. In support of his such contentions the learned Advocate for the petitioner has also referred to a number of Supreme Court and other decisions, such as, Attorney General v. J.P. Bayly. AIR 1950 PC 73; United Commercial Bank v. Their Workmen. : Board of Trustees v, Bombay Hour Mill, ; Arunachallam Pillai v. Southern Roadways. ; Pioneer Traders v. Chief Controller. ; Asst. Controller v. National Tobacco. ; Chandrika v. Bhaiyafal. ; Ralan Lal Sharma v. Managing Committee, ; Union oj india v. Bales war Singh, (1994)28 ATC (SC) 77. In view of pleihora of authoritative judicial pronouncements law is now well settled that any order, decree or award passed by any authority, court or tribunal without Jurisdiction is an absolute nullity and the same can be challenged on that ground even in a subsequent proceeding although no objection regarding jurisdiction was earlier taken before the concerned authority, court or tribunal, as the case may be. Even appearance, consent or participation without objection cannot create or confer jurisdiction where there is inherent lack of jurisdiction, and the plea of lack of jurisdiction can be raised at any stage even if not raised in the trial court or in Ihe original proceeding. While consent or participation without objection may cuic a mere irregularity in appropriate cases, it is however wholly ineffective for curing a jurisdictional deficiency. The petitioner therefore can raise jn this writ proceeding the plea that CARI is not an industry and therefore the labour court had no jurisdiction to entertain the impugned reference and the impugned award is a nullity for that reason.
25. The learned Advocate for the respondents contends that the question whether CARI is an industry is a question of fact, and at any rale a mixed question of law and facts and therefore the same cannot be entertained or decided by the High Court in its writ jurisdiction. In this connection the learned Advocate for the respondents relies upon a Single Bench decision of the Goa. Daman and Diu High Court in G.D.Labonr Union v. Government of Goa, AIR 1969 Goa 16. In that case certain disputed and controversial question of facts arose for decision and the matter was referred back to the tribunal. As we have seen, in our present case the question whether CAR) is an industry within the meaning of I.D.Act is dependent on the question whether CARI is a research institute and it is an admitted position in the pleadings of the parties as discussed earlier that CARI is a research instilule and that being so this admitted position of fact, which is also supported by documents on record, as we have seen is within Ihe cognizance of this court in its writ jurisdiction by the rule of pleadings and it cannot be said that this question requires to be further established by further evidence. In this connection the learned advocate for the petitioner refers to the decision of Ihe Supreme Court in P.K. Ramchandra v. Union of india, AIR 1985 SC 541 where there has been detailed discussion about the status and position of the parent body of CARI, namely, ICAR and certain affiliates of the same. It may be mentioned here that even in the said Goa decision in G.D.Labour Union (supra) it was conceded that jurisdiction cannot be conferred by acqulsence, where there is no initial Jurisdiction. The learned Advocate for the" petitioner has referred to the decisions of the Supreme Court in State of Orissa v. Binapani, and Babu Bhai v. Nandlal, in support of his submission that even in appropriate cases the writ court can entertain and decide a question of facts.In State of Orissa v. Binapani (supra) it was held by the Supreme Court in paragraph 6 that under Article 226 the High Court is not precluded from entering upon a decision on questions of fact raised by the petition and it was further held therein that where an enquiry into complicated questions of fact arises fn a petition under Article 226 before the right of an aggrieved party to obtain relief claimed may be determined, the High Court may in appropriate cases decline lo enter upon that enquiry and may refer the party claiming relief to a suit, but the question is one of discretion and not of jurisdiction of the court. In Babu. Bhai v. Nandlal (supra) also it is held by the Supreme Court in paragraph 9 that the High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the petitioner's right of relief, questions of fact may fall to be determined and that in a position under Article 226 the High Court has jurisdiction to try issues both of fact and law. it was further observed by the Supreme Court that exercise of the jurisdiction is no doubt discretionary but the discretion must be exercised on sound judicial principles. it was also observed by the Supreme Court that when the petition raises complex questions of fact which may in their determination require oral evidence to be taken and on that account the High Court is of the view that the dispute should not appropriately be tried in a writ petilion, the High Court may decline to try a petition, but if on consideration of the nature of the controversy, the High Court decides that it should go into a disputed question of fact and the discretion exercised by the High Court appears to be sound and in conformity with judicial principles. Supreme Court would not interfere in appeal. The position of law is thus very clear that while it is not desirable in a writ petition to enquire into the complicated question of facts in controversy yet, it is basically a matter of discretion for the High Court as to whether it should embark upon determining a question of facts in a writ petition. if having regard to the nature of the question the High Court feels that it should exercise the jurisdiction of determining the question of facts, the court can determine the same in exercise of its discretion, rhere is no absolute bar that the High Court cannot determine a question of facts or for that matter mixed question of law and facts in a writ petition. There is no doubt that the question whether CAR! is a research institute is a question of fact or may be a mixed question of law and fact, but when the pleadings, supplemented by supporting materials on record, convincingly shows that CARI is a research institute there is no legal bar for this court to take cognizance of that factual position in this writ petition, and once this court takes cognizance 'of this admitted and established fact that CARI is a research institute the other question as to whether CARI is an industry becomes automatically settled to the conclusion that it is not an industry within the meaning of the definition of that term in section 2(j) of the industrial Disputes Act as it now stands after legislative restructuring of the term. It is be noted here that the learned Advocate for the respondents relied upon the decision of the Supreme Court in Physical Research Laboratory v. K.G.Sharma, where the question whether the petitioner Physical Research Laboratory was an industry or not was decided in the light of the Supreme Court decision in Bangalore Wafer Supply, . There the question related to an" employee who continued to work till 11.5.1976 and it also appears that the reference case was registered in the labour court in 1982. Evidently the question was decided in the light of the definition of industry in the I.D.Act as it was existing before the legislative restructuring of that definition. Evidently the Supreme Court also examined the matter in the light of the earlier definition of industry as dealt with in the Bangalore Water Supply case. The scope of the definition of industry after amendment, as it now exists, did not at all fall for consideration of the Supreme Court in Physical Research Laboratory v. K.G. Sharma, . Even then it was found that Physical Research Laboratory is an institution under the Government of india's Department of Space and it was engaged in pure research in space science and by reason of the nature and character of its activity it was not an industry within the meaning of the I.D. Act. As I have already noted, in view of the present definition of 'industry' in section 2(j) I.D. Act CARI being admittedly a research institute is not an industry and therefore it does not come within the purview of the industrial Disputes Act.
26. The learned Advocate for the petitioner submits that CARI through its research works in the field of agriculture discharges a sovereign function of the State which by the Directive Principle of State Policy as enshrined in Article 48 of the Constitution is required to organise agriculture and animal husbandry of modern and scientific lines. it is further submitted by him that CARI is therefore exempted from the sweep of the definition of 'industry' in view of the Supreme Court decision in Bangalore Water Supply. The Supreme Court in paragraph 161 of the said decision at page 596 however made it clear that sovereign functions, strictly understood, alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.CARI is neither Government nor a statutory body. it has been held in P.K.Ramchandra lyerv. Union, of india, AIR 1985 SC 541 that ICAR is an instrumentality or agency of the Slate and is an 'other authority' within the meaning of Article 12. its affiliate CARI is also an 'olher authority' within the meaning of Article 12 and is therefore 'State'. But as we have seen, under the restructured definition of industry in section 2(j) what is exempted in this connection is 'any activity of the Government relatable to sovereign functions of the Government'. CARI being an 'other authority' is State but it is not Government. In the context of certain constitutional provisions the generic term 'State' includes Government, legislature and all local or other authorities. Under the restructured definition of industry in section 2(j) exemption is available in favour of Government in respect of its activity relatable to its sovereign functions. Since CARI is not Government and since the exemption under section 2(j) is available to Government and not to 'other authorities', it is not entitled to governmental exemption. In this connection the learned Advocate for the petitioner relies upon the Supreme Court decisions in Sub-Divisional inspector v. T. Joseph , Executive Engineer v. K. Somasetty and the Full Bench decision of the P & H High Court in State of Punjab v. Kuldip Singh, 1983 Lab IC 83.
In all these cases however the concerned establishments were all Government departments and not 'other authorities' and therefore these decisions do not come in aid of the petitioner on this score. The petitioner however qualifies for exemption because of its being a research institute and not for any alleged discharge of any governmental functions.
27. It has been contended by the learned Advocate for the respondents that this writ petition challenging the .award of the labour court passed under the I.D.Act is not maintainable before a single Bench in view of the recent decision of the Supreme Court in L.Chandra Kumar v. Union of india, . it is submitted by the learned Advocate for the respondents thai this writ petilion can be entertained, if at all, by a Division Bench of the High Court and not by a Single Bench. In this connection he altracts my attention to paragraphs 93 and 99 in particular of the said decision and submits that the decisions of the tribunals created by law coming within the ambits of Article 323A or Article 323B of the Constitution can be challenged under Article 226/227 only before a Division Bench and not before a Single Bench. The learned Advocate for the petitioner however opposes this view. After considering the submissions made by both sides and after careful study of the said decision of the Supreme Court it appears to me that the Supreme Court rendered the said decision in the background of the provisions contained in the Administrative Tribunals Act. 1985 which altogether ousted the jurisdiction of the High Court under Article 226/227 in respect of matters falling within the ambit of the said Act. Under the industrial Disputes Act there is no provision ousting the jurisdiction of the High Court to entertain a writ petition against an award or decision of Ihe industrial tribunal/labour court. The High Court even has a discretion to entertain under Article 226 even a matter falling within the scope of industrial Disputes Act in appropriate cases if it so thinks fit in its discretion. Since there is or was no. express bar under the 1.0. Act for the High Court to entertain, a matter falling wifhin the scope of the said Act in its writ jurisdiction and since the High Court's jurisdiction to entertain a writ petition against any award or decision of the industrial tribunal or labour court was not ousted by the I.D. Act it was not at all necessary for the Supreme Court is consider Ihe I.D. Act iJis-a-uis the High Court's jurisdiction, in L.Chandra Kumar and consequently that aspect was not at all considered in that decision. In view of the subject and tenor of discussions of the Supreme Court in the said decision 1 am of the humble opinion that the said decision requiring a Division Bench of the High Court to entertain a writ petition against Ihe decision of a tribunal relates only to such tribunal as may be functioning under an Art which purporlingly ousts the writ jurisdiction of the High Court in respect of matters coming within the ambit of functioning of such tribunal including the jurisdiction to entertain a writ petition against any decision of such tribunal. The said decision of the Supreme Court requiring the decision of a tribunal to be challenged before a-Division Bench of the High Court, in my humble opinion, does not dislocate the position previously obtaining in respect of matters or decisions over which the High Court's jurisdiction under Article 226/227 was already available. Consequently a Single Bench of this court can entertain, under the rules of this court, a writ petition challenging the award of an industrial tribunal/labour court passed under the I.D Act as it was being entertained always even before the said Supreme Court decision.
28. It may be pointed out here that the impugned reference under the I.D.Act which is involved in the present writ petition was in fact the second reference on the point. Earlier also there was another reference on three points including the present one and during the pendency of that earlier reference that reference was modified, by the Lieutenant-Covernor by deleting two of the points of reference and keeping only one point alive, but even then that reference was rejected by the industrial tribunal on the ground of maintainability. Thereafter the present reference was made. it is contended on behalf of the petitioner that the second reference on the self-same point which was earlier rejected in the earlier reference is not maintainable. This argument can not be accepted because the earlier reference was not rejected on merit and therefore there is no question of application of the principle of resjudicata in this case. it is also not a case that any residuary part of a point was held back from the earlier reference as a result of which there could not be any subsequent reference in respect of that part. Since the earlier reference was. In respect of the whole point which is involved in the subsequent reference and since the earlier reference was rejected on the technical ground of maintainability alone without entering into (he merit of the point, the subsequent reference in my opinion is quite tenable and is not hit by the principle of res judicata or by any principle of abandonment of part of a claim without leave. The subsequent reference therefore, I find, was quite maintainable in law.
29. The learned advocate for the petitioner has also contended that the impugned award is vitiated by error of law apparent on the face of record and that the same is perverse. On a perusal of the award I however find no merit in these contentions. Since however I have already found that the award is bad in law because CARI is not an industry. I do not consider it necessary to embark upon a detailed discussion on the petitioner's contention regarding the alleged error of law apparent on the face of record and the contention that the award is perverse, although I am convinced that such contentions are without merit.
The result of my discussion is that the impugned reference under the I.D.Act and proceedings before the labour court as well as the impugned award are all found to be bad in law and without jurisdiction as CARI is not industry within the meaning of the I.D.Act. The impugned award is therefore quashed hereby. The writ petition stands disposed of accordingly. The parties will however bear their own costs.
30. Petition disposed of