- (1.) This is an appeal by special leave filed by Hindustan Aeronautics Ltd. from the award dated 8-3-1969 made by the fifth Industrial Tribunal, West Bengal. The Governor of West Bengal made the reference under Section 10 (1) of the Industrial Disputes Act 1947 - hereinafter called the Act, for adjudication on the following 5 issues: "(1) Allowance for the education of employees' children; (2) House Building loan; (3) Free conveyance or conveyance allowance; (4) Revision of Lunch allowance; (5) Whether the following canteen employees should be made permanent" -the names of 10 employees given. The Tribunal granted no relief to the workmen on issues 2 and 3, allowed their claim in part in respect of issues 1, 4 and 5. Feeling aggrieved by the said award the appellant which is a Government company constituted under Section 617 of the Companies Act, the shares of which are entirely owned by the Central Government, has filed this appeal. The dispute relates to about 1,000 workmen working at the Barrackpore (West Bengal) branch of the Company's repairing workshop represented by the Hindustan Aeronautics workers' Union, Barrackpore.
(2.) The competency of the Government of West Bengel to make the reference was challenged before the Tribunal as also here. Mr. V. S. Desai, learned counsel for the appellant. submitted that the appropriate Government within the meaning of Section 2 (a) of the Act competent to make the reference was the Central Government, or, if a State Government it was the Government of Karnataka where the Bangalore Divisional Office of the Company is situated end under which works the Barrackpore branch. Counsel stressed the point that the Central Government owned the entire bundle of shares in the company. It appoints and removes the Board of Directors as well as the Chairman and the Managing Director. All matters of importance are reserved for the decision of the President of India and ultimately executed in accordance with his directions. The memorandum and Articles of Association of the company unmistakably point out the vital role and control of the Central Government in the matter of carrying on of the industry owned by the appellant. Hence, counsel submitted that the industrial dispute in question concerned an industry which was carried on "under the authority of the Central Government" within the meaning of Section 2 (a) (i) of the Act and the Central Government was the only appropriate Government to make the reference under Section 10. The submission so made was identical to the one made before and repelled by this Court in the case of Heavy Engineering Mazdoor Union v. The State of Bihar, (1969) 3 SCR 995 = (AIR 1970 SC 82 = 1970 Lab IC 212) wherein it has been said at page 1,000 (of SCR) = (at p. 86 of AIR and at p. 216 of Lab IC) : "It is true that besides the Central Government having contributed the entire share capital, extensive powers are conferred on it, including the power to give directions as to how the company should function, the power to appoint directors and even the power to determine the wages and salaries payable by the company to its employees. But there powers are derived from the company's memorandum of association and the Articles of Association and not by reason of the company being the agent of the Central Government. The question whether a corporation is an agent of the State must depend on the facts of each case. Where a statute setting up a corporation so provides, such a corporation can easily be identified as the agent of the State as in Graham v. Public Works commissioners, (1901) 2 KB 781 where Phillimore, J. said that the Crown does in certain cases establish with the consent of Parliament certain officials or bodies who are to be treated as agents of the Crown even though they have the power of contracting as principals. In the absence of a statutory provision, however, a commercial corporation acting on its own behalf, even though it is controlled wholly or partially by a Government department, will be ordinarily presumed not to be a servant or agent of the State. The fact that a Minister appoints the members or directors of a corporation and he is entitled to call for information, to give directions which are binding on the directors and to supervise over the conduct of the business of the corporation does not render the corporation an agent of the Government (See the State Trading Corporation of India Ltd, v. The Commercial Tax Officer, Visakhapatnam) =(1964) 4 SCR 99 at l88 = (AIR 1963 SC 1811 at p. 1849), per Shah, J. and Tamlin v. Hannsford- (1950) 1 KB 18 at pp. 25, 26. Such an inference that the corporation is the agent of the Government may be drawn where it is performing in substance governmental and not commercial functions. (of London County Territorial and Auxilliary Forces Association v. Nichols) - (1948) 2 All ER 432."
(3.) Mr. Desai made a futile and unsubstantial attempt to distinguish the case of Heavy Engineering Mazdoor Union, (AIR 1970 SC 82 = 1970 Lab IC 212) on the ground that that was the case of a Government Company carrying on an industry where Private Sector Undertakings were also operating. It was not an industry, as in the instant case, which the Government alone was entitled to carry on to the exclusion of the private operators. The distinction so made is of no consequence and does not affect the ratio of the case in the least. We may also add that by amendments made in the definition of "appropriate Government" in Section 2 (a) (i) frorn time to time certain statutory corporations were incorporated in the definition to make the Central Government an appropriate Government in relation to the industry carried on by them. But no public company even if the shares were exclusively owned by the Government was attempted to be roped in the said definition.;