Distt.
Manager, Apsrtc, Vijayawada Vs. K. Sivaji & Ors [2000] INSC
604 (30 November 2000)
S.R.Babu,
S.B.Variiava
L.I.T.J
These
Appeals are against a Judgment dated 5th August, 1986 passed by the High Court of Andhra
Pradesh. Briefly stated the facts are as follows: The Appellant is a Road
Transport Corporation established under Section 3 of the Road Transport
Corporation Act, 1950. The Respondents are employees of the Appellant
Corporation. The Respondents had filed an application under Section 15(2) of
the Payment of Wages Act claiming wages for holidays declared under the Andhra
Pradesh Factories and Establishments (National Festival and other Holidays)
Act, 1974 (hereinafter referred to as the said Act). This claim was contested
by the Appellant. The Appellant pointed out that under the said Act only 7 days
holiday were to be given, whereas they had already granted 15 days holiday. The
Appellant also contended that by virtue of Section 11(1)(c) of the said Act the
provisions of the said Act were not applicable to them.
The
Appropriate Authority did not accept the contentions of the Appellant and
directed them to make payment for the work done by the Respondents on holidays
declared under the said Act. The Appeals filed by the Appellant were also
dismissed. The Appellants, therefore, filed Writ Petitions in the High Court of
Andhra Pradesh, which came to be disposed of by Judgment dated 5th August, 1986. The High Court has held that the
Appellant is not under the control of the Central or the State Government and
that, therefore, the provisions of the said Act are applicable. The High Court
has held that even though an institution may be treated as a State within the
meaning of Article 12 of the Constitution of India, it did not necessarily mean
that it was under the control of the State Government or the Central
Government, as the case may be. The High Court has relied upon Section 68-A of
the Motor Vehicles Act, 1988 and concluded, from this provision, that the Road
Transport Corporation established under Section 3 of the Road Transport
Corporation Act is distinct from the Central or State Government. It is this
Judgment which has been assailed before us. At this stage, it must be mentioned
that before the High Court the Appellant had relied upon a Judgment delivered
by a concurrent Bench of the same Court, wherein it has been held that once an
establishment is a State within the meaning of Article 12 of the Constitution
of India it would clearly show that it was under the control of the Central or
the State Government. The High Court noticed this Judgment as commented as
follows: "There can be no manner of doubt about the same and there is no
incongruity in applying the same tests to section 11(1)(c).
It is
seen from the judgment that the learned Judge examined the Memorandum and the
Articles of Association of this company (H.M.T.) and held:
"These
articles are signed by the President of India and other officers of the
Government who are described as Subscribers. These articles establish that the
undertaking is under the deep and pervasive control of the Government."
Hence, it is not correct to state that he rested his conclusion solely on the
ground that the company was treated as a State for the purpose of Article 12 of
the Constitution of India, Hence I am not persuaded to accept that any
institution which is treated as a State within the meaning of Article 12, must
be deemed to be under the control of the State Government or the Central
Government, as the case may be." On this basis, the High Court refused to
follow that Judgment. We have also read that Judgment. It is clear from the
reading of that Judgment that it has been categorically held that both in
Article 12 of the Constitution of India and Section 11(1)(c) of the said Act,
the words "under the control of the Government" are used.
It has
been held that the same meaning has to be ascribed to both. It has been held
that if an establishment was a State within the meaning of Article 12, then it
would be under the control of the Government for the purposes of Section 11(1)(c)
of the said Act. Having so held, the Court then considered the Memorandum and
Articles of Association by stating as under: "However, since this matter
is argued at length that I shall also consider the nature of control exercised
by the central Government on the undertaking." It is thus clear that the
decision that if an establishment is a State within the meaning of Article 12,
then it is under the control of the Government for the purposes of Section
11(1)(c), is not based upon an examination of the Memorandum and Articles of
Association.
This
decision was binding on the learned Judge hearing the Writ Petition. Judicial
discipline required that he either follow it or refer the matter to a larger
Bench. Sitting singly the learned Judge could not have taken a different view
on the specious ground that the decision was based on facts. It must be
mentioned that, as is pointed out hereinafter, even on facts the conclusion of
the Learned Judge is unsustainable. At this stage it must be mentioned that Mr.
Nageshwar Rao has very fairly stated that the Appellant Corporation do not want
to and will not recover the amounts paid to the employees by virtue of the
orders passed. He submits that the Appellants merely want the correct position
in law established. We accept this statement and proceed to decide these
Appeals. The Appellant had been established under Section 3 of the Road
Transport Corporation Act. Section 3 empowers the State Government to establish
a Road Transport Corporation so that (a) advantages can be offered to the
public, trade and industry by development of road transport, (b) there could be
co- ordination of different forms of road transport and (c) facilities for road
transport could be extended and improved by an efficient and economical system
of road transport service. This, therefore, were the sovereign functions which
would otherwise have been performed by the State Government itself. However,
the Act permits the State Government to delegate these functions to a Road
Transport Corporation established by it. Section 5 provides that the
superintendence, direction and management of the affairs and business of a
Corporation would vest in a Board of Directors. Section 5 further provides that
the Board shall consist of a Chairman and such other Directors as the State
Government may think fit to appoint. It also empowers the State Government to
appoint one of the Directors as the Vice-Chairman of the board. Section 8
empowers the State Government to remove or terminate from office the Chairman
or other Directors of the Corporation. Under Section 34 of the Act, the State
Government may give to the Corporation general instructions which should be
followed by the Corporation, and such instructions and directions may pertain
to recruitment, conditions of service and training of its employees, wages to
be paid to the employees, reserves to be maintained and disposals of profits
and stocks. Section 34 also provides that a Corporation could not depart from
the general instructions issued by the State Government. Under Section 35 the
Corporation has to furnish returns, statistics, accounts and other information
to the State Government. Under Section 36 the State Government has the power to
make such inquiries as it choose and if on the inquiries it was felt necessary,
then by virtue of Section 37, the State Government may authorise any person to
take over the Corporation and administer it. Section 38 also gives to the State
Government a power to supersede the Corporation. All these provisions clearly
show that the State Government has absolute control over the Appellant
Corporation. The words used in Section 11(1)(c) of the said Act are "any
factory or establishment under the control of the Central or any State
Government" In Article 12 of the Constitution of India the words used are
"under the control of Government of India". Thus, under both of them
what is essential is control of the Government. We, therefore, fail to see as to
how an establishment, which is deemed to be a State within the meaning of
Article 12 of the Constitution of India, would not be under the control of the
Government for purposes of Section 11(1)(c) of the said Act. Reliance on
Section 68-A by the High Court is entirely misplaced.
Section
68-A(b) of the Motor Vehicles Act merely states that a State transport
undertaking means any undertaking providing road transport service and such
undertaking may be carried on (i) by the Central Government or (ii) any Road
Transport Corporation established under Section 3 of the Road Transport
Corporation Act, or (iii) by any Municipality or Corporation or Company owned
or controlled by the Central Government or the State Government. As seen, under
Section 3 of the Road Transport Corporation Act, it is the State Government who
may either perform the function itself or establish a Corporation, which would
be performing functions which are basically public functions. Merely because
the State Government establishes a Corporation and that Corporation is an
establishment distinct from the State Government does not ipso facto mean that
that Corporation is not under the control of the State Government. This very
vital aspect appears to have been lost sight of by the learned Judge. In our
view, it is clear that the Appellant Corporation is under the control of the
State Government. Therefore, the
provisions of the said Act would not be applicable to it by
virtue of Section 11(1)(c) of the said Act. In this view of the matter, the Judgement
of the High Court cannot be sustained and is hereby set aside.
Accordingly
the Appeals are allowed. There will be no order as to costs.
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