Honble MATHUR, J.–The common question which arises for consideration in both the Special Appeals is whether the learned Single Judge was right in dismissing the writ petition filed by the Executive Engineer, P.H.E.D., Phalodi, against the award of the Labour Court on a reference made under Section 10 of the Industrial Disputes Act on the ground that the petition was not maintainable in absence of State of Rajasthan being the petitioner.

(2). In D.B. Civil Special Appeal No. 1473/1999, the learned Single Judge held that a writ of certiorari cannot be issued against the agents of the State, if the State is not there on record as party respondent. The learned Judge further held that the agent of the State cannot challenge the award in his individual capacity. The award has to be challenged by the State through Executive Engineer or by the State alongwith the Executive Engineer under Article 227 of the Constitution of India. In the said case, the second respondent workman raised an industrial dispute alleging therein that while working as Helper with the Executive Engineer, P.W.D., Pali, his services were terminated with effect from 9.7.90 in violation of provisions of the Industrial Disputes Act, 1947, hereinafter referred-to as `the Act. The Labour Court held the order of termination invalid being in violation of Section 25-F and H of the Act. The Court awarded to the workman a lump sum amount of Rs. 41,000/-. The said award was challenged by the Executive Engineer, P.W.D., Pali by way of the writ petition under Articles 226 and 227 of the Constitution of India.

(3). In D.B. Civil Special Appeal No. 645/1998, an industrial dispute was raised by the Rajasthan Trade Union Congress as to whether the Assistant Engineer, PHED, Phalodi, were right in depriving the workman Jasraj of promotion on the post of Pump Driver. The Labour Court by the award dated 20th Sept., 1994 directed that the workman respondent be promoted on the post of Pump Driver from the date when Balmukund was promoted. A further direction was given to give him all consequential benefits including the back wages.

(4). We have heard Mr. R.P. Vyas, learned Additional Advocate General and Mr. N.M. Lodha, learned counsel for the appellants and Mr. Vijay Mehta, learned counsel for the respondents. It is contended by the learned counsel that in view of definition of employer as given under Section 2(g) of the Industrial Disputes Act, the State being not the employer, the writ petition could be filed only by the concerned Executive Engineer. It is also argued that a reference was made by the State Government under Section 10 of the Act, as such, the writ petition could not have been maintained on behalf of the State Government as a party aggrieved. Mr. Vijay Mehta learned counsel for the respondent workman has also supported the contention of the petitioners.

(5). In order to resolve the controversy, it would be convenient to read the definition of ``employer as given in Sec. 2(g) and that of ``Industry under Section 2(j) of the Act, which are extracted as follows:

``(g) ``employer means-

(i) in relation to any industry carried on by or under the authority of any department of the Central Government or a State Government, the authority prescribed in this behalf, or where no authority is prescribed, the head of the department;

(ii) in relation to an industry carried on by or on behalf of a local authority, the chief executive officer of that authority;

(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;

(6). A reading of definition of `employer prima facie excludes the possibility of making the Central Government and the State Government directly as a party to industrial dispute referred for adjudication under Section 10 of the Act, as employer means in relation to an industry carried on by or under the authority of any department of the

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