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IN THE HIGH COURT OF ALLAHABAD
J.J. MUNIR, J.
Hindustan Aeronautics Limited – Petitioner
Versus
State of U.P. and Others – Respondents
Writ (C) No. 19538 of 2020
Decided On : 17-12-2020
Constitution of India, 1950 - Article 53 ,226,227, 136 - Industrial Disputes Act, 1947 - Section 10(1)(c) Service – Company – Incorporated - Indian Companies Act, - Manufacture, Repair - Defence equipment.
Finding of the court: perusal of the impugned order shows that the Labour Commissioner, U.P. Kanpur has held a judicial order of the Labour Court to be flawed. He has sent back the matter to the Labour Court to decide the reference on merits. The Labour Commissioner has decided that the reference is competent. He has done so on the basis of an opinion of the District Government Counsel, Kanpur Nagar. The Labour Commissioner is not a Court. He exercises the powers of the State Government to make a reference that is not a judicial power of any kind. All that he can exercise is an administrative or executive power conferred on the Government. There is no principle known to law which permits an administrative review of judicial action. The law envisages judicial review of administrative action, and in some cases, legislative action also. But there is no concept known to law that permits an administrative review. Judicial orders can be undone by invoking the appellate, revisional or supervisory procedures by approaching a higher judicial forum. It cannot be done by an executive or administrative action. The impugned order is also bad, for another reason. It has proceeded substantially, if not entirely, on the opinion of the District Government Counsel. Even if an opinion were sought by the Labour Commissioner, who is presumably a layman (as opposed to a legally trained mind) ought not have referred to the legal opinion received by him. In fact, he should not have acted on any legal opinion at all. This is so because an order founded on legal opinion is not one where the Authority making the order, has done an independent application of mind. Rather, he has gone by the opinion of another, may be a legal expert.
Resutl : Writ petition succeeds and is allowed.
JUDGMENT :
J.J. MUNIR, J.
1. This writ petition has been filed, challenging an order passed by the Labour commissioner, U.P. Kanpur dated 05.05.2020 and a notice dated 03.07.2020 issued by the Presiding Officer, Labour Court (3) U.P. Kanpur, in Adjudication Case No. 115 of 2020.
2. In compliance with the order dated 07.12.2020, a better affidavit has been filed by Mr. Mahadeo N. Bobde, presently a Member (Judicial), Board of Revenue at Lucknow and formerly, the Labour Commissioner, U.P. Kanpur Nagar. By an earlier order dated 26.11.2020, the named officer was required to file a personal affidavit for the reasons indicated therein. He filed a personal affidavit on 07.12.2020. It was not found satisfactory. He was granted an opportunity to file a better affidavit. The affidavit dated 16.12.2020 has been filed, in compliance with the order dated 07.12.2020, as already indicated.
3. The explanation offered by Mr. Mahadeo N. Bobde is accepted.
4. Notice was issued to respondent no. 4, in compliance with this Court's order, by speed post, bearing Consignment No. EU296438326IN, which has been delivered to the fourth respondent on 01.12.2020. It is so indicated in the Office Report dated 05.12.2020. The Office report also shows that their conclusion about delivery by speed post is based on a post office report dated 05.12.2020, along with a track of the consignment that is attached. An affidavit of service dated 05.12.2020 has also been filed by Mr. Diptiman Singh, learned counsel for the petitioner, which encloses with it a copy of the dasti notice handed over to the petitioner by the office on 27.11.2020. A perusal of the second copy of the notice form shows that service has been effected dasti also upon respondent no. 4 on 01.12.2020. Accordingly, service upon the fourth respondent is held good. No one appears his behalf.
5. Heard Mr. Diptiman Singh, learned counsel for the petitioner and Mr. Vinod Kant, learned Additional Advocate General assisted by Mr. Shriprakash Singh, learned Standing Counsel appearing on behalf of respondent nos. 1, 2 and 3.
6. Hindustan Aeronautics Limited is a Central Government undertaking that functions under the Ministry of Defence, Government of India. It is a company incorporated under the provisions of Indian Companies Act, with its Registered Office at 15/1, Cubbon Road, Bengaluru. The Company is engaged in the manufacture, repair and overhauling of aircraft and other defence equipment. They provide services and cater to the requirements of the defence services in India. The petitioner has several units across the country.
7. This writ petition relates to the Transport Aircraft Division, HAL, Kanpur. The Transport Aircraft Division, Kanpur deals with the manufacture, maintenance, overhauling and repair of transport aircraft used by the Defence Forces of the Nation. It is represented on behalf of the petitioner that the President of India, being the Head of the Executive and Supreme Commander of the Armed Forces under Article 53 of the Constitution, commands 100% shares holding of the company : some directly, the others vicariously. The President of India holds six shares out of eleven and all the other five directors are high ranking officers of the Ministry of Defence, Government of India, who function under the direct control of the President of India as the Supreme Commander of the Armed Forces. It is thus made out that the appropriate Government vis-a-vis the petitioner under the Industrial Disputes Act, 1947 are the Central Government.
8. It figures that on 26.07.2007, a reference was made by the State Government under Section 10(1)(c) of the Industrial Disputes Act, 1947 (for short ‘the Central Act’) at the behest of respondent no. 4, who are an employees’ association of the petitioners. The dispute referred was one relating to promotion of two employees of the petitioner w.e.f. 01.07.2005. It is pleaded on behalf of the petitioner that the reference order clearly shows that the dispute has been referr
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