DISTT. MANAGER, APSRTC, VIJAYAWADAversusK. SIVAJI AND ORS.

             DISTT. MANAGER, APSRTC, VIJAYAWADA                                  A
                               v.
                      K. SIVAJI AND ORS.

                            NOVEMBER 30, 2000

            [S. RAJENDRA BABU AND S.N. VARIAVA, JJ.]                             B


      Andhra Pradesh Factories and Establishment (National Festival and
other Holidays) Act, 1974:

         Section I J(J)(c)-Applicabi/ity of-To Road Transport Corporation--      C
Held: The Corporation is under the control of the State Government-Hence,
S. I I (J)(c) not applicable to such Corporation-Road Transport Corporation
Act, 1950, S.3-Payment of Wages Act.

     Estab/ishment-"Under the control of the State Government"-                  D
S.JJ(J)(c)-Applicability of-Held: Once an establishment is deemed to be
a State under Art. I 2 it is under the control of the Government-Hence,
Provisions ofAndhra Pradesh Act is not applicable to such an establishment-
Constitution of India, 1950, Art. 12.

     Judicial Discipline:                                                        E

      Requirement of-Held: Judicial discipline requires that a Single Judge
either follows the decision of a concurrent Bench or refer the matter to a
larger Bench.
                                                                                 F
      Words and Phrases:

      "Under the control of the Central or State Government"-Meaning
of-Jn the context of S. JI (/)(c) of Andhra Pradesh Factories and
Establishments (National Festival and other Holidays) Act, 1974.
                                                                                 G
       The respondents were employees of the appellant-corporation established
under Section 3 of the Road Transport Corporation Act, 1950. The respondents
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. The             H
                                     193
    194                      SUPREME COURT REPORTS [2000] SUPP. 5 S.C.R.

A appellant contended that by virtue of Section I l(l)(c) of the Act the provisions
    of the Act were not applicable to it The Appropriate Authority negatived this
    contention and directed the appellant to make payment for the work done by
    the respondents on holidays declared under the Act

          The High Court held that the appellant was not under the control of the
B Central or the State Government and that the provisions of the Act were
    applicable to the appellant-Corporation. The High Court also held that even
    though an institution might 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 The High
C   Court had also 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 was distinct from the
    Central or State Government. The High Court did not follow the decision of
    a concurrent Bench of the same High Court on this point on the ground that
    the said decision was based on facts. The High Court, therefore, dismissed
D   the writ petition filed by the appellant. Hence this appeal.

          Allowing the appeal, the Court

          HELD: I.I. The Words used in Section I l(l)(c) of the Andhra Pradesh
    Factories and Establishments (National Festival and other Holidays) Act, 1974
    are "any factory or establishment under the control of the Central or any
E   State Government". In Article 12 of the Constitution oflndia the words used
    are "under the control of Government of India". Thus, under both of them
    what is essential is control of the Government. Therefore, an establishment,
    which is deemed to be a State within the meaning of Article 12 of the
    Constitution of India, would be under the control of the Government for
F   purposes of Section ll(l)(c) of the Act. (198-EI

          1.2. Reliance on Section 68-A of the Motor Vehicles Act, 1988 by the
    High Court is entirely misplaced. Under Section 3 of the Road Transport
    Corporation Act, 1950, it is the State Government who may either perform
    the function of providing road transport service itself or establish a
G   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 the Corporation is not under the control of the
    State Government. (198-F-GJ

H         1.3. It is clear that the appellant-Corporation is under the control of
            DISTT. MANAGER, APSRTC v. K. SIVAJI [VARIAYA, .I.]            195
the State Government. Therefore, the provisions of the Andhra Pradesh A
Factories and Establishments (National Festival and other Holidays) A\:t, 1974 .
would not be applicable to it by virtue of Section ll(l)(c) of the Act. Therefore,
the judgment of the High Court cannot be sustained and is set aside.1199-AI

      2. Judicial discipline requires that a Single Judge either follows the .,,.,
judgment of a concurrent Bench or refer the matter to a larger Bench. In ihe D
instant case siting singly the Judge could not have taken a different view on
the specious ground that the decision was based on facts. 1196-C)

        CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 496-97 of
1999.
                                                                                c
      From the Judgment and Order Dated 5.8.86 of the Andhra Pradesh High
Court in C.R.P. Nos. 3863 and 3870 of 1982.

     L. Nageswara Rao, Ms. Madhurima Tatia, Guntur Prabhakar and Jayanth
Muth Raj for the Appellant.
                                                                                D
        The Judgment of the Court was delivered by

     S.N. VARIAVA, 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:                                E
      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 I 5(2) of the Payment of Wages Act claiming wages
for holidays declared under the Andhra Pradesh Factories and Establishments F
(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 l l(l)(c) of the said Act the provisions of the said Act G
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 H
     196                      SUPREME COURT REPORTS (2000] SUPP. 5 S.C.R.

A 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
B   upon Section 68-A of the Motor Veh:cles 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.

c Appellant
       At this stage, it must be mentioned that before the High Court the
            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:
D
            "There can be no manner of doubt about the same and there is no
            incongruity in applying the same tests to section 11 (I)( 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.)
E           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."
F               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
G           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
H   Section J J(l)(c) of the said Act, the words "under the control of the
          DISTT. MANAGER. APSRTC v. K. SIVAJI [VARIAVA, J.]                  197
Government" are used. It has been held that the same meaning has to be               A
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 (I)( c) of the said Act. Having so held, the Court
then considered the Memorandum and Articles of Association by stating as
under:
                                                                                     B
        "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        c
purposes of Section I l(l)(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          D
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.            E
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         F
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 ofroad transport service. This, therefore, were the sovereign
functions which would otherwise have been performed by the State                     G
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 wou Id 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         H
     198                     SUPREME COURT REPORTS (2000] SUPP. 5 S.C.R.

A 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
B   and directions may pertain to recruitment, conditions of service and train ins
    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
C   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
D   Government has absolute control over the Appellant Corporation.

        The words used in Section I l(l)(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
E 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 1 I(l)(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
F 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
G 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
H aspect appears to have been lost sight of by the learned Judge.
         DlSTT. MANAGER. APSRTC v K. SIVAJI [VARIAVA, J.]                  199
       In our view, it is clear that the Appellant Corporation is under the       A
control of the State Government. Therefore, the provisions of the said Act
would not be applicable to it by virtue of Section 1I(l)(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.
                                                                                  B
v.s.s.                                                       Appeals allowed.