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2002 DIGILAW 1639 (RAJ)

State of Rajasthan v. Ram Chandra

2002-09-23

SHIV KUMAR SHARMA

body2002
JUDGMENT 1. - Meaningful question that requires my consideration in the instant Writ Petition is whether Forest Department of the State of Rajasthan is an "industry" within the meaning of Section 2(j) of Industrial Disputes Act, 1947 (for short 1947 Act). If this question is answered in affirmative I would be required to consider whether the directions issued in the impugned award need my interference. 2. Before proceeding further it would be opposite to mention the question that the Forest Department is not an 'industry' was not raised before the Labour Court but looking to the importance of the question, I allow this point to be agitated. 3. It would be useful at this juncture to refer to the observations of the Bench of Hon'ble three Judges of the Supreme Court in Chief Conservator of Forests v. Jagannath Maruti Kondhare, 1996(2) SCT 165 (SC) : (1996)2 SCC 293 : (1996 Lab IC 967) indicated in Paras 7, 15, 16 and 17 of the Judgment, which read as under - "7. As per the Bangalore Water Supply case (1978)2 SCC 213 : (1978 Lab IC 467 & 778) sovereign functions "strictly understood" alone qualify for exemption, and not the welfare activities or economic adventures undertaken by the Government. This is not all. A rider has been added that even in the departments discharging sovereign functions, if there are units which are industries and they are substantially severable, then they can be considered to be an industry. As to which activities of the Government could be called sovereign functions strictly understood, has not been spelt out in the aforesaid case. 4. A perusal of the affidavit filed by the Chief Conservator of Forests on 5-12-1992, pursuant to our order of 6-11-1992, shows that the Panchgaon Parwati Scheme was framed as per the Government Resolution based on the policy- decision taken in April 1976. The Scheme was to be initially for a period of 5 years and an area of about 245 hectares situated on a hill plateau on the southern outskirts and within easy access of Pune City was selected for creation of a park under bioaesthetic development for the benefit of the urban population. The Scheme was to be initially for a period of 5 years and an area of about 245 hectares situated on a hill plateau on the southern outskirts and within easy access of Pune City was selected for creation of a park under bioaesthetic development for the benefit of the urban population. It is further stated that the scheme was "primarily intended to fulfil bioaesthetic, recreational and educational aspirations of the people which will have inestimable indirect benefit of producing enlightened generation of conservationists of nature inclusive of forests and wildlife for the future". (P. 137). The affidavit goes on to state (at p. 138) that the Pune Forest Division is also doing afforestation for soil/moisture conservation under various State-level schemes as well as Employment Guarantee Schemes all of which are for a period of 5 years. 5. The aforesaid being the crux of the scheme to implement which some of the Respondents were employed, we are of the view that the same cannot be regarded as a part of inalienable or inescapable function of the State for the reason that the scheme was intended even to fulfil the recreational and educational aspirations of the people. We are in no doubt that such a work could well be undertaken by an agency which is not required to be even an instrumentality of the State. 6. This being the position, we hold that the aforesaid scheme undertaken by the Forest Department cannot be regarded as a part of the sovereign function of the State, and so, it was open to the Respondents to invoke the provisions of the State Act. We would say the same qua the social foresting work undertaken in Ahmednagar District. There was, therefore, no threshold bar in knocking the door of the Industrial Courts by the Respondents making a grievance about adoption of unfair labour practice by the Appellants." 7. Two Judge-Bench of the Hon'ble Supreme Court in State of Gujarat v. Pratam Singh Narsinh Parmar, 2001(2) SCT 1081 (SC) : (2001)9 SCC 713 , propounded in Para 5 that "If a dispute arises as to whether a particular establishment or part of it wherein an appointment has been made is an industry or not, it would be for the person concerned who claims the same to be an industry, to give positive facts for coming to the conclusion that it constitutes "an industry". 8. 8. Ratio indicated in Jagannath Maruti Kondhare case (1996 Lab IC 967) (SC) (supra) was examined by their Lordships in State of Gujarat v. Pratam Singh Narsinh Parmar ( 2001(9) SCC 713 ) (supra) and in Para 6 of the Judgment and it was observed thus - "The learned single Judge as well as the Division Bench of the High Court have failed to carefully examine the ratio of this Court's judgment in Jagannath Maruti Kondhare case (supra) inasmuch as in Para 15 of the said judgment, the Court has quoted the assertions made in the Affidavit of the Chief Conservator of Forests and then in Para 17, the Court held that the Scheme undertaken cannot be regarded as a part of the sovereign function of the State. We are afraid that the aforesaid decision cannot have any application to the facts of the present case where there has not been any assertion of fact by the Petitioner in establishing that the establishment to which he had been appointed is "an industry". 9. Coming to the facts of the instant matter it may be noticed that neither in the Writ Petition nor by additional affidavit the factual data has been placed before me on the basis of which it could be contended that the 'Forest Department' of the State of Rajasthan was not an industry. In Jagannath Maruti Kondhare case (supra) the Chief Conservator of Forests had filed additional affidavit to show that Pachgaon Parwati Scheme was framed as per the Government Resolution based on the policy-decision. Their Lordships of the Supreme Court after scanning the said affidavit took the view that the scheme cannot be regarded as a part of inalienable or inescapable function of the State for the reason that the scheme was intended even to fulfil the recreational and educational aspirations of the people. Therefore, there was no threshold bar in knocking the door of the Industrial Courts. 10. Burden to establish that Forest Department was an 'industry' no doubt lay on the workman but when no objection was raised in this regard by the Forest Department before the Labour Court it was not necessary for the workman to substantiate this fact by evidence that the Forest Department was an 'industry'. Strict rules of pleading are not applicable in the matter of reference under the provisions of 1947 Act. Strict rules of pleading are not applicable in the matter of reference under the provisions of 1947 Act. It is only when the dispute arises as to whether a particular establishment or part of it is an industry or not, it would be for the person concerned who claims the same to be an industry to give positive facts for coming to the conclusion that it constitutes "an industry". 11. In absence of the factual data I am inclined to hold that the activities undertaken by the Forest Department in the State of Rajasthan cannot be regarded as a part of the sovereign function of the State, and so the department of forest in the State of Rajasthan is an 'industry' within the meaning of Section 2(j) of 1947 Act and there was no threshold bar in knocking the door of the Labour Court by the Respondent-workman. 12. This takes me to the second question as to whether the directions issued in the impugned award need my interference. A close scrutiny of the material on record reveals that the learned Labour Court minutely discussed the averments made in the statement of claim, reply to the statement and evidence adduced by the parties and held that the Respondent-workman had worked for more than 240 days in one calendar year. In so far as submission of the Petitioner that the Respondent-workman was appointed against NREP or Jawahar Yojna scheme is concerned, the Labour Court observed that the Petitioner had not produced any document to establish this fact. Conclusion arrived at by the Labour Court on appreciation of facts is that the services of the workman were illegally terminated and he was entitled to be reinstated with 30% of the backwages. I do not find any perversity in the impugned award. 13. The Writ Petition being devoid of merit stands dismissed without any order as to costs.Petition dismissed. *******