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2006 DIGILAW 261 (RAJ)

Babu Lal v. Labour Court

2006-01-25

AJAY RASTOGI

body2006
Judgment Ajay Rastogi, J.-All these petitions involving common question as to whether the Department of Forest is an “industry” under Section 2(j) of the Industrial Disputes Act, 1947 or not?, hence decided by this common order. 2. The fact is not in dispute that the petitioners-workmen worked on daily wages basis in the office of respondents and they invoked by way of reference made by the appropriate Government of the action of respondents being violative of provisions of the Industrial Disputes Act, 1947 (“the Act of 1947”). 3. One of the basic contention raised by the petitioners-workmen before the Labour Court, Bharatpur, was that they completed more than 240 days of service in preceding 12 months from the date of their alleged termination and the respondents have failed to comply with the mandatory requirement of Section 25-F of the Act of 1947 and in some of the cases it has further been pleaded that there is a violation of Sections 25-G and 25-H of the Act of 1947. 4. Undisputedly, the respondents have filed their reply/written statement before the learned Labour Court and disputed with regard to their working of 240 days and that there was no requirement to comply with Section 25-F of the Act of 1947. But it was never disputed and no objection was raised that the establishment where the petitioners-workmen have worked, is not an industry contemplated under Section 2(j) of the Act of 1947. As such there was no pleading on record and no opportunity was afforded to the petitioners-workmen to establish by placing documents and other material on record to show that the workmen where they worked, is an industry covered under Section 2(j) of the Act of 1947 as is evidencnt from the award. 5. As such there was no pleading on record and no opportunity was afforded to the petitioners-workmen to establish by placing documents and other material on record to show that the workmen where they worked, is an industry covered under Section 2(j) of the Act of 1947 as is evidencnt from the award. 5. The submissions were made by the parties and respondents in their oral submission raised objection that looking to the nature of work undertaken by the Department of Forest, it is not an industry under Section 2 (j) of the Act of 1947 and in support of their contention placed reliance on the Judgment of apex Court in the case of State of Gujarat vs. Pratamsingh Narsinh Parmar, 2001 (3) JT 326 (SC) and the learned Labour Court finally held that the establishment, where the workmen had worked, is not an industry under Section 2(j) of the Act of 1947 and without examining merits, rejected their claim on this preliminary issue itself . Hence, these writ petitions. 6. Counsel for petitioners contend that in the absence of objection raised by the respondents in their written statement before the Labour Court, they were precluded from placing material on record to justify that the nature of work undertaken by the department where they are posted is an industry covered under Section 2(j) of the Act of 1947 and the learned Labour Court proceeded merely on the basis of oral submission and without there being supporting material available on record. As such very finding recorded in the present facts and circumstances in holding that the Department of Forest is not an industry, is totally perverse and deserves to be set aside. 7. Counsel further urged that this Court has examined the same controversy and finally held that the activities undertaken by the Department of Forest cannot be regarded as a part of sovereign function of the State and so the Department of Forest is an industry within the meaning of Section 2(j) of the Act of 1947. In view of such categorical finding recorded by this Court in the case of State of Rajasthan vs. Ram Chandra, 2003 (96) FLR 603, the very finding recorded by the learned Labour Court deserves rejection. 8. In view of such categorical finding recorded by this Court in the case of State of Rajasthan vs. Ram Chandra, 2003 (96) FLR 603, the very finding recorded by the learned Labour Court deserves rejection. 8. Counsel for respondents, on the other hand, has urged that there is a categorical finding recorded by the apex Court in the case of Pratam Singh Narsinh Parmar (Supra), in Para 5 that ordinarily a department of Government cannot be held to be an industry and rather it is a part of sovereign function and once held that Department of Forest is not an industry, no error has been committed by the learned Labour Court in rejecting their claim application by the impugned award in question. 9. Counsel has further urged that the apex Court has referred the matter to be heard by Larger Bench in the case of State of U.P. vs. Jai Bir Singh, 2005 (5) JT 170 (SC) for re-examining the definition of “industry” provided under Section 2(j) of the Act of 1947, as such no interference at this stage is required to be made. 10. I have considered the submissions made by the Counsel for parties and with their assistance examined the material on record and so also finding recorded by the learned Labour Court in the impugned award. 11. This fact remained undisputed that in the written statement filed before the Labour Court, no objection was raised as to whether the establishment where the petitioners-workmen were posted, is an industry or not under Section 2(j) of the Act of 1947 and oral submissions were made in view of Judgment of apex Court in the case of Pratamsingh Narsinh Parmar (Supra). In the absence of which, there was no opportunity afforded to the petitioners-workmen to come out with their defence, placing material and other documents on record to establish that place of their working in the Department of Forest is an industry under Section 2(j) of the Act of 1947 and they are within their rights to invoke the provisions of the Act of 1947. 10.12. 10.12. The apex Court in the case of Chief Conservator of Forests vs. Jagannath Maruti Kondhare, 1995 (9) JT 465 (SC) and after examining the facts with regard to work undertaken by the Department of Forest, held as under:- “This being the position, we hold that the aforesaid scheme undertaken by the Forest Department cannot be regarded as a part of 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.” 13. This Court in the case of Ram Chandra (Supra), after examining the material on record and the work undertaken by the Department of Forest, observed as under:-“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 workmen.” 14. Even from reference of oral submissions which have been recorded by the learned Labour Court in its award, I find that the work undertaken by the Department of Forest is not a sovereign function of the State, which may at all preclude from the definition of the term industry defined under Section 2(j) of the Act of 1947. 15. Even from reference of oral submissions which have been recorded by the learned Labour Court in its award, I find that the work undertaken by the Department of Forest is not a sovereign function of the State, which may at all preclude from the definition of the term industry defined under Section 2(j) of the Act of 1947. 15. In the case of Pratamsingh Narsinh Parmar (Supra), it has been specifically observed in Para 5 that it was a case where a specific objection was raised in the written statement by the respondents before the High Court that the organization where the workmen had been recruited is not an industry under Section 2(j) of the Act of 1947 and there was no assertion made in the writ petition with regard to duty discharged by the petitioners as well as the job of the establishment where they had been recruited and is primarily for the person concerned who claims the same to be an industry to provide positive facts in support of his contention in the absence of which the said finding was recorded, whereas in the instant case no objection was raised in this regard by the respondents in their reply before the Labour Court. 16. It is true that if the dispute has been raised as to whether a particular establishment or part whereof the recruitment has been made is an industry or not? Primarily it is for the person concerned who claims protection under the Act, to give positive facts for coming to the conclusion that the establishment where he had worked is an industry under Section 2(j) of the Act of 1947 and such duties undertaken are not sovereign function of the State. But, in the present case, undisputedly no objection was raised by the respondents in their written statement. In the absence of which, there was no opportunity available to the workmen to provide and place material for establishing the fact that nature of work undertaken is not sovereign function of the State and it is an industry within the meaning of Section 2(j) of the Act of 1947 and the learned Labour Court has committed an error in proceeding to examine the issue without there being factual material on record and merely on the basis of oral submissions made by the parties. 17. 17. The learned Labour Court has further recorded a finding that the question as to whether the establishment where the workmen had been recruited is the industry or not, is a legal question. In my opinion, it is a mix question of law and fact and not a pure question of law, which could be examined on mere oral submissions. This Court in the case of Ram Chandra (Supra), has nowhere observed that the question as to whether the establishment is industry or not, is a question of law can be examined on oral submission. 18. Last submission made by the Counsel that matter has been referred to Larger Bench by the apex Court, is of no assistance. In fact, the definition of term “industry” defined under Section 2(j) as examined by the apex Court in the case of Bangalore Water Supply & Sewerage Board vs. A. Rajappa, 1978 (2) SCR 213, has been referred to be considered by Larger Bench which is not related to a dispute raised in the instant petition. 19. Consequently, all these writ petitions are allowed and the impugned awards passed by the Labour Court in LCR Nos. 221/1997, 139/1996, 159/1996, 55/1996, 93/1996, 308/1997, 68/1994, 94/1996 and LCR No. 126/1994 dated 010.2005, are set aside and the matter is remitted back to the concerned Labour Court for adjudicating the dispute on merits after affording opportunity of hearing to the parties to the dispute. Both the parties are directed to appear before the concerned Labour Court on 27.02.2006. Looking to the fact that the workmen were terminated somehow in 1995 or 1996, the Labour Court is expected to decide the matters expeditiously. No order as to costs.