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2014 DIGILAW 170 (RAJ)

Jameel Khan v. State of Rajasthan

2014-01-10

MN BHANDARI

body2014
ORDER BY THE COURT By this writ petition, a challenge is made to the order dated 3.12.2012 and 13.3.2013, whereby, petitioner's services were dispensed with. Learned counsel submits that earlier also an order of termination was passed, however, on challenge, labour court passed an award in favour of the petitioner. The petitioner was taken in service but again his services have been terminated in violation of the provisions of section 25-F of the Industrial Disputes Act, 1947. The other ground is regarding arbitrary action of the respondents. The petitioner was not paid due amount pursuant to the earlier award of the labour court and even after attaining the finality of the award upto the Division Bench of this court, hence, when petitioner prayed for it, the respondents took revengeful action. Accordingly, impugned orders deserve to be set aside. I have considered the submissions of learned counsel and find that the earlier order of termination was set aside by the labour court vide its award dated 21.11.2002 at annexure-1. Therein, a liberty was given to the respondents to pass fresh order after complying with the provisions of section 25-F of the Act of 1947. The challenge to the aforesaid award remained unsuccessful upto the Division Bench of this court. The challenge to the impugned order herein has been made mainly on the ground of violation of provisions of section 25-F of the Act of 1947. This is more so when liberty for termination was given by the labour court only after compliance of the said provision. I find that the petitioner was working in the Police Department. The issue as to whether the Police Department falls in the definition of 'industry' or not has been decided by the Division Bench in reference to the judgment of the Hon'ble Apex Court in the case of “Bangalore Water Supply and Sewerage Board versus A Rajappa & ors” [ AIR 1978 SC 548 ]. Therein, it was held that respondent was not engaged for sovereign functions of the State. The reference of the judgment of the Madhya Pradesh High Court in the case of “Centre of Indian Trade Union & anr versus State of Madhya Pradesh & ors”, [ 2002(1) MPHT 179 ] has been given. I find that the Police Department is discharging sovereign functions thus does not fall in the definition of 'industry'. The reference of the judgment of the Madhya Pradesh High Court in the case of “Centre of Indian Trade Union & anr versus State of Madhya Pradesh & ors”, [ 2002(1) MPHT 179 ] has been given. I find that the Police Department is discharging sovereign functions thus does not fall in the definition of 'industry'. The aforesaid aspect was considered by the Constitution Bench of Hon'ble Apex Court in the case of Bangalore Water Supply and Sewerage Board (supra). The relevant para 5 of the said judgment is quoted hereunder for ready reference - “5. Each of us is likely to have a subjective notion about "industry". For objectivity, we have to look first to the words used in the statutory provision defining industry in an attempt to find the meaning. If that meaning is clear, we need proceed no further. But, the trouble here is that the words found there do not yield a meaning so readily. They refer to what employers or workers may do as parts of their ordinary avocation or business in life. When we turn to the meaning given of the term "worker" in Section 2(s) of the Act, we are once more driven back to find it in the bosom of "industry", for the term "worker" is defined as one : employed in any industry to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of that dispute, or whose dismissal, discharge or retrenchment has led to that dispute. The definition, however, excludes specifically those who are subject to the Army Act 1950 or the Air Force Act 1950, or the Navy Discipline Act 1934, as well as those who are employed in the Police Service or Officers and other employees of a Prison, or employed in mainly managerial or administrative capacities or who, being employed in supervisory capacity, draw wages exceeding Rs. 500/- per mensem.” The perusal of the para reveals that the Police Department is excluded from the definition of 'industry'. Those engaged in the said department does not to fall in the definition of 'workman'. 500/- per mensem.” The perusal of the para reveals that the Police Department is excluded from the definition of 'industry'. Those engaged in the said department does not to fall in the definition of 'workman'. The reason to exclude the Police Department from the definition of 'industry' is due to its functioning considered to be sovereign in nature. It is unfortunate that the para aforesaid was not referred before the Division Bench. In any case, when a direct judgment of the Hon'ble Apex Court exist on the issue then what will prevail is the judgment of the Hon'ble Apex Court. The determination on the issue as to whether provisions of the Act of 1947 would be applicable or not cannot be decided only after considering the nature of the work of the employee but after considering the fact as to whether the department concerned falls in the definition of 'industry' or not. The Police Department discharge sovereign functions and in view of the judgment of the Hon'ble Apex Court in the case of Bangalore Water Supply and Sewerages Board (supra), they are excluded from the definition so as the application of the Act of 1947. In view of the above, the argument regarding violation of provisions of section 25-F of the Act of 1947 cannot be accepted. It may be that earlier a dispute was raised and award was passed in favour of the petitioner but, therein, the issue as to whether Police Department falls under the definition of 'industry' was not raised and decided by the labour court. The issue aforesaid was raised before the High Court but, therein also, the argument was not accepted on the ground that petitioner was not discharging sovereign functions, whereas, respondents should have invited attention of the court that Police Department does not fall in the definition of 'industry' so as to comply provisions of the Act of 1947. In view of above, first argument raised by learned counsel cannot be accepted thus rejected. So far as second ground for challenge of the order is concerned, I find no arbitrariness in the action of the respondents. The petitioner's services have been discontinued for want of requirement and even non-availability of sanctioned post. There is no illegality in the reasons given for termination therein. In view of the discussion made above, I do not find any merit in the writ petition. The petitioner's services have been discontinued for want of requirement and even non-availability of sanctioned post. There is no illegality in the reasons given for termination therein. In view of the discussion made above, I do not find any merit in the writ petition. Accordingly, writ petition so as the stay applications are dismissed.