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2019 DIGILAW 197 (UTT)

State of Uttarakhand v. Geeta

2019-03-14

MANOJ K.TIWARI

body2019
JUDGMENT : 1. Heard learned counsel for the parties. 2. Since common question of law and fact are involved in these writ petitions, therefore are being taken up together and are being adjudicated by this common judgment. 3. In this batch of writ petitions, the State Government has challenged the award given by learned Labour Court, Haridwar in Adjudication Case No. 289 of 2009; Adjudication Case No. 418 of 2009; Adjudication Case No. 03 of 2009 and Adjudication Case No. 323 of 2009. 4. The private respondents, in these writ petitions, had raised an industrial dispute against termination of their services. Upon failure of conciliation proceedings, the matter was referred for adjudication to the Labour Court. Before the Labour Court, the private respondents contended that they were engaged as Mali/ Beldar, Beet Sahayak and Clerk (Lipik) in Haridwar Forest Division, Haridwar and all of them have rendered more than five years service, as such, and they had also served for more than 240 days in a calendar year. Thus, they had contended that termination of their services is in violation of Section 6 (N) of U.P. Industrial Dispute Act. 5. The Forest Department (employer) filed its written statement inter alia contending that it is not an industry, as Forest Department is discharging sovereign and regal functions of the State. Thus, it was contended on behalf of the petitioner that Labour Court has no jurisdiction in the matter. 6. Learned counsel for the petitioner submits that a number of authorities were cited before learned Labour Court, including the one reported in 2001 (9) SCC 713 , however, learned Labour Court did not consider the most vital aspect as to whether Forest Department is an industry or not. 7. Learned counsel for the respondent has placed reliance upon the judgment rendered by Hon’ble Supreme Court in the case of Chief Conservator of Forests Vs. Jagannath Maruti Kondhare reported in (1996) 2 SCC 293 . 8. I have gone through the award rendered by learned Labour Court. The said awards are absolutely silent on the question whether Labour Court had jurisdiction to entertain the matter, although, learned Labour Court has noted the submission made on behalf of petitioners that Forest Department is not an industry. 9. Hon’ble Supreme Court in the case of State Gujarat and others Vs. Pratamsingh Narsingh Parmar, reported in (2001) 9 SCC 713 , has held in paragraph no. 9. Hon’ble Supreme Court in the case of State Gujarat and others Vs. Pratamsingh Narsingh Parmar, reported in (2001) 9 SCC 713 , has held in paragraph no. 5 that a person, who asserts that a particular establishment is an industry, will be required to give positive facts for coming to the conclusion that it constitutes an industry. Paragraph Nos. 5 & 6 of the said judgment are extracted below:- “5. 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". Ordinarily, a Department of the Government cannot be held to be an industry and rather it is a part of the sovereign function. To find out whether the respondent in the writ petition had made any assertion that with regard to the duty which he was discharging and with regard to the activities of the organisation. where he had been recruited, we find that there has not been an iota of assertion to that effect though, no doubt, it has been contended that the order of dismissal is vitiated for non-compliance of Section 25F of the Act. The State in its counter affidavit, on the other hand, refuted the assertion of the respondent in the writ petition and took the positive stand that the Forest Department cannot be held to be an industry so that the provisions of Section 25F of the Act cannot have any application. In the absence of any assertion by the petitioner in the writ petition indicating the nature of duty discharged by the petitioner as well as the job of the establishment where he had been recruited, the High Court wholly erred in law in applying the principles enunciated in the judgment of this Court in Jagannath Maruti Kondhare (supra) to hold that the Forest Department could be held to be "an industry". 6. 6. 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 the Jagannath Maruti Kondhare's case (supra), in as much 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". In this view of the matter, we have no hesitation to come to the conclusion that the learned single Judge as well as the Division Bench committed serious error of law in holding that to the appointment in question, the provisions of the Act apply. We would accordingly set aside the judgment of the Division Bench as well as that of the learned single Judge and hold that the writ petition would stand dismissed.” 10. The judgment rendered in the case of Chief Conservator of Forests Vs. Jagannath Maruti Kondhare is clearly distinguishable on facts as the workmen in that case were employed in a scheme for developing a park to fulfill bioaesthetic, recreational and educational aspirations of the people. Hon’ble Supreme Court, therefore, held that the said scheme undertaken by Forest Department cannot be regarded as part of inalienable or inescapable functions of the State as such work can be undertaken by any other agency. In the present case, the respondents were engaged not under a scheme but directly under the Forest Department. In the absence of any assertion by the respondents indicating the nature of duty discharged by them as well as the nature of functions of the establishment where they had been engaged, learned Labour Court could not have arrived at the conclusion that they were employed in an industry. 11. In the present case, from the perusal of the record, it is apparent that the private respondents had made no effort to establish that the particular branch of Forest Department where they were engaged, is an industry. 12. 11. In the present case, from the perusal of the record, it is apparent that the private respondents had made no effort to establish that the particular branch of Forest Department where they were engaged, is an industry. 12. For the aforesaid reasons, the award given by learned Labour Court in the aforesaid adjudication cases cannot be sustained. Accordingly, the writ petitions are allowed and the awards impugned in these writ petitions are quashed and the matter is remanded to learned Labour Court. Consequently, the adjudication cases shall stand restored to the file of the Labour Court. 13. Let a copy of this order be placed in all the connected writ petitions.