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Uttarakhand High Court · body

2023 DIGILAW 677 (UTT)

Gopal Soni v. State of Uttarakhand

2023-12-15

MANOJ KUMAR TIWARI

body2023
JUDGMENT : MANOJ KUMAR TIWARI, J. 1. Petitioner has challenged the order dated 23.01.2013 passed by Deputy Labour Commissioner, Garhwal Region, Dehradun, whereby it has refused to refer the industrial dispute raised by petitioner to Labour Court, while exercising power under Section 4-K of U.P. Industrial Disputes Act, which is reproduced below: “4-K. Reference of disputes to Labour Court or Tribunal - Where the State Government is of opinion that any industrial dispute exists or is apprehended, it may at any time by order in writing refer the dispute or any matter appearing to be connected with, or relevant to, the dispute to a Labour Court if the matter of industrial dispute is one of those contained in the First Schedule, or to a Tribunal if the matter of dispute is one contained in the First Schedule or the Second Schedule for adjudication: Provided that where the dispute relates to any matter specified in the Second Schedule and is not likely to affect more than one hundred workmen, the State Government may, if it, so thinks fit, make the reference to a Labour Court.” 2. The ground taken for refusing to refer the dispute is that the employer does not come within the definition of ‘industry’. The employer, in the present case is Parmarth Niketan Ashram, which is engaged in religious and charitable activities. According to petitioner, he was a permanent employee of Parmarth Niketan Ashram, where he served as Electrician since 01.01.1995 till his termination, on 20.11.2005. It is further his contention that neither any notice nor retrenchment compensation was given to him, therefore, his termination by employer is illegal. 3. Learned counsel for petitioner has relied upon a judgment rendered by Shri Devadeveshwar Sansthan Parvati and Kothrud vs. Sushila Raghu Kadu, 2002 SCC Online Bom. 84, where it was held that merely because part of activity of the trust was religious and spiritual, would not be sufficient to hold that trust is not an ‘industry’. Para 7 and 8 of the said judgment are reproduced below: “7. Evidence before the Labour Court amply indicates that the petitioner is an “industry” and, therefore, covered by the definition contained in S. 2(j) of the Act. The petitioner trust maintains not only the temples but also a museum and gallery. An entrance fee is charged by the petitioner for the museum and the gallery. Evidence before the Labour Court amply indicates that the petitioner is an “industry” and, therefore, covered by the definition contained in S. 2(j) of the Act. The petitioner trust maintains not only the temples but also a museum and gallery. An entrance fee is charged by the petitioner for the museum and the gallery. The poojas and Abhisheks axe conducted on collection of charges from the devotees. Huge properties are being maintained by the petitioner trust. 40 employees are working with the petitioner trust on regular salary with fixed conditions of service. The offerings made in the temples are auctioned and the petitioner trust also runs a sugarcane juice stall at the Parvati Deoasthan. Mrutunjay Mandir which is maintained by the petitioner is let out on hire for the purpose of marriage ceremonies. The petitioner collects this amount as also the hire charges for utensils used for such functions. Therefore, I do not find any error committed by the Labour Court much less an error on the face of the record. 8. In the case of Sri Cutchi Visa Oswal Case 1986 (2) L.L.N. 904 (vide supra), this Court considered whether the religious trust owning extensive properties and doing service at such properties by engaging large number of persons could be termed as an “industry.” This Court came to the conclusion that merely because part of the activity of the trust is religious and spiritual, it should not be said that the trust was not an “industry.” In Sri Gajanan Maharaj Sanstan Case 1997 (2) L.L.N. 124 (vide supra), this Court on the basis of the Bangalore Water Supply Case 1978 (1) L.L.N. 376 and 657 (vide supra), of the Apex Court, has held that the systematic activity wherein 157 workmen were involved could by no stretch of imagination be considered not an “industry.” Applying the ration in these cases to the facts and circumstances in the present case, the inescapable conclusion is that the petitioner is an “industry.” 4. Mr. D.S. Mehta, learned counsel for petitioner submits that the Deputy Labour Commissioner was not justified in entering into merits of the case while exercising power under Section 4-K of the Act, as he was not discharging a judicial or quasi judicial function. Mr. D.S. Mehta, learned counsel for petitioner submits that the Deputy Labour Commissioner was not justified in entering into merits of the case while exercising power under Section 4-K of the Act, as he was not discharging a judicial or quasi judicial function. He further contends that the question whether petitioner is a workman or the employer is an industry can only be decided by the Labour Court having regard to the attending facts and circumstances of the case. 5. This Court finds substance in the said contention. In the case of Telco Convoy Driver's Mazdoor Sangh vs. State of Bihar, (1989) 3 SCC 271 while considering analogues provision contained in Section 10 of Industrial Disputes Act, 1947, Hon’ble Supreme Court held that while exercising power of reference under the Act, the function of the appropriate Government is an administrative function and not a judicial or quasi-judicial function, and that in performing this administrative function the Government cannot delve into the merits of the dispute and take upon itself the determination of the lis, which would certainly be in excess of the power conferred on it by Section 10 of the Act. In the case of Sharad Kumar vs. Govt. of NCT of Delhi, (2002) 4 SCC 490 , Hon’ble Supreme Court has held as under: “27. In the case of Telco Convoy Drivers Mazdoor Sangh vs. State of Bihar this Court construing the provision of Section 10(1) held as follows: “13. Attractive though the contention is, we regret, we are unable to accept the same. It is now well settled that, while exercising power under Section 10(1) of the Act, the function of the appropriate government is an administrative function and not a judicial or quasi-judicial function, and that in performing this administrative function the Government cannot delve into the merits of the dispute and take upon itself the determination of the lis, which would certainly be in excess of the power conferred on it by Section 10 of the Act. 14. Applying the principle laid down by this Court in the above decisions, there can be no doubt that the Government was not justified in deciding the dispute. Where, as in the instant case, the dispute is whether the persons raising the dispute are workmen or not, the same cannot be decided by the Government in exercise of its administrative function under Section 10(1) of the Act. Where, as in the instant case, the dispute is whether the persons raising the dispute are workmen or not, the same cannot be decided by the Government in exercise of its administrative function under Section 10(1) of the Act. As has been held in M.P. Irrigation Karamchari Sangh case, there may be exceptional cases in which the State Government may, on a proper examination of the demand, come to a conclusion that the demands are either perverse or frivolous and do not merit a reference. Further, the Government should be very slow to attempt an examination of the demand with a view to declining reference and courts will always be vigilant whenever the Government attempts to usurp the powers of the Tribunal for adjudication of valid disputes, and that to allow the Government to do so would be to render Section 10 and Section 12(5) of the Act nugatory.” (Emphasis supplied) 28. In M.P. Irrigation Karamchari Sangh vs. State of M.P. taking note of the decision in the case of Bombay Union of Journalists vs. State of Bombay wherein it was held that the appropriate government is precluded from considering even prima facie the merits of the dispute when it decides the question as to whether its power to make a reference should be exercised under Section 10(1) read with Section 12(5), or not, this Court held that the Court had made it clear in the same judgment that it was a province of the Industrial Tribunal to decide the disputed questions of facts. This Court made the following observations: “5. Therefore, while conceding a very limited jurisdiction to the State Government to examine patent frivolousness of the demands, it is to be understood as a rule, that adjudication of demands made by workmen should be left to the Tribunal to decide. Section 10 permits appropriate government to determine whether dispute ‘exists or is apprehended’ and then refer it for adjudication on merits. The demarcated functions are (1) reference, (2) adjudication. When a reference is rejected on the specious plea that the Government cannot bear the additional burden, it constitutes adjudication and thereby usurpation of the power of a quasi-judicial Tribunal by an administrative authority namely the appropriate government. In our opinion, the reasons given by the State Government to decline reference are beyond the powers of the Government under the relevant sections of the Industrial Disputes Act. In our opinion, the reasons given by the State Government to decline reference are beyond the powers of the Government under the relevant sections of the Industrial Disputes Act. What the State Government has done in this case is not a prima facie examination of the merits of the question involved. To say that granting of dearness allowance equal to that of the employees of the Central Government would cost additional financial burden on the Government is to make a unilateral decision without necessary evidence and without giving an opportunity to the workmen to rebut this conclusion. This virtually amounts to a final adjudication of the demand itself. The demand can never be characterized as either perverse or frivolous. The conclusion so arrived at robs the employees of an opportunity to place evidence before the Tribunal and to substantiate the reasonableness of the demand.” (Emphasis supplied) 29. In S.K. Maini vs. Carona Sahu Co. Ltd. this Court interpreting Section 2(s)(iv) made the following observations: “9. After giving our careful consideration to the facts and circumstances of the case and the submissions made by the learned counsel for the parties, it appears to us that whether or not an employee is a workman under Section 2(s) of the Industrial Disputes Act is required to be determined with reference to his principal nature of duties and functions. Such question is required to be determined with reference to the facts and circumstances of the case and materials on record and it is not possible to lay down any straitjacket formula which can decide the dispute as to the real nature of duties and functions being performed by an employee in all cases. When an employee is employed to do the types of work enumerated in the definition of workman under Section 2(s), there is hardly any difficulty in treating him as a workman under the appropriate classification but in the complexity of industrial or commercial organizations quite a large number of employees are often required to do more than one kind of work. In such cases, it becomes necessary to determine under which classification the employee will fall for the purpose of deciding whether he comes within the definition of workman or goes out of it. In this connection, reference may be made to the decision of this Court in Burmah Shell Oil Storage and Distribution Co. In such cases, it becomes necessary to determine under which classification the employee will fall for the purpose of deciding whether he comes within the definition of workman or goes out of it. In this connection, reference may be made to the decision of this Court in Burmah Shell Oil Storage and Distribution Co. of India Ltd. vs. Burma Shell Management Staff Assn. In All India Reserve Bank Employees' Assn. vs. Reserve Bank of India it has been held by this Court that the word ‘supervise’ and its derivatives are not words of precise import and must often be construed in the light of context, for unless controlled, they cover an easily simple oversight and direction as manual work coupled with the power of inspection and superintendence of the manual work of others. It has been rightly contended by both the learned counsel that the designation of an employee is not of much importance and what is important is the nature of duties being performed by the employee. The determinative factor is the main duties of the employee concerned and not some works incidentally done. In other words, what is, in substance, the work which employee does or what in substance he is employed to do. Viewed from this angle, if the employee is mainly doing supervisory work but incidentally or for a fraction of time also does some manual or clerical work, the employee should be held to be doing supervisory works. Conversely, if the main work is of manual, clerical or of technical nature, the mere fact that some supervisory or other work is also done by the employee incidentally or only a small fraction of working time is devoted to some supervisory works, the employee will come within the purview of ‘workman’ as defined in Section 2(s) of the Industrial Disputes Act.” (Emphasis supplied) 30. The Rajasthan High Court, in the case of S.L. Soni vs. Rajasthan State Mineral Development Corporation Ltd. 1986 Lab IC 468, through S.C. Agrawal, J. (as he then was) considering the question whether an Assistant Manager (Accounts) came within the meaning of the expression “workman” under Section 2(s) of the Act accepted the contention raised on behalf of the respondent therein that the question could not be agitated before the High Court under Article 226 of the Constitution and the appropriate remedy for the petitioner was to seek a reference under Section 10 of the Industrial Disputes Act, made the following observations: (Lab IC p. 472, Para 10) “In my view the aforesaid contention urged by Shri Rangarajan must be accepted. In the present case there is a dispute between the parties as to whether the petitioner was a workman under Section 2(s) of the Act at the time of the passing of the impugned order terminating his services. The said question involves determination of facts with regard to the nature of the duties that were being discharged by the petitioner while functioning as Assistant Manager (Accounts). Such a determination can only be made on the basis of evidence. The said question cannot be properly adjudicated in these proceedings under Article 226 of the Constitution and the appropriate remedy that was available for the petitioner was to raise an industrial dispute and have it referred for adjudication under Section 10 of the Act. The first contention urged by Shri Singhvi cannot, therefore, be accepted.” (Emphasis supplied) 31. Testing the case in hand on the touchstone of the principles laid down in the decided cases, we have no hesitation to hold that the High Court was clearly in error in confirming the order of rejection of reference passed by the State Government merely taking note of the designation of the post held by the respondent i.e. Area Sales Executive. As noted earlier determination of this question depends on the types of duties assigned to or discharged by the employee and not merely on the designation of the post held by him. We do not find that the State Government or even the High Court has made any attempt to go into the different types of duties discharged by the appellant with a view to ascertain whether he came within the meaning of Section 2(s) of the Act. We do not find that the State Government or even the High Court has made any attempt to go into the different types of duties discharged by the appellant with a view to ascertain whether he came within the meaning of Section 2(s) of the Act. The State Government, as noted earlier, merely considered the designation of the post held by him, which is extraneous to the matters relevant for the purpose. From the appointment order dated 21-4-1983/22-4-1983 in which are enumerated certain duties which the appellant may be required to discharge it cannot be held therefrom that he did not come within the first portion of Section 2(s) of the Act. We are of the view that determination of the question requires examination of factual matters for which materials including oral evidence will have to be considered. In such a matter the State Government could not arrogate on to itself the power to adjudicate on the question and hold that the respondent was not a workman within the meaning of Section 2(s) of the Act, thereby terminating the proceedings prematurely. Such a matter should be decided by the Industrial Tribunal or the Labour Court on the basis of the materials to be placed before it by the parties. Thus the rejection order passed by the State Government is clearly erroneous and the order passed by the High Court maintaining the same is unsustainable.” 6. That being the legal position, this Court has no hesitation in holding that the approach adopted by Deputy Labour Commissioner in entering into merits of the dispute was erroneous. Thus, the impugned order dated 23.01.2013 is liable to be quashed and is hereby quashed. 7. The writ petition is allowed. The matter is remitted back to Deputy Labour Commissioner to reconsider the matter afresh, in the light of discussion, made above.