Jharkhand High Court
In The State Of Jharkhand Through Chief ... vs Their Workmen Represented By Sichai ... on 13 June, 2024
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(L) No.6857 of 2016
1. In the State of Jharkhand through Chief Engineer, Water Resources
Department, Deoghar, Post Office, Police Station and District - Deoghar.
2. Executive Engineer, Irrigation Division, Sikatia, P.O. - Sikatia, P.S. -
Chitra, District - Deoghar ... ... Petitioners
Versus
Their Workmen represented by Sichai Kamgar Union, Chief Engineer
Circle, Deoghar at Kutchery Road, P.O. & P.S. and District - Deoghar.
... ... Respondents
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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11/13thJune 2024 Learned Additional Advocate General Mrs. Darshana Poddar Mishra, Advocate appears along with Mr. Rohit, Advocate.
2. She submits that inspite of service of notice the respondent has not entered appearance.
3. This writ petition has been filed under Article 227 of the Constitution of India seeking quashing of award dated 24.01.2014 passed by learned Presiding Officer, labour Court, Deoghar, in Reference Case No. 03 of 2010 whereby the order of termination of the concerned workmen has been held to be illegal and it has been held that they are entitled for regularization, confirmation in service and payment of back wages with compensation within reasonable time of three months.
4. Learned counsel for the petitioners submits that the sole point involved in the present case is as to whether the Water Resources Department of the Government of Jharkhand is an industry or not. The learned counsel has relied upon the judgment passed by the Hon'ble Supreme Court in the case reported in (2001) 9 SCC 713 para -5 to submit that in a case where a dispute arises as to whether a particular establishment or a part of it, is an industry or not, it would be 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. It has also been held that ordinarily a department of 1 government cannot be held to be an industry rather it is a part of sovereign function.
5. Learned counsel for the petitioners submits that a specific plea was raised by the petitioners before the learned labour court that the water resources department of the state of Jharkhand is not an 'industry' within the meaning of Industrial Disputes Act, 1947 but the learned labour court did not frame any issue in that regard and has simply decided the case by stating that the petitioners themselves had stated that they had followed the procedure under Section 25F of the Industrial Disputes Act, 1947 meaning thereby they are admitting that the department is an 'industry'. Learned counsel submits that once a point was raised by the petitioners that the department is not an 'industry', it was for the workmen to lead evidence and bring on record cogent material to hold that the function of the department was not in discharge of any sovereign function of the State. These aspects of the matter have not been considered by the learned labour Court. Learnd counsel has also relied upon the judgment passed by this Court reported in (2014) 3 JLJR 200 (HC) (Pranaya Kumar Srivastava & Ors. vs. State of Jharkhand) and has submitted that the aforesaid judgment passed by the Hon'ble Supreme Court has been followed and in the said judgment the definition of 'industry' has also been considered which specifically exclude any activity of the government relatable to the sovereign functions of the government.
6. After hearing the learned counsel for the petitioners this Court finds that the Hon'ble Supreme Court in the judgement reported in (2001) 9 SCC 713 (State of Gujarat & Others vs. Pratamsingh Narsinh Parmar) has clearly held 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". Ordinarily, a department of the Government cannot be held to be an industry and rather it is a part of the sovereign function. Paragraph 5 of the aforesaid judgement is quoted as under: -
2"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 with Section 25-F 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 25-F 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 [(1996) 2 SCC 293:1996 SCC (L&S) 500] to hold that the Forest Department could be held to be "an industry".
7. This Court further finds that before the learned labour Court, the petitioners had specifically, inter alia, raised the following issue:-
"(ii). Whether the division where the workmen were engaged i.e., irrigation department Sikatia is an industry as defined under Section 2(J) of the I.D. Act, 1947......................"
8. This Court finds that the petitioners had specifically raised an issue as to whether the division where the workmen were working is an 'industry' as defined under Section 2(j) of the Industrial Disputes Act, 1947 but the learned labour Court did not frame any issue to that effect and the only issue which was framed by the learned labour Court for consideration was in Paragraph no. 4 was:-
"Whether 11 workmen are entitled for any relief and whether they are employees of Irrigation Department and there exists the relationship employer and employee working."3
9. This Court further finds that the learned labour Court in ultimate para - 7 of the impugned award has recorded that the petitioners had themselves stated that they had taken steps in terms of Section 25F of the Industrial Disputes Act, 1947 meaning thereby they are admitting that the department is an 'industry'.
10. This Court finds that the point as to whether the division of the water resources department where the workmen were engaged i.e., irrigation department Sikatia is an 'industry' or not within the meaning of Industrial Disputes Act,1947 , is a mixed question of fact of law which was certainly required to be framed and decided by the learned labour Court once such an objection was raised by the petitioners. In the aforesaid judgement passed by the Hon'ble Supreme Court it has been held that ordinarily, a department of the Government cannot be held to be an industry and rather it is a part of the sovereign function.
11. This Court is of the considered view that the learned Court was not at all justified in not framing the aforesaid issue and further holding that the petitioners had admitted their status as an industry as they had taken a stand that they had complied with the provisions of Section 25F of the Industrial Disputes Act, 1947 particularly when the petitioners had raised a specific objection before the learned labour Court in their written statement that the division where the workmen were engaged i.e., irrigation department Sikatia is not an 'industry' within the meaning of the aforesaid Act of 1947.
12. On account of the aforesaid facts and circumstances, this Court is of the considered view that the impugned award suffers from perversity and cannot be sustained in the eyes of law. Accordingly, the impugned award is set-aside.
13. The matter is remanded back to the learned labour Court who is directed to decide the issue as to whether the division where the workmen were engaged i.e., irrigation department Sikatia is an 'industry' or not within the meaning of Industrial Disputes Act, 1947 and pass a fresh award in accordance with law without being influenced by the observations and findings in the impugned award.
414. It will be open to the parties to adduce further evidence with respect to the aforesaid point and so far as the other evidences on record are concerned, they will form a part of record for purposes of final adjudication of the case.
15. The petitioners are directed to appear before the learned labour Court, Deoghar on 15th of July 2024.
16. Learned labour Court is directed to expeditiously decide the reference as the reference was made as back as in the year 2010.
17. Accordingly, this writ petition is disposed of
18. Let this order be communicated through 'FAX'/e-mail.
(Anubha Rawat Choudhary, J.) Aditi 5