Madras High Court
Union Of India (Uoi), Represented By Its ... vs The Industrial Tribunal And Anr. on 31 July, 1997
Equivalent citations: (1998)2MLJ207
Author: R. Jayasimha Babu
Bench: R. Jayasimha Babu
ORDER R. Jayasimha Babu, J.
1. By the impugned award of the Industrial Tribunal, the reinstatement of the 2nd respondent with backwages has been ordered. The employer of the 2nd respondent herein was described by the petitioner herein as canteen managing committee with the post master as the chairman of that managing committee. That committee is not registered under the Societies Act, Co-operative Societies Act or under any other law. The canteen was run for the benefit of the employees of the 2nd petitioner's office. It was a non-statutory departmental canteen. The Industrial Tribunal has found on facts, that the 2nd respondent herein the workman had been employed as a cook, and that on account of quarrel with the another co-employee, the employer had struck off his name from the rolls, after which he went on a fast and was arrested by the police. Before the police, the Post Master had submitted that the services of the workman/ 2nd respondent had been terminated. The termination was without any kind of notice and without holding any departmental enquiry.
2. After the tribunal made its award on 10.3.1988, and during the pendency of this writ petition, the Supreme Court in the case of Sub Divisional Inspector of Posts, Vaikam v. Teyyam Joseph, etc. , held that extra departmental agents employed in Department of Posts and Telecommunications, whose appointments are governed by the statutory instructions issued by the Director General of Posts and Telecommunication are excluded from the purview of Industrial Disputes Act. The court observed that directive principles of State policy enjoin on the State diverse duties under Part IV of the Constitution and the performance of those duties are constitutional functions. One of the duties of the State is to provide telecommunication service to the general public and an amenity, and so it is an essential part of the sovereign functions of the State as a Welfare State and it is not, therefore an industry. That judgment was delivered by two judges Bench. Earlier decision of a larger benches of the Apex Court regarding the scope of 'industry' in 2(j) of the Industrial Disputes Act and the provisions of the Industrial Disputes Act were not adversed to therein.
3. The question as to what is an industry, had been considered several years earlier by a seven Judges Bench of the Supreme Court in the case of Bangalore Water Supply and Sewerage Board v. A. Rajappa (1978)1 L.L.J. 349. It was laid down in that decision, inter alia, that:
Sovereign functions strictly understood (alone) qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.
It was also held in that judgment delivered by Krishna Iyer, J, for himself and also on behalf of Bhagawati, J. and Desai, J., that Even in departments discharging sovereign functions, if there are units which are industries and they are substantially severable, they they can be considered to come within Section 2(j) of the Act.
The law so laid down in the Bangalore Water Supply case, with regard to the exclusion of the sovereign functions from the purview of the Industrial Disputes Act, was considered by a three judges Bench in the case of Chief Conservator of Forests and Anr. v. Jagannath Maruti Kondhare (1996)1 L.L.J. 1223. The court therein observed that:
As to which activities of the Government could be called sovereign functions strictly understood has not been spelt out in the aforesaid case.
4. Learned counsel for the respondent workmen submitted that the judgments of the Apex Court reported in (1996)2 L.L.J. 36, is per incurium. This submission cannot be accepted. Sovereign functions strictly understood fall outside the purview of the Industrial Disputes Act, according to the law laid down in the Bangalore Water Supply case. The sovereign functions so excluded however were not enumerated in that decision. In the decision of the Apex Court reported in (1996)2 L.L.J. 36, the court specifically considered the status of the Department of Posts and Telecommunications and held that the Department of Posts and Telecommunications discharges sovereign functions, and therefore is to be excluded from the purview of the Industrial Disputes Act. The fact that the Court did not advert to the provisions of the Industrial Disputes Act is not of any material consequence. Once this function is held to be sovereign, it stands excluded from the Act. Industrial Disputes Act does not contain any provision expressly declaring that the Act will be applicable to employees of the Department of Posts and Telecommunications. The fact that it is mentioned as an essential service in that Act, by itself does not have the effect of making the Act applicable after the Act is held to be in-applicable by reason of that function being a sovereign functions. That decision of the Apex Court is binding on this Court.
5. Learned counsel for the workmen contended that the reasons given in para 4 of the judgment would have the effect of excluding practically every activity of the Government from the purview of the Industrial Disputes Act, as the directive principles of State policy cover a vast rage of Governmental functions. The decision of the court is one regarding the Department of Posts and Telecommunications, and its applicability to other department is not in issue here. It is therefore, unnecessary to consider the impact if any, of this decision on other departments of Government.
5-A. In the case of Physical Research Laboratry v. K.G. Sharma , a two Judge Bench of the court has referred to and explained the decision in the case of Sub Inspector of Posts. The court pointed out that that decision was also influenced by the fact that the employees concerned therein were civil servants whose conditions of service were governed by statutory rules.
6. Counsel for the petitioner submitted that though the workman was not directly employed by, and he was not engaged in the principal activity of the Postal Department, and no statutory rules were applicable to him, nevertheless, he is disentitled to invoke the provisions of the Industrial Disputes Act as the Department of Posts and Telecommunications discharges a sovereign function. This submission cannot be accepted.
7. The Apex Court in its decision rendered by a three Judges Bench in the case of Chief Conservator v. Jagannath (1996)1 L.L.J. 1223, has clarified that, ...within the wider circle of sovereign function, there may be an inner circle encompassing some units which could be considered as industry if substantially severable.
8. In the decision rendered by the seven Judge Bench in the case of Bangalore Water Supply case, also, the court excluded welfare activities or economic adventures undertaken by the Government or statutory bodies from the categories of sovereign functions, as also units, which are industries in departments discharging sovereign functions if these units were severable.
9. In this case we are not concerned with an employee of the Posts and Telecommunications Department whose service conditions are regulated by statutory rules. The nature of the work performed by the respondent workman has nothing to do with the sovereign functions of the posts and telecommunications department. The respondent workman was merely a cook whose job was to prepare food for the consumption of the employees of the department, who choose to avail the facilities provided in the department canteen.
10. The canteen was obviously a separate unit as the department itself regarded it as such. A separate Managing Committee had been constituted for managing the work of the canteen. The Department of Posts obviously did not consider it necessary to run the canteen under the direct control of the head of the office.
11. This activity of running a canteen was clearly a welfare measure for the benefit of the employees of the department and this activity is severable.
12. Applying the test laid down in the decision of the Apex Court in the case of Bangalore Water Supply (1978)1 L.L.J. 349, it must be held that though the postal Department discharges sovereign functions, nevertheless the activity of running a departmental non-statutory canteen for the employees is not a sovereign activity is severable and is an industry as that activity of running a canteen satisfies all the tests for determining the existence of an industry-systematic activity, co-operation between employer and employee and production of goods and services calculated to satisfy human wants and wishes. The Industrial Tribunal was well within the jurisdiction in holding that the respondent was a workman governed by the provisions of the Industrial Disputes Act.
13. Counsel for petitioner sought to contend that the workman had not worked for 240 days and did not qualify as a person entitled to protection under Section 25-F of the Industrial Disputes Act. No such plea had been raised nor was any factual foundation laid, for considering such a plea, before the tribunal. Petitioner cannot be allowed to raise such a ground involving the production of fresh evidence at this stage.
14. The submissions of the learned Counsel for the workman that even if the tribunal had no jurisdiction, this Court should not disturb its finding as the law at the time the decision was rendered, was that department of posts was not excluded from the Industrial Disputes Act and further that this Court should grant relief by considering the workmen's case as a petition under Article 226, do not require consideration in view of my finding that respondent is a workman covered by the Industrial Disputes Act, having regard to the nature of his work and the canteen being a welfare activity severable from the sovereign function. It is also unnecessary to consider the decisions relied on by counsel in support of these submissions. P. Kauthaumayan v. Regional Manager, State Bank of India, Madurai I.L.R. (1996)1 L.L.J. 253, Indian Bank v. R.S. Thiruvengadan I.L.R. (1990)2 Mad. 26, State of Punjab v. Labour Court, Nullundur and Ors. (1981)1 L.L.J. 354, Punjab Beverages Ltd. v. Jagadish Singh (1978)2 L.L.J. 1 and Dhari Gram Panchayat v. Saurashtra Mazdoor Mahajan Sangh .
15. The relief granted to the workmen by the Industrial Tribunal was a relief which was within its jurisdiction to grant. The relief granted was warranted on the facts established before it. There is no scope for interference. This writ petition is dismissed.