Punjab-Haryana High Court
Swaran Singh vs District Food And Supplies Controller ... on 30 March, 2005
Equivalent citations: (2005)140PLR671
Author: J.S. Khehar
Bench: J.S. Khehar
JUDGMENT J.S. Khehar, J.
1. The petitioner was engaged as a Chowkidar by the respondent-management. He continued to render service for about a year, whereafter, his services were dispensed with on 13.1.1983. The petitioner-workman raised an industrial dispute under Section 2-A of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act). In the dispute raised by the petitioner, it was alleged that the mandatory requirements of Section 25-F of the Act had not been complied with, and as such, his retrenchment from the employment of the respondent-management w.e.f. 13.1.1983 was in violation of the mandatory provisions of the Act. The respondent -management did not accede to the claim of the petitioner-workman, whereupon, the appropriate government referred the dispute raised by the petitioner-workman for adjudication to the Presiding Officer, Labour Court, Jalandhar (hereinafter referred to as the Labour Court), by an order dated 12.1.1984.
2. The Labour Court by its award dated 22.1.1987 declined to entertain the dispute raised by the petitioner-workman by recording a finding, that the respondent-management was not an 'industry' within the meaning of Section 2(j) of the Act. In other words, the Labour Court arrived at the conclusion, that it had no jurisdiction to entertain and adjudicate upon the dispute raised by the petitioner-workman. The award of the Labour Court dated 22.1.1987 is subject matter of challenge through the instant writ petition.
3. The issue in hand, namely, whether or not the respondent-management is an 'industry' within the meaning of Section 2(j) of the Act, has been answered by the Labour Court in para 5 of the impugned award. A perusal of the assertions recorded by the Labour Court in para 5 reveals, that the Labour Court initially placed the onus of establishing, whether or not respondent-management was an 'industry' within the meaning of Section 2(j) of the Act, on the management itself, whereas, while drawing conclusion to the effect, whether or not the respondent-management was an 'industry' within the meaning of Section 2(j) of the Act, it primarily relied on the fact, that no evidence was produced by the petitioner-workman in order to establish the issue in hand. Learned counsel for the petitioner-workman in order to repudiate the conclusion drawn by the Labour Court, has emphatically pointed out that the onus in respect of the issue in hand, had wrongfully been placed on the respondent-management by the Labour Court. Relying on the judgment of the Apex Court in State of Gujarat and Ors. v. Pratamsingh Narsinh Parmar, , it is pointed out that the onus to establish, whether or not the party proceeding against in an industrial dispute, is an 'industry' within the meaning of Section 2(j) of the Act, clearly rests on the shoulders of the workman. In this behalf, reference has been made to the following observations recorded by the Apex Court in Pratamsingh Narsinh Parmar 's case (supra):-
"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 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 the 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." It is, therefore, the contention of the learned counsel for the petitioner-workman, that if the onus had been rightfully placed by the Labour Court on the petitioner-workman, he would have easily established the issue in hand. However, on account of the fact, that the onus was wrongfully placed on the respondent-management, the petitioner remained under the illusion, that it was imperative for the respondent-management to produce evidence in order to substantiate the issue in hand, and since no substantive evidence in that context was produced by the respondent-management, it was inferred by the petitioner-workman that a finding against the respondent-management would be recorded by the Labour Court on the issue in hand.
4. Learned counsel for the respondent-management does not repudiate the fact, that the onus to establish that the respondent-management was an 'industry' under Section 2(j) of the Act, was originally placed on the respondent-management by the Labour Court. It is, therefore apparent that the procedure followed by the Labour Court was clearly contrary to the procedure laid down by the Supreme Court in Pratapsingh Narsingh Parmar 's case (supra). Had the onus been rightfully placed on the petitioner-workmen to establish the issue in hand, he would have obviously led evidence to substantiate his claim, which should then have been adjudicated upon by the Labour Court based on the evidence produced by the parties. Since the aforesaid opportunity came to be denied to the petitioner on account of the fact, that the onus to establish the issue in hand was wrongfully placed on the respondent-management, I consider it just and appropriate to set aside the award of the Labour Court and remand the matter to the Labour Court, which shall after following the procedure laid down by the Supreme Court in Pratamsingh Narsinh Parmar's case (supra) (by placing the onus in respect of the issue in hand on the petitioner-workman), re-adjudicate the dispute between the parties, in accordance with law.
5. Disposed of accordingly.
6. Parties to appear either in person or through their authorised representatives before the Labour Court, Jalandhar, on 5.5.2005.