Gujarat High Court
Dy vs Alamkhan on 29 April, 2011
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
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SCA/13527/2006 15/ 15 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 13527 of 2006
=========================================================
DY.
CONSERVATOR OF FOREST - Petitioner(s)
Versus
ALAMKHAN
NURBEG METAWA - Respondent(s)
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Appearance
:
MR
AL SHARMA AGP for Petitioner(s) : 1,
MS HINA DESAI for
Respondent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 29/04/2011
ORAL
ORDER
Heard learned AGP Mr. AL Sharma on behalf of petitioner state of Gujarat Dy. Conservator of Forest, Bhuj at Kutch, learned advocate Ms. Heena Desai appearing for respondent workman.
In present petition, petitioner has challenged award passed by Labour Court in reference 100/99 dated 4/7/2005, wherein Labour Court has examined issue and granted relief in favour of workman while setting aside termination order which found to be bad as it violates section 25 F of I. D. Act, 1947. The service of respondent was terminated because of alleged misconduct committed by workman. For that, no reasonable opportunity was given and no departmental inquiry was conducted by petitioner. Therefore, Labour Court has granted reinstatement with full back wages of interim period. The Labour Court has relied upon earlier award passed by Labour Court, Bhuj in reference no. 868/91 new reference no. 405/96 in respect to same respondent Metwa Aalamkhan Nurbeg dated 30/4/1998. In that award, Labour Court has set aside termination order while granting reinstatement in favour of respondent workman with 70% back wages of interim period. This award was passed by Labour Court in absence of present petitioner. The aforesaid first award which was passed by Labour Court in respect to present respondent workman in reference 868/91 and new no. 405/96 dated 30/4/1998 was challenged by petitioner before this Court in SCA no. 388/99, wherein this Court has passed an order on 10/7/2007 and petition filed by petitioner has been dismissed. The relevant para 2 to 8 are quoted as under:
2. The petitioners, being aggrieved by the award dtd.30/4/1998 made by the Presiding Officer, Labour Court, Bhuj-Kutch in Reference (LCR) No.405 of 1996 [Old Reference (LCR) No.868 of 1991], is before this Court with a submission that the learned Labour Court could not proceed ex-parte against the petitioner, nor could direct reinstatement in view of the fact that the project, in which the respondent was employed, was closed down.
3. It is to be seen that the originally the dispute was sent by the Assistant Labour Commissioner, Adipur vide his order No.KH/SHMC/RAJ/S/132/1990 dtd.17/7/1991 to the Labour Court, Rajkot, but after the Labour Court was established at Gandhidham, the Reference was transferred from Rajkot to Gandhidham.
4. After the reference was received, as observed in the award, the Labour Court at Gandhidham re-registered the case as Reference (LCR) No.405 of 1996 and under the Exh.16 issued notices to the parties. After the notices were served, one Mr.Am.M. Thakker filed his Vakalatnama for and on behalf of the workman but the present petitioners -
State did not choose to appear in the matter. The Labour Court proceeded ex-parte and after holding that the workman had worked for more than 240 days in 12 calender months preceding the date of retrenchment / illegal removal, directed reinstatement with 70% back wages.
5. The submission of Mr.I.M. Pandya, learned counsel for the petitioners that after transfer of case, no notices were issued to them, the petitioners were taken by surprise and the matter went in default, cannot be accepted. In view of the statement made in the judgement that the notices were served, I must immediately reject and accordingly reject the submission made by Mr.Pandya, learned Assistant Government Pleader.
6. The findings relating to working for more than 240 days appears to be reasonable and justified, because, there was no controversy against the said proof and plea.
7. So far as the question of closure of project is concerned, it was a plea raised but was not substantiated by leading any evidence or by producing documents. A plea if is in relation to a factual dispute, then it is to be substantiated by leading evidence. In absence of evidence, such a plea has no legs to stand. The arguments raised by Mr.I.M. Pandya, learned Assistant Government Pleader deserves to and are accordingly rejected.
8. I find no reason to interfere. The petition deserves to and is accordingly dismissed. Rule is discharged. Interim relief, if any, is vacated. No costs."
Learned advocate Ms. Desai submitted that only one contention was raised by petitioner under section 2 (j) of I. D. Act, 1947. The preliminary issue has been considered, which has been raised by petitioner before Labour Court in reference no. 100/99. The Labour Court after considering evidence on record as well as pleading from both parties and considering documentary evidence which has been produced by both parties, come to conclusion that Forest Department is covered by definition of Industry because they are manufacturing coal from wooden received from Forest department. After considering Apex Court decision in case of Bangalore Water Supply reported. The Labour Court has considered activities which has been carried out by Forest Department, which is having systematic activities carried out with the help of maintaining relationship as an employer employee and service rendered to Society/mankind, for that, question of profit or loss does not arise. The relationship between petitioner and respondent as an employer employee has been established by both parties before Labour Court and to manufacture coal from wooden received in Forest department is considered to be particular activity because after manufacturing coal from wooden, it has been sold out to out side and receiving amount by Forest department. Therefore, apparently issue raised by petitioner that petitioner establishment is not an industry has been rejected by Labour Court by order dated 30/10/2004.
Learned advocate Ms. Heena Desai submitted that order which has been passed by Labour Court, Bhuj on application of preliminary issue has not been challenged by petitioner to higher forum. Not only that but this issue has not been challenged by petitioner even in present petition. Therefore, once decision has been given by Labour Court deciding preliminary issue that petitioner establishment is covered by definition of industry under section 2(j) of I. D. Act, then that question now can not be reopened by petitioner before this Court.
The aspect whether Forest Department is an industry or not? Has been recently considered by Madras High Court in reported decision in case of Chief Executive Officer/District Forest Officer, Sandalwood Industrial Complex, Tirupattur Vs. Mallika and Ors reported in 2010 (1) LLJ 288. The relevant discussion made in para 10 to 13 are quoted as under:
10.
On the first contention with regard to the issue as to whether the Forest Department can be termed as "industry", the Apex Court, in Chief Conservator of Forests # vs. - Jagannath Maruti Kondhare (cited supra) relied upon the Bangalore Water Supply & Sewerage Board - v. - A.Rajappa reported in (1978)2 SCC 213 : 1978 SCC ( L & S) 215 : (1978)3 SCR 207. In the Bangalore Water Supply and Sewerage Board's case, the Apex Court formulated what is termed as "dominant nature test". The nature of work or project undertaken by the Forest Department of the State should be tested on the basis of definition of Section 2(j) of the Act. The "dominant nature test" has been summarised in the Apex Court's decision reported in 1996(2) SCC 293 (cited supra). Paragraph 5 of the decision reads as follows;-
"5.
The aforesaid shows that the conclusions reached by Krishna Iyer,J. had been endorsed fully by two other learned Judges and Beg,C.J. did the same but for different reasons. We would, therefore, confine our attention to the conclusions reached by Krishna Iyer,J. which appear at pp. 282 and 283 of the Report. The one which is relevant for our purpose is what finds place under serial title IV "The dominant nature test", which was spelt out as below: (SCC pp.283-84, para
143)
(a) Where a complex of activities, some of which qualify for exemption, others not, involves employees on the total undertaking, some of whom are not 'workmen' as in the University of Delhi case (University of Delhi v. Ram Nath reported in (1964)2 SCR 703 : AIR 1963 SC 1873 : 1(1963)2 LLJ 335) or some departments are not productive of goods and services if isolated, even then, the predominant nature of the services and the integrated nature of the departments as explained in Corpn. of Nagpur (Corporation of the City of Nagpur v. Employees, (1960)2 SCR 942 : AIR SC 675 :(1960)1 LLJ 523) will be the true test.
The whole undertaking will be 'industry' although those who are not 'workmen' by definition may not benefit by the status.
(b) Notwithstanding the previous clauses, sovereign functions, strictly understood, (alone) qualify for exemption, not the welfare activities or economic adventures undertaking by Government or statutory bodies.
(c) Even in departments discharging sovereign functions, if there are units which are industries and they are substantially severable, then they can be considered to come within Section 2(j).
(d) Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby."
(It may be stated that it is pursuance to what was stated under (d) above that the aforesaid amendment of 1982 was made which provided for exclusion of some categories, one of which is "any activity of the Government relatable to the sovereign functions of the Government including all the activities carried on by the departments of the Central Government dealing with defence research, atomic energy and space". This is exception 6 of the 9 mentioned in the amended definition."
11. One of the contentions raised in Jagannath Maruti Kondhare case (cited supra) based on the Bangalore Water Supply and Sewerage Board case (cited supra) is that all activities of the State is not exempted from the provisions of the Central Act, unless the provision of the Central Act are excluded specifically. The Apex Court in Jagannath Maruti Kondhare case (cited supra) after considering the rival contention came to the conclusion that all activities of the Forest Department cannot be covered under the term Sovereign Function, thereby eroding the concept of "industry" as held by the Seven Judges Bench in Bangalore Water Supply and Sewerage Board case (cited supra). The Apex Court in Chief Conservator of Forests # vs. - Jagannath Maruti Kondhare case (cited supra), considering the activities of the Maharashta Forest Department's plea held as follows:-
"12.
We may not go by the labels. Let us reach the hub. And the same is that the dichotomy of sovereign and non-sovereign functions does not really exist # it would all depend on the nature of the power and manner of its exercise, as observed in para 23 of Nagendra Rao case [(1994)6 SCC 205 : 1994 SCC (Crl) 1609 : JT (1994)5 SCC 527]. As per the decision in this case, one of the tests to determine whether the executive function is sovereign in nature is to find out whether the State is answerable for such action in courts of law. It was stated by Sahai,J., that acts like defence of the country, raising armed forces and maintaining it, making peace or war, foreign affairs, power to acquire and retain territory, are functions which are indicative of external sovereignty and are political in nature. They are therefore, not amenable to the jurisdiction of ordinary civil court inasmuch as the State is immune from being sued in such matters. But then, according to this decision the immunity ends there. It was then observed that in a welfare State, functions of the State are not only the defence of the country or administration of justice or maintaining law and order but extends to regulating and controlling the activities of people in almost every sphere, educational, commercial, social, economic, political and even marital. Because of this the demarcating line between sovereign and non-sovereign powers has largely disappeared."
"13.
The aforesaid shows that if we were to extend the concept of sovereign function to include all welfare activities as contended on behalf of the appellants, the ratio in Bangalore Water Supply case would get eroded, and substantially. We would demur to do so on the face of what was stated in the aforesaid case according to which except the strictly understood sovereign function, welfare activities of the State would come 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."
"16.
The aforesaid being the crux of the scheme to implement which some of the respondents were employed, we are of the view that the same cannot be regarded as a part of inalienable or inescapable function of the State for the reason that the scheme was intended even to fulfil the recreational and educational aspirations of the people. We are in no doubt that such a work could well be undertaken by an agency which is not required to be even an instrumentality of the State."
The plea of the State taken that it is not covered under the definition of "industry" was rejected, though such plea was taken for the first time before the court and not before the Tribunal, to set at rest any controversy that may arise for the reason stated in para 2 of the Apex Court's judgment reported in Jagannath Maruti Kondhare case (cited supra).
12. As could be seen from the facts of this case, the activities of the Forest Department of Tamil Nadu is trading in sandalwood as a commercial activity and the petitioner is managing the depot for the purpose of storing sandalwood on transit. The Forest Department in this case is engaged in augmenting its revenue from natural source for which men and women of various categories, viz., Grade-I to Grade-III are engaged in cleaning the sandalwood for further processing at the depot. It is set out in paragraphs 1 and 2 of the writ petition as follows:-
".....
In the Sandalwood sales Depot the following works being carried out in respect of cleaning of Sandalwood:-
(a) Forming and checking the uncleaned Sandalwood trees being received from Forest Depots.
(b) Reforming and checking of the uncleaned Sandalwood tree lots in a quarter.
(c) Rough cleaning of the uncleaned Sandalwood trees.
(d) Collection of Sandalwood in the rough cleaning yard.
(e) Final cleaning the rough cleaned Sandalwood trees.
(f) Forming and checking the final cleaned wood by the Double Lock Officer in the presence of the Single Lock Officer and adding to the Double Lock.
(g) Lotting the final cleaned wood for sale.
(h) Delivery of final cleaned wood and sapwood.
(i) Reweighment of the final cleaned wood in the Double Lock.
2. I respectfully state that the above works are being carried out in the sale Depot itself and there where 3 types of Labourers engaged in the Depot.
(i) Grade I: Engaging final cleaning of the Sandalwood trees.
(ii) Grade II: Engaging in rough cleaning and forming the lot and delivery works.
(iii) Grade III: Mainly for the transport of Sandalwood kept in the Additional Depot to final cleaning Depot. Grade I and II are male mazdoors and Grade III are female mazdoors."
13. The activities of the Forest Department is commercial in nature. The State Act and the Tamil Nadu Sandalwood Transit Rules, 1967, does not contain any specific clause to exclude the provision of the Central Act, (i.e.) Industrial Disputes Act, 1947 (Act 14 of 1947). The petitioner Department, therefore, cannot take the plea that they are not an industry. The activities of the Forest Department engaged in processing of sandalwood at the Tiruppattur Sandalwood Depot cannot be said to in discharge of sovereign function of the State. It is nothing, but a commercial activity intended to regulate, control the movement of sandalwood and to augment the income of the State thereby. In view of the decision in Chief Conservator of Forests # vs. - Jagannath Maruti Kondhare (cited supra) case, relying upon the seven Judges Bench decision in Bangalore Water Supply and Sewerage Board case, the plea that the petitioner department, that it is not an industry is rejected.
In light of issue which has been raised by learned AGP Mr. Sharma that petitioner Forest Department is not an industry can not be accepted because that issue is also examined by Labour Court and decided against present petitioner. For that, there is no further challenge made by petitioner to higher forum.
The Labour Court has also considered in second reference means present which is under challenged in 100/1999 dated 4/7/2005 where Labour Court has considered statement of claim filed by respondent workman and he was appointed in petitioner establishment at Gorda area as plantation man w.e.f. 29/6/1966 and remained continued in service. Thereafter, w.e.f. 17/5/1999 petitioner was considered to be daily wager Chowkidar/Mali but before that he was remained continued in service with petitioner. After his termination, he remained without work and not gainfully employed as per evidence of workman. The reply was submitted by petitioner vide exh 11 denying averment made in statement of claim by workman. The issues has been decided preliminary as referred above also produced on record before Labour Court.
The Labour Court has considered that petitioner establishment is covered by definition of Industry and on 7/5/1999 allegation has been made against workman that he was involved in theft of coal and he was daily wager. Therefore, his service was terminated on 18/5/1999 without following due procedure of law and without giving any opportunity of hearing and without conducting departmental inquiry against workman. The gainful employment is not proved by petitioner before Labour Court. The workman has proved unemployment before Labour Court. The total service rendered by workman about more than 33 years and considering his length of service, violation of section 25 F has been proved. Even basic principles of natural justice is also violated while terminating service of workman. Therefore, Labour Court has granted reinstatement with continuity of service with full back wages of interim period in favour of workman.
I have considered submission made by both learned advocates and I have also perused issue which has been decided by Labour Court, Bhuj, which was raised by petitioner and held that Forest Department is held to be an industry. Even Madras High Court has also decided similar question and come to conclusion that Forest Department is an industry. Therefore, Labour Court has rightly examined matter on the basis of evidence. For that, Labour Court has not committed any error which would require interference by this Court.
This Court has passed an order on 28/7/2006 in Special Civil Application no. 13527/2006, where following order has been passed, which is quoted as under:
"Heard the learned AGP Mr.Dabhi on behalf of petitioner and learned advocate Ms.Hina Desai appearing on behalf of respondent.
This case having little history. Respondent-workman service was terminated on 1st April, 1986 by petitioner, which order of termination was challenged by respondent-workman in Reference No.868/1991 New Number is 405/1996. The Labour Court, Kutch at Bhuj had decided the said reference on 30th April, 1998. The Labour Court has set aside the termination order and granted the reinstatement with continuity of service with 70% back wages of interim period.
The learned AGP Mr.Dabhi submitted that said award is challenged by petitioner before this Court in Special Civil Application No.388/1999. This Court has issued Rule and granted stay against the implantation of award on condition to pay Rs.35,000/- to the respondent-workman. The Special Civil application No.388/1999 is pending before this Court. The learned AGP Mr.Dabhi submitted that payment is made as per order passed by this Court of Rs.35,000/- to the respondent-workman. The learned AGP Mr.Dabhi also submitted that in pursuance to this award, reinstatement offer was made to the respondent-workman and he resumed the duty on 7th November, 1998 upto 1st January, 1999, then leave the Job, and service has not been terminated by petitioner. He also submitted that against this alleged termination dated 1st January, 1999 another reference has been made by respondent-workman being 100/99 wherein Labour Court has granted the benefit of reinstatement as well as full back wage of interim period with the cost of Rs.500/- by award dated 4th July, 2005.
The learned AGP Mr.Dabhi also submitted that respondent-workman is prepared to work with the petitioner then petitioner is prepared to reinstate him and he may resume the duty within a period of 15 days from today.
In light of this submissions made by Mr.Dabhi and learned advocate Ms.Hina Desai submitted that respondent-workman is prepared to resume his duty with the petitioner within a period of 15 days. He will report before the petitioner within a period of 15 days.
In view of these facts, Rule, to heard with Special Civil Application No.388/99 interim relief granted in terms of 10(II) qua back wages only till the Special Civil Application is finally decided by this court on condition that petitioner shall have to reinstate the respondent-workman in service within a period of 15 days from the date of receiving the copy of the said order and to pay regular salary from the date of reinstatement to the workman.
Learned advocate Ms Hina Desai waives the service of rule on behalf of respondent."
In view of above referred order passed by this Court and considering entire matter as a whole, contention raised by learned AGP Mr. Sharma can not be accepted. The Labour Court, Bhuj has not committed any error which would require interference by this Court while exercising power under Art. 227 of Constitution of India.
Hence, there is no substance in present petition. The present petition is dismissed. No order as to costs. Rule is discharged. Interim relief if any stand vacated.
(H.K.RATHOD, J) asma Top