Town Planning Authority vs Shivaputra S/O Anneppa on 6 November, 2023

[Cites 11, Cited by 0]

Karnataka High Court

Town Planning Authority vs Shivaputra S/O Anneppa on 6 November, 2023

The parties are referred to as per their ranking in the writ appeal. The complainant in contempt petition is respondent in writ appeal. This is a third round of litigation. At the instance of the respondent, a reference under Section 10(1)(c) of the Industrial Disputes Act, 1947 (for short, hereinafter referred to as 'the Act') was -4- NC: 2023:KHC-K:8426-DB CCC No. 200118 of 2022 C/W WA No. 200122 of 2015 made by the State Government in Reference No.22/2003 and an award was passed by the Labour Court, Kalaburagi on 24.04.2009 directing reinstatement of the respondent as clerk on daily wages. However, no backwages were awarded to the respondent. Aggrieved by the award, the appellant-Town Planning Authority filed Writ Petition No.12052/2006, while the respondent also filed Writ Petition No.1994/2007, being aggrieved by the portion of the award not granting backwages to the respondent. By order dated 26.03.2007, the writ petition filed by the appellant-Town Planning Authority was allowed and the writ petition of the respondent was dismissed. The award dated 29.04.2006 was quashed. However, the matter was remitted back to the Labour Court for fresh disposal with a direction to dispose of the dispute while considering the relevant material before coming to the conclusion as to whether the appointment of the respondent was in accordance with law; whether he proved that there is termination of his services and whether he was entitled for reinstatement.

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NC: 2023:KHC-K:8426-DB CCC No. 200118 of 2022 C/W WA No. 200122 of 2015

2. On remand, opportunity was once again given to both the parties to place the materials before the Labour Court to prove their contentions. An issue was also raised as to whether the appellant herein is an Industry as defined under Section 2(f) of the Act. However, it has been pointed out by the learned counsel for the appellant that though the issue is framed, it is not answered. Learned counsel for the appellant would therefore submit that since the issue goes to the root of the matter and the same is not answered, the impugned award requires to be set aside.

3. Per contra, learned Counsel for the respondent submits that the writ petition filed at the hands of the appellant herein in W.P.No.82249/2009 was decided on 13.03.2015 refusing to interfere in the award passed by the Labour Court. The Labour Court allowed the reference and set aside the oral termination order dated 01.01.2000, while directing the appellant to reinstate the respondent as clerk on daily wage basis within a period of four weeks -6- NC: 2023:KHC-K:8426-DB CCC No. 200118 of 2022 C/W WA No. 200122 of 2015 from the date of award coming into force on its publication as per the prevailing wages. The order passed by the learned Single Judge was questioned by the appellant herein by filing this writ appeal on 23.04.2015 after a long lapse of six years. Learned Counsel would further submit that the respondent was not aware of the fact that such a writ appeal was filed in the year 2015. It appears that the writ appeal was dismissed for non-prosecution. In the meanwhile, the respondent had filed one more writ petition in W.P.No.201302/2016 seeking a writ of mandamus against the appellant herein. Learned Counsel submits that even during the course of the proceedings in W.P.No.201302/2016, the appellant herein did not bring to the notice of the learned Single Judge the pendency of the writ appeal. W.P.No.201302/2016 was disposed of by order dated 10.02.2022 with a direction to the appellant herein to consider the representation dated 13.04.2015 given by the respondent herein within an outer limit of three months from the date of receipt of certified copy of the order. Liberty was also reserved to the respondent -7- NC: 2023:KHC-K:8426-DB CCC No. 200118 of 2022 C/W WA No. 200122 of 2015 herein to file one more representation with all particulars relating to the claim made by the respondent and it was directed that the same shall be considered by the appellant herein in accordance with law. When the orders passed in W.P.No.201302/2016 were not complied, the contempt petition has been filed. Learned Counsel would submit that initially in the contempt proceedings also it was not brought to the notice of the Court that a writ appeal was already filed by the appellant herein in the year 2015. On the other hand, an undertaking was given before this Court that there would be compliance of the orders passed by this Court.

4. On hearing the learned counsel for the appellant, learned Counsel for respondent and on perusing the appeal memo and the papers in contempt petition, this Court finds that although issue was framed by the Labour Court as to whether the appellant herein would answer to the word "industry" as defined under Section 2(j) of the Act, nevertheless no finding is given by the Labour Court. -8-

NC: 2023:KHC-K:8426-DB CCC No. 200118 of 2022 C/W WA No. 200122 of 2015 There was a contemplation as to whether the matter has to be remanded back to the Labour Court to decide the issue. However, both the learned Counsels have jointly submitted that since it is a question of law, it may be decided by this Court and no useful purpose would be served by remanding the matter for reconsideration only on the said issue.

5. We find from the order passed by this Court in W.P.No.12052/2006 dated 26.03.2007 that the question as to whether the appellant would be an 'industry' as defined under Section 2(j) of the Act and whether the respondent herein was entitled for the benefit under Section 25-F of the Act was raised and considered by this Court and the decision in the case of Bangalore Water Supply and Sewerage Board, etc., vs. A.Rajappa and Others reported in (1978) 2 SCC 213 was noticed to have been considered at the hands of the Labour Court.

6. In that view of the matter, we are of the considered opinion that having noticed the said aspect, the -9- NC: 2023:KHC-K:8426-DB CCC No. 200118 of 2022 C/W WA No. 200122 of 2015 Labour Court rightly framed the issue. However, no finding on the issue has been given by the Labour Court. The issue being one of jurisdiction, the Labour Court was duty bound to give its finding on the issue. It is obvious, if the issue was answered in favour of the appellant herein then, the Labour Court would lose jurisdiction to consider the matter.

7. Learned counsel for the appellant has brought to the notice of this Court a decision of the Hon'ble Supreme Court in the case of State of Uttar Pradesh vs. Jai Bir Singh reported in (2005) 5 SCC 1. We find that in the said decision various paragraphs in the decision of A.Rajappa (supra) have been culled out, viz., paragraph Nos.140, 141, 142, 143, 144, 163 and 165 have been extracted. We find that even in the case of A.Rajappa (supra) it was held that "What is meant by the use of the term "sovereign'', in relation to the activities of the State, is more accurately brought out by using the term "governmental'' functions although there are difficulties

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NC: 2023:KHC-K:8426-DB CCC No. 200118 of 2022 C/W WA No. 200122 of 2015 here also inasmuch as the Government has entered largely new fields of industry. Therefore, only those services which are governed by separate rules and constitutional provisions, such as Articles 310 and 311 should, strictly speaking, be excluded from the sphere of industry by necessary implication.'' In paragraph-143 under the heading "Dominant Nature Test" at clauses-A to D, the following words are found.

"(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 (supra) 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 the Corporation of Nagpur (supra), 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

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NC: 2023:KHC-K:8426-DB CCC No. 200118 of 2022 C/W WA No. 200122 of 2015 adventures undertaken 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."

8. In Jai Bir Singh's case (supra), their lordships also noticed the observation in Secretary, Madras Gymkhana Club Employees' Union vs. Gymkhana Club reported in (1968) 1 SCR 742 as follows: "before the work engaged it can be described as an industry, it must bear the definite character of `trade' or `business' or `manufacture' or 'calling' or must be capable of being described as an undertaking resulting in material goods or material services''.

9. Having regard to the common thread running through A.Rajappa's case (supra) and all the subsequent

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NC: 2023:KHC-K:8426-DB CCC No. 200118 of 2022 C/W WA No. 200122 of 2015 judgments which were noticed in Jai Bir Singh's case (supra), there cannot be any doubt that the appellant authority being established under the provisions of the Karnataka Town and Country Planning Act and the Rules thereunder with a specific objective of implementing the provisions contained in the Act in the matter of Town and Country Planning, the appellant does not fall within the definition of the 'Industry' as defined under Section 2(j) of the Act.

10. However, learned Counsel for the respondent would submit that the dispute commenced in the year 2003 and such submission was not made before the learned Single Judge either in W.P.No.82249/2009 or W.P.No.201302/2016, the respondent should not be left without any remedy.

11. In the considered opinion of this Court, this Court can only leave the decision to the respondent as to whether he should recommence the litigation by approaching the appropriate forum at this length of time.

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NC: 2023:KHC-K:8426-DB CCC No. 200118 of 2022 C/W WA No. 200122 of 2015 It is more than 20 years after the litigations began in the year 2003 and the respondent would have found some means of employment. We cannot lose sight of the fact that the question of regularisation of services under the State and its authorities are also guided by a constitutional bench decision in the case of Secretary, State of Karnataka and Others vs. Umadevi and Others reported in (2006) 4 SCC 1.

12. The said decision was rendered in the year 2006. On the admitted facts we find that the respondent claims to have served the appellant authority for a period of two years. The eligibility for seeking regularisation even in terms of Umadevi's case (supra) is that a person should have completed 10 years of services prior to the decision rendered in Umadevi's case (supra).

13. We are therefore of the opinion that no express directions can be given by this Court to the appellant authority in the matter of reinstatement of the respondent

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NC: 2023:KHC-K:8426-DB CCC No. 200118 of 2022 C/W WA No. 200122 of 2015 herein. However, the respondent, if so advised, may proceed in accordance with law.

14. Consequently, the writ appeal filed at the hands of Town Planning Authority is allowed. The impugned award passed by the Labour Court in Reference No.22/2003 dated 24.04.2009 is hereby quashed and set aside. The order passed by the learned Single Judge in W.P.No.82249/2009 and W.P.No.201302/2016 are also set aside.

15. Since the writ appeal is allowed, the contempt petition filed by the respondent herein stands dismissed.

16. However, we are persuaded to accept the submission of the learned Counsel for the respondent that although the appellant herein filed the writ appeal in the year 2015, it was dismissed for non-prosecution and it was never brought to the notice of the respondent till this contempt petition was moved by the respondent herein. An application was subsequently filed to restore the writ appeal and consequently, the writ appeal was restored.

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NC: 2023:KHC-K:8426-DB CCC No. 200118 of 2022 C/W WA No. 200122 of 2015

17. In that view of the matter, we are of the considered opinion that the litigation expenses of the respondent is required to be paid by the appellant herein. Therefore, a direction is hereby given to the appellant authority to pay Rs.1,00,000/- (Rupees One Lakh Only) as litigation expenses to the respondent. The same shall be paid within a period of four weeks from the date of receipt of copy of this order.

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JUDGE VNR CT:VK List No.: 1 Sl No.: 20

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Karnataka High Court