Jharkhand High Court
State Of Jharkhand Th Swarnrek vs Tej Narayan Singh & Anr. on 21 October, 2014
Author: Shree Chandrashekhar
Bench: Shree Chandrashekhar
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(L) No.1694 of 2004
State of Jharkhand through Swarnarekha Multi Purpose Project,
Kharkai Canal Division, Adityapur, Jamshedpur, District West
Singhbhum through, its Executive Engineer..... ..... Petitioner
Versus
Tej Narayan Singh & Another ..... ..... Respondents
with
W.P.(L) No. 1697 of 2004
State of Jharkhand through Swarnarekha Multi Purpose Project, Kharkai
Canal Division, Adityapur, District SaraikelaKharsawan
through its Executive Engineer, ..... ..... Petitioner
Versus
Bablu Kumar & Another . ..... ..... Respondents
with
W.P.(L) No. 1701 of 2004
State of Jharkhand through Swarnarekha Multi Purpose
Project, Kharkai Canal Circle, Jamshedpur, District Saraikela
Kharsawan through its Executive Engineer..... ..... Petitioner
Versus.
Gopal Kumar Choudhary & Another ..... ..... Respondents
with
W.P.(L) No. 1772 of 2004
State of Jharkhand through Swarnarekha Multi Purpose Project,
Kharkai Canal Division, Adityapur, Jamshedpur, DistrictWest
Singhbhum, through its Executive Engineer ..... ..... Petitioner
Versus.
Dilip Kumar Singh & Another ..... ..... Respondents
For the Petitioner(s) : Mr. A. Allam, Sr. S.C.II
: Ms. Nehala Sharmin, J.C. to Sr. S.C.II
For the Respondents : Mr. V. Shivnath, Sr. Advocate
CORAM : HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
C.A.V. on 15.10.2014 Pronounced on 21.10.2014
The petitionerState of Jharkhand has preferred the writ
petitions challenging order dated 13.08.2003 passed by the learned
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Labour Court, Jamshedpur in B.S. Case No. 04 of 1993 and batch
cases.
BRIEF FACTS:
2. Challenging order of discharge dated 30.03.1993, B.S.
Case No. 03 of 1993, B.S. Case No. 04 of 1993, B.S. Case No. 05 of
1993 and B.S. Case No. 06 of 1993 were filed by the
complainants/employees seeking reinstatement in service with full
back wages and consequential benefits.
3. RespondentTej Narayan Singh in W.P.(L) No. 1694 of
2004 was complainant in B.S. Case No. 04 of 1993,
RespondentBablu Kumar in W. P.(L) No. 1697 of 2004 was
complainant in B.S. Case No. 06 of 1993, RespondentGopal Kumar
Choudhary in W.P.(L) No. 1701 of 2004 was complainant in B.S.
Case No. 05 of 1993 and RespondentDilip Kumar Singh in W.P.(L)
No. 1772 of 2004 was complainant in B.S. Case No. 03 of 1993. The
complainants/applicants were working in Swarnarekha Multi
Purpose Project from 01.11.1990 as security guards on daily wages
of Rs. 24 which later on, was enhanced to Rs. 25.50 per day
however, they were not given weekly holidays and other holidays.
The applicants were not provided leave and other facilities and
their services were terminated on 30.03.1993. The respondentState
of Jharkhand appeared in the proceeding before the Labour Court
and filed its showcause, denying that applicants were employees
of Swarnarekha Multi Purpose Project. It was claimed that the
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applicants were purely casual labourers working under M/s
Industrial Security Agency, Adityapur which used to supply
labourers in the project under the agreement dated 01.08.1990.
The applicants worked under the said Agency and the Agency
made payment to them on agreed rate. On an application filed by
the opposite partyState of Jharkhand, all 4 cases were heard
together. The learned Labour Court formulated the following issues:
"(a). Whether the Swarna Rekha Multipurpose Project
is an establishment ?
(b). Whether the applicants were in service of O.P.S. ?
(c) Whether the applicants work for more than six
months in Swarna Rekha Multipurpose Project ?
(d)Whether they are entitled for a relief as prayed ?
(e) To what relief or reliefs the applicants are entitled
for?
4. Vide order dated 13.08.2003, the learned Labour Court
allowed the B.S. Case No. 03 of 1993 and batch cases, holding that
the Swarnarekha Multi Purpose Project is an "establishment" and
the applicants worked for more than six months and therefore,
they are entitled to protection under Section 26 of the Bihar Shops
and Establishment Act, 1953.
SUBMISSIONS:
5. Mr. Allam, the learned Senior counsel appearing for the
petitioner in all the writ petitions has submitted that, though no
evidence was adduced by the applicants, either oral or documentary
on the point whether the Swarnarekha Multi Purpose Project is an
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"establishment" still, the learned Labour Court has recorded a
finding that the Swarnarekha Multi Purpose Project is an
"establishment" and therefore, the said finding cannot be sustained
in law. It is further submitted that the applicants were engaged by
one M/s Industrial Security Agency, Adityapur which had engaged
the applicants and paid wages to them and therefore, there was no
employer and employee relationship between the
petitioner/opposite party and the respondents.
6. Per contra, Mr. V. Shivnath, the learned Senior counsel
appearing for the respondents has submitted that, since the
statement made by the applicants was not traversed by the
opposite parties in their showcause nor the opposite parties
adduced any evidence in its denial, the learned Labour Court has
rightly concluded that the Swarnarekha Multi Purpose Project is an
"establishment". It is further submitted that the learned Labour
Court has also held that the applicants worked for six months and
since this is a question of fact, this Court may not interfere with the
finding of fact recorded by the learned Labour Court.
7. I have carefully considered the submission of the
learned counsel for the parties and perused the documents on
record.
8. From paragraph no. 9 of the impugned order dated
13.08.2003, it appears that the learned Labour Court has noticed that neither the complainant nor the opposite parties have adduced 5 oral or documentary evidence on the point whether the Swarnarekha Multi Purpose Project is an "establishment". The learned Trial Court has taken note of the decision of the Hon'ble Supreme Court in "Banglore Water Supply Sewerage Board Vs. A. Rajappa" reported in (1978) 2 SCC 213 and relying on the said case, the defence taken by the State of Jharkhand has been brushed aside by the Labour Court. The learned Labour Court has recorded that the statement made in the application by the applicants/respondents were not traversed by the State of Jharkhand and finally it concluded that the Swarnarekha Multi Purpose Project is an "establishment".
9. I find that in its showcause reply filed in the proceeding before the Labour Court, the State of Jharkhand has questioned the maintainability of the application and challenged the jurisdiction of the Labour Court. It was specifically averred that the case does not fall under the purview of Section 26(2) of the Bihar Shops and Establishment Act, 1953. It was also denied that the applicants were employees under the Swarnarekha Multi Purpose Project. The relevant definition in the Jharkhand Shops and Establishment Act are quoted below:
Section 2(4) " employee' means a person wholly or partially employed for hire, wages including salary, reward, or commission in and in connection with any establishment and includes 'apprentice' but does not include member or the employer's family. It also 6 includes person employed in a factory who are not worker within the meaning of the Factories Act, 1948 (63 of 1948), and for the purpose of proceeding under this Act, include an employee, who has been dismissed, discharged or retrenched for any reason whatsoever; Section 2(5) "employer" means a person who owns or exercise ultimate control over the affairs of an establishment and includes a manager, agent or any other person in the immediate charge of the general management or control of such establishment; Section 2(6) "establishment" means an establishment which carries on any business, trade or profession or any work in connection with, or incidental or ancillary to any business, trade or profession and includes (1) administrative or clerical service appertaining to such establishment;
(ii) a shop, restaurant, residential hotel, eating house, theatre or any place of public amusement or entertainment;
(iii) such other establishment as the State Government may, by notification, declare to be an establishment to which the Act applies;
but does not include a 'motor transport undertaking' as defined in clause (g) of Section 2 of the Motor Transport Workers Act, 1961 (27 of 1961."
10. From the record of the case, I find that the applicants did not produce any material to show that the State of Jharkhand through the Swarnarekha Multi Purpose Project carries on business, trade or profession including running a shop, restaurant, residential 7 hotel, eating house, theatre or any place of public amusement or entertainment. The applicants have contended that since the Swarnarekha Multi Purpose Project is supplying water to TISCO and other concern for which they charge money, it is an "establishment". As noticed above, the applicants/complainants did not adduce any evidence either oral or documentary on this point. I find that in the application filed before the Labour Court the complainants have not averred that the Swarnarekha Multi Purpose Project is an "establishment" under the Bihar Shops and Establishment Act. The finding recorded by the labour Court that the statement in the application filed by the complainants has not been traversed is contrary to record of the case. The learned counsel appearing for the petitioners reiterated the stand that the applicants were engaged through Security Agency which paid wages to them.
11. In "State of Gujrat and others Vs. Pratamsingh Narsinh Parmar", reported in (2001) 9 SCC 713, it has been held :
"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."
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12. In the application filed by the complainants the only grievance raised by them was that they have been removed without issuing a chargesheet or conducting an enquiry. In "State of Bihar & Others Vs. Himanshu Kumar Vidyarthi & Others", reported in (1997) 4 SCC 391, it has been held that when the appointments are regulated by the statutory rules, the concept of industry to that extent stands excluded.
13. In view of the above, I find that the finding recorded by the learned Labour Court that the Swarnarekha Multi Purpose Project is an "establishment" is erroneous and liable to be interfered with. It is hereby held that the Swarnarekha Multi Purpose Project is not an "establishment" in terms of provision of the Jharkhand Shops and Establishment Act and therefore, B.S. Case No. 03 of 1993, B.S. Case No. 04 of 1993, B.S. Case No. 05 of 1993 and B.S. Case No. 06 of 1993 were not maintainable. The learned Labour Court had no jurisdiction to pass an order under the provision of Jharkhand Shops and Establishment Act.
14. In the result, all the writ petitions are allowed. The impugned order dated 13.08.2003 is quashed.
(Shree Chandrashekhar, J.) Jharkhand High Court, Ranchi Dated 21st.of October, 2014 Satyarthy/A.F.R.