Andhra HC (Pre-Telangana)
Visakhapatnam Urban Development ... vs Kemburi Gowri Naidu And Anr. on 31 July, 2002
Equivalent citations: (2003)IILLJ256AP
Author: L. Narasimha Reddy
Bench: L. Narasimha Reddy
ORDER L. Narasimha Reddy, J.
1. In this batch of writ petitions, the Visakhapatnam Urban Development Authority (for short 'the VUDA'), the petitioner, challenges the award passed by the Labour Court, Visakhapatnam, in various Industrial Disputes, directing reinstatement of the workmen.The respective employees are impleaded as respondent No.1 in the concerned writ petitions and for the sake of convenience; they are referred to as the workmen.
2. The workmen raised Industrial Disputes before the Labour Court, the 2nd respondent, contending that they have been engaged as NMRs by the petitioner at various point of time, they have been discharging their functions that were assigned to them from time to time and that their services have been orally terminated without complying with the provisions of Section 25F of the Industrial Disputes Act (for short 'the Act').
3. The petitioner resisted the Industrial Disputes on two grounds. Firstly, it was contended that the petitioner is not an industry as defined under the Act and, as such, it is not required to comply with the procedure under section 25F of the Act for discontinuing an employee. The second contention was that the work for which the workmen were engaged was occasional and temporary in nature and it was not at all feasible to continue them irrespective of the fact whether they are workmen or not. The second respondent repelled both the contentions. It found that the petitioner is an industry as defined under the Act and, therefore, the services of the workmen could not have been terminated except complying with the provisions of Section 25F of the Act.
4. Smt. Sumhalini Reddy, learned Standing Counsel for the petitioner, submits that the petitioner is constituted under the A.P.Urban Areas Development Act, 1975 and its functions are purely sovereign in nature. According to her, the petitioner being the statutory authority discharging sovereign functions, cannot be treated as an Industry and, as such, the insistence on following the procedure under Section 25F of the Act was without any basis. It is her further contention that the work was occasional in nature and it was not feasible to continue the workmen. Though she raised a plea that the workmen were engaged by the Labour Contractor, who was entrusted with the concerned work, she did not press it further, having regard to the lack of material on that issue.
5. The learned counsel for the workmen, on the other hand, submits that irrespective of the nature in which the petitioner is brought into existence, once it was found that it was discharging non-sovereign functions, it was under obligation to follow the procedure prescribed under the Act. As regards the other submissions relating to feasibility, he contends that there was sufficient work with the petitioner-Organisation for which the workmen can be engaged.
6. The main question that arises for consideration in this batch of writ petitions is whether the petitioner i.e., the VUDA is an industry, within the meaning of Section 2(j) of the Act. It is true that the petitioner was constituted under and in accordance with the provisions of the A.P.Urban Areas Development Act, 1975. It may also be true that some of the functions being discharged by it are sovereign in nature. That fact, however, by itself does not galvanize it from the application of the provisions of the Act. If, on verification, it is found that the petitioner has been discharging or undertaking certain functions which are non-sovereign in nature, the employees. who are engaged for such work are entitled for protection under the Act. CITY OF NAGPUR CORPORATION VS. N.H.MAJUMDAR, is the authority on the subject. The distinction between the regal and non-sovereign functions has been discussed and demonstrated with reference to Indian as well as Foreign precedents and text books, by Chief Justice Subba Rao, in his inimitable style. After undertaking discussion, he summed up the law as under:
The result of the discussion may be summarized that: (1) The definition of industry" in the Act is very comprehensive.It is in two parts: one part defines it from the standpoint of the employer and the other from the standpoint of the employee.If an activity falls under either part of the definition, it will be an industry within the meaning of the Act. (2) The history of industrial disputes and the legislation recognizes the basic concept that the activity shall be an organized one and not that, which pertains to private or personal employment. (3) The regal functions described as primary and inalienable functions of State through statutorily delegated to a corporation are necessarily excluded from the purview of the definition. Such regal functions shall be confined to legislative power, administration of law and judicial power. (4) If a service rendered by an individual or a private person would be an industry, it would equally be an industry in the hands of a corporation. (5) If a service rendered by a corporation is an industry, the employees in the departments connected with that service, whether financial, administrative or executive, would be entitled to the benefits of the Act. (6) If a department of a municipality discharges many functions, some pertaining to industry as defined in the Act and other non-industrial activities, the predominant functions of the department shall be the criterion for the purposes of the Act. (Para 17)"
7. In Paragraph 18 of the Judgment, various departments that have been functioning in the Municipal Corporation have been listed.Thereafter, the discussion is undertaken with reference to each and every department.Having regard to the nature of functions, that the workmen in the case on hand were discharging, the Public Garden Department and the Public Works Department referred to and discussed by the Hon'ble Supreme Court can be taken as nearer to the issue. Having decided the matter with reference to the parameters laid in it, the Supreme Court held that these departments are industries.
8. The law laid down by the Supreme Court in that case holds the field even as on today.Subsequent judgment of the larger bench of the Supreme Court in BANGALORE WATER SUPPLY vs. RAJAPPA, has followed and reiterated the judgment in CITY OF NAGPUR CORP (1 supra). Therefore, irrespective of the fact that the petitioner has been constituted under an Act of Legislature and some of the functions being discharged by it are sovereign in nature; as long as the work entrusted to the workmen is non-sovereign in nature, the petitioner was under obligation to follow Section 25F of the Act. The judgment of the Supreme Court in GHAZIABAD DEVELOPMENT AUTHORITY vs. VIKRAM CHOUDHARY , 1995 AIR SCW 3457 relied upon by the counsel for the petitioner, is of no help to them. There is no indication from it that the appellant therein was not treated as an industry. Inasmuch as it is not in dispute that the petitioner did not follow the procedure laid down in Section 25F of the Act, the Awards passed by the Labour Court cannot be found fault with.
9. So far as the 2nd contention is concerned, once it is found that the petitioner is an industry in the context of the present subject matter and that it did not follow Section 25F of the Act while terminating the services of the workmen, the question as to whether it was feasible for the petitioner to continue the workmen or that it was facing any financial hardship, pales into insignificance. If the petitioner finds it difficult or not feasible to continue any of the workmen, it is always open to them to retrench the surplus employees duly following the procedure prescribed under Section 25F of the Act.
10. The 2nd respondent has considered the matters before it in their proper perspective and no exception can be taken to the awards passed by it. The writ petitions are therefore dismissed. There shall be no order as to costs.
W.P.No.15845/200011. In this writ petition, the workman challenges the award in so far as it had denied the benefit of back wages. The Labour Court, which has undertaken elaborate discussion with reference to the relevant facts, has awarded back wages in all the Awards except the one, which is the subject matter of this writ petition. It had assigned cogent reasons in support of its decision in not awarding back wages. I do not find any reason to interfere with the same, it being a pure question of fact. The writ petition is accordingly dismissed. No costs.