Karnataka High Court
The Conservator Of Forest vs Shivanna on 28 July, 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MRS. JUSTICE K.S. HEMALEKHA
WRIT PETITION No.25576/2013 (L-RES)
C/W
WRIT PETITION No.25566/2013 (L-RES),
WRIT PETITION No.27240/2013 (L-RES)
IN W.P. No.25576/2013
BETWEEN:
1. THE CONSERVATOR OF FOREST,
MYSORE CIRCLE, ARANYA BHAVAN,
MYSORE.
2. THE CHIEF SECRETARY,
KARNATAKA STATE GOVERNMENT,
VIDHANA SOUDHA,
BANGALORE.
3. THE CHIEF CONSERVATOR OF FOREST,
ARANYA BHAVAN,
MALLESHWARAM, 18TH CROSS,
BANGALORE.
4. THE SECRETARY TO GOVT.,
FOREST DEPARTMENT,
M.S. BUILDING,
AMBEDKAR VEEDHI,
BANGALORE. ... PETITIONERS
(BY SRI D.S. SHIVANANDA, AGA)
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AND:
RAJESHA
S/O. SIDDEGOWDA,
AGE: MAJOR,
VARUNA HOBLI,
MYSORE TALUK - 575 001. ... RESPONDENT
(RESPONDENT IS SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASH THE ORDER DATED 19.10.2011 PASSED BY THE
LABOUR COURT AT MSYORE IN APPLICATION NO.65/2001
VIDE ANNEXURE-A.
IN W.P. NO.25566/2013
BETWEEN:
1. THE CONSERVATOR OF FOREST,
MYSORE CIRCLE,
ARANYA BHAVAN,
MYSORE.
2. THE CHIEF SECRETARY,
KARNATAKA STATE GOVERNMENT,
VIDHANA SOUDHA,
BANGALORE.
3. THE CHIEF CONSERVATOR OF FOREST,
ARANYA BHAVAN,
MALLESHWARAM, 18TH CROSS,
BANGALORE.
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4. THE SECRETARY TO GOVT.,
FOREST DEPARTMENT,
M.S. BUILDING, AMBEDKAR VEEDHI,
BANGALORE. ... PETITIONERS
(BY SRI D.S. SHIVANANDA, AGA)
AND:
MAHESHA
S/O. MAHADEVAPPA
AGED ABOUT 25 YEARS,
R/AT CHATTANAHALLI PALYA,
VARUNA HOBLI, DHUDAGERE POST,
MYSORE TALUK AND DISTRICT - 575 005. ... RESPONDENT
(RESPONDENT IS SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASH THE ORDER DATED 19.10.2011 PASSED BY THE
LABOUR COURT AT MYSORE IN APPLICATION NO.66/2001
AT ANNEXURE-A.
IN W.P. NO.27240/2013
BETWEEN:
1. THE CONSERVATOR OF FOREST,
MYSORE CIRCLE,
ARANYA BHAVAN,
MYSORE.
2. THE CHIEF SECRETARY,
KARNATAKA STATE GOVERNMENT,
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VIDHANA SOUDHA,
BANGALORE.
3. THE CHIEF CONSERVATOR OF FOREST,
ARANYA BHAVAN,
MALLESHWARAM, 18TH CROSS,
BANGALORE.
4. THE SECRETARY TO GOVT.,
FOREST DEPARTMENT,
M.S. BUILDING, AMBEDKAR VEEDHI,
BANGALORE. ... PETITIONERS
(BY SRI D.S. SHIVANANDA, AGA)
AND:
SHIVANNA
S/O. MADAIAH, 32 YEARS,
R/AT CHATTANAHALLI PALYA,
VARUNA HOBLI,
MYSORE TALUK - 575 005. ... RESPONDENT
(RESPONDENT IS SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASH THE ORDER DATED 19.10.2011 PASSED BY THE
LABOUR COURT AT MYSORE IN APPLICATION NO.69/2001
VIDE ANNEXURE-A.
THESE WRIT PETITIONS HAVING BEEN HEARD AND
RESERVED ON 15/06/2023 FOR ORDERS AND COMING FOR
PRONOUNCEMENT OF ORDER THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
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ORDER
All the writ petitions are taken up together as common questions are involved in these writ petitions.
2. The Conservator of Forest has assailed the orders dated 19.10.2011 in Application Nos.65/2001, 66/2001 and 69/2001 respectively on the file of the Labour Court, Mysore, whereby, the applications filed by the workmen under Section 33(c)(2) of the Industrial Disputes Act, 1947 ("the ID Act" for short) were allowed and the Forest Department - respondents herein were directed to pay a sum of Rs.26,520/- within a period of two months from the date of the order.
3. The petitioners are termed as the Forest Department and the respondents in the writ petitions are termed as the workmen for the sake of convenience.
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4. Facts of the case are that the respondent - workmen in all the petitions were appointed as Forest Watcher to look after the footpath trees on the road side of Varakodu of Mysore District on a monthly wage of Rs.2,040/-. As the Forest Department did not pay the wages from 01.12.1999 to 31.03.2001, the workmen filed the said applications under Section 33(c)(2) of the ID Act seeking for wages amounting to Rs.26,550/-. The Forest Department filed objections to the claim petitions contending that the Forest Department is not an industry as envisaged under Section 2(j) of the Industrial Act. The Tribunal placing reliance on the dictum of the Apex Court in the case of the Chief Conservator of Forests and another vs. Jagannath Maruti Kondhare [(1996) 2 SCC 293] (Chief Conservator of Forests) allowed the applications and directed the Department to pay the amount.
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5. Heard Sri D.S.Shivananda, learned Additional Government Advocate for the petitioners. Respondents though served have remained unrepresented.
6. The question that needs to be answered in this petition is, "whether the State - Forest Department is an industry as envisaged under Section 2(j) of the Industrial Disputes Act, 1947?"
7. The interpretation of the definition of the "industry" fell for consideration before the Seven Judges Bench in Bangalore Water Supply & Sewerage Board vs. A. Rajappa [(1978) 2 SCC 213] in light of the deviation from the ratio of the dicta of Madras Gymkhana & Safdargunj Hospital. The three Judges Bench initially commenced the hearing and felt it necessary to place the matter before the Chief Justice, for consideration by a Larger Bench. Accordingly, the appeal was heard by the seven Judges -8- Bench and the conclusion of the Apex Court finds place at page No.282 and 283 which reads as under:
"(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 (1963-II-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 the Corporation of the city of Nagpur v. Its employees (1960-I-LLJ-523) will be true test. The whole undertaking will be 'industry' although those who are not 'workmen' by definition may not benefit by the statutes.
(b) Notwithstanding the previous clauses, Sovereign functions, strictly understood, alone qualify for exemption, not the welfare activities or economic 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, -9- then they can be considered to come within Section 2(j).
(d) Constitutional and competently enacted Employees legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby
8. As per the Bangalore Water Supply case, sovereign functions "strictly understood" alone qualify for exemption, and not the welfare activities or economic adventures undertaken by the Government and as to which activities of the Government could be called the sovereign functions strictly understood has been spelt out in the aforesaid case. The Apex Court, in the case of Chief Conservator of Forest stated supra had an occasion to consider the question as to whether the Forest Department of the State Government was an "industry" on the touchstone of what was held by the Apex Court in Bangalore Water Supply case stated supra, and held that the concept of sovereign function
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to include all welfare activities and at para Nos.7, 11, 13, 17 and 22, the Apex Court in has held as under:
"7. As per the Bangalore Water-Supply case (supra) sovereign functions "strictly understood" alone qualify for exemption; and not the welfare activities or economic adventures undertaken by the Government. This is not all. A rider has been added that even in the departments discharging sovereign functions, if there are units which are industries and they are substantially severable, then they can be considered to be an industry. As to which activities of the Government could be called sovereign functions strictly understood, has not been spelt out in the aforesaid case.
11. As to which function could be, and should be, taken as regal or sovereign function has been recently examined by a Bench of this Court, to which one of us (Hansaria, J.) was a party. This was in Nagendera Rao and Co. v. The State of Andhra Pradesh , in which case Sahai, J. Speaking for the Bench examined this question in detail in the background of the
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stand of the respondent-State pleading absence of vicarious liability because of the doctrine of sovereign immunity. This aspect has been dealt in paras 21 to 24, Para 21 opens by saying that the old and archaic concept of a sovereignty does not survive as sovereignty now vests in the people. It is because of this that in the aforesaid Australian case the distinction between sovereign and non-sovereign functions was categorised as regal and non-regal. In some cases the expression used is State function, whereas in some Governmental function.
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 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 purview of the definition of industry; and, not only this, even within the wider circle of
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sovereign function, there may be an inner circle encompassing some units which could be considered as' industry if substantially severable.
17. This being the position, we hold that the aforesaid scheme undertaken by the Forest Department cannot he regarded as a part of sovereign function of the State, and so, it was open to the respondents to invoke the provisions of the State Act. We would say the same qua the social foresting work undertaken in Ahmednagar district. There was, therefore, no threshold bar in knocking the door of the Industrial Courts by the respondents making a grievance about adoption of unfair labour practice by the appellants.
22. We have given our due thought to the aforesaid rival contentions and, according to us, the object of the State Act, inter alia, being prevention of certain unfair labour practices, the same would be thwarted or get frustrated if such a burden is placed on a workman which he cannot reasonably discharge. In our opinion, it would be permissible on facts of a particular case to
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draw the inference mentioned in the second part of the item, if badlis, casuals or temporaries are continued as such for years. We further state that the present was such a case inasmuch as from the materials on record we are satisfied that the 25 workmen who went to Industrial Court of Pune (and 15 to Industrial Court, Ahmednagar) had been kept as casuals for long years with the primary object of depriving them the status of permanent employees inasmuch as giving of this status would have required the employer to pay the workmen at a rate higher than the one fixed under the Minimum Wages Act. We can think of no other possible object as, it may be remembered that the Pachgaon Parwati Scheme was intended to cater to the recreational and educational aspirations also of the populace, which are not ephemeral objects, but par excellence permanent. We would say the same about environment-pollution-care work of Ahmedanager, whose need is on increase because of increase in pollution. Permanency is thus writ large on the face of both the types of work. If, even in such projects, persons are kept in jobs on casual for
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years the object manifests itself; no scrutiny is required. We, therefore, answer the second question also against the appellants.
(Emphasis supplied)
9. The Apex Court in the case of Chief Conservator of Forest has held that the activities of the Forest Department of the State, were not of sovereign nature and they would fall within the meaning of "industry" and once it is ruled that the functions of the Forest Department cannot be regarded as a part of sovereign functions, the activities fall within the ambit of definition of an industry in Section 2(j) of the Act is inescapable as it satisfy the triple test laid down in Bangalore Water Supply and necessary corollary thereto the provisions of the ID Act apply in full flow to the employees of the Forest Department who answer the definition of "workman" in Section 2(s) of the ID Act. Viewed from that perspective, the Tribunal has rightly come to the conclusion that the
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Forest Department is an "industry" as envisaged under Section 2(j) of the ID Act and rightly allowed the application. The manner in which the Tribunal has considered the entire material and the proposition of law as envisaged in Chief Conservator of Forest, this Court is of the considered view that the impugned order assailed does not call for any interference. Accordingly, this Court pass the following:
ORDER
(i) Writ petitions are dismissed.
(ii) The impugned orders are hereby confirmed.
(iii) The petitioner - Forest Department herein is directed to pay the sum of Rs.26,520/- forthwith to the respondent - workmen.
SD/-
JUDGE S*