Jharkhand High Court
Pranay Kumar Srivastava & Ors. vs State Of Jharkhand Thr Exec.En on 25 April, 2014
Equivalent citations: 2014 (4) AJR 439
Author: R. Banumathi
Bench: Chief Justice, Shree Chandrashekhar
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 303 of 2007
1.Pranaya Kumar Srivastava @ Pranay Kumar Srivastawa
2.Gopal Jha
3.Rajbali Pal
... ... .. ... ... ... ... ....Appellants
Vs.
The State of Jharkhand through the Executive Engineer, Minor
Irrigation Division, Chaibasa, Jharkhand.
.. ... ... ... ... Respondent
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CORAM: HON'BLE THE CHIEF JUSTICE.
HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR.
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For the Appellants: Mr. Anoop Kumar Mehta, Advocate
For the Respondent: Dr. S.K. Verma, Sr. S.C. I &
Mr. S.K. Gupta, J.C to Sr. S.C. I
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------ Dated 25th April, 2014
This appeal is preferred against the order dated
31.7.2007passed in W.P.(L) No.2933 of 2004, whereby the learned Single Judge allowed the writ petition setting aside the award dated 26.08.2003 passed in favour of the appellants.
2. Appellant no.1, Pranay Kumar Srivastava was employed as Chowkidar between 1.4.1981 and 7.12.1996, 2nd appellant Gopal Jha worked as Electrician between 1.11.1982 and 7.12.1996 and 3rd appellant-Rajbali Pal worked as Chowkidar between 1.11.1978 and 7.12.1996. The appellant was said to be continuously working in the Minor Irrigation Division in the State of Jharkhand. On the basis of the letter of the Executive Engineer, the State Government passed an order on 3.01.1996 terminating the 2 service of the appellants and some others. Thereafter, vide letter dated 7.12.1996 issued by the Assistant Engineer, Minor Irrigation Sub-Division, Jamshedpur the services of the appellants were terminated. The appellants challenged the order of termination dated 3.01.1996 and 7.12.1996 by filing writ petition, CWJC No. 4095 of 1996. By order dated 7.01.1997, the writ petition was disposed of with an observation that the stigma regarding gross indiscipline was withdrawn however, the termination order would remain in vogue till the matter is resolved under the Industrial Disputes Act and a liberty was given to the appellants to raise the same before the appropriate forum.
3. The appellants raised industrial dispute and vide notification dated 28.3.1998, the State Government referred the matter to Labour Court, Jamshedpur, with the terms of reference "whether the termination of the services of the appellants is justified and if not, to what relief they are entitled". The Labour Court passed the award on 26.8.2003 and held that the termination of services of the appellants is unjustified. Being aggrieved by the said award, the Management preferred appeal in W.P.(L) No.2933 of 2004. By order dated 31.7.2007, the learned Single Judge allowed the writ petition setting aside the award. Learned Single Judge held that if the appellants have applied against the advertisement issued by the Department and if they are found otherwise eligible, setting aside of the award will not stand in the way of the appellants in considering their cases 3 along with the cases of other Daily Wage Employees. Being aggrieved against the allowing of the writ petition and setting aside of the award, the appellants have preferred this appeal.
4. We have heard Mr. Anoop Kumar Mehta, learned counsel for the appellants and Dr. S.K. Verma, Sr. S.C. I., for the respondent.
5. Placing reliance on the decisions rendered in the case of Des Raj and Others Vs. State of Punjab & Others reported in (1988) 2 SCC 537, learned counsel for the appellants, Mr. Anoop Kumar Mehta submitted that the learned Single Judge failed to consider the aforesaid decision of the Hon'ble Supreme Court where the Hon'ble Supreme Court decided the issue that the Irrigation Department of the State of Punjab is an industry. Learned counsel thus submitted that the Minor Irrigation Division of the State of Jharkhand is an industry and the learned Single Judge was not right in applying the ratio of the judgment rendered in the case of State of Bihar & Ors. Vs. Himanshu Kumar Vidyarthi & Ors. reported in 1997 (2) PLJR (SC)
38. Learned counsel further submitted that the appellants have rendered services since long from 1981 in the case of 1st appellant, from 1982 in the case of 2nd appellant and from 1978 in the case of 3rd appellant and their termination from service is not justified in view of the long service rendered by the appellants. It was further submitted that the 4 conditions precedent to the retrenchment prescribed under Section 25 F of the Industrial Disputes Act was not complied with before passing the termination order, which was stigmatic one. In support of his argument learned counsel for the appellant also cited two other judgments rendered in the case of Union of India & Ors. Vs. Mahaveer C. Singhvi reported in (2010) 8 SCC 220 and Devinder Singh Vs. Municipal Council, Sanaur reported in (2011) 6 SCC 584.
6. Learned counsel for the respondent placed reliance upon the decision rendered in the case of State of Bihar & Ors. Vs. Himanshu Kumar Vidyarthi & Ors. reported in 1997 (2) PLJR (SC) 38 and submitted that the Minor Irrigation Department of the Government of Jharkhand cannot be treated to be an industry and the learned Single Judge rightly set aside the award passed by the Labour Court.
7. The only point falling for consideration before us is "whether the Minor Irrigation Department of the State of Jharkhand is to be considered as an industry." Section 2 (j) of the Industrial Disputes Act, defines industry, which reads as under:
2(j) "industry" means any systematic activity carried on by co-operation between an employer and his workmen (whether such workmen are employed by such employer directly or by or through any agency, including a contractor) for the production, supply or distribution of goods or services with a view to satisfy 5 human wants or wishes (not being wants or wishes which are merely spiritual or religious in nature), whether or not,--
(i) any capital has been invested for the purpose of carrying on such activity ; or
(ii) such activity is carried on with a motive to make any gain or profit, and includes--
(a) any activity of the Dock Labour Board established under Section 5 A of the Dock Workers (Regulation of Employment) Act, 1948 (9 of 1948);
(b) any activity relating to the promotion of sales or business or both carried on by an establishment, but does not include--
(1) any agriculture operation except where such agricultural operation is carried on in an integrated manner with any other activity (being any such activity as is referred to in the foregoing provisions of this clause) and such other activity is the predominant one.
Explanation.-- For the purposes of this sub- clause, "agricultural operation" does not include any activity carried on in a plantation as defined in clause
(f) of section 2 of the Plantations Labour Act, 1951 (69 of 1951); or (2) hospitals or dispensaries; or (3)educational, scientific, research or training institutions; or (4)institutions owned or managed by organisations wholly or substantially engaged in any charitable, social or philanthropic service; or (5)khadi or village industries; or (6)any activity of the Government relatable to the sovereign functions of the Government including all the activities carried on by the departments of the 6 Central Government dealing with defence research, atomic energy and space; or (7)any domestic service; or (8)any activity being a profession practised by an individual or body of individuals, if the number of persons employed, by the individual or body of individuals in relation to such profession is less than ten; or (9)any activity, being an activity, being an activity carried on by a co-operative society or a club or any other like body of individuals, if the number of persons employed by the co-operative society, club or other like body of individuals in relation to such activity is less than ten;]
8. In "Tata Memorial Hospital Workers Union Vs. Tata Memorial Centre and Another", reported in (2010) 8 SCC 480, it has been held that merely because the government companies, corporations and societies are instrumentalities or agencies of the Government, they do not become agents of the Central or the State Government for all purposes. Business which is carried on by or under the authority of the Central Government must be a government business. In "The Management of Safdarjung Hospital, New Delhi Vs. Kuldip Singh Sethi", reported in 1970 (1) SC 735, it has been held that every case of employment is not necessarily productive of an industry. Domestic employment, administrative services of public officials, service in aid of occupations of professional men, also disclose relationship of employer and employee but they cannot be regarded as in the course of industry. It has been 7 held that an industry is to be found when the employers are carrying on any business, trade, undertaking, manufacture or calling of employers.
9. In "State of Gujarat and others Vs. Pratamsingh Narsinh Parmar", reported in (2001) 9 SCC 713, the Hon'ble Supreme Court has held that,
5. "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".
10. In "Himanshu Kumar Vidyarthi and Others Vs. State of Bihar and 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.
11. In the case of Des Raj and Others Vs. State of Punjab & Others reported in (1988) 2 SCC 537, the Hon'ble Supreme Court held the Irrigation Department of the State of Punjab as an 'industry' and held that having regard to the activities of the Irrigation Department of the State of Punjab as disclosed in the Administration Report of 1981-82 of the PWD, Irrigation Branch and also the tests laid down in various decisions of the Supreme Court and 8 particularly applying the dominant nature test, which was evolved in Bangalore Water Supply and Sewarage Board Vs. A. Rajappa [(1978) 2 SCC 213] and on being satisfied, the Hon'ble Supreme Court held that the Irrigation Department of the State of Punjab is an industry.
12. In the case at hand, no material has been produced by the appellants-workmen to show that the Minor Irrigation Department has got multipurpose activity and also engaged in manufacture and other related activities. Paragraph 10 of the Des Raj case (supra) refers to the various examples concerning the irrigation projects in other States like Madhya Pradesh, Rajasthan. In paragraph 10, 11 and 12 of the said judgment, the Hon'ble Supreme Court while referring to the irrigation projects of Madhya Pradesh and Rajasthan, pointed out that those Irrigation Projects were multipurpose one and were used for generating electricity as also for irrigation purposes and on those facts, the High Court came to the conclusion that irrigation department of those States falls within definition in Section 2 (j) of the Act.
13. In the present case, on behalf of appellants, no evidence was adduced to show that the Minor Irrigation Department of the State of Jharkhand is involved in the manufacture and other related activities falling within the meaning of Section 2 (j) of the Act. The Minor Irrigation department being a Government Department, the recruitment/appointment is governed by statutory rules, the 9 learned Single Judge rightly relied upon the judgment rendered in the case of State of Bihar & Ors. Vs. Himanshu Kumar Vidyarthi & Ors. reported in 1997 (2) PLJR (SC) 38 and held that Section 25 F of the Industrial Disputes Act is not applicable in the present case since the Minor Irrigation Department of Jharkhand is not an "Industry".
14. In view of the conclusion that Minor Irrigation Department is not "Industry", the argument advanced on behalf of appellants regarding the violation of the condition precedent to Section 25 F of the Industrial Disputes Act need not be gone into.
15. In so far as the contention of the learned counsel for the appellant regarding stigmatised order of termination is concerned, it is pertinent to mention here that in the earlier writ petition, being C.W.J.C. No. 4095 of 1996 (R), the learned Single Judge has directed withdrawal of stigma apart from directing to pay back wages to the appellants from 1994 till the date of termination from the service i.e. 3.1.01996. With the judgment in C.W.J.C No. 4095 of 1996(R), the order of termination is no longer stigmatic one. It appears that the lower Court did not keep in view the nature of activities of Irrigation Department of the respondent while holding Minor Irrigation Department as an industry. Since the Labour Court has seriously erred in passing the award, the learned Single Judge has rightly set aside the order passed by the Labour Court. We do not find 10 any infirmity in the order passed by the learned Single Judge warranting interference with the order of the learned Single Judge.
Accordingly, this Letters Patent Appeal is dismissed.
(R. Banumathi, C.J.) (Shree Chandrashekhar, J) Alankar/-