Jharkhand High Court
State Of Bihar (Now Jharkhand) And Ors. vs The Presiding Officer, Labour Court And ... on 1 September, 2005
Equivalent citations: [2006(1)JCR289(JHR)], (2006)IILLJ346JHAR
Author: Altamas Kabir
Bench: Altamas Kabir, R.K. Merathia
JUDGMENT Altamas Kabir, C.J.
1. These two appeals arise out of two writ petitions, being CWJC No. 6138 of 1996-R and CWJC No. 4803 of 1997-R, disposed of by a common judgment dated 24th June, 2003, passed by a learned Single Judge of this Court.
2. The respondents in CWJC No. 6138 of 1996-R had invoked the provisions of the Industrial Disputes Act, 1947, for regularization of their services. According to the said respondents, they were all workmen appointed between the years 1980 to 1983 on daily wages under the Executive Engineer, Water Resources, Irrigation Department, Irrigation Division, Deoghar in various capacities, such as chowkidars, Night Guard, Typists, Tracers, Helpers, etc. It was also their case that they had continuously rendered service as permanent staff, but had not been given the benefits and status of permanent employees, nor were they being paid as per the principles of equal pay for equal work. Consequently these workmen invoked the provisions of the Industrial Disputes Act, 1947, and the matter was referred for adjudication to the Presiding Officer, Labour Court, at Bhagalpur and was registered as Reference Case No. 14 of 1987. While the aforesaid reference was pending, the executive Engineer terminated the services of the workmen with effect from 1st June, 1995 without taking any leave from the Presiding Officer. The said order passed on 29th April, 1995 was subsequently challenged in the same Reference Case before the Labour Court at Bhagalpur. After hearing the parties, the Labour Court held that the said order was in violation of the provisions of the Industrial Disputes Act, 1947. The reference itself was thereafter, taken up and the Presiding Officer passed his award on 20th December, 1995, holding that the 46 concerned workmen who had appeared in the reference were eligible to become permanent with effect from one year after their initial appointment as daily rated workmen and that they were also entitled to all the facilities admissible to a Government Servant.
3. While CWJC No. 6138 of 1996-R has been filed by the State of Bihar (now Jharkhand) challenging the award, CWJC No. 4803 of 1997-R has been filed by the workmen for implementation of the said award dated 20th December, 1995.
4. As indicated hereinabove, the learned Single Judge heard both the matters together and disposed of the same by a common judgment dated 24th June, 2003. The learned Single Judge recorded the fact that the Labour Court - had accepted the case made out on behalf of the workmen that having worked continuously since the date of their respective appointments beyond a period of 240 days, the said employees had acquired the status of permanent employees as per the provisions of Section 25-B of the Industrial Disputes Act, 1947. The Labour Court, also recorded the fact that the three employees, namely, Haldhar Mandal, Raghuveer Yadav and Ganga Mahato, who were similarly circumstanced, had already been made permanent. Having recorded the aforesaid fact, the learned Single Judge recorded further that the findings were based on evidence, which could not be upset by a writ Court in exercise of jurisdiction under Article 226 of the Constitution. The learned Single Judge was also of the view that the award of the Labour Court was neither mala fide, nor perverse and for the said reasons, dismissed the writ petition filed by the State of Bihar, now Jharkhand, and allowed the writ petition filed by the workmen with a direction to the respondents therein to forthwith implement the award.
5. During the course of hearing of the matter before the learned Single Judge, learned counsel for the respondent workmen pointed out that although the operation of the award had not been stayed, the respondents had refused to implement the award which had led to the filing of a contempt petition. Thereafter, the respondents partially implemented the award by giving the workmen the status of work charged employees, but did not give them permanent status with consequential benefits as directed by the award. In the said background, the learned Single Judge directed that the respondents were to strictly abide by the award of the Labour Court on all counts. The State of Bihar (now Jharkhand) had preferred both the appeals mainly on a ground, which does not appear to have been canvassed before the learned Single Judge.
6. At this stage, it may be indicated that out of 46 workmen who had contested the reference, some are now employees with the State of Bihar and consequently, the State of Bihar was also granted leave to intervene in the appeals.
7. Appearing on behalf of the appellant in both the appeals, Mrs. I. Senchaudhury, submitted that the learned Single Judge had not independently considered evidence available in choosing not to interfere with the award passed by the Labour Court at Bhagaplur. Mrs. Senchaudhury submitted that the learned Single Judge had overlooked the fact that the Labour Court while making the award had given weightage only to the statements made on behalf of the workmen, but had chosen to ignore the fact that the workmen had failed to produce the records and/or evidence in support of their appointments against sanctioned posts or that their duties were against' such sanctioned posts.
8. Mrs. Senchaudhury submitted that since the workmen had not been appointed against sanctioned posts, the question of their regularization did not arise. It was at this stage that Mrs. Senchaudhury took the point of jurisdiction, which appears not to have been urged either before the Labour Court, or the learned Single Judge. It was submitted that the employees in the Irrigation Department of the Government were not 'workmen' within the meaning of the Industrial Disputes Act, 1947 and that such view had been expressed by the Hon'ble Supreme Court in the case of Executive Engineer (State of Karnataka) v. K. Somasetty and Ors., . Mrs. Senchaudhury submitted that in the said judgment it had been observed that it was the well-settled legal position that the Irrigation Department and the Telecommunication Department were not 'industries' within the meaning of the definition under the Industrial Disputes Act, 1947 as was supposedly held in the Union of India v. Jai Narain Singh, 1995 (4) Supp SCC 672 and in the State of H.P. v. Suresh Kumar Verma, . Mrs. Senchaudhury pointed out that in the aforesaid decision, the Hon'ble Supreme Court had observed that the function of public welfare of a State is a sovereign function and it is the constitutional mandate under the Directive Principles, that the Government should bring about a Welfare State by executive and legislative actions. Under such circumstances, the State is not an 'industry' under the Industrial Disputes Act, 1947.
9. Referring to the oft-repeated decision of the Hon'ble Supreme Court in the case of Bangalore Water Supply and Sewerage Board v. A Rajappa, , Mrs. Senchaudhury submitted that as had been observed by the Hon'ble Supreme Court in the case of the Executive Engineer (State of Karnataka) v. K. Somasetty and Ors. (supra), sovereign functions strictly understood qualify for exemption and "Irrigation" being a sovereign functions, it must be held to be outside the purview of 'industry' within the meaning of Section 2(j) of the Industrial Disputes Act, 1947. Mrs. Senchaudhury contended that neither the Labour Court nor the learned Single Judge had either considered or decided the question as to whether the Irrigation Department is an 'industry' and whether the reference was at all maintainable.
Mrs. Senchaudhury also contended that since the reference before the Labour Court was confided to the question as to whether the respondent workmen were eligible to become permanent, the Labour Court went beyond the terms of reference in holding that the order of termination of the workmen passed on 29th April 1985 during the pendency of the reference was in violation of the provisions of the Industrial Disputes Act, 1947.
10. At this juncture, it will be profitable to record the submissions made by Mr. Bimal Kumar, learned senior counsel appearing for the State of Bihar.
11. It may be recollected that some of the 46 workmen had since been employed by the State of Bihar having regard whereof leave had been granted to the State of Bihar to intervene in these appeals. Mr. Bimal Kumar submitted that several similar matters had been taken up, first by the Patna High Court and, thereafter, by the Hon'ble Supreme Court, and while disposing of SLP (C) No. 16781 of 2000 and analogous cases on 30th October, 2000, the Hon'ble Supreme Court had dealt with the Scheme prepared by the State Government dated 18th June, 1993 and directed the State Government to Act accordingly. Mr. Kumar submitted that the case of the respondents in the instant case were similar to those of the similarly placed employees involved in SLP (C) No. 16781 of 2000 and cases analogous thereto. Mr. Bimal Kumar submitted that since the Irrigation Department of the State Government had been held not to be an industry' within the meaning of Section 2(j) of the Industrial Disputes Act, 1947, the very basis of the award passed by the Labour Court at Bhagalpur stood eroded. In other words, according to Mr. Kumar, the award passed by the Labour Court at Bhagalpur was not capable of being implemented. Mr. Kumar therefore, contended that the present set of private respondents could, at best, be equated with those workmen involved in SLP (C) No. 16781 of 2000 and their case could also be considered in terms of the scheme of the State Government dated, 18th June, 1993.
12. Mr. Kumar submitted that although the question as to whether the Irrigation Department of the Government was an 'industry' or not had not been decided either by the Labour Court arid/or the learned Single Judge, the decision of the Hon'ble Supreme Court that the Irrigation Department of the Government was not an 'industry' could not be ignored and a decision in the instant appeals would have to be given in the light of the said decision of the Hon'ble Supreme Court.
13. In addition to her earlier submissions, Mrs. Senchaudhury also adopted Mr. Kumar's submissions in support of her contention that the award passed by the Labour Court at Bhagalpur was infructuous and could not be implemented.
14. Opposing the submissions made on behalf of the State of Bihar and the State of Jharkhand, Mr. Jai Shankar Burnwal, learned Advocate appearing for the workmen in the appeal arising from CWJC No. 4803 of 1997-R, contended that the objection now being sought to be taken on behalf of the appellant and the State of Bihar regarding the status of the Irrigation Department as an industry' within the meaning of Section 2(j) of the Industrial Disputes Act, 1947, could have been taken by the appellant and the State of Bihar when the dispute raised by the workmen had been referred under Section 10 of the aforesaid Act to the Labour Court for adjudication. On the other hand, when raising such objection, the State of Bihar itself took recourse to the provisions of Section 25-F of the Industrial Disputes Act, 1947, in terminating the services of the workmen concerned while the reference was pending. Mr. Burnwal submitted that having themselves invoked the provisions of the Industrial Disputes Act, 1947, and having submitted to the order of reference, without raising any objection thereto, it did not lie in the mouth of either the State of Bihar or the State of Jharkhand to raise such objection when not only had the award been passed, but had been successfully defended before the learned Single Judge.
15. Mr. Burnwal submitted that the cases of the workmen which had gone up to the Apex Court could not be compared and/or equated with the case of the private respondents in these appeals, since in the instant case, there was an award of the Labour Court, which was not available to those workmen whose cases had gone upto the Hon'ble Supreme Court and in whose cases directions had been given to apply the scheme of regularization of 18th June, 1993.
16. Mr. Burnwal then contended that the decision of the Hon'ble Supreme Court in the case of Executive Engineer (State of Karnataka) v. Somasetty and Ors. (supra), did not, in fact, lay down any proposition that the Irrigation Department of the Government was not an Industry', but merely made such observation in passing. In fact, in the said decision, no attempt had been made to analyse whether the Irrigation Department of the Government was an industry or not, but upon a reference to two other judgments, which, in fact, did not apply to the facts of the case, the Court made an observation that the Irrigation Department was not an industry. Mr. Burnwal submitted that, on the other hand, the said question had fallen for full deliberation before a Full Bench of the Patna High Court in the case of Bijoy Kumar Bharti v. The State of Bihar and Ors., 1984 BBCJ 335 : 1983 PLJR 667 and upon placing reliance on the judgment of the Hon'ble Supreme Court in the case of Bangalore Water Supply and Sewerage Board (supra), it was held in no uncertain terms that the irrigation department, as also the swing of the Health Department were industries. In fact on an analysis of the decision of the Hon'ble Supreme Court in the Bangalore Water Supply and Sewerage Board case (supra), it was observed that in the department, there is a systematic activity organized by the State Government and its employees for satisfying the need of Irrigation, supply of electricity, protection from flood; for supplying the most of the aforesaid facilities, people have to pay charges. As such, it has to be held that such activities for satisfying human needs are analogous to trade and commerce. It was held that there could, therefore, be no escape from the conclusion that the department of Irrigation would be deemed to be an 'industry' with in the meaning of the Industrial Disputes Act, 1947.
17. Mr. Burnwal submitted that in the light of the said Full Bench decision, the award of the Labour Court must be held to be valid and binding on the parties.
18. Mr. Aparesh Kumar Singh who appeared for the private respondents in LPA No. 903 of 2003, while agreeing with Mr. Burnwal's submissions, added a new dimension to the submissions by urging that having once elected to proceed under provisions of the Industrial Disputes Act, 1947, it was no longer open to the appellant and/or the State of Bihar to take a different stand in the appeals. Relying on the doctrine of election as applicable in the law of estoppel, Mr. Singh referred to the treatise of Spencer Bowar and Turner on the Law relating to Estoppel by Representation, wherein the learned authors observed that when a person is confronted with two alternatives and mutually exclusive courses of action in relation to a dealing between which he may make his election and such person conducts himself as reasonably to induce the other to believe that he is intending definitely to adopt the one course and definitely to reject or relinquish the other and the second person in such belief alters his position to his detriment, the former is precluded as against the letter from afterwards resorting to the course, which he had deliberately declared his intention of rejecting. In fact, what was being explained was nothing different from the law of estoppel by representation.
19. In support of his aforesaid submissions, Mr. Singh referred to and relied on the decision of the Hon'ble Supreme Court in the case of M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu and Ors., , in which the concept of estoppel by pleading was sought to be advanced and reference was made to the earlier decision of the Hon'ble Supreme Court in the will-known case of Union of India v. Anglo Afghan Agencies, AIR 1968 SC 718.
20. On the submissions made by Mrs. Senchaudhury regarding the manner in which the Labour Court had held the order of termination to be violative of the provisions of the Industrial Disputes Act, 1947, Mr. Singh urged that there was no ambiguity that during the pendency of any reference, no employer could alter to the prejudice of the workmen concerned in such dispute the conditions of service applicable to them immediately before the commencement of such proceedings. Mr. Singh referred to and relied on the decision of the Hon'ble Supreme Court in the case of Jaipur Zila Sahakari Bhoomi Vikas Limited v. Ram Gopal Sharma, , which was a case dealing with the proviso to Section 33 of the Industrial Disputes Act, 1947, wherein the principles of Section 33 and in particular, the proviso to Section 33(2)(b) were explained.
21. Mr. Singh submitted that the decision in the case of Executive Engineer (State of Karnataka) v. K. Somasetty and Ors. (supra), on which much reliance had been placed both on behalf of the State of Bihar and the State of Jharkhand, was not based on any independent finding, but on two previous decisions of the Hon'ble Supreme Court, which did not have any occasion to consider the question as to whether the Irrigation Department of the Government was an industry or not, as has been done in the cases of Banaglore Water Supply and Sewerage Board and Bijoy Kumar Bharti (supra). Mr. Singh pointed out that while the decision in Jai Narain Singh's case was with regard to the Central Ground-water Board, the other decision in the case of State of H.P. v. Suresh Kumar Verma (supra), did not in fact deal with such point at all, but only with* regard to the question regarding the status of the workers appointed on daily wage. Mr. Singh submitted that in the circumstances in which the decision in the case of Executive Engineer (supra), was rendered by the Hon'ble Supreme Court the same could not be taken to be an authority on the question, but was only an obiter.
22. Having considered the submissions made on behalf of the respective parties, we are inclined to agree with Mr. Jai Shankar Burnwal and Mr. Aparesh Kumar Singh that having taken recourse to the provisions of the Industrial Disputes Act, 1947, it was no longer open either to the State of Bihar or the State of Jharkhand to subsequently contend that the provisions of the said Act would have no application to the facts of the case on the ground that the Irrigation Department of the Government was not an 'industry' as is now being sought to be contended on the basis of a judgment rendered by the Hon'ble Supreme Court wherein no decision as such had been arrived at regarding the status of the Irrigation Department of the Government being an 'industry.' We are inclined to agree with Mr. Aparesh Kumar Singh that the observation made by the Hon'ble Supreme Court with regard to the status of the Irrigation Department of the Government in the case of the Executive Engineer (State of Karnataka) v. K. Somasetty and Ors. (supra), was in fact, in the nature of an obiter and not a finding based on an analysis of the said proposition. We have also taken note of the fact that in making the aforesaid observation, the Hon'ble Supreme Court referred to two decisions, which, in fact, did not decide the said issue. On the other hand, the matter had been considered by the Hon'ble Supreme Court in the Bangalore Water Supply and Sewerage Board case (supra), where in was held that the Irrigation Department was an industry within the meaning of the Industrial Disputes Act, 1947. The said question had also fallen for consideration before a Full Bench of the Patna High Court in Bijoy Kumar Bharti's case (supra), where relying on the decision of the Hon'ble Supreme Court in the Bangalore Water Supply and Sewerage Board case, the Full Bench concluded that on the basis of the guidelines laid down by the Hon'ble Supreme Court in the said case, the Irrigation Department of the Government must be deemed to be an 'industry' within the meaning of the aforesaid Act.
23. As far as Mr. Kumar's submissions are concerned, we are unable to equate the facts of this case with traose which had been decided by the Hon'ble Supreme Court where a direction had been given to dispose of the matter in accordance with the scheme prepared by the State Government dated 18th June, 1993. In the instant case an award under the Industrial Dispute Act, 1947, has intervened and has been upheld by the learned Single Judge arid we see no reason to differ with the learned Single Judge on such count. Since the award has not been challenged either on the ground of lack of jurisdiction, mala fides or perversity, we are not prepared to take a different view in the matter, although, Mrs. Senchaudhury strenuously urged that the learned Single Judge had not considered the evidence available on the record.
24. We are also unable to accept Mrs. Senchaudhury's submissions that the Labour Court had acted beyond the reference in holding that the order of termination of the services of the workmen during the pendency of the reference was in violation to the provisions of Section 33 of the Industrial Disputes Act, 1947. In fact, in our view, the Labour Court had correctly exercised its jurisdiction in holding the said order to be bad having regard to the pendency of the reference as to the status of the workmen.
25. In our view, since the position regarding the status of the Irrigation Department of the Government as an industry had been decided by the Hon'ble Supreme Court and the Full Bench of the Patna High Court in Bangalore Water Supply and Sewerage Board (supra), and Bijoy Kumar Bharti (supra), it is no longer available to the State of Bihar and the State of Jharkhand to contend that the award could not be implemented.
26. Although, an attempt has been made on behalf of the appellant and the State of Bihar to contend that the Irrigation Department was not an industry' within the meaning of the Industrial Disputes Act, 1947, it has to be borne in mind that both the States had in part implemented the award. Of course, it has been submitted by Mr. Kumar that the said partial implementation was on account of the contempt proceedings which had been filed, but having once chosen to accept the award even partially, it is no longer available to the appellant or the State of Bihar to sound a different note and claim that the award could not be implemented.
27. For the reasons aforesaid, the appeals must fail and are dismissed. However, there will be no order as to costs.