Karnataka High Court
Shri Mahadev vs The Management Of Water Shed on 2 March, 2017
Author: Vineet Kothari
Bench: Vineet Kothari
1
Date of Order 02.03.2017
W.P. No.63575/2010
SHRI MAHADEV S. MOTAGI
Vs. THE MANAGEMENT OF WATER SHED
DEVELOPMENT PROGRAMME & Anr.
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 02ND DAY OF MARCH 2017
BEFORE
THE HON'BLE DR. JUSTICE VINEET KOTHARI
WRIT PETITION No.63575 OF 2010 (L-TER)
BETWEEN:
SHRI MAHADEV
S/O SHIVAYOGEPPA MOTAGI
AGE 45 YEARS, OCC:NIL
BURUDA GALLI, TAHANI
DIST:BELGAUM
... PETITIONER
(By Sri. ANANT P SAVADI ADV.)
AND:
1. THE MANAGEMENT OF WATER SHED
DEVELOPMENT PROGRAMME
BY ITS PROJECT DIECTOR, ATHANI
TQ:ATHANI DIST:BELGAUM
2. THE MANAGING DIECTOR WATER SHED
DEVELOPMENT PROGRAMME
CUNNINGHAM ROAD, BANGALORE
... RESPONDENTS
(By Sri.M.KUMAR, AGA FOR R1;
R2-NOTICE DISPENSED WITH VCO DTD.11.12.12)
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Date of Order 02.03.2017
W.P. No.63575/2010
SHRI MAHADEV S. MOTAGI
Vs. THE MANAGEMENT OF WATER SHED
DEVELOPMENT PROGRAMME & Anr.
THIS WP IS FILED UNDER ARTICLES 226 & 227 OF
CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED AWARD PRODUCED AT ANNEXURE-F
DATED 01/07/2008, PASSED BY ADDITIONAL LABOUR
COURT, HUBLI, IN KID NO.86/1998, PASSED BY THE
PRESIDING OFFICER, ADDITIONAL LABOUR COURT,
HUBLI.
THIS PETITION COMING ON FOR FINAL HEARING
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Mr. ANANT P SAVADI, Adv. for petitioner. Mr. M.KUMAR, AGA for respondent No.1.
1. The petitioner-workman, Shri.Mahadev son of Shivayogeppa Motagi, has challenged the impugned award passed by the learned Additional Labour Court, Hubballi, on 01st July 2008 by which the learned Labour Court held that while working as a Clerk-Typist in the Forest Department, he was neither a workman nor the Forest Department was an 'Industry'. The relevant paragraphs 13 and 16 of the impugned award are quoted below:
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Date of Order 02.03.2017 W.P. No.63575/2010 SHRI MAHADEV S. MOTAGI Vs. THE MANAGEMENT OF WATER SHED DEVELOPMENT PROGRAMME & Anr.
" 13. Whether a department, as the Government department, comes within the definition of industry or not, depends upon the nature of work undertaken by such departments and the nature of work entrusted to the employee. In this case, the activity of the department is improvement of dry lands. There is soil conservation and dry land development undertaken by the department. The petitioner, preceding to the one year of his termination, was working as a Typist. The typing work is an office work and he need not go outside the office for developmental work of dry lands and conservation of soil. Therefore, the petitioner who was working as a Typist in Agricultural Department can not be called as a workman as defined under Section 2(s) of the Industrial Disputes Act. The petitioner has not produced any iota of evidence to show that there is production and distribution of goods and services calculated to satisfy the human wants and wishes. No material is produced by the petitioner to prove that he was entrusted with the work outside the office so as to serve the public at large in 4 Date of Order 02.03.2017 W.P. No.63575/2010 SHRI MAHADEV S. MOTAGI Vs. THE MANAGEMENT OF WATER SHED DEVELOPMENT PROGRAMME & Anr.
development of dry lands. A clerk working in the Forest Department is not a workman. This proposition of law is laid down by the apex court in the decision reported in 2001 CLR 968(SC) (Between State of Gujaratha and others V/s. Pratamsingh Narsinh Parmar). In the said case, the apex court has held that the court has to examine the nature of duties discharged by the employee as well as the job of the establishment where such an employee was being recruited. In this case, the petitioner has not adduced any iota of evidence to show that as to how the activity of the management comes within the definition of industry. Therefore, for all these reasons, the petitioner has failed to establish that the activity of the Agriculture Department comes within the definition of Industry.
16. The petition under Section 10(4-A) of the Industrial Disputes (Karnataka Amendment) Act, 1988 has to be challenged within six months from the date of communication. Meaning thereby, the petitioner ought to have challenged the order of 5 Date of Order 02.03.2017 W.P. No.63575/2010 SHRI MAHADEV S. MOTAGI Vs. THE MANAGEMENT OF WATER SHED DEVELOPMENT PROGRAMME & Anr.
termination within 20.10.1996. Therefore, this petition is barred by time. "
2. The learned counsel for the petitioner-workman submitted that a clerk is specifically included within the definition of the 'Workman' under Section 2(s) of the Industrial Disputes Act and he also relied upon the decision of the Hon'ble Supreme Court in the case of Jasmir Sing Vs. State of Haryana and Another reported in (2015) 4 SCC 458 at paragraph No.16, in which it has been held that the Public Works Department (B&R) is an 'Industry'.
3. A contention was also raised on behalf of the respondent / Government by Sri.M.Kumar, learned AGA, that from Section 10(4-A) of the Industrial Disputes (Karnataka Amendment) Act, 1988, the challenge could have been made within a period of eight months of the termination on 25.10.1996, whereas the present reference was filed by the workman only in the year 1998 i.e., on 31.03.1998. He further 6 Date of Order 02.03.2017 W.P. No.63575/2010 SHRI MAHADEV S. MOTAGI Vs. THE MANAGEMENT OF WATER SHED DEVELOPMENT PROGRAMME & Anr.
submitted that later, the said limitation was extended by a period of three years, after the present application had been filed by the workman.
4. This contention was refuted by the learned counsel for the workman that the petitioner was terminated only on 31.03.1998 and on 08.09.1998, within six months, he had filed the present dispute before the Labour Court.
5. Having heard the learned counsels, this Court is satisfied that the impugned award cannot be sustained and that the learned Labour Court ought to have decided the case on merits, particularly with reference to specific definition of 'workman' under Section 2(s) of the Act, which includes even the clerk as a workman. The definition 2(s) of the Act is quoted below for ready reference:
"2(s) "Workman", means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or 7 Date of Order 02.03.2017 W.P. No.63575/2010 SHRI MAHADEV S. MOTAGI Vs. THE MANAGEMENT OF WATER SHED DEVELOPMENT PROGRAMME & Anr.
supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person,__
(i) xxx
(ii) xxx
(iii) who is employed mainly in a managerial or administrative capacity; or
(iv) who, being employed in a supervisory capacity, draws wages exceeding [ten thousand rupees] per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature."
6. Accordingly, the Writ Petition is allowed and setting aside the impugned order dated 01st July 2008 passed by the learned Labour Court, Hubballi, the matter is remanded back to the learned Labour Court for decision afresh in accordance with law within a period of six months from today. 8
Date of Order 02.03.2017 W.P. No.63575/2010 SHRI MAHADEV S. MOTAGI Vs. THE MANAGEMENT OF WATER SHED DEVELOPMENT PROGRAMME & Anr.
The parties to appear before the learned Labour Court, in the first instance, without any further notice on 20th March 2017.
Sd/-
JUDGE RK/-