Madras High Court
Soundararajan And Ors. vs Secretary To Govt. Of India, Ministry Of ... on 7 December, 1993
Equivalent citations: (1994)IILLJ665MAD, (1994)IMLJ496
ORDER Bakthavatsalam, J.
The prayer in the writ petition is to issue a writ of certiorarified mandamus or direction or any other appropriate order or direction and calling for the records on the file of the first respondent in (1)No.L.14012/53/90-IR(DU), (1) No.L.14012/53/90-IR(DU), (2) L.14012/56/90, (3) L.14012/53/90, (4) L. 14012/38/90-1R, (5) L. 14012/28/90, (6) L. 14012/47/90, (7) No.L.14012/44/90, (8) L.14012/22/90, (9) No.L. 14012/66/90, (10) L. 14012/68/90, (11) L. 14012/28/90, (12) L. 14012/73/90, (13) L.14012/57/90, (14) L.14012/79/90, (15) L.14012/89/90, (16) L.14012/65/90, (17) L.14012/81/90, (18) L.14012/30/90, (19) L.14012/29/90, (20) L.14012/49/90, (21) L.14012/46/90, (22) L.14012/60/90, (23) L.14012/77/90, (24) 14012/34/90, (25) 14012/82/90, (26) 14012/45/90, (27) 14012/31/90, (28) 14012/37/90, (29) 14012/19/90, (30) 14012/51/90, (31) 14012/55/90, (32) 14012/52/90, (33) 14012/54/90, (34) 14012/72/90, (35) 14012/74/90, (36) 14012/84/90, (37) 14012/52/90, (38) 14012/63/90, (39) 14012/24/90, (40) 14012/36/90 (41) 14012/21/90, (42) 14012/11/90, (43) 14012/50/90, (44) 14012/75/90, (45) 14012/70/90, (46) 14012/41/90, (47) 14012/25/90, (48) 14012/67/90, (49) 14012/69/90, (50) 14012/33/90, (51) 14012/52/90 (52) 14012/35/90, (53) 14012/27/90, (54) 14012/86/90, (55) 14012/20/90, (56) 14012/39/90, (57) 14012/45/90, (58) 14012/76/90, (59) 14012/98/90, (60) 14012/71/90, (61) 14012/83/90, (62) 14012/58/90, (63) 14012/26/90, (64) 14012/64/90, (65) 14012/59/90, (66) 14012/81/90, (67) 14012/62/90, (68) 14012/40/90-IR(DU) and quash the order passed therein and consequently direct the respondents to reinstate the petitioners in the second respondent's office from the date of termination till the date of reinstatement and grant salary, allowance and treat the period as continuity of service.
2. The petitions alleged that they are the casual labourers and they were abruptly terminated from the service on March 31, 1990 without giving any show cause notice. It is stated that they took steps under Section 2A of the Industrial Disputes Act 1947, (hereinafter referred to as 'Act') before the Assistant Labour Commissioner, Central, Madras and the second respondent herein also filed counter taking a stand that the casual labourers were taken as hired porters. The Assistant Labour Commissioner has filed a failure report on conciliation and the first respondent did not pass orders on the failure report within a reasonable time. As such the petitioners filed W.P.No.5479 of 1991 before this Court and Kanakaraj. J, by order dated April 10, 1991 directed the second respondent herein to look into the matter and pass orders as early as possible. Subsequent to the orders of Kanakaraj, J. the impugned order came to be passed on July 18, 1991. The petitioner alleges that the order of the first respondent dated July 18, 1991 rejecting the claim of the petitioner on the ground that the work carried out by the second respondent in the official transaction is not the "industry" is not correct. It is also alleged that the petitioners' service cannot be terminated without proper notice under the provisions of the Act. It is also alleged that the continuity of service for more than two years of continuity of service of all the petitioners cannot be denied and as such the first respondent ought to have considered the issue, in the proper way. It is also pointed out in the affidavit that in an identical matter, S. Ramalingam, J. has decided the issue in W.P.No. 14320 of 1989, in favour of the petitioners therein. The affidavit also refers to a decision of the Calcutta High court in Union of India v. Central Government Industrial Tribunal, 1986 Lab.I.C. 1269.
3. A counter-affidavit has been filed by the second respondent stating that the functions of the Commandant, Ordnance Depot, Madras - 55 are under the Army Ordnance Corps and governed by the Regulations pertaining to Army Ordnance Services issued by the Ministry of Defence. It is also alleged in the counter-affidavit that the second respondent holds all types of stores of ordnance supply other than ammunitions and it is responsible for the supply to units within the area of supply allotted to the depot, it is pointed out in the counter-affidavit that it is headed by an Officer Commanding and composed mainly of Military Personnel and that it also contains civilian employees of class "C" categories such as clerical staff, store keeping staff, leading hand fire, fire engine drivers, fire supervisors, stenographer, cashier, motor transport driver etc., and in "D" group categories, Safaiwala, Mazdoor, Firemen, Gardner, Carpenter, Dhobi, Tailor, Painter, Barber and Cook etc., to carry out the day to day normal work of the said type. It is also stated in the affidavit that in case of vacancy in respect of the aforesaid "C" or "D" category, persons are recruited for the respective trade through employment exchanges in accordance with notification given under Employment Exchange Act and Rules made thereunder. It is also pointed out that in this case, this depot was directed by the overall Peace Keeping Force Commander to provide logistic support during OP PAWAN operations at Sri Lanka and that in order to provide logistic support for the troops and to free flow of vital arms and ammunitions for effective operation in the Island, CVD Avadi, that is the second respondent depot, had been given an additional role to supply ordnance stores to the Indian troops located in Sri Lanka as an emergency measure. It is also stated in the counter- affidavit that the petitioners herein are hired porters as their services were requisitioned as per the orders of the Southern Command for unloading of military stores, and as such the petitioners cannot be construed as employees under the employment of the second respondent herein. It is further stated the contention of the petitioners that they must be treated as casual labourers have no legal basis at all, that the nature of service for which the petitioners were engaged relates to the activities of the government in exercising sovereign functions and as such the petitioners' service is outside the purview of the Act. It is also pointed out that the writ petition itself is not maintainable on the ground that second respondent is not an "industry" within the definition of Section 2(j) of the Act. It is further stated in the counter-affidavit that the petitioners have been engaged as hired porters and that the petitioners' engagement was only for a temporary period for a specified purpose relating to operational activities of the Armed Forces. With regard to the writ petition W.P.14320 of 1989 which has been decided by S.Ramalingam, J. it is pointed out that the petitioners therein were engaged as Barbers, Dhobies, Cooks, etc., to meet the IPKF Army requirement during "OP PAWAN" when the Indian troops were deployed in Sri Lanka, that when Sovereign activities of the Government of India were over, the engagement of the petitioner therein were dispensed with and that all the said facts were not put forth in detail before the learned Judge. It is also pointed out that the learned Judge in that case, was made to understand that the petitioners were engaged to perform the normal activities of the second respondent which are similar in nature as the Engineers Stores Depot which is a defence establishment manufacturing nuts, bolls etc. It is also claimed that the judgment of the Calcutta High Court, relied on by the Petitioner, is not applicable herein. A stand has also been taken that the learned Judge while deciding the writ petition in W.P.No. 14320 of 1989 has passed orders without going into the merits in detail but it was ordered by consent. It is also pointed out that the issue raised in this writ petition, being a service matter, this Court has got no jurisdiction to entertain this matter and it has got to go before the Administrative Tribunal.
4. An additional counter-affidavit has been filed in which it is stated that the Ministry of Defence has two wings i.e. Defence Services and Defence Productions and that under the Ministry of Defence Production all Ordnance Factories relating to defence productions are functioning. It is also stated that the said defence establishments are provided in Schedule I of the Act. It is also stated that Ordnance Depot, Avadi is under the Army Ordnance Corps which is a part of Defence service and as such it is not a defence establishment as contended by the petitioners.
5. Mr.N.R. Chandran, learned Senior counsel appearing for the petitioners, relies upon an unreported decision of S.Ramalingam, J. in W.P.No. 14320 of 1989 dated December 8, 1989 (I. Chandra kanth 2. D.Kondaiah, 3. B.Sitamma, 4. Sunadamma, 5. P.Krishna moorhy, 6. G.Murali, 7. A.Selvam, 8. S.Thangavel v. Regional Labour Commissioner (Central) Shastri Bhavan, Madras- 6 and 2 Ors.) and contended that the issue had already been decided in favour of the writ petitioners and as such this writ petition has got to be allowed straightway.
6. Mr. C. Krishnan, learned Additional Centra! Government Standing Counsel, appearing for the respondents contends that when the writ' petition W.P.No. 14320 of 1989 came up before S.Ramalingam, J., time was requested for filing counter-affidavit, but the learned Judge proceeded to hear the writ petition stating that the said writ petition involves purely a question of law and decided the issue following the decision in Union of India v. Central Government Industrial Tribunal (supra). According to Mr. C. Krishnan, learned Additional Central Government Standing Counsel, the said issue was not argued before the learned Single Judge and moreover it was a consent order passed and as such it cannot be treated as a precedent. Learned Additional Central Government Standing Counsel emphatically argues that the petitioners cannot be treated as if they are within the purview of the Act and if at all they are aggrieved they have to approach the Administrative Tribunal and as such this Court has got no jurisdiction to entertain this writ petition. Learned counsel took pains to impress upon by the argument that the Ministry of Defence has two wings, and that the persons who worked under the Ordnance Factory cannot be taken within the purview of the Industrial Disputes Act and that it cannot be treated as "Industry".
7. I have considered the arguments of Mr. N.R. Chandran, the learned senior counsel appearing for the petitioners and of Mr. C. Krishnan, Additional Central Government Standing Counsel. First of all, the contention of Mr. C. Krishnan, learned Additional Central Government Standing Counsel, that the order of the learned single Judge in W.P. 14320 of 1989, dated December 8, 1989 was made in consent of parties, is not correct. The said writ petition was taken up for final disposal, by consent. That is all. Nothing were conceded. It is true that the learned Judge has considered whether the Commandant, Ordnance Depot, Avadi is "industry" or not and since the learned Single Judge thought that the issue was to be decided purely on a question of law, the learned Judge has taken up the matter for final disposal and decided the issue. It is not as if the respondents herein were not given opportunity to argue the issue before the learned Judge. It is also seen that a counsel appeared for the respondents and argued the matter before the learned Judge on merits. It is well settled that no counter-affidavit is necessary if question of law is involved in the petition before the Court. A counter- affidavit is necessary in a writ petition, only when disputed question of fact arises. When facts are taken as it is and only law is to be applied, in such cases, in my view, there is no need for filing a counter-affidavit.
8. That apart, almost a similar issue came up before this Court on an earlier occasion, in W.P.No. 16203 of 1991 and this court by order dated December 8, 1993, following the order of S.Ramalingam, J. in W.P.No. 14320 of 1989 dated December 8, 1989, mentioned above, had given a direction to refer the matter under Section 10 of the Act. In that case also, no counter-affidavit has been filed. However, taking note of the fact that the matter is pending for two years and the point involved is a question of law, the said issue has been decided, following the order of S. Ramalingam, J. mentioned above. Though the learned counsel appearing for the respondents contended that this Court can take a different view, since in this case all the facts are before this Court and also a counter-affidavit has been filed, in the above mentioned case, this court came to the conclusion only after looking into the unreported decision of S. Ramalingam, J. in W.P.No. 14230 of 1989 dated December 8, 1989, and also looking into the judgment of Calcutta High court in Union of India v. Central Government Industrial Tribunal, 1986 Lab.I.C. 1269.
9. Section 2(j) of the Act defines "industry" and it is to the following effect, as it stands today:
"...'industry' means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft, or industrial occupation or avocation of workmen..."
There are certain exceptions given to the term "industry" one of which is any activity of the Government relatable to the sovereign functions of the Government including all the activities carried on by the departments of the Central Government dealing with defence research, atomic energy and space. In the above mentioned decision in Union of India v. Central Government Industrial Tribunal, (supra) the learned Judge has considered the definition of "industry" and held that the definition is of very wide import and should be interpreted in a manner so as not to whittle down but to advance the object of the Act and came to the conclusion that the Engineers Store Depot was a defence establishment under the Ministry of Defence and manufactured nuts, bolts, brackets, etc for running repairs and its functions related primarily to the holding and handling of stores required for defence purposes. In that case, the learned Judge, has also held that merely because it is a Military Department maintained under the exercise of the regal sovereign functions of the Central Government, the establishment does not cease to be an industry. The Supreme Court in Bangalore Water Supply v. A. Rajappa, (1978-I-LLJ-349) exhaustively discussed the scope of "industry" which is defined under Section 2(j) of the Act and held as follows (at page 405):
"... Sovereign functions, strictly understood, (alone) qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies..." Even in departments discharging sovereign functions, if there are units which are industries and they are substantially severable, then they can be considered to come within Section 2(j)..."
The principle laid down in the above mentioned decision has been followed by S. Ramalingam, J. in W.P. 14320 of 1989 dated December 8, 1989, mentioned above. Even after considering the arguments of Mr. C. Krishnan, the learned Additional Central Government Stand ing Counsel, I do not see any reason to differ from the view taken by this court following the order of S. Ramalingam, J. in W.P.No. 14320 of 1989 dated December 8, 1989, mentioned above. In view of that, the impugned orders in this writ petition are set aside and instead of granting the prayer as asked for, moulding the prayer to suit the occasion, I am of the view that a direction is to issue to the first respondent herein, to refer the matter under Section 10 of the Industrial Disputes Act, within a period of two months from the date of receipt of copy of this order. To that extent, this writ petition shall stand allowed. However, there will be no order as to costs.