Punjab-Haryana High Court
Punjab Police Housing Corporation ... vs Unknown on 5 December, 2011
Author: Surya Kant
Bench: Surya Kant
CWP No. 5393 of 2010. ::-1-::
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH
CWP No. 5393 of 2010.
Date of decision: December 05,2011.
Punjab Police Housing Corporation Limited ...Petitioner
v.
Suresh Kumar and Anr. ...Respondent(s)
CORAM: HON'BLE MR. JUSTICE SURYA KANT
1. Whether Reporters of local papers may be allowed to see the
judgment?
2. Whether to be referred to the Reporters or not ?
3. Whether the judgment should be reported in the Digest?
Present: Shri P.S.Thiara, Advocate, for the petitioner.
Shri Vikas Bahl, Advocate, for the workman-respondent
No.1.
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Surya Kant, J.
This order shall dispose of CWP Nos. 5393, 8599, 8600, 8601, 8605, 8606, 8609, 8615, 13113, 13115, 13125, 13126, 13131 and 13137 of 2010 which have been filed by the petitioner Corporation challenging the award of the Industrial Tribunal-cum- Labour Court, Chandigarh, granting monetary compensation in lieu of reinstatement to the workmen. The solitary issue raised on behalf of the petitioner - Corporation in all the cases is whether or not the petitioner Corporation is an 'Industry' within the meaning of Section 2 [j] of the Industrial Disputes Act, 1947 [in short 'the 1947 Act'], hence all the cases are being disposed of by a common order. For the brevity, the facts are being taken from CWP No. 5393 of 2010. [2]. The first respondent [in short 'the workman'] was appointed as a Helper on work-charge basis on 14.10.1998 and he CWP No. 5393 of 2010. ::-2-::
worked as such till 01.04.2003, though allegedly with intermittent breaks. The workman raised an industrial dispute alleging that his services were terminated w.e.f. 01.04.2003 in violation of Section 25-F of the 1947 Act, hence he was entitled for re-instatement with continuity of service. The workman further averred that he was a member of the EPF Scheme and was availing leave benefit also. He was allegedly employed to do the work of regular nature and while terminating his services, Section 25-G of the 1947 Act was not followed. He also alleged that after termination of his services, fresh appointments were made in violation of Section 25-H of the 1947 Act. [3]. The petitioner Corporation contested the workman's claim mainly on the plea that it was engaged in construction of the houses for the police personnel without earning any profit and essentially perfrorms welfare activities, hence is not an 'industry' within the meaning of Section 2[j] of the 1947 Act. It was also claimed that the workman was hired on work-charge basis keeping in view the work available but on completion of construction and/or when no construction work could commence due to non-allotment of funds by the Government, that his services automatically came to an end. [4]. In addition to the question referred to by the appropriate Government for adjudication, the Tribunal also framed issue No. 2 as to whether the Management is not industry and the workman is not covered under the definition of 'workman' under the 1947 Act. The Tribunal while deciding Issue No. 1, namely, whether services of workman were illegally terminated, came to a firm conclusion that his services were terminated in violation of the provisions of Sections 25- F and 25-N of the 1947 Act though the allegation of violation of CWP No. 5393 of 2010. ::-3-::
Section 25-G and 25-H could not be proved. The Tribunal further held that since the activities of the Corporation depended on several factors and the workman was not employed in accordance with Rules and it being a case of back-door entry, he was not entitled to reinstatement in service and the appropriate recourse would be to grant compensation, which the Tribunal directed. [5]. As regard to Issue No. 2, the Tribunal held that the Corporation was not engaged in a sovereign act of the State, hence it falls within the ambit of 'industry'. On this premise and keeping in view the length of employment of the workman, that the Tribunal awarded compensation of Rs.1 lac in lieu of his reinstatement. [6]. The petitioner Corporation-the Management feeling aggrieved, has approached this Court. Relying upon the annual report of the Corporation for the year 2007-08 [Annexure P-5] and the terms and conditions imposed by the State Government while releasing funds [Annexure P-6], it is vehemently contended that the petitioner is a statutory Corporation and being a welfare organisation who is engaged in welfare activities for and on behalf of the police Department, it is not an 'industry'. It was contended that there is no profit earning motive behind the construction activities undertaken by the petitioner Corporation and it being an extended hand of the Police Department which discharges the State's obligation of maintenance of law and order, the activities of the Corporation are akin to 'sovereign functions of the State'. It is also urged that the onus was on the workman to prove that the petitioner Corporation is an industry but no such evidence has been led by the first respondent. Reliance is placed on a decision of the Hon'ble Supreme CWP No. 5393 of 2010. ::-4-::
Court in State of Gujarat v Pratamsing Narsing Parmar, 2001[9] SCC, 713 as well as a decision of this Court in Swaran Singh v District Food and Supplies Controller, Kapurthala, 2005 [7] SLR,
470.
[7]. Having heard learned counsel for the parties at some length and on perusal of the material on record, I am of the considered view that there is no merit in the contention raised on behalf of the petitioner Corporation and it must fail. The expression 'industry' as defined in Section 2[j] of the 1947 Act is of wide amplitude and it includes any business, trade, undertaking, manufacture or calling of employees and includes any calling, service, employment, handicraft or industrial occupation or avocation of workmen. The aforesaid definition has been given an expansive meaning by the Hon'ble Supreme Court in Bangalore Water Supply and Sewarage Board v A.Rajappa and Ors., 1978 [2] SCC, 213. If one applies the twin tests of [i] primary and predominant activity and [ii] the integrated activity, the petitioner Corporation has to be held to be an 'industry' for the purposes of the 1947 Act. The undisputed fact is that the petitioner-Corporation undertakes construction activities in a systematic manner by engaging the skilled and unskilled workers. The net end-user of the constructed buildings, whether the police or any other Department, is wholly inconsequential as it is the nature of 'activity' undertaken by the Corporation that would determine whether such an activity is an industry or not. The plea that the construction activities are undertaken by the Corporation without having any profit making motive though appears to be attractive yet does not stand on facts or substance. If the construction activities were to be handed- CWP No. 5393 of 2010. ::-5-::
over to private contractors or agencies, there was a probability of the Police Department having been burdened with higher monetary liability due to profit element etc. The fact is that the Corporation has been set up to undertake construction activities in order to save the additional monetary burden which would have otherwise gone into private hands.
[8]. The construction activities undertaken by the petitioner Corporation are thus not free from indirect profit oriented considerations. Suffice it to observe that the construction of houses or buildings for the Police Department or police personnel is not the constitutional or an otherwise obligation of the State, to term it as a 'sovereign function'. The plea taken by the petitioner Corporation that it is not an industry, thus, has no factual or legal basis. [9]. In Chief Conservator of Forests v Jagannath Maruti Kondhare, 1996[2] SCC, 293, the Hon'ble Supreme Court ruled that only "the functions which are inalienable from the functions of the State are called sovereign functions of the State". [10]. In Executive Engineer [State of Karnataka] v K.Somasetty & Ors., AIR 1997 SC, 2663, the Public Works Department of the State was held to be an industry. This view was reiterated in State of Haryana v Vijender Singh, 2005[10] SCC,
488.
[11]. In General Manager, Telecom v S.Sirinivasa Rao, 1997 [8] SCC, 767, the Telecom Department of Union of India was held to be an industry as it was engaged in a commercial activity and not discharging any one of the sovereign functions of the State. [12]. In All India Radio v Santosh Kumar, 1998[3] SCC, CWP No. 5393 of 2010. ::-6-::
237, All India Radio and Door-Darshan Kendras were held to be not carrying sovereign functions only and were found to be within the meaning of Section 2[j] of the 1947 Act.
[13]. In Samishta Dube v City Board Etawah, 1999[3] SCC, 14, the General Administration Department of the Municipal Board was held to be an industry.
[14]. The Public Health Department, Haryana was held to be an industry by this Court in Baljit Singh v State of Haryana, 1995[3] SCT, 154 and the argument that there was no profit motive behind its activities was rejected.
[15]. In Management of Haryana Urban Development Authority v Neelam Kumari, 1993 [4] SCT, 676, a Division Bench of this Court held the HUDA - a statutory authority an industry. [16]. Following the cited decisions and keeping in view the nature of functions assigned to the petitioner Corporation, I have no reason to doubt that the petitioner fulfils the ingredients of an 'industry' within the meaning of Section 2[j] of the 1947 Act even if there is no profit-motive behind its activities.
[17]. No other point has been urged. [18]. For the reasons aforesaid, I do not find any merit in these
writ petitions which are accordingly dismissed.
December 05, 2011. ( SURYA KANT ) dinesh JUDGE