Patna High Court
Bacha Singh @ Birendra Nr.Pd.S vs The State Of Bihar & Ors on 5 September, 2008
Author: C.M.Prasad
Bench: Barin Ghosh, Chandra Mohan Prasad, C.M.Prasad
Letters Patent Appeal No.688 OF 2001
With
Letters Patent Appeal No.692 OF 2001
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Against the judgment and order dated 4.7.2000 passed in
C.W.J.C.No.6550 of 1991.
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RAMADHAR SINGH-------------------------------Appellant.
(In LPA No.688/2001)
BACHA SINGH @ BIRENDRA NR.PD.S------Appellant.
(In LPA No.692/2001)
Versus
THE STATE OF BIHAR & ORS---------------Respondents.
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For the Appellants : Mr. Sanjeev Kumar Mishra, Adv.
For the State : Mr. Anil Kumar, G.P.XI.
For the Respondents : Mr. N.K.Gupta, Adv.
Mr. Satyendra Krishna Prasad,Adv.
PRESENT
THE HON'BLE MR. JUSTICE BARIN GHOSH.
THE HON'BLE MR. JUSTICE CHANDRA MOHAN PRASAD.
Barin Ghosh The present appeal was filed with an application made & C.M.Prasad,JJ under Section 5 of the Limitation Act seeking condonation of delay in preferring the appeal. A Division Bench of this Court on 1st August 2001 ordered the Limitation petition to be considered at the time of admission of the appeal. On 9th November 2001, a Division Bench of this Court admitted the appeal for hearing, but at that stage did not dispose of the application made for condonation of delay. The matter is such that -2- a substantial question of law has been raised in the appeal and, accordingly, as far back as on 9th November 2001, a Division Bench of this Court admitted the appeal for hearing. Considering the said set of facts and averments made in the application for condonation of delay, we allow the application for condonation of delay in preferring the appeal.
The appellants, 12 in number, were working in the Tractor Department of Moti Lal Padumpad Udyog Ltd. They were disengaged. Such disengagement raised an industrial dispute. The same was referred to the Labour Court under Section 10 (1) (c) of the Industrial Disputes Act, 1947 by the State Government. The Notification dated 28th January 1982 indicated that an industrial dispute exists between the management of Moti Lal Padumpad Udyog Ltd. (Sugar Mill Branch) and their workmen. Before the Labour Court, the employer, Moti Lal Padumpad Udyog Ltd., held out that its Sugar Mill Branch is totally separate from its Tractor Branch, where the appellants were working On the basis thereof it was contended that the appropriate employer is not before the Labour Court and in absence of the appropriate employer as a party to the industrial dispute, the referred industrial dispute cannot be decided. Unfortunately, the Labour Court -3- accepted such unfounded and irrational contention of the employer.
Clause (k) of Section 2 of the Act defines industrial dispute as dispute or difference between employers and employers or between employers and workmen or between workmen and workmen which, is connected with employment or non- employment or terms of employment or with conditions of labour, of any persons. The Act applies to industrial disputes. Therefore, when there is a dispute or difference between an industrial employer and its workmen, the same is an industrial dispute. Industry, according to Section 2(J) means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft or industrial occupation or avocation of workmen. The word 'employer' as such has not been defined in the Act. Clause (g) of Section 2 of the Act has only indicated as to who shall be deemed to be the employer when the industry is carried on by a government or by a local authority. Employment is nothing but a contract. A contract can be entered into by persons who are sue juris i.e. natural persons or corporate entities, who by law are entitle to contract. Moti Lal Padumpad Udyog Ltd., being a Company incorporated under the -4- Companies Act, 1956, is a corporate entity which is competent to contract. A branch or a department of the said corporate, being not a separate corporate and being a part of the self same corporate, when entering into a contract of employment enters the same on behalf of the corporate of which it is a part and not as a separate entity. Contracts of employment that the appellants had, were thus with the corporate entity, Moti Lal Padumpad Udyog Ltd. Workman, according to section 2(S) of the Act is any person employed in any industry.
However, in terms of Section 2(ka) industrial establishments or undertakings may be treated as separate entities but for specific purposes as provided in Sections 25K to 25R of the Act and so far as may be as provided in Section 25B, 25D, 25FF, 25G, 25H and 25 of the Act, but not for the purpose of Section 25F of the Act, since the said Section applies to workmen employed in any industry.
Holding that the Tractor department of Moti Lal Padumpad Udyog Ltd. was the employer of the appellant, the Labour Court disposed of the reference by passing no award since the Tractor Department of Moti Lal Padumpad Udyog Ltd. was not present before it. The writ petition filed challenging the said -5- award having been dismissed, the present appeal has been preferred.
For the reasons already indicated by us, it could not be held that the Tractor department of Moti Lal Padumpad Udyog Ltd. was the employer of the appellants, we allow the appeal, set aside the judgment and order under appeal and at the same time, allow the writ petition by quashing the award and remit back the matter to the Labour Court for early disposal of the reference.
Moti Lal Padumpad Udyog Ltd. unjustly held out before the Labour Court that for the purpose of giving employment it has two identities or more than two identities and though one of those identities had been made a party to the reference, but the identity of which the appellants were employees had not been made a party to the reference, delayed consideration of the reference on its merits for 26 years and, accordingly, we allow cost in favour of the appellants assessed at Rs.1,00,000/- (one lac) for each of the appellants to be paid by Moti Lal Padumpad Udyog Ltd. The request for reconsideration of the cost is rejected.
Patna High Court (Barin Ghosh,J)
Dt. 5th Sept.2008
A.F.R. Jay/
(C.M.Prasad,J)
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