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5. If a dispute arises as to whether a particular establishment or part of it wherein an appointment has been made is an industry or not, it would be for the person concerned who claims the same to be an industry to give positive facts for coming to the conclusion that it constitutes an industry. Ordinarily, a department of the Government cannot be held to be an industry and rather it is a part of the sovereign function. To find out whether the Respondent in the writ petition had made any assertion that with regard to the duty which he was discharging and with regard to the activities of the organization where he had been recruited, we find that there has not been an iota of assertion to that effect though, no doubt, it has been contended that the order of dismissal is vitiated for non-compliance with Section 25-F of the Act. The State in its counter affidavit, on the other hand refuted assertion of the Respondent in the writ petition and took the positive stand that the Forest Department cannot be held to be an industry so that the provisions of Section 25-F cannot have any application. In the absence of any assertion by the Petitioner in the writ petition including the nature of duty discharged by the Petitioner as well as the job of the establishment where he had been recruited, the High Court wholly erred in law in applying the principles enunciated in the judgment of this Court in Jagannath Maruti Kondhare...
6. Observations made by Apex Court in" aforesaid decision have to be taken into account in light of the facts of this case. As per the facts of this case, in paragraph 1 of the written statement filed by Petitioner, it is contended by t Petitioner that the provisions of I.D. Act and other labour legislations are not applicable to Petitioner and in paragraphs 3 and 5, Petitioner has contended that the Respondent was engaged as part time rojamdar, therefore, I.D. Act is not applicable to it. There is no positive evidence led by Petitioner before Labour Court to prove that the Petitioner is performing sovereign function of the State. Function of workman was clear that he was discharging, duties as a peon and was shifting file from one' table to another and was serving water to concerned employees. No contention was raised by Petitioner before Labour Court to decide whether the department is an industry or not. No argument has been made by Petitioner before Labour Court that the department is not an industry. Mere contention was raised by Petitioner in its written statement that it is not an industry but it has not been sustantiated by Petitioner by leading proper evidence. One witness Chorel Kalubhai was examined by Petitioner at Exhibit 45 before Labour Court. He has also not narrated any facts that the department is performing sovereign function and it is not an industry within the meaning of Section 2(j) of the I.D. Act, 1947. Merely because the provisions of the BCRs are applicable, it will not outset (sic oust) the department from the definition of industry. According to my opinion, therefore, in the peculiar facts of this case, decision of Apex Court in State of Gujarat and Ors. v. Pratamsingh Narsinh Parmar (supra) is not applicable to this case and is not helpful to Petitioner.