Judgment 1 wp2928.03.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 2928 OF 2003
Sanjay S/o. Bhauraoji Mahurkar,
Aged about 32 years, Occupation: Service,
R/o. Near Chintamani Kirana,
Bangar Nagar, Yavatmal.
.... PETITIONER.
// VERSUS //
1. Hon'ble Member,
Industrial Court, Yavatmal.
2. Range Forest Officer,
Yavatmal Range Office,
Apsara Talkies Road,
Yavatmal.
.... RESPONDENT
.
___________________________________________________________________
Shri Anand Deshpande, Advocate for Petitioner.
Ms Sangeeta Jachak, A.G.P. for Respondent No.2.
___________________________________________________________________
CORAM : Z.A.HAQ, J.
DATED : JANUARY 04, 2018.
ORAL JUDGMENT :
1. Heard.
2. RULE. Rule made returnable forthwith.
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Judgment 2 wp2928.03.odt
3. The petitioner /employee had filed complaint under Section 28 read with Section 7 and Item 1 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 making grievance that his services were terminated without conducting any enquiry, on the ground that he was being prosecuted for the offence punishable under Section 26-F and Section 41 of the Indian Forest Act, 1927 and though he is acquitted by the criminal Court, he is not reinstated.
The Labour Court had allowed the complaint field by the employee and had directed reinstatement with 50% back-wages. The employer had filed revision application before the Industrial Court which is allowed by the impugned order.
4. The submission on behalf of the employer is that the petitioner/ employee was engaged as daily wager, and as he was involved in transporting teakwood from the forest illegally, he was not engaged later on. According to the employer, even otherwise the complaint filed by the employee under the provisions of the Act of 1971 was not maintainable as the Department of Social Forestry is not an "Industry" as contemplated by Section 2(j) of the Industrial Disputes Act, 1947.
The Industrial Court has allowed the revision application filed by the employer holding that the Department of Social Forestry is not an ::: Uploaded on - 15/01/2018 ::: Downloaded on - 16/01/2018 00:04:30 ::: Judgment 3 wp2928.03.odt 'industry' and the complaint filed by the petitioner/ employee was not maintainable.
5. To support the submission that the Department of Social Forestry is an 'Industry' and the complaint filed by the petitioner/employee is maintainable, the learned advocate for the petitioner has relied on the following judgments:
i) Judgment given in the case of Chief Conservator of Forests and another vs. Jagannath Maruti Kondhare, reported in AIR 1996 SC 2898 = 2013(16) SCC 16
ii) Judgment given in the case of State of Mah. vs. Sarva S. Sangh, reported in 2001(2) Mh.L.J. 528.
The learned advocate for the respondent/employer has submitted that the point whether Social Forestry is an industry or not is under consideration by a larger bench of the Hon'ble Supreme Court. The order passed by this Court on 17th April, 2015 recording that this writ petition is to be heard after the decision of larger bench of the Hon'ble Supreme Court is also pointed out.
6. Relying on the judgment given in the case of State of Maharashtra & Anr. Vs. Sarva Shramik Sangh, Sangli & Ors, reported in ::: Uploaded on - 15/01/2018 ::: Downloaded on - 16/01/2018 00:04:30 ::: Judgment 4 wp2928.03.odt 2013(16) SCC 16 = 2001(2) Mh.L.J. 528 and the judgment given in the case of Wamanrao Vyankatrao Shinde Vs. Munnibai Parmanand Jain, reported in 2015(5) Mh.L.J. 891, the advocate for the petitioner has submitted that hearing of this writ petition need not be deferred awaiting the judgment of the larger bench of the Hon'ble Supreme Court.
Relying on paragraph 20 of the judgment given in the case of Sarva Shramik Sangh this Court has laid down in the case of Wamanrao Ganpatrao Shinde that the pendency of an issue before larger bench does not preclude the Court from deciding the matter, accepting the proposition laid down in the judgment given in the case of Wamanrao Ganpatrao Shinde. Considering this proposition, the writ petition is taken up for hearing.
7. On merits of the matter, I find that the Labour Court had rightly accepted the claim of the petitioner/employee that he was in continuous employment with the respondent/employer since 1st January, 1987 till 13th February, 1995, when the services of the employee were terminated without conducting any departmental enquiry, and that the termination order was illegal as the mandatory provisions of Section 25F and Section 25G of the Industrial Disputes Act were not complied with.
The employer had filed its written statement before Labour Court, however, had not participated in the further proceedings. After the ::: Uploaded on - 15/01/2018 ::: Downloaded on - 16/01/2018 00:04:30 ::: Judgment 5 wp2928.03.odt order was passed by the Labour Court, the employer had challenged it in revision before the Industrial Court raising the ground that Forest Department was not an industry as contemplated by Section 2(j) of the Industrial Disputes Act. The Industrial Court has accepted this submission made on behalf of the employer and has held that the complaint filed by the employee was not maintainable. The Industrial Court has relied on the judgment given in the case of State of Gujrat Vs. P.N. Parmar, reported in 2001(1) CLR 968. In this case it was held that the Forest Department of the State of Maharashtra is not an industry as there was no assertion in the complaint that the Forest Department of the State Government was an industry. In the judgment given in the case of Jagannath Maruti Kondhare (supra) it is held that certain schemes undertaken by the Forest Department cannot be recorded as part of the sovereign function of the State and therefore, it cannot be said that none of the employee employed by the Forest Department can approach the Labour Court/Industrial Court for redressal of his grievance.
8. Whether the employer will be covered by the definition of 'industry' as contemplated by Section 2(j) of the Industrial Disputes Act, is a question of fact to be determined on the basis of the material produced before the Court. In the present case, the respondent/employer has not participated in the proceedings before the Labour Court and has failed to discharge the burden of showing that it is performing the sovereign function ::: Uploaded on - 15/01/2018 ::: Downloaded on - 16/01/2018 00:04:30 ::: Judgment 6 wp2928.03.odt of the State, and it cannot be said to be an industry as contemplated by Section 2(j) of the Industrial Disputes Act. The Industrial Court has committed an error by allowing the revision and dismissing the complaint filed by the petitioner/employee on the ground that it was not maintainable.
9. It is undisputed that the petitioner is acquitted by the criminal Court. Though the respondent/employer claims that departmental enquiry was conducted against the petitioner/employee, the employer has not placed any material on record to substantiate this claim. Even the Industrial Court has recorded that the employer has not filed any documentary evidence on record to show that departmental enquiry was conducted against the employee.
10. In these facts, in my view, the order passed by the Labour Court, directing reinstatement of the employee, is required to be restored.
However, the directions given by the Labour Court to the employer to pay 50% of back wages are sustainable as the employee has not pleaded that he was not gainfully employed during the relevant period.
11. Hence, the following order:
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Judgment 7 wp2928.03.odt
i) The orders passed by the subordinate Courts are set aside.
ii) The respondent/employer is directed to reinstate the petitioner/employee on the same post in which he was working.
iii) The respondent/ employer shall grant continuity of service for all purposes, however, the petitioner/employee will not be entitled for monetary benefits/back wages for the period from the date of his termination i.e. 13 th February, 1995 till 31 st January, 2018.
Rule is made absolute in the above terms. In the circumstances, the parties to bear their own costs.
JUDGE RRaut..
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