1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 04TH DAY OF JANUARY, 2021
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.39570/2014 (L-TER)
BETWEEN
1. THE RANGE FOREST OFFICER,
AOF T.NARASIPURA DIVISION,
GOVERNMENT TIMBER DEPOT,
NANJANGUD-571301.
2. THE DEPUTY CONSERVATOR OF
FOREST, MYSORE DIVISION,
ARANYA BHAVANA,
ASHOKAPURAM, MYSORE-570001.
3. THE PRINCIPAL SECRETARY,
GOVERNMENT OF FOREST AND
ECOLOGY DEPARTMENT,
VIDHANASOUDHA,
BANGALORE-560001.
... PETITIONERS
(BY SRI R. SRINIVASA GOWDA, AGA.)
AND
1. NAGAMMA
AGE 44 YEARS
2. MAHADEVA
AGE 45 YEARS
2
3. DEVAIAH,
AGE 45 YEARS
R1 TO R3 BY
C/O SECRETARY,
MYSORE DIVISION INDUSTRIAL WORKERS
GENERAL UNION, NO.2682,
I CROSS, MEDARAKERI,
NANJUMALLGE, MANANADAVADI
ROAD, MYSORE-575001.
... RESPONDENTS
(BY SRI V.R.DATAR, ADVOCATE FOR RESPONDENTS)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE JUDGEMENT
ORDER DT.27.8.2013 IN REF.NO.149/2003 VIDE ANNX-A.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 23.11.2020, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING :-
ORDER
The petitioners - the Department of Forest in this writ petition have called in question the award of the Labour Court dated 27.08.2013 passed in reference No.149/2003, directing reinstatement of the Workmen into service with 50% back wages and continuity of service.
32. Parties will be referred as the 'Department' (petitioners) and the Workmen (respondents) for the sake of convenience.
3. Heard Sri R. Srinivasa gowda, learned Additional Government Advocate for the petitioners, Sri V.R.Datar, learned counsel for respondents and perused the material on record.
4. Brief facts of the case leading to the filing of the writ petition are that, the Workmen joined the Department as Coolie and Watermen respectively. All three Workmen joined the Department in the year 1984 and were all terminated in the month of March of 2001. The appropriate government referred the dispute to the Labour Court which came to be numbered as reference No.149/2003 to adjudicate several issues. The points of reference were as follows:
"1. PÉÊUÁjPÁ «ªÁzÀUÀ¼À C¢ü¤AiÀĪÀÄ 1947 gÀ°è ªÁåSÁ夹zÀAvÉ CfðzÁgÀgÀÄ PÁ«ÄðPÀgÉÃ?4
2. CfðzÁgÀ£ÀÄ PÉ®¸À ªÀiÁqÀÄwÛzÀÝ / PÉ®¸À ªÀiÁqÀÄwÛgÀĪɣÉAzÀÄ D¥Á¢¸À¯ÁVgÀĪÀ ªÀUÀð PÉÊPÁjPÁ ¸ÁÜ¥À£É CxÀªÁ ªÀÄAqÀ½ CxÀªÁ GzÀåªÀĪÀÅ PÉÊUÁjPÉAiÉÄÃ?
3. DqÀ½vÀ £ÁåAiÀÄ ªÀÄAqÀ½ C¢ü¤AiÀĪÀÄ ¥ÀæPÀgÀt 19 gÀAvÉ CxÀªÁ ¸ÀA«zsÁ£ÀzÀ 228£Éà C£ÀÄZÉÑÃzÀzÀ CrAiÀÄ°è CfðzÁgÀ£ÀÄ ¸ÀA«zsÁ£ÁvÀäPÀ ¥ÀjºÁgÀ ¥ÀqÉAiÀÄ®Ä CºÀð£É CxÀªÁ E®èªÉÃ?
4. DqÀ½vÀªÀUÀðzÀªÀgÁzÀ G¥À CgÀtå ¸ÀAgÀPÀëuÁ¢üPÁjUÀ¼ÀÄ, ªÉÄʸÀÆgÀÄ «¨sÁUÀ, CgÀtå ¨sÀªÀ£À, C±ÉÆÃPÀ¥ÀÄgÀA, ªÉÄʸÀÆgÀÄ EªÀgÀÄ ²æêÀÄw £ÁUÀªÀÄä ªÁlgïPÀÆ°, ²æÃ.ªÀĺÀzÉêÀ ºÁUÀÆ ²æÃ.zÉêÀAiÀÄå ªÁZÀgïUÀ¼ÀÄ EªÀgÄÀ UÀ½UÉ ªÀiÁZïð - 2001 jAzÀ PÉ®¸À PÉÆqÀzÉà ºÉÆgÀºÁQgÀĪÀÅzÀÄ £ÁåAiÀĸÀªÀÄävÀªÉÃ?
5. ºÁUÁUÀ¢zÀÝ°è, ¸ÀzÀj PÁ«ÄðPÀgÀÄ AiÀiÁªÀ ¥ÀjºÁgÀPÉÌ CºÀðgÀÄ?"
The first point of reference was, whether the Department would come within the meaning of 'Industry' under the Industrial Disputes Act, 1947 (hereinafter referred to as 'the said Act' for short). The Labour Court holding the first issue against the Department, further held that the Workmen were terminated illegally and consequently passed an award which reads as follows:
"AWARD 5 Petition filed by the First Party Workmen U/Sec.10 (4 - A) of Industrial Dispute Act is hereby allowed in part.
The denial of employment to First Party workmen by Second Party is held illegal.
The Second Party is hereby directed to reinstate the First Party workmen into service to the same post last held by them with continuity of service and 50% of back wages from the date of termination till the date of reinstatement, within 2 months from the date this Award becomes enforceable.
Send copy of the award to Government for publication U/Section 17 of I. D. Act."
The Department has filed the present writ petition on the ground that the Department of Forest is not an 'Industry' and if it is not an 'Industry', it would not come within the purview of the said Act and would not be amenable to the jurisdiction of the Labour Court. The issue whether the Department of Forest is an 'Industry' or otherwise is no longer res integra IN 6 view of the judgments of the Apex Court as followed by a Co-
Ordinate Bench of this Court has follows:
a. THE RANGE FOREST OFFICER AND ANR. VS. RAJU in W.P.Nos.15494/2006 AND CONNECTED MATTERS (D.D.ON 02.03.2012), has held as follows:
3. It is the contention of learned Government Advocate that Labour Court erred in arriving at a conclusion that "Forest Department" is a industry as defined under section 2(j) of the Industrial Disputes Act, 1947 and contends that Hon'ble Apex Court in the case of State of Gujarat and others Vs Pratamsingh Narsinh Parmar reported in 2001(9) SCC 713 has held that "Forest Department" is not an industry and as such provisions of Industrial Disputes Act, 1947 is not attracted and contends that dicta laid down by Hon'ble Supreme Court is squarely applicable to the facts on hand. Supporting the said contention of learned Government Advocate, Sri.B.J.Somayaji, learned counsel appearing for petitioner in W.P.34659/2011 would elaborate his submission by contending that very same petitioners were before 7 this court in W.P.35537/2004 and this court has taken a view by following the Judgment of Hon'ble Apex Court in Pratamsingh's case by holding petitioner is not a industry as defined under Industrial Disputes Act, and as such he contends that present writ petition deserves to be allowed. He would also contend that this court has consistently held that "Forest Department" is not an industry and in support of his submission he has relied upon the unreported Judgments of this Court passed in W.P.11532/2011 disposed of on 11.11.2011. Accordingly prays for allowing of writ petition.
4. Per contra, Sri.Govindaraj, learned counsel appearing for respondent would submit that issue is no more res integra in view of dicta laid down by Hon'ble Apex Court in the case of Chief Conservator of Forests and another etc., etc., Vs Jagannath Maruti Kondhare etc., etc., reported in AIR 1996 SC 2898 whereunder Hon'ble Apex Court comprising of three Hon'ble Judges have held "Forest is an industry" by relying upon the earlier judgment of Constitutional Bench in case of BWSSB Vs 8 A.Rajappa reported in (1978) 2 SCC 213 and as such he contends that the contention raised by the State is contrary to the judgment of Hon'ble Apex Court and prays for dismissal of writ petition.
5. Having heard the learned advocates appearing for parties and on perusal of the impugned order it would be necessary to extract the Judgment of Hon'ble Apex Court relied upon by learned advocates appearing for both the parties to consider the rival contentions raised in these writ petitions.
(i) In the case of State of Gujarat and others Vs Pratamsingh Narsinh Parmar it has been held as under:
"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 9 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 organisation 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 of Section 25F of the Act.
The State in its counter affidavit, on the other hand, refuted the 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 25F of the Act cannot have any application. In the absence of any assertion by the petitioner in the writ petition indicating the nature of duty discharged by the petitioner as well as the 10 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 to hold that the Forest Department could be held to be "an industry".
6. The learned single Judge as well as the Division Bench of the High Court have failed to carefully examine the ratio of this Court's judgment in the Jagannath Maruti Kondhare's case, in as much as in para 15 of the said judgment, the Court has quoted the assertions made in the affidavit of the Chief Conservator of Forests and then in para 17, the Court held that the scheme undertaken cannot be regarded as a part of the sovereign function of the State. We are afraid that the aforesaid decision cannot have any application to the facts of the present case where there has not been any assertion of fact by the petitioner in 11 establishing that the establishment to which he had been appointed is "an industry". In this view of the matter, we have no hesitation to come to the conclusion that the learned single Judge as well as the Division Bench committed serious error of law in holding that to the appointment in question, the provisions of the Act apply. We would accordingly set aside the judgment of the Division Bench as well as that of the learned single Judge and hold that the writ petition would stand dismissed".
(ii) In the case of Chief Conservator of Forests and another etc., etc., Vs Jagannath Maruti Kondhare etc., etc., reported in AIR 1996 SC 2898 Apex Court has held as under:
"15. A perusal of the affidavit
filed by the Chief Conservator of
Forests on 5.12.1992, pursuant to
our order of 6.11.1992, shows that the Pachgaon Parwati Scheme was framed 12 as per the Government Resolution based on the policy decision taken in April 1976. The Scheme was to be initially for a period of 5 years and an area of about 245 hectares situated on a hill plateau on the southern outskirts and within easy access of Pune City was selected for creation of a park under bio-aesthetic development for the benefit of the urban population. It is further stated that the scheme was "primarily intended to fulfil bio-aesthetic, recreational and educational aspirations of the people which will have inestimable indirect benefit of producing enlightened generation of conservationists of nature inclusive of forests and wild life for the future". (Page 137) The affidavit goes on to state (at page 138) that the Pune Forest Division is also doing afforestation for soil/moisture conservation under various State level schemes as well as Employment 13 Guarantee Schemes all of which are for a period of 5 years.
16. The aforesaid being the crux of the scheme to implement which some of the respondents were employed, we are of the view that the same cannot be regarded as a part of inalienable or inescapable function of the State for the reason that the scheme was intended even to fulfil the recreational and educational aspirations of the people. We are in no doubt that such a work could well be undertaken by an agency which is not required to be even an instrumentality of the State.
17. This being the position, we hold that the aforesaid scheme undertaken by the Forest Department cannot be regarded as a part of sovereign function of the State, and so, it was open to the respondents to invoke the provisions of the State Act. We would say the 14 same qua the social foresting work undertaken in Ahmednagar district. There was, therefore, no threshold bar in knocking the door of the Industrial Courts by the respondents making a grievance about adoption of unfair labour practice by the appellants".
6. Now let me examine the contention of Sri.Govindaraj, learned counsel appearing for respondent as to whether the principles enunciated in Jagannath Maruti's case is applicable to the facts and circumstances of the case in W.P.15494/2006. The Hon'ble Apex Court in Jagannath Maruti's case found that the Chief Conservator of Forest had filed an affidavit before Hon'ble Apex Court pursuant to order passed which depicted that Pachgaon Parwati Scheme was framed as per Government Resolution based on a policy decision which was to be initially for a period of five years and an area of about 245 hectares situated on a hill plateau on the southern outskirts and within easy access of Pune City was selected for creation of a park under bio-aesthetic development for the benefit of urban population. It 15 was held by Hon'ble Apex Court that scheme was primarily intended to fulfil bio-aesthetic, recreational and educational aspirations of the people which will have inestimable indirect benefit of producing enlightened generation of conservationists of nature inclusive of forests and wild life for the future and keeping the affidavit filed by Chief Conservator of Forest as crux of the scheme it was held that some of the respondents are employed and came to a inescapable conclusion that it cannot be function of State for the reason that scheme was intended even to fulfil recreational or educational aspirations of the people. Thus in this background, Hon'ble Apex Court found in so far as respondents who were employed by Chief Conservator of Forest in Jagannath Maruti's case was for the purpose of execution of that scheme and as such it was held on facts by specifying principles enunciated by Constitution Bench in Rajappa's case to hold it as an industry as defined under section 2(j) of the Act.
7. This Judgment also came up for consideration in subsequent judgment of Hon'ble 16 Apex Court in Pratamsingh case and on facts it was held a dispute has arisen as whether a particular establishment or part of it wherein an appointment has been made would be a industry or not and held it would be for the person concerned who claims it to be a industry to give positive facts for coming to a conclusion that it constitutes "an industry". It is also been specifically observed by Apex Court that department of Government cannot be held to be a industry rather it is part of sovereign function. In the light of dicta laid down in these two judgments referred to supra when the facts on hand i.e., as pleaded in the claim statement by respondent- workman in W.P.15464/2006 are examined which is at Annexure-B it is specifically stated by first party-workman before Labour Court in his claim statement to the following effect:
"The 1st party workman where appointed as a watcher in the office of the Range Forest Officer, Mysore Range, Mysore on daily wage base by the 2nd party management on 01.07.93. He had been working a such without any complaint whatsoever. However he was illegally terminated from service on 30.4.2000".
17Thus it is the specific case of the workman that he was appointed by Forest Department. But it is not the case of workman that he was appointed under any scheme so as to bring the workman within the definition of workman or the respondent within the definition of industry as defined under the Industrial Disputes Act. In that view of the matter, I am of the considered view the contention of learned counsel appearing for respondent, Sri.Govindaraj cannot be accepted in view of law laid down by Hon'ble Apex Court in Pratamsingh's case. Hence it is hereby rejected. Accordingly there is no merit in the contention raised by respondent-workman. In that view of the matter, prayer sought for in the writ petition deserves to be granted.
8. In so far as writ petition 18921/2006 is concerned, it is noticed that claim raised by respondent-workman is similar to the one raised in the previous writ petition namely it has been contended that workman was appointed as a watcher in the office of Range Forest Officer, 18 H.D.Kote Range on daily basis by second party management on 01.03.92 and was illegally terminated on 31.03.97. In view of the law laid down by Hon'ble Apex Court in Pratamsingh's case contention of workman does not stand for further scrutiny and contention raised by State deserves to be accepted by granting the prayer sought for in the Writ Petition. Accordingly said petition also deserves to be allowed.
9. In so far as W.P.34659/2011 not only principles enunciated in W.P35537/2004 applies to the facts on hand since similar plea has been raised, it is noticed that first petitioner along with RFO, Maddur Taluk had come before this court raising similar ground in W.P.35537/2004 raising similar contention and assailing the similar award passed by Labour Court, Mysore this court following the dicta laid down in Pratamsingh's case has allowed the petition vide order dated 27.09.2007 by setting aside the award of Labour Court. It is also further noticed that petitioner had approached this court in W.P.16230/2007 contending that principles enunciated in Pratamsingh's case is applicable to 19 facts on hand and accepting the prayer made by first petitioner, this court by order dated 24.10.2008 has held that award passed by Labour Court holding petitioner is an industry cannot be sustained and has set aside the award. Further it is noticed that this court in catena of decisions i.e., WP 11532/2011, 26984/2009, 48261/2004 disposed of on 11.11.2011, 24.11.2009, 18.09.2007 respesctively holding that petitioner cannot be a 'industry'. Hence, I am of the considered view that principles laid down in these judgments would also squarely be applicable to the facts on hand. Accordingly prayer sought for in W.P.34659/2011 also deserves to be granted.
In the result, following order is passed:
ORDER
1. Writ petitions are allowed.
2. Awards passed by Labour Court, Mysore in - I.I.D.No.282/2000 dated 31.1.2006-Annexure-A - Ref No.236/2000 dated 12.12.2005-Annexure-A - Ref No.51/2006 dated 11.2.2011-Annexure-C are hereby quashed."
20The Co-Ordinate Bench of this Court has considered the very issue, whether the Department of Forest would be an 'Industry' as defined under Section 2(j) of the said Act. While considering the issue, this Court has in elaboration considered all the judgments of the Apex Court on the point and has rendered a finding that the Department of Forest in which those Workmen were employed and terminated would not be an 'Industry', in a subsequent judgment in the case of THE RANGE FOREST OFFICER AND ANO. VS. KRISHNA MURTHY IN WRIT PETITION NO.18663/2013 AND CONNECTED MATTER (D.D.ON 12.09.2013), has held as follows:
"3. It is no doubt true that the decision of the Supreme Court in STATE OF GUJARAT & ORS.
VS. PRATAMSINGH NARSINGH PARMAR
(2001) 9 SCC 713 observing that forest
department is not an industry, nevertheless the decision in CHIEF CONSERVATOR OF FORESTS & ANR.VS.JAGANNATH MARUTI KONDHARE FLR 1996 (72) P 840 it is observed that a scheme 21 of the forest department to create a park to fulfill the recreational and educational aspirations of the people, is not the sovereign function of the State, and therefore was an industry, the Labour Court accordingly held the forest department of the State of Karnataka as an industry under Sec.2(j) of the Act. Regard being had to the evidence of MW-1 that the respondent-workman was engaged on daily wages during an extended period from 1998 to 2002, concluded that the respondent had served continuously for 240 days in the 12 months preceding the termination on 1/12/2002, hence the termination was in violation of Sec.25(F) of the Act and therefore the workman was entitled to reinstatement, though with 50% backwages.
4. It is no doubt true that in the deposition of Shanthakumar wamy, the Range Forest Officer of Samajika Aranya Valaya, Hunsur, deposed that the department carries on green revolution and afforestation, to maintain ecological balance and to perfect fauna in the forest region and as part of the green revolution, the department also launches social forestation for which daily wage workers are 22 engaged and paid on the days they discharge duties. The cross-examination of MW-1 does not disclose that the department had a scheme for creation of park to fulfill the recreational or educational aspirations of the people or any other scheme in which the workman was engaged so as to fall out of sovereign functions. If that is so, then merely because MW-1 said that the department undertakes social forestry, by itself and nothing more, it cannot be concluded that forest department is an industry falling within the definition of the said term under Sec.2(j) of the Act. In my opinion, the Labour Court fell in error in not noticing the facts in Chief Conservator of Forest's case which is different from the facts of this case. The finding that the forest department of Karnataka is an industry, is perverse."
Subsequently, in the case of DEPUTY CONSERVATOR OF FORESTS VS. MALLESHA in WRIT PETITION NO.6775/2012 (D.D.ON 03.01.2014), has held as follows:
23"2. The Deputy Conservator of Forest and the Range Forest Officer, State of Karnataka, aggrieved by the award dated 27.08.2011 in reference No.23/2005, Annexure-C of the Presiding Officer, Labour Court, Mysore, directing re-instatement of the petitioner to the post of daily wager on nominal master role with 50% backwages from the date of petition, have preferred this writ petition.
3. Petitioners are the Officers of department of forest of the State of Karnataka. The Supreme Court in the case of State of Gujarat and others vs. Pratamsingh Narsingh Parmar (2001)9 SCC 713) held that a Government department is not an industry. In addition, it was held that where there is a dispute that the Government department is not an industry, it is for the workman to establish by leading cogent evidence that the department is an industry.
4. In the instant case, petitioners, Officers of the forest department of the State of Karnataka, advanced the plea in the counter statement in reference No.23/2005 before the Presiding Officer, 24 Labour Court, Mysore, that forest department is not an industry falling within the definition of the said term under the Industrial Disputes Act, 1947. In the adjudication of the claim of respondent that he was a workman engaged in an industry, before the Labour Court, except for the workman's self serving statement that he was engaged in social forestry, examined an Officer of the forest department as WW-2 who testified to the effect that workman was engaged on daily basis in NMR of forest department in the forest located at a certain place in the State of Karnataka. In the absence of legal evidence to the effect that the forest department in which the petitioner is said to have worked as daily wager on nominal master role is an industry, so as to invoke the jurisdiction of the Labour Court under the Industrial Disputes Act, it would be pretentious to accept the submission of the learned Counsel for respondent that the forest department constituted an industry.
5. In the light of the authoritative pronouncement of the Apex Court in State of Gujarath's case supra, Labour Court did not have the jurisdiction to pass 25 the award impugned and on that score alone deserves to be quashed.
6. In the result, the petition is allowed. The award dated 27.08.2011 in reference No.23/2005 is quashed, reserving liberty to the respondent to workout his remedy before an appropriate forum, in accordance with law."
The aforesaid order passed by the Co-Ordinate Bench in W.P.No.6775/2012 was carried in appeal by the Workman therein before the learned Division Bench and the learned Division Bench has affirmed the order observing thus:
"3. A reference was made. In the award, the Presiding Officer held that the petitioner's service was terminated unjustly. Consequently, reinstatement was directed with 50% per centum of the backwages.
4. The employer that is the Deputy Conservator of For ests, Social Forestry Division and Range Forest Officer, Maddur, challenged the order of the Labour 26 Court on a short point that the Forest Department was not an industry falling with in the definition of the Industrial Disputes Act, 1947.
5. The Hon'ble Single Judge relying upon the decision in the case of State of Gujarat and others
-versus- Pratamsingh Narsingh Parmar reported in (2001)9 Supreme Court Cases 713 held that the employer is not an industry as it has been a department of the Government. The Supreme Court of India in Pratamsingh's case (supra) also noticed that it is for the claimant to prove that he was employed in an industry within the meaning of Industrial Disputes Act, 1947. The Hon'ble Single Judge came to the conclusion that there was no positive assertion that the petitioner-appellant was employed in an industry, especially a department of government could not be held to be an industry.
6. We do not find any merit in this appeal. Therefore, the appeal is dismissed. All interlocutory applications do not survive for consideration. Those applications are, also, dismissed."
27In the light of the afore-extracted orders of the Co-
ordinate Benches and the judgment of the learned Division Bench, that the learned counsel for petitioners has placed reliance upon, holding that the Department of Forest is not an 'Industry' and, the Labour Court had fallen in error in not considering this point in a proper prospective and set aside the award passed by the Labour Court therein.
5. The case at hand is also identical and the judgments rendered, extracted hereinabove apply to the facts of the case at hand on all fours. Therefore, the following:
ORDER a. The writ petition is allowed.
b. The award of the Labour Court dated 27.08.2013 passed in reference No.149/2003 is hereby quashed.
No order as to costs.
Sd/-
JUDGE nvj CT:MJ