Marathwada Sarwa Shramik ... vs Assistant Director, Department ...
2002 Latest Caselaw 374 Bom

JUDGMENT

1.The Assistant Director, Department of Social Forestry of the Government of Maharashtra is the Respondent in this petition. The petitioner is a registered Trade Union and the employees employed in the office of the respondent are the members of the petitioner - Trade Union. The petitioner Union and its members are alleged to have staged demonstrations in front of the office of the respondent. It is alleged by the respondent that the petitioner Union and its members are shouting slogans, holding Dharnas outside the office premises and are squatting in the tents erected near the entrance gate of the office. On these allegations, the respondent filed a Complaint under Section 28 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (for short "M.R.T.U. & P.U.L.P. or simply the Act") alleging that the petitioners were indulging in unfair labour practice under entry no.5 of Schedule III of the Act.

2. The respondent filed an application for interim relief restraining the petitioner from holding demonstrations within the radius of 100 meters from its office and thereby indulging in an unfair labour practice under entry no.5 of Schedule III of the Act. The application for interim relief was resisted on several grounds including the ground that the Industrial Court, before whom the Complaint was filed, had no jurisdiction to grant injunction restraining the demonstrations outside the office premises. It was contended that the direction not to hold demonstrations within the radius of 100 meters from the office of the respondent no.2 was without jurisdiction as entry no.5 of Schedule III of the Act is restricted only to the acts/actions inside the work premises and not outside. The same ground was also canvassed in this writ petition. It is, however, not necessary to give any finding on the said point because in view of the view which I have taken on the other point canvassed by the petitioner.

3. In the writ petition, petitioner by amending the petition, contends that the respondent is a department of the Government and is not an "Industry" within the meaning of Section 2(j) of the Industrial Disputes Act, 1947 and/or Section 3(7) of the M.R.T.U. & P.U.L.P. Act, 1971. In my opinion, this contention is well founded. In the Complaint, which was filed by the Respondent under Section 28 of the Act, there is no averment that the respondent is an "Industry". Ordinarily a Department of the Government cannot be held to be an "Industry" and rather discharges part of the sovereign function of the State. It is only when the Government Department undertakes any commercial activity rather than a sovereign activity, that the Department or the activity of that department can become an "Industry". Any person, who alleges that a Department of the Government is an "Industry", must allege, as a fact, that the said Department is not undertaking any sovereign activity but is indulging in commercial activity or the very nature of the activities is such that prima facie it is commercial or industrial. There is no allegation in the Complaint before the Industrial Court as to what activities are carried out by the Social Forest Department. Normally, the purpose of Social Forestry is to grow, preserve and maintain the forests. It is not shown that this activity is commercial or industrial in nature.

4.In the case of State of Gujarat and others Vs. Pratamsingh Narsinh Parmar, reported in 2001 (1) CLR 968, the Apex Court observed:

"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 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 25-F of the Act. The State in its counter-affidaivt, 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 25-F 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 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 (supra) to hold that the Forest Department could be held to be "an industry".

5. This judgment of the Apex Court was followed by the Division Bench of this Court in the case of Haribhau S/o Gaman Waghchaure Vs. State of Maharashtra & another, reported in 2002 (1) CLR 383. Therefore, it has to be held that the respondent has not proved that it is "an industry" to which provisions of M.R.T.U. & P.U.L.P. Act are applicable. The Complaint filed under the provisions of the M.R.T.U. & P.U.L.P. Act was not, therefore, maintainable and no interim relief could have been granted by the Industrial Court.

6. In the circumstances, the order passed by the Industrial Court dated 17th January 2002 below Exhibit-C-2 in Complaint ULP No.166/2001 is quashed and set aside. Rule made absolute in aforesaid terms. No order as to costs.