The State Of Maharashtra, The ... vs Shri Balu Mithu Dhamke
2003 Latest Caselaw 1052 Bom

JUDGMENT

D.Y. Chandrachud, J.

1. Rule.

2. Returnable forthwith. Learned counsel for the respondent waives service.

3. By consent, taken up for hearing and final disposal.

4. The respondent filed a complaint in the Labour Court at Nasik under Items 1(a), (b), (e) and (f) of Schedule IV to the Maharashtra Recognition of Trade Unions & Prevention of Unfair Labour Practices Act, 1971. The contention of the respondent herein was that he had worked as a mazdoor in the Social Forestry Department from 10th February 1982 till 30th November 1988. The grievance of the respondent was that his services came to be dispensed with without complying with the provisions of law. In paragraph 2 of the Complaint, the respondent averred that the Social Forestry Department is a Government Department having several Circles, one of which was at Nasik. The Respondent then averred that while he was in service, he came to be appointed as a Plantation Kotwal on 21st July 1984 and was posted at Wada. Thereafter, on 26th February 1985, he was again appointed as a Plantation Kotwal at Wada where he worked until 7th March 1988 upon which he was transferred to the Nasik Division. Eventually, his services were terminated on 29th November 1988. The petitioners herein filed a Written Statement in which it was specifically averred that the Social Forestry Department is not an "Industry" within the meaning of Section 2(j) of the Industrial Disputes Act, 1947. The defence that was raised was that this department was a regular department of the State of Maharashtra. In the Written Statement, it was denied that the department engaged in the sale and purchase of seedlings and plants as a business with a view to earn profits. On the contrary, it was contended that seedlings and plants are put on sale on a subsidized basis and/or on a no-profit - no-loss basis for the purpose of ensuring the development of forests in accordance with the directions of the State of Maharashtra. The petitioners also stated that the respondent was appointed in Nasik Division on 15th March 1988 in the post of Lagwad Kotwal; that this was a fresh order and not an order of transfer from Thane Division to Nasik Division.

5. The Labour Court, by judgment and order dated 6th February 1999, dismissed the complaint, upholding the preliminary objection raised on behalf of the petitioners. In holding thus, the Labour Court was of the view that it was for the respondent to show as to how the work of the petitioners was an "Industry" within the meaning of Section 2(j). The Labour Court held that the oral evidence of the respondent did not contain any reference at all to the petitioner being an Industry nor was there any explanation of how the work of the Social Forestry Department was an "Industry" within the meaning of Section 2(j). The matter was thereafter carried in Revision to the Industrial Court by the respondent. By an order dated 26th March 1999, the Industrial Court accepted the contention of the respondent based on the judgment of the Supreme Court in Chief Conservator of Forests v. Jagannath Maruti Kondhare 1996, Vol. 1 C.L.R. Page 680 that the Social Forestry Department would constitute an "Industry" within the meaning of Section 2(j) of the Act. The Industrial Court thereupon remanded the matter to the Labour Court to proceed with the Complaint on merits, in accordance with the ratio laid down by the Supreme Court in 1996, 1 C.L.R. 680. On remand, the Labour Court, in its order dated 23rd April 1999 held that the Industrial Court had already decided the question as to whether the Social Forestry Department was an Industry, based on the judgment of the Supreme Court in 1996 1, C.L.R. 680. The Labour Court then went into the merits of the dispute and eventually came to the conclusion that there was an unfair labour practice committed by the State. The State was directed to reinstate the respondent with continuity of service and full back wages. That Order has been affirmed in Revision on 12th March 2001.

6. The learned AGP has submitted that the view, which was taken by the Industrial Court in its Order dated 26th March 1999, is ex-facie, erroneous. The learned AGP urged that the judgment of the Supreme Court in Kondhare's case has been considered subsequently by the Supreme Court in State of Gujarat v. Pritamsingh Narsinh Parmar 2001, Vol. 9, S.C.C. Page 713. The Supreme Court, it was submitted, in the subsequent judgment has noticed that in the earlier case, it was on an assessment of the detailed averments which were Placed on Affidavit, that it was held that the Scheme which was undertaken therein could not be regarded as part of the sovereign functions of the State. On the other hand, the counsel for respondent supported the judgment of the Industrial Court.

7. Having heard learned counsel, I am of the view that there is merit in the submission which has been urged on behalf of the petitioners. The Industrial Court, in holding that the Social Forestry Department was an Industry, relied upon the judgment of the Supreme Court in Kondhare's case (supra). Paragraphs 15 and 16 of the judgment of the Supreme Court are significant because they refer clearly to the circumstances in which it was held that the Panchgaon Parwati Scheme was an Industry within the meaning of Section 2(j) of the Industrial Disputes Act. The Supreme Court held thus:

"15. A perusal of the affidavit filed by the Chief Conservator of Forests on 5.12.1992, shows that the Panchgaon Parwati Scheme was framed 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 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 aforestation for soil/moisture conservation under various State level schemes as well as Employment 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."

The earlier judgment of the Supreme Court in Kondhare's case was subsequently considered in State of Gujarat v. Pritamsingh Narsinh Parmar (supra). In Para 5 of the judgment, the Court held thus:

"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 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."

In para 6, the Supreme Court has explained the earlier judgment in Kondhare's case holding that there was in that case a detailed assertion on Affidavit in regard to the nature of the Scheme which was undertaken. In the present case, the Industrial Court has relied entirely on the judgment of the Supreme Court in Kondhare's case without considering at all, whether there was any material on record in the present case in support of the submission that the Social Forestry Department is an "Industry" within the meaning of Section 2(j). In fact, the Labour Court had come to the conclusion that even in the examination-in-chief, there was absolutely no material forthcoming on the part of the respondent. That being the position, I am of the view that the petitioners are entitled to succeed. At the same time, I am of the view that the interest of justice would require that the Industrial Court be directed to reconsider, having regard to the law laid down by the Supreme Court in Kondhare's case as subsequently explained in Pritamsingh N. Parmar (supra) as to whether the Social Forestry Department is an "Industry" within the meaning of Section 2(j) of the Industrial Disputes Act. The Industrial Court will have due regard to the material, if any, that has been placed before it in arriving at an appropriate conclusion after hearing the parties.

8. In the circumstances, the Petition is allowed. The order of the Industrial Court dated 26th March 1999 as well as the subsequent order of the Labour Court dated 23rd April 1999 and the Industrial Court dated 12th March 2001 are quashed and set aside. Parties are directed to appear before the Industrial Court, in the first instance, on 6th October 2003 for obtaining further directions for the hearing of the matter. The Industrial Court is requested to dispose of the matter since it h as been pending for quite sometime, preferably within a period of three months from the date on which the parties produce an authenticated copy of this order.

9. It has been stated before the Court that the respondent has continued to remain in service during the pendency of the proceedings in the Courts below as a result of an interim order which was passed. Having regard to the aforesaid fact, if the respondent continues to be in service as of date, his services shall be protected until the Industrial Court arrives at its decision.

10. The Petition is accordingly disposed of. No costs.