Bombay High Court
Sanjay Bhauraoji Mahurkar vs Hon,Ble Member Industrial Court on 4 January, 2018
Bench: Z.A. Haq
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.
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
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
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
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
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:
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..
