Sauwa Ram Yadav vs State Of Chhattisgarh
2024 Latest Caselaw 114 Chatt

Chattisgarh High Court

Sauwa Ram Yadav vs State Of Chhattisgarh on 24 June, 2024

Author: Narendra Kumar Vyas

Bench: Narendra Kumar Vyas

  Neutral Citation
  2024:CGHC:21058

                                                                Page 1 of 5



                                                                       NAFR
            HIGH COURT OF CHHATTISGARH, BILASPUR


                          WPS No. 3240 of 2024


    Sauwa Ram Yadav Son Of Late Shri Rambhau Yadav Aged About 54
     Years Resident Of Village Rehuda, Post Jhajpuri Kala, Tehsil Lormi,
     District - Mungeli, Chhattisgarh.
                                                             ---- Petitioner
                                 Versus
   1. State Of Chhattisgarh Through The Secretary, Department Of
      Forest, Mantralaya, New-Raipur, Chhattisgarh.
   2. Pricipal Chief Conservator Of Forest Aranaya Bhawan, Sector -
      19, North Block, Atal Nagar, Nava Raipur, Chhattisgarh.
   3. Chief Conservator Of Forest Bilaspur Circle, Distt - Bilaspur,
      Chhattisgarh.
   4. Divisional Forest Officer Bilaspur Forest Division, Distt - Bilaspur,
      Chhattisgarh.
   5. Divisional Forest Officer Mungeli Forest Division Distt - Mungeli,
      Chhattisgarh.
                                                        ---- Respondents

For Petitioner : Mr. Ritesh Verma, Advocate For State : Mr. Aman Tamboli, Panel Lawyer

Hon'ble Shri Justice Narendra Kumar Vyas Order on Board

24.06.2024

1. The petitioner has filed present writ petition under Article 226 of the Constitution of India and has prayed for following relief:

10.2 that , the Hon'ble Court may kindly be pleased to issue appropriate writ for the regularization of petitioner's service. Further, may kindly be directed to the respondents to regularize petitioner's service immediately following the Governments Guidelines of regularisation as per law.

2. The facts projected from the records are that the petitioner was appointed as daily wage employee in the forest department on 01.10.1990 and has completed more than 34 years of service, Neutral Citation 2024:CGHC:21058

still his services have not been regularised.

3. The forest is an industry as defined under Section 2(J) of he Industrial Dispute Act, 1947 and petitioner is a workman as defined under Section 2(S) of the Industrial Dispute Act, 1947 therefore, the petitioner has alternate and efficacious remedy to raise Industrial Dispute, as such, the present petition is not maintainable.

4. Hon'ble Supreme Court in case of Chief Conservator of Forest vs. Jagannath Maruti Kondhare {1996 (2) SSC 293} has examined the issue whether forest is an industry or not has held as under:-

"13. The aforesaid shows that if we were to extend the concept of sovereign function to include all welfare activities as contended on behalf of the appellants, the ratio in Bangalore Water-Supply case would get eroded, and substantially. We would demur to do so on the face what was stated in the aforesaid case according to which except the strictly understood sovereign function, welfare activities of the State would come within the purview of the definition of industry; and, not only this, even within the wider circle of sovereign function, there may be an inner circle encompassing some units which could be considered as' industry if substantially severable.

16. The aforesaid being the crux of the scheme to implement which some of the respondent 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 he 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 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."

5. The petitioner has prayed for regularization of his service, as Neutral Citation 2024:CGHC:21058

what should be the criteria for appointment on the post of Security Guard and whether the petitioner is fulfilling the criteria cannot be examined by this Court as it is disputed question of facts, it can be decided by the Labour Court having jurisdiction to decide the disputed facts. The issue of power of the labour Court for regularization of employees has come up for consideration before Hon'ble the Supreme Court in Maharashtra State Road Transport Corporation & another Vs. Casteribe Rajya Parivahan Karmchari Sanghatana {2009 (8) SCC 556}, wherein it has been held at paragraph 30 to 36 as under:-

"30. The question that arises for consideration is: have the provisions of MRTU & PULP Act denuded of the statutory status by the Constitution Bench decision in Umadevi. In our judgment, it is not.

31. The purpose and object of MRTU & PULP AIR 1967 SC1071 (1972) 1 SCC 409 (1979) 4 SCC 507 Act, inter alia, is todefine and provide for prevention of certain unfair labour practices as listed in Schedule II, III and IV. MRTU & PULP Act empowers the Industrial and Labour Courts to decide that the person named in the complaint has engaged in or is engaged in unfair labour practice and if the unfair labour practice is proved, to declare that an unfair labour practice has been engaged in or is being engaged in by that person and direct such person to cease and desist from such unfair labour practice and take such affirmative action (including payment of reasonable compensation to the employee or employees affected by the unfair labour practice, or reinstatement of the employee or employees with or without back wages, or the payment of reasonable compensation), as may in the opinion of the Court be necessary to effectuate policy of the Act.

32. The power given to the Industrial and Labour Courts under Section 30 is very wide and the affirmative action mentioned therein is inclusive and not exhaustive. Employing badlis,casuals or temporaries and to continue them as such for years with the object of depriving them of the status and privileges of permanent employees is an unfair labour practice on the part of the employer under item 6 of Schedule IV. Once such unfair labour practice on the part of the employer is established inthe complaint, the Industrial and Labour Courts are empowered to issue preventive as well as positive direction to an erring employer.33. The provisions of MRTU & PULP Act and the powers of Industrial and Labour Courts provided therein were not at all under consideration in the case of Umadevi1. As a matter offact, the issue like the Neutral Citation 2024:CGHC:21058

present one pertaining to unfair labour practice was not at all referred, considered or decided in Umadevi. Unfair labour practice on the part of the employer in engaging employees as badlies, casuals or temporaries and to continue them as such for years with the object of depriving them of the status and privileges of permanent employees as provided in item 6 of Schedule IV and the power of Industrial and Labour Courts under Section 30 of the Act did not fall for adjudication or consideration before the Constitution Bench.34. It is true that the case of Dharwad District PWD Literate Daily Wage Employees Assn.7 arising out of industrial adjudication has been considered in Umadevi and that decision has been held to be not laying down the correct law but a careful and complete reading of decision in Umadevi leaves no manner of doubt that what this Court was concerned in Umadevi was the exercise of power by the High Courts under Article 226 and this Court under Article 32 of the Constitution of India in the matters of public employment where the employees have been engaged as contractual,temporary or casual workers not based on proper selection as recognized by the rules or procedure and yet orders of their regularization and conferring them status of permanency have been passed.

35. Umadevi is an authoritative pronouncement for the proposition that Supreme Court (Article 32) and High Courts(Article 226) should not issue directions of absorption, regularization or permanent continuance of temporary,contractual, casual, daily wage or ad-hoc employees unless the recruitment itself was made regularly in terms of constitutional scheme.

36. Umadevi does not denude the Industrial and Labour Courts of their statutory power under Section 30 read with Section 32 of MRTU & PULP Act to order permanency of the workers who have been victim of unfair labour practice on the part of the employer under item 6 of Schedule IV where theposts on which they have been working exists. Umadevi cannot be held to have overridden the powers of Industrial and Labour Courts in passing appropriate order under Section 30of MRTU & PULP Act, once unfair labour practice on the part of the employer under item 6 of Schedule IV is established."

6. In view of the above stated legal position, the petitioner being a workman and the Forest Department being an industry and also considering disputed facts are involved in the present case which can be ascertained by the Labour Court having jurisdiction, as such, the writ petition is not maintainable. However, liberty is granted to the petitioner to raise industrial Neutral Citation 2024:CGHC:21058

dispute under the provisions of the Industrial Dispute Act, 1947.

7. With the aforesaid observation and direction, the writ petition (S) is disposed of.

Sd-

(Narendra Kumar Vyas) Judge Deshmukh