Karnataka High Court

The Assistant Conservator Of Forest vs T.A. Kariyappa Naika on 10 January, 2024

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                                                               NC: 2024:KHC:1349
                                                           WP No. 37204 of 2016




                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                              DATED THIS THE 10TH DAY OF JANUARY, 2024

                                               BEFORE

                              THE HON'BLE MRS JUSTICE K.S. HEMALEKHA

                               WRIT PETITION NO.37204 OF 2016 (L-RES)

                      BETWEEN:

                      1.   THE ASSISTANT CONSERVATOR OF FOREST,
                           HUNSUR DIVISION, HUNSUR,
                           MYSURU DISTRICT.

                      2.   THE DUPUTY CONSERVATOR OF FOREST,
                           HUNSUR DIVISION, HUNSUR,
                           MYSURU DISTRICT.                       ... PETITIONERS

                      (BY SMT. SPOORTHI V., HCGP)

                      AND:

                      T.A. KARIYAPPA NAIKA, MAJOR
                      S/O. ANNAIAH NAIKA,
                      THEMMODAHALLI, RAVANDOOR POST,
Digitally signed by   PERIYAPATNA TALUK,
MAHALAKSHMI B M       MYSURU DISTRICT - 571 107.                  ... RESPONDENT
Location: HIGH
COURT OF
KARNATAKA             (BY SRI V.S. NAIK, ADVOCATE)

                             THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
                      227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR
                      RECORDS     QUASH    THE   ORDER    DATED  28.07.2015  IN
                      I.I.D.NO.196/1988 PASSED BY THE HON'BLE LABOUR COURT,
                      MYSURU VIDE ANNEXURE-A.

                             THIS WRIT PETITION COMING ON FOR PRELIMINARY
                      HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE
                      FOLLOWING:
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                                             NC: 2024:KHC:1349
                                      WP No. 37204 of 2016




                           ORDER

The petitioner-Department of Conservator of Forest

is in this writ petition assailing the order dated 28.07.2015

in IID No.196/1988 passed by the Labour Court, Mysuru

(hereafter referred to as 'the Labour Court' for short) vide

Annexure-A, whereby, the petition filed under Section

10(4-A) of the Industrial Disputes Act, 1947 (hereinafter

referred to as 'the ID Act' for short) was allowed directing

the Department to reinstate the workman to his original

post and held that the workman is entitled for backwages

at the rate of 30% from the date of claim petition, i.e.,

03.10.1988 till the date of reinstatement, however, the

backwages was denied for the period from 24.06.1986 to

01.10.1988.

2. Heard Smt. Spoorthi V., learned HCGP

appearing for the petitioners and Sri. V.S. Naik, learned

counsel for the respondent.

3. Learned HCGP for the petitioners would contend

that the Department of Forest is not an "industry" and it

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would not come within the purview of the ID Act and

would not amenable to the jurisdiction of the Labour Court

and the issue whether the department of forest is an

"industry" is no more res integra in light of the decisions of

the Apex Court in the case of State of Gujarat and

others vs. Pratamsingh Narsinh Parmar1 (Pratamsingh

Narsinh Parmar) and the decision of the Co-Ordinate Bench

of this Court in the case of The Range Forest Officer

and others Vs. Nagamma and others2 (Nagamma).

4. The Apex Court, in the case of Pratamsingh

Narsinh Parmar, has held at paragraph Nos.5 and 6 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 Department of the Government cannot be held to be an industry and

(2001) 9 SCC 713

WP No.39570/2014 D.D. 04.01.2021

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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-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 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 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

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in Jagannath Maruti Kondhare case inasmuch 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 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."

5. The Apex Court held that the Department of

Forest is not an industry and the principles enunciated in

the decision of the Apex Court in Chief Conservator of

Forests Vs. Jagannath Maruti Kondhare3 (Jagannath

Maruti Kondhare), were observed that the scheme of

(1996) 2 SCC 293

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Forest Department to create sphere to fulfill recreational

and educational aspirations of the people, is not the

sovereign function of the State and in that context, the

decision in Jagannath Maruti Kondhare had held that

the Forest Department was an "industry".

6. The Co-Ordinate Bench of this Court, under

identical circumstances in the case of Nagamma, stated

supra, placing reliance on the decision of the Apex Court in

Pratamsingh Narsinh Parmar's case, has held that the

Department of Forest is not an "industry".

7. In the present case, the workman had joined as

a daily wage watcher in the petitioner-department, the

claim of the workman or the evidence of the workman is

not to the effect that the Department had any scheme

under which the appointment of the workman took place.

Forest Department is not an "industry" fallen within the

purview of the ID Act. The workman, other than the self

serving statement that the forest department is an

industry, no other materials have been placed in this

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regard in which the petitioner can be termed a daily wager

appointed in the industry and to invoke the jurisdiction of

the Labour Court under the ID Act.

8. In light of the decision of the Apex Court in the

case of Pratamsingh Narsinh Parmar stated supra and

in the peculiar facts and circumstances, the Labour Court

had no jurisdiction to pass the impugned award.

9. Learned counsel for the respondent at this

stage would contend that, pursuant to the interim order

granted by this Court, the workman has been taken back

to duty on 04.02.2017 and he has attained the age of

superannuation on 31.07.2022 after attaining 60 years of

age and files a memo to that effect.

10. The memo is taken on record.

11. For the foregoing reasons, this Court pass the

following:

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ORDER

i. Writ petition is allowed.

ii. Impugned order dated 28.07.2015 passed by the

Labour Court, Mysuru in IID No.196/1988 is

hereby set-aside.