Madhya Pradesh State Legal ... vs Smt. Ramvati Patel
2023 Latest Caselaw 7708 MP

                                    1
 IN    THE        HIGH COURT OF MADHYA PRADESH
                       AT JABALPUR
                             BEFORE
             HON'BLE SHRI JUSTICE MANINDER S. BHATTI
                        ON THE 11 th OF MAY, 2023
                    WRIT PETITION No. 1462 of 2016

BETWEEN:-
1.    MADHYA PRADESH STATE LEGAL SERVICES
      AUTHORITY THROUGH ITS SECRETARY AND
      OFFICER IN CHARGE SHRI GIRISH DIXIT
      JABALPUR (MADHYA PRADESH)

2.    DIST. LEGAL SERVICES AUTHORITY THR. DIST.
      LEGAL    AID    OFFICER, SAGAR, (MADHYA
      PRADESH)

                                                                 .....PETITIONERS
(BY SHRI ADITYA ADHIKARI SR. ADVOCATE WITH SHRI E.N. SIDDIQUI)

AND
1.    SMT. RAMVATI PATEL W/O LATE GHANSHYAM
      PATEL, AGED ABOUT 45 YEARS, BEHIND
      LOKPRIYA HOSPITAL POST SAGAR (MADHYA
      PRADESH)

2.    PRESIDING OFFICER, LABOUR COURT, SAGAR
      (UNDER INDUSTRIAL DISPUTES ACT, SAGAR)
      SAGAR, (MADHYA PRADESH)

                                                                .....RESPONDENTS
(RESPONDENT NO. 1 BY SHRI PRAVEEN DUBEY - ADVOCATE)

      This petition coming on for admission this day, th e court passed the
following:
                                     ORDER

The petitioner has filed this petition praying for following reliefs:

(i) That the impugned award dated 05.11.2015 passed by the learned Labour Court Sagar contained in Annexure P-1 be quashed.

(ii) Any other relief which this Hon'ble Court finds the petitioners entitled to, be also granted.

(iii) Cost of the petition.

The facts as elaborated in the petition reflect that respondent No. 1 raised a dispute before the Labour Court questioning his termination from services. It was alleged by the respondent No. 1 that he was not paid one month's wages before termination and, therefore, there was violation of the provisions of Section 25 (f) and 25 (n) of the Industrial Disputes Act, 1947 (Act of 1947 for short). The petitioner (hereinafter referred to as Authority) herein entered appearance before the Labour Court and filed a reply with an objection that the provisions of Act of 1947 are not applicable to District Legal Services

Authority and State Legal Services Authority and accordingly, the dispute before the Labour Court was not maintainable. The Labour Court, upon considering the rival pleadings proceeded to frame issues. The parties adduced their evidence and ultimately the Labour Court passed an award dated 5.11.2015 directing reinstatement of respondent No. 1 with back-wages.

2. Senior Counsel for the petitioner contends that in the present case, the question which requires indulgence of this Court is to the effect as to whether, the District Legal Services Authority is an industry for the purposes of Act of 1947? Senior Counsel submits that Section 2 (j) of the Act of 1947 provides for definition of Industry and in terms of the said definition, "industry" means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft or industrial operation or avocation of workmen. It is contended that the petitioner is neither engaged in any activity of manufacture nor of production. On the contrary it is a statutory body created under the provisions of the Legal Services Authorities Act, 1987

(Act of 1987 for short) and the petitioner as performs sovereign function, therefore, the same is not amenable to the jurisdiction of Labour Court under the Act of 1947. It is contended by the counsel that the National, State and District Legal Services are constituted in terms of provisions of Sections 3, 6, 9 respectively of the Act of 1987. It is further contended by the counsel that, Section 6 of the Act of 1987 provides that the Hon'ble Chief Justice of High Court shall be the Patron in Chief of the Authority and the other Members shall consist of a serving or retired judge of the High Court. Therefore, submits that aforesaid provisions make it clear that the sovereign functions are performed by the Authority and accordingly, this issue which was raised in the reply to the statement of claim was required to be dealt with properly by the Labour Court. It is further contended by the counsel that none of the activities of the petitioner can be brought within the definition of industry as provided under the Act of 1947.

3. The Senior Counsel thus placing reliance on the decision of the Kerala High Court in Umayammal v. State of Kerala (1982 SCC Online Kerala 282) submits that the nature of sovereign function is a criteria which, requires, cogitative consideration so as to bring an establishment within the definition of "industry" as provided in Section 2 (j) of the Act of 1947. The spirit and object of the Act of 1947 makes it abundantly clear that the petitioner society performs

sovereign function and, therefore, cannot brought within the ambit of industry as provided in Section 2 (j) of the Act of 1947 and accordingly submits that the award of the Labour Court deserves to be set aside.

4. The Senior Counsel has not pressed any other ground.

5. Per contra, counsel for the respondent submits that the Labour Court while dealing with the rival stand of the parties while taking into consideration

the decision of Division Bench of this Court in Mahesh Bhargawa v. State of M.P. and others (1993 MPLJ 586) concluded that a M.P. Vidhik Sahayata Tatha Vidhik Salah Board (M.P. Legal Aid and Legal Advice Board) constituted under Section 3 of The M.P. Samaj Ke Kamjor Vargon Ke Liye Vidhik Sahayata Tatha vidhik Salah Adhiniyam, 1976 (hereinafter referred to as Adhiniyam 1976), does not perform any sovereign function and, therefore, concluded that petitioner authority as such does not perform any sovereign function. The Labour Court further observed that the judicial orders are not passed by the petitioner Authority and the duty of the Authority is to provide assistance to the weaker section of the society so as to assist them in the legal matters and also provide free legal advice and also ensure their representation before the Courts. The counsel, therefore, submits that considering the aforesaid, the Labour Court has passed an order of reinstatement, which does not require any interference. The counsel also submits that the employment of the respondent with the petitioner was an undisputed fact which is evident from the paragraph 30 of the Labour Court wherein the Labour Court considered the testimony of the petitioner's witness Ku. Purnima Saiyam and as there was no retrenchment compensation in terms of Section 2 (oo) of the Act of 1947, the Labour Court concluded that the respondent deserves to be reinstated. Accordingly has passed the award. Thus, submits that no interference is warranted.

6. The issue which is agitated in the present petition is as to whether the M.P. State Legal Services Authority is an industry for the purposes of Section 2

(j) of the Act of 1947? To answer the said issue, it is first necessary to deal with the definition of industry which is provided in Section 2 (j) of the Act of 1947

which is reproduced herein:

"industry" means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft, or industrial occupation or avocation of workmen."

7. Therefore, in order to apply the provisions of the Act of 1947 to an establishment the same is required to be brought within the four corners of the definition of "industry' as provided in Section 2 (j) of Act of 1947. A perusal of the definition makes it clear that industry means any business, trade undertaking, manufacture or calling of employers. Therefore, as to whether a Legal Services Authority constituted under the provisions of Act of 1987, can be held to be an industry for the purposes of Act of 1947 or not; to deal with this issue, it is first germane to take into consideration the object behind the enactment of the Act of 1987 and the same reflect that Act of 1987 was enacted to constitute Legal Services Authorities to provide free and competent legal service to the weaker section of the society to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities and to organize Lok Adalat to secure that operation of legal system promotes justice on the basis of equal opportunity. The Act further contains provisions as regards constitution of National, State and District Legal Services Authorities. The case in hand pertains to District Legal Services Authority. The function of State and District Legal Services Authorities are detailed in Section 7 and 10 of the Act of 1987 and, Sections 7 and 10 of the Act of 1987 is reproduced herein:

7. Functions of the State Authority. (1) It shall be the duty of the State Authority to give to effect to the policy and directions of the Central Authority.

(2) Without prejudice to the generality of the functions referred to in sub-section (1), the State Authority shall perform all or any of the following functions, namely:-

(a) give legal service to persons who satisfy the criteria laid down under this Act;

(b) conduct1 Lok Adalats, including Lok Adalats for High Court cases;

(c) undertake preventive and strategic legal aid programmes; and

(d) perform such other functions as the State Authority may, in consultation with the 2 Central Authority, fix by regulations.

** ** ** **

10. Functions of the District Authority.- (1) It shall be the duty of every District Authority to perform such of the functions of the State Authority in the District as may be delegated to it from time to time by the State Authority.

(2) Without prejudice to the generality of the functions referred to in sub-section (1), the District Authority may perform all or any of the following functions, namely:-

(a) coordinate the activities of the Taluk Legal Services Committee and other legal services in the District;

(b) organize Lok Adalats within the District; and

(c) perform such other functions as the State Authority may fix by regulations.

8. A perusal of the aforesaid functions of the Authority reflect that the Authority does not act either in a quasi judicial or judicial manner to take decision on any lis and is not empowered to adjudicate upon any litigation. The primary function of the authority is to ensure the extension of assistance to

weaker section of society so as to avail legal services and also to conduct and organize Lok Adalats. The other functions, which can be performed by the authorities have also been detailed in the Regulations appended thereto. None of the provisions in the Regulations, stipulate that the petitioner authority in the capacity of judicial or quasi judicial can take cognizance of a dispute between the parties and decide the same. Thus, the provisions of the Act, Rules or Regulations made thereunder do not provide for any adjudication by the Authority.

9. As to whether, the said functions which are provided under the Act of 1987 or the Rules or Regulations made thereunder amount to sovereign function or not? The Advanced Law Lexicon by P. Ramanatha Aiyar provides for definition of sovereign which is reproduced hereunder:

Sovereign. A person, body or state in which independent and supreme authority is vested A chief ruler with supreme power; a king or other ruler with limited power, supreme civil, military, and political power, the person or body or persons in whom the ultimate authority of law rests.

10. Therefore, a perusal of aforesaid definition reflects that, a person or body or State can be treated to be sovereign wherein independent and supreme authority is vested. Therefore, one who has supremacy or authority over the others is treated to be sovereign authority. Here at this juncture, the provisions of Section 74 of Evidence Act, 1872 is also relevant which provides as under:

74. Public documents The following documents are public documents :-

(1) documents forming the acts, or records of the acts

(i) of the sovereign authority,

(ii) of official bodies and tribunals, and(iii) of public

officers, legislative, judicial and executive of any part of India or of the Commonwealth or of a foreign country;

(2) Public records kept in any State of private documents.

11. Thus, as to whether, the functions as detailed in Section 7 and 10 of the Act of 1987 will amount to sovereign function or not, the object of Act of 1987 itself proposes an appropriate answer. The Petitioner Authority having not been entrusted with the power to act as a quasi judicial or judicial body, does not perform any sovereign function. At the most, the functions which are performed by the petitioner society can be classified as welfare activities so as to provide assistance to the weaker section of the Society in the legal matters and also make arrangements for their due representation free of cost.

12. The Apex Court while dealing with the aspect of welfare activities in N. Nagendra Rao and Co. v. State of A.P. [1994 (6) SCC 205] , held paragraph 25 as under:

25. But there the immunity ends. No civilised system can permit an executive to play with the people of its country and claim that it is entitled to act in any manner as it is sovereign. The concept of public interest has changed with structural change in the society. No legal or political system today can place the State above law as it is unjust and unfair for a citizen to be deprived of his property illegally by negligent act of officers of the State without any remedy. From sincerity, efficiency and dignity of State as a juristic person, propounded in nineteenth century as sound sociological basis for State immunity the circle has gone round and the emphasis now is more on liberty, equality and the rule of law. The modern social thinking of progressive societies and the judicial approach is to do away with archaic State

protection and place the State or the Government on a par with any other juristic legal entity. Any watertight compartmentalization of the functions of the State as "sovereign and non-sovereign" or "governmental and non-governmental" is not sound. It is contrary to modem jurisprudential thinking. The need of the State to have extraordinary powers cannot be doubted. But with the conceptual change of statutory power being statutory duty for sake of society and the people the claim of a common man or ordinary citizen cannot be thrown out merely because it was done by an officer of the State even though it was against law and negligent. Needs of the State, duty of its officials and right of the citizens are required to be reconciled so that the rule of law in a Welfare State is not shaken.

Even in America where this doctrine of sovereignty found its place either because of the "financial instability of the infant American States rather than to the stability of the doctrine's theoretical foundation", or because of "logical and practical ground", or that "there could be no legal right as against the State which made the law" gradually gave way to the movement from, "State irresponsibility to State responsibility". In Welfare State, functions of the State are not only defence of the country or administration of justice or maintaining law and order but it extends to regulating and controlling the activities of people in almost every sphere, educational, commercial, social, economic, political and even marital. The demarcating line between sovereign and non-sovereign powers for which no rational basis survives has largely disappeared.

Therefore, barring functions such as administration of justice, maintenance of law and order and repression of crime etc. which are among the primary and inalienable functions of a constitutional Government, the State cannot claim any immunity. The determination of vicarious liability of the State being linked with negligence of its officers, if they can be

sued personally for which there is no dearth of authority and the law of misfeasance in discharge of public duty having marched ahead, there is no rationale for the proposition that even if the officer is liable the State cannot be sued. The liability of the officer personally was not doubted even in Viscount Canterbury4. But the Crown was held immune on doctrine of sovereign immunity. Since the doctrine has become outdated and sovereignty now vests in the people, the State cannot claim any immunity and if a suit is maintainable against the officer personally, then there is no reason to hold that it would not be maintainable against the State.

13. Thus the Apex Court specifically observed that barring functions such as administration of justice, maintenance of law and order and repression of crime which are among the primary and inalienable functions of a constitutional government, the State cannot claim any immunity. Thereafter the Apex Court in the case of Achutrao Haribhau Khodwa and others v. State of Maharashtra and others [(1996) 2 SCC 634] while dealing with the issue as to whether a Hospital which is being run by the Government can be brought within the four corners of sovereign activity or not. The Apex Court held in paragraph 11 as under:

1 1 . The High Court observed that the Government cannot be held liable in tort for tortious acts committed in a hospital maintained by it because it considered that maintaining and running a hospital was an exercise of the State's sovereign power. We do not think that this conclusion is correct. Running a hospital is a welfare activity undertaken by the Government but it is not an exclusive function or activity of the Government so as to be classified as one which could be regarded as being in exercise of its sovereign power. In Kasturi Lal case [AIR 1965 SC

1039] itself, in the passage which has been quoted hereinabove, this Court noticed that in pursuit of the welfare ideal the Government may enter into many commercial and other activities which have no relation to the traditional concept of governmental activity in exercise of sovereign power . Just as running of passenger buses for the benefit of general public is not a sovereign function, similarly the running of a hospital, where the members of the general public can come for treatment, cannot also be regarded as being an activity having a sovereign character. This being so, the State would be vicariously liable for the damages which may become payable on account of negligence of its doctors or other employees.

14. The Labour Court has also taken into consideration the decision of Division Bench of this Court in Mahesh Bhargawa (supra) wherein Division Bench while dealing with the provisions of Adhiniyam of 1976 held as under :-

"That, the activities of the Board fell within the definition of industry in Section 2 (j) of the Industrial Disputes Act and, therefore, the termination without fulfilling the per requisites mentioned in Section 25 F was invalid and liable to be quashed. In giving legal advice or rather in arranging to give legal advice the Board rendered material service to bring the Board's activities within the purview of industry. The activities undertaken by the Board were systematic activities organised by cooperation between employer and employees for supply and distribution of material services and the Board was, therefore, prima facie industry. The functions of the Board to help to secure justice were in no sense sovereign function or even instance of exercise of sovereign functions delegated to the board by the Government and, therefore, the Board could not justly claim exemption from the scope of the definition of industry on that score it also could not be justly claimed by the Board that the activities

of the Government undertaken through the board were in pursuance of directive principles of State policy.

15. Therefore, the similar functions which were being perfomed by the Board were considered at length by the Division Bench of this Court and this

Court concluded that the function of the Boards were confined to secure justice but did not amount in strictu sensu to sovereign function. The Adhiniyam of 1976 was also enacted by the Legislature with an object to provide legal aid and legal advice to the weaker section of the society with a view to bring the system of justice within their reach and thereby making the legal process a surer means to social and economic justice. Thus, the object of the Act of 1987 and the Adhiniyam of 1976 are almost identical and the Division Bench while taking into consideration the definition of the Board which is provided under Section 2

(d) of the Adhiniyam 1976 and also its function concluded that no sovereign functions were being performed by the Board constituted under the provision of Act of 1976 and thus concluded that the provisions of Act of 1947 were applicable. In view of the decision of Division Bench of this Court, as the Petitioner Authority does not perform any sovereign functions, thus cannot claim any immunity from the applicability of the Act of 1947.

16. The judgment relied upon by the petitioner, is of no assistance in view of the decision of the Apex Court referred herein above and this Court in Mahesh Bhargawa (supra).

17. In view of the aforesaid analysis the present petition stands dismissed. No order as to costs.

(MANINDER S. BHATTI) JUDGE Digitally signed by VIVEK KUMAR TRIPATHI Date: 2023.05.16 13:02:30 +05'30'

vivek