Allowed

Deputy Conservator of Forests v. Dundaiah S/O Chikkamadegowda

Karnataka HC1 Oct 2012WP/5824/2012

Case brief

AI extract

What is this about?

The Court allowed a writ petition challenging a Labour Court award reinstating a workman in the Forest Department. Dismissing the claim that social forestry activities constitute an industry, the Court held that without specific averments and proof of non-sovereign duties, the Forest Department remains a sovereign establishment, depriving the Industrial Tribunal of jurisdiction. The impugned award

What did the court decide?

Impugned award dated 2.7.2011 in Reference No.57/2006 on the file of the Labour Court, Mysore stands quashed.

Deputy Conservator of Forests Vs Dundaiah… — Pension and Retirement Benefits | Karnataka HC (2012)

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WP No.5824/2012

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IN THE HIGH COURT OF KARNATAKA AT BANGALORE

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DATED THIS THE 1^st DAY OF OCTOBER 2012

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BEFORE

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THE HON’BLE MR.JUSTICE SUBHASH B ADI

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WRIT PETITION NO.5824 OF 2012 (L-TER)

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BETWEEN:

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DEPUTY CONSERVATOR OF FORESTS SOCIAL FORESTRY DIVISION ZILLA PANCHYATH, MANDYA 571 401

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RANGE FOREST OFFICER, SOCIAL FORESTRY RANGE, MALAVALLI MANDYA DISTRICT 571 430

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...PETITIONERS

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(BY SRI. B J SOMAYAJI, ADV.)

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AND:

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DUNDAIAH S/O CHIKKAMADEGOWDA AGED ABOUT 51 YEARS MANCHANAHALLI, HEBANI POST, B G PURA HOBLI MALAVALLI TALUK MANDYA DISTRICT

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...RESPONDENT

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(BY SMT. PADMAVATHI S SAVANUR FOR C/R1 )

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This writ petition is filed under Articles 226 and 227 of the Constitution of India praying to call for the records pertaining to the award passed by Labour Court, Mysore on 2.7.11 in Reference No.57/2006 and etc.

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This Petition coming on for Orders this day, the Court made the following:-

WP No.5824/2012

O R D E R

The Deputy Conservator of Forest and another have filed this writ petition questioning the award dated 2.7.2011 in Reference No.57/2006 on the file of the Labour Court, Mysore.

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Respondent – workman filed a claim petition before the Industrial Tribunal in pursuance of the reference made by the State under Section 10(1)(C) of the Industrial Disputes Act (hereinafter referred to as 'the Act' for short). The State Government had referred several issues including the issue 'as to whether the petitioner is an industry' and the removal of the respondent is violative of Section 25F of the Act.

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The claim petition was opposed by the petitioners inter-alia alleging that the Forest Department of the State is not an industry. Since it discharges sovereign function, it is not amenable to the industrial dispute.

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Before the Labour Court, the respondent got himself examined as WW-1. On the other hand, from the Department, one Smt.Bhagyalakshmi, an official was

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examined as MW-1. The respondent – workman produced 4 documents as W-1 to W-4 whereas petitioners produced 3 documents as M-1 to M-3.

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On the issue as to whether the Forest Department is an industry or not, the Labour Court relied on the decision of the Apex Court in the matter of 'BANGALORE WATER SUPPLY & SEWERAGE BOARD v. A.RAJAPPA' reported in (1978) 2 SCC 213 and relied on the decision of the Apex Court in the matter of 'CHIEF CONSERVATOR OF FORESTS AND ANOTHER v. JAGANNATH MARUTI KONDHARE' reported in (1996) 2 SCC 293 and held that, even the welfare activities of the State come within the purview of the definition of an industry. Further, relying on the judgment reported in 2001 (4) SCC 227 in the matter of 'STATE OF GUJARAT & ORS. v. PRATAM SINGH NARISH PARMAR', held that the Forest Department is an industry and accordingly, passed the impugned award inter-alia holding that the order of refusal of work to respondent No.1 is bad in law and directed the Department to reinstate the workman with 50% backwages, as against which, this writ petition is filed.

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WP No.5824/2012

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Sri.Somayaji, learned counsel appearing for the petitioners submitted that, in the claim petition, respondent has not averred as to the nature of duties assigned to him nor has averred, as to whether the Forest Department is an industry or not, except stating that refusal of work to the workman is violative of Section 25F of the Act and it is unfair labour practice, no averment is made as to whether duties and functions of the Forest Department are in the nature of industry. Even in the evidence also, nothing is stated to show as to whether the Forest Department is an industry or not.

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To support his contention, learned counsel for the petitioners relied on the judgment of the Apex Court reported in 2001(9) SCC 713 in the matter of 'STATE OF GUJARAT v PRATAMSINGH NARSINH PARMAR' and submitted that the Apex Court, considering the decision in RAJAPPA's case as well as MARUTI KONDHARE's case has held that, whether it is an industry or not, it would be for the person who claims the same to be an industry, to give positive facts for coming to the conclusion to show that it constitute an industry.

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WP No.5824/2012

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Ordinarily, Department of the Government cannot be held as an industry and rather when it is part of sovereign functions. To find out whether the respondent has made out any assertions with regard to the duties which he had discharged as regard to the activities of the Department, the pleadings and evidence is necessary.

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The Apex Court, in PRATAMSINGH's case has observed that

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“...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.”

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WP No.5824/2012

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He also submitted that, learned Single Judge of this Court in WP Nos.15494/2006 and connected matters dated 2.3.2010, in which WP No.34659/2011 was relating to the very same petitioners in respect of the very same activities, this Court has held that it is not an industry and submitted that, when this Court has already held that it is not an industry on facts, in this case, in the absence of any facts or evidence, the Labour Court could not have held that the Forest Department in so far as social forestry is concerned, is an industry.

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On the other hand, learned counsel appearing for the respondent – workman submitted that, in RAJAPPA's case, the Apex Court has held that even welfare measures of the State are also amenable to the industrial dispute. She also relied on MARUTI KONDHARE's case and submitted that, even in case of Forest Department's Social Forestry, the Supreme Court has held that it is an industry. Further, she also relied on an order of the learned Single Judge in WP No.65797/2012 and connected matter dated 17.9.2010

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WP No.5824/2012

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confirmed in WA No.6051/2011 and submitted that, this Court has held that the Forest Department is also an industry.

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In the light of the above submissions, the point that arises for consideration is:

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“Whether all the activities of the Forest Department would come within the purview of the definition of an 'industry'?”

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The welfare measures are the sovereign functions of the State and the Forest Department also discharges the sovereign functions. Discharge of such functions are for the welfare of the people and the State. The persons engaged in discharge of sovereign functions being public servants, their appointments are governed by the Rules made under Article 30G of the Constitution of India. However, certain activities of the State which are not sovereign in nature, yet being engaged by the State, the Apex Court in RAJAPPA's case, while considering the definition of 'industry', has held that, such activities come under the purview of definition of 'industry'. If there are units which are industries, they are

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amenable to the jurisdiction of the Industrial Tribunal for adjudication of industrial disputes.

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However, to understand whether it is an industry, or not, it is dependent on the nature of duties assigned to the workman and the purpose for which the employment is created. Following the decision in RAJAPPA's case, the Apex Court in MARUTI KONDHARE's case has held that, even activities of the Department of the State, non-sovereign functions of the State relating to the establishment of bio esethic development for the benefit of urban population, may come under the purview of it in the definition of 'industry'. However, the Apex Court, in MARUTI KONDHARE's case had considered the facts and evidence in the said case, which reveal that the purpose for which the engagement was made, was for the benefit of creating recreational or educational aspiration of the people and not the sovereign function. However, in PRATAMSINGH's case, the Apex Court considered the decisions in RAJAPPA's case as well as MARUTI KONDHARE's case and observed that, even in MARUTI KONDHARE's case, at paragraph 15, the Court had quoted

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the assertions made in the affidavit by the Chief Conservator of Forest and at paragraph 17, the Court has held that the scheme undertaken cannot be regarded as part of sovereign function of the State and has further held that the decision referred to therein may not have an application. Whether the particular organisation is an industry or not, is always dependent on the facts of the case. Referring to MARUTI KONDHARE's case, the Apex Court, in RAJAPPA's case, negatived the claim of the workman that it is an industry.

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The said decision is followed by this Court in WP No.15494/2006 and connected matters dated 2.3.2012 in which WP No.34659/2011 was also one of the writ petitions and in the said writ petition, very same petitioners were the respondents and in respect of identical engagement, this Court held it is not an industry by relying on PRATAMSINGH's case.

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In this case, admittedly the issue as to whether the petitioner is an industry within the meaning of Section 2(j) of the Act is referred for adjudication. The respondent –

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WP No.5824/2012

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workman in the claim petition, nowhere has averred, asserted or stated that the petitioner or Forest Department or its activities is an industry. Absolutely, there is not even a whisper to show as to the nature of duties, functions of the petitioner – establishment is an industry. Each case has to be decided on facts and circumstances of that case. Merely because the respondent is working in the Forest Department, it will not become an industry under Section 2(j) of the Act.

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As observed above, each case has to be decided based on the facts of that case and facts must establish that the nature of work or the engagement of the workman has nothing to do with the sovereign function, and such activities come within the meaning of definition of 'industry' under Section 2(j) of the Act. When the respondent – workman has failed to plead and prove before the Labour Court that the petitioner- establishment is an industry, all other questions become irrelevant and in similar matter, in respect of identical engagement, this Court, in WP No.34659/2011 dated 2.3.2012 has held that, it is not an industry.

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WP No.5824/2012

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Hence, I find that the findings of the Labour Court, without referring to the facts, only by reproducing the paragraphs of the judgments of the Apex Court, does not prove that the petitioner – establishment is an industry. It may be the Forest Department, but unless it is shown that the activities of the Forest Department constitute an industry within the meaning of Section 2(j) of the Act, the Industrial Tribunal does not get the jurisdiction. When there is no material to hold that it is an industry, the question considering the other grievance by the respondent also does not arise.

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Accordingly, writ petition is allowed. Impugned award dated 2.7.2011 in Reference No.57/2006 on the file of the Labour Court, Mysore stands quashed.

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Sd/JUDGE

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Deputy Conservator of Forests v. Dundaiah S/O Chikkamadegowda

Case brief

What is this about?

What did the court decide?

Deputy Conservator of Forests v. Dundaiah S/O Chikkamadegowda

Case brief

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