Devraj Gupta Vs State of Chhattisgarh

Chhatisgarh High Court (Single Judge)

WP->WRIT PETITION, 5827 of 2015, Judgment Date: May 11, 2015

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AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WP No. 5827 of 2006
· Devraj Gupta, S/o Shri Sabhakar Gupta, Village – Chhote Atarmuda,
Raigarh (CG)
---- Petitioner
Versus
1. State of Chhattisgarh, Through – District Forest Officer, Forest Division
(Production) Dharamjaigarh branch and Dist. Raigarh.
2. Presiding Officer, Labour Court, Raigarh (CG)
---- Respondents
For Petitioner : Shri Vinod Deshmukh with Shri KPS Gandhi, Advocates.
For Respondent/State : Shri PK Bhaduri, Govt. Advocate.
Hon'ble Shri Justice Prashant Kumar Mishra
Order On Board
11/05/2015
1. The petitioner has called in question the impugned award passed by
the Labour Court, Raigarh whereby reference under Section 10 of the
Industrial Disputes Act, 1947 (henceforth 'the Act') has been decided
against him on the ground that the petitioner being an employee of the
Forest Department, in view of the law laid down by the Supreme Court
in the matter of State of Gujarat and others Vs. Pratamsingh
Narsinh Parmar1, the forest department not being an industry, the
Labour Court has no jurisdiction to adjudicate the matter.
2. The petitioner was daily wage class-IV employee and worked in
1 (2001) 9 SCC 713
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different capacities like Peon, Watchman, etc. in the Raigarh Forest
Division from the year 1985 till February, 2000. The petitioner alleged
that he has been retrenched in contravention of the provisions
contained under Section 25-F of the Act, therefore, he is entitled for
reinstatement as he has completed more than 240 days of service in
the immediate preceding calender year from the date of retrenchment.
3. The Two Judges Bench of the Supreme Court in the matter of
Pratamsingh Narsinh Parmar (Supra) doubted the correctness of the
earlier Constitution Bench judgment of the Supreme Court in the
matter of Bangalore Water Supply & Sewerage Board Vs. A.
Rajappa and others2. In the subsequent Constitution Bench
judgment of the Supreme Court in the matter of State of U.P. Vs. Jai
Bir Singh3, need for reconsidering the judgment in the matter of
Bangalore Water Supply & Sewerage Board (Supra) was felt and
since thereafter the matter is pending before the Larger Bench. The
following has been held in the last two paragraphs of Jai Bir Singh
(Supra):-
“45. We do not consider it necessary to say anything
more and leave it to the larger Bench to give such
meaning and effect to the definition clause in the
present context with the experience of all these years
and keeping in view the amended definition of
“industry” kept dormant for long 23 years. Pressing
demands of the competing sectors of employers and
employees and the helplessness of the legislature
and the executive in brining into force the Amendment
2 (1978) 2 SCC 213
3 (2005) 5 SCC 1
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Act compel us to make this reference.
46. Let the cases be now placed before Hon'ble the
Chief Justice of India for constituting a suitable larger
Bench for reconsideration of the judgment of this
Court in the case of Bangalore Water (Supra).”
4. As long as the law laid down by the Supreme Court in the matter of
Bangalore Water Supply & Sewerage Board (Supra) is
reconsidered, it holds the field. Therefore, the law of precedent
compels this Court to decide the cases on the anvil of law laid down
by the Supreme Court in Bangalore Water Supply & Sewerage
Board (Supra) and not by the smaller Bench of the Supreme Court
dealing with the issue. Thus, reliance placed by the Labour Court in
Pratamsingh Narsinh Parmar (Supra) is misconceived and the
applicability of the provisions of the Act is to be considered on the
touchstone of the law declared in Bangalore Water Supply &
Sewerage Board (Supra).
5. In Bangalore Water Supply & Sewerage Board (Supra), the
following has been held in paragraphs 139 to 143:-
“139. Banerji (supra), amplified by Corporation of
Nagpur (supra) in effect met with its Waterloo in
Safdarjung. But in this latter case two voices could be
heard and subsequent rulings zigzagged and
conflicted precisely because of this built-in
ambivalence. It behoves us, therefore, hopefully to
abolish blurred edges, illumine penumbral areas and
overrule what we regard as wrong. Hesitancy, halftones
and hunting with the hounds and running with
the hare can claim heavy penalty in the shape of
industrial confusion, adjudicatory quandary and
administrative perplexity at a time when the nation is
striving to promote employment through diverse
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strategies which need, for their smooth fulfilment, less
stress and distress, more mutual understanding and
trust based on a dynamic rule of law which speaks
clearly, firmly and humanely. If the salt of law lose its
savour of progressive certainty wherewith shall it be
salted? So we proceed to formulate the principles,
deducible from our discussion, which are decisive,
positively and negatively, of the identity of “industry”
under the Act. We speak, not exhaustively, but to the
extent covered by the debate at the bar and, to that
extent, authoritatively, until overruled by a larger
Bench or superseded by the legislative branch.
140. “Industry’, as defined in Section 2(j) and
explained in Banerji, has a wide import.
“(a) Where (i) systematic activity, (ii) organized by
co-operation between employer and employee (the
direct and substantial element is chimerical) (iii) for
the production and/or distribution of goods and
services calculated to satisfy human wants and
wishes (not spiritual or religious but inclusive of
material things or services geared to celestial bliss
e.g. making, on a large scale prasad or food), prima
facie, there is an ‘industry’ in that enterprise.
(b) Absence of profit motive or gainful objective is
irrelevant, be the venture in the public, joint, private or
other sector.
(c) The true focus is functional and the decisive
test is the nature of the activity with special emphasis
on the employer-employee relations.
(d) If the organization is a trade or business it
does not cease to be one because of philanthropy
animating the undertaking.”
141. Although Section 2(j) uses words of the widest
amplitude in its two limbs, their meaning cannot be
magnified to overreach itself.
“(a) ‘Undertaking’ must suffer a contextual and
associational shrinkage as explained in Banerji and in
this judgment; so also, service, calling and the like.
This yields the inference that all organized activity
possessing the triple elements in I, although not trade
or business, may still be ‘industry’ provided the nature
of the activity, viz. the employer-employee basis,
bears resemblance to what we find in trade or
business. This takes into the fold of ‘industry’
undertakings, callings and services, adventures
‘analogous to the carrying on the trade or business’.
All features, other than the methodology of carrying
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on the activity viz. in organizing the co-operation
between employer and employee, may be dissimilar.
It does not matter, if on the employment terms there is
analogy.”
142. Application of these guidelines should not stop
short of their logical reach by invocation of creeds,
cults or inner sense of incongruity or outer sense of
motivation for or resultant of the economic operations.
The ideology of the Act being industrial peace,
regulation and resolution of industrial disputes
between employer and workmen, the range off this
statutory ideology must inform the reach of the
statutory definition. Nothing less, nothing more.
“(a) The consequences are (i) professions, (ii)
clubs, (iii) educational institutions, (iv) co-operatives,
(v) research institutes, (vi) charitable projects, and (vii)
other kindred adventures, if they fulfil the triple tests
listed in I, cannot be exempted from the scope of
Section 2(j).
(b) A restricted category of professions, clubs, cooperatives
and even gurukulas and little research
labs, may qualify for exemption if, in simple ventures,
substantially and, going by the dominant nature
criterion, substantively, no employees are entertained
but in minimal matters, marginal employees are hired
without destroying the non-employee character of the
unit.
(c) If, in a pious or altruistic mission many employ
themselves, free or for small honoraria or like return,
mainly drawn by sharing in the purpose or cause,
such as lawyers volunteering to run a free legal
services clinic or doctors serving in their spare hours
in a free medical centre or ashramites working at the
bidding of the holiness, divinity or like central
personality, and the services are supplied free or at
nominal cost and those who serve are not engaged
for remuneration or on the basis of master and
servant relationship, then, the institution is not an
industry even if stray servants, manual or technical,
are hired. Such eleemosynary or like undertakings
alone are exempt — not other generosity,
compassion, developmental passion or project.”
143. The dominant nature test:
“(a) Where a complex of activities, some of which
qualify for exemption, others not, involves employees
on the total undertaking, some of whom are not
‘workmen’ as in the University of Delhi case or some
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departments are not productive of goods and services
if isolated, even then, the predominant nature of the
services and the integrated nature of the departments
as explained in the Corporation of Nagpur will be the
true test. The whole undertaking will be ‘industry’
although those who are not ‘workmen’ by definition
may not benefit by the status.
(b) Notwithstanding the previous clauses,
sovereign functions, strictly understood, (alone)
qualify for exemption, not the welfare activities or
economic adventures undertaken by government or
statutory bodies.
(c) Even in departments discharging sovereign
functions, if there are units which are industries and
they are substantially severable, then they can be
considered to come within Section 2(j).
(d) Constitutional and competently enacted
legislative provisions may well remove from the scope
of the Act categories which otherwise may be covered
thereby.”
6. In view of the above, this Court has no hesitation in holding that the
Labour Court has jurisdiction to entertain and answer reference under
Section 10 of the Act, pertaining to workmen/labourer worked in the
Department of Forest, Government of Chhattisgarh.
7. Had it been a case where the Labour Court has recorded a finding on
other aspects but relief has been refused only on this count that the
Forest Department is not an industry, this Court would have
proceeded to decide the matter on merits. However, a reading of the
impugned award would indicate that the Labour Court has not
recorded any finding on the issue as to whether the petitioner had
worked for a period of 240 days during the preceding 12 months
period just prior to the date of disengagement. Unless the finding on
this issue is recorded, the legality and validity of the petitioner's
disengagement/retrenchment cannot be decided. Therefore, the
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matter is remitted back to the Labour Court for decision afresh, after
recording the finding on the above issue.
8. The Labour Court shall decide the matter within a period of 6 months
from the date of production of certified copy of this order.
9. The writ petition is accordingly disposed of.
J U D G E
Barve
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HEADLINES
Activities of Govt. Deptt. coming within parameters laid by SC in
Bangalore Water Supply case is “Industry”, despite reference to
larger Bench.
147