IMPORTANT POINT
Ordinarily a Department of the Government cannot be held to be an industry and rather it is part of the sovereign function and it would be for the person concerned who claims the same to be an industry to give positive facts for coming to conclusion that it constitutes "an industry".

ORDER

This appeal by the State of Gujarat is directed against the judgment of the Division Bench of the Gujarat High Court which upheld the judgment of the learned single Judge of the said High Court. The question for consideration in this appeal is, whether the Forest Department in the State of Gujarat wherein the respondent was appointed as a Clerk can be held to be "an industry" within the meaning of the said expression under the Industrial Disputes Act (for short "the Act") so that an order of termination, without complying with the provisions of Section 25-F of the Act would get vitiated.

2. Be it stated that the appointment to the post of Clerks, Clerks-cum-Typists and Typists in the State of Gujarat is governed by a set of rules framed under proviso to Article 309 of the Constitution of India called "Gujarat Non-Secretariat Clerks, Clerks-Typist and Typists (Direct Recruitment Procedure) Rules, 1970 (for short "the Recruitment Rules"). In 1982, the Conservator of Forests wanted two clerks to be appointed but, as in accordance with the prescribed procedure no candidate could be made available, the respondent was appointed on a purely temporary basis on 8.9.1982 and continued as such till 28th March, 1984 on which date he was relieved since another candidate duly selected in accordance with the Recruitment Rules was appointed on 23rd of March, 1984. The respondent approached the High Court by filing a writ petition which was registered as S.C.A. No. 1777/84. It was averred in the writ petition that since the respondent has been duly selected by a process of selection and has been continuing ever since his date of appointment, the termination without complying with the provisions of Section 24-F of the Act vitiates the order of termination. The State in its counter-affidavit took the stand that the selection of the respondent was not on regular basis and the Forest Department to which the respondent had been recruited, cannot be held to be "an industry" within the meaning of Section 2(2)(j) of the Act and as such the question of compliance with the provisions of Section 25-F of the Act does not arise.

3. The learned single Judge, without examining the nature of duty discharged by the respondent as well as the nature of job of the organisation in which the respondent was recruited, following the judgment of this Court in Bangalore Water Supply & Sewerage Board v. A. Rajappa1, came to the conclusion that the impugned order of termination is vitiated for non-compliance of the provisions of Section 25-F of the Act. Having come to the aforesaid conclusion, the order of termination was set aside against which judgment the State had moved in appeal to the Division Bench of the High Court. The Division Bench also took into consideration yet another judgment of this Court in the case of Chief Conservator of Forests and Anr. v. Jagannath Maruti Kondhare & Ors.2 and came to the conclusion that this Court has taken the view that the work undertaken by the Forest Department cannot be regarded as part and parcel of the sovereign function of the State and as such the single Judge did not commit any error in setting aside the order of termination for non-compliance of Section 25-F of the Act.

4. Mr. Dholakia, the learned senior counsel appearing for the State of Gujarat, contended before us that both the learned single Judge as well as the Division Bench committed serious error in holding that the Forest Department of the State of Gujarat is "an industry" and thereby applying the provisions of the Act to the order of termination of an employee under the said Department. He further contended that the case upon which reliance has been placed, this Court on consideration of the affidavits of the Chief Conservator of Forests examined the nature of job that was being discharged by the employee concerned and the scheme that had been undertaken by the Department wherein the employee had been recruited and then came to hold that the said scheme canno