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2015 Supreme(Chh) 136
IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
Prashant Kumar Mishra, J.
Devraj Gupta – Appellants
Vs.
State of Chhattisgarh and Ors. – Respondent
WP No. 5827 of 2006
Decided On : 11.05.2015
For the Appellant :Vinod Deshmukh and K.P.S. Gandhi, Advocates
For the Respondents:P.K. Bhaduri, Govt. Advocate
Headnote:
Industrial Disputes Act, 1947 - Section 10 - Amendment Act - employee and worked - law declared in Bangalore Water Supply & Sewerage Board - employers and employees and the helplessness of the legislature - In the subsequent Constitution Bench judgment of the Supreme Court in the matter of State of U.P. Vs. Jai Bir Singh : (2005) 5 SCC 1, 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 - 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 bringing into force the Amendment Act compel us to make this reference – Held, 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 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 - 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 - 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 - Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby - 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 - 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 petitioners disengagement/retrenchment cannot be decided – petition disposed of
Prashant Kumar Mishra, J.
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 Parmar : (2001) 9 SCC 713, 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 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 others : (1978) 2 SCC 213. In the subsequent Constitution Bench judgment of the Supreme Court in the matter of State of U.P. Vs. Jai Bir Singh : (2005) 5 SCC 1, 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 bringing into force the Amendment 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 behaves 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 strategies which need, for their smooth fulfillment, less stress and distress, more mutual understanding and trust based on a dynamic rule o
