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2019 Supreme(All) 2077
IN THE HIGH COURT OF ALLAHABAD
Yogendra Kumar Srivastava, J.
Arun Vihar Residents Welfare Association, G.B. Nagar – Appellant
Versus
State of U.P. and Ors. – Respondents
Writ C No. 51047 of 2017
Decided On : 13-09-2019
For the Appellant : Diptiman Singh
For the Respondent: C.S.C., Radhey Shyam Dwivedi and Shekhar Srivastava
Headnote:
Societies Registration Act, 1860 – U.P. Industrial Disputes Act, 1947 – Section 4K, 6N – Petition arises out of award passed by the Labour Court in Adjudication Case whereby reference with regard to legality/validity of termination of services of third respondent has been answered by Labour Court by holding that termination having been made without following provisions same would amount to illegal retrenchment, and in view thereof direction has been issued for reinstatement of third respondent in service with full back wages and all consequential benefits –Records of case indicate that upon industrial dispute having been raised by third respondent, reference was made under Section 4K of the U.P.I.D. Act, 1947 –Apart from written statements being filed by parties, preliminary objections with regard to jurisdiction were also raised by petitioner asserting that petitioner being society of apartment owners which had been formed for looking after maintenance of apartments, and same having not been formed for any profit motive, provisions of U.P.I.D. Act, 1947 would not be applicable and proceedings which had been initiated were without jurisdiction – Rejoinders were filed by parties, and documentary and oral evidence were also adduced and thereafter the Labour Court passed award which is sought to be challenged in present petition – Held, Jurisdictional essence is presence of industrial dispute –Petitioner being not "industry" and its employees being not "workmen" within meaning of terms defined under I.D. Act, 1947 there could not be said to have arisen any "industrial dispute" and award of Labour Court suffers from fundamental error of jurisdiction, and is thus legally unsustainable –Petitioner has pointed out that even if third respondent were held to be illegally retrenched retrenchment compensation payable under Section 6N of the U.P.I.D. Act, 1947 would be amount which would be much less than amount which has been released in favour of said respondent in terms of earlier order passed in present case – However, on basis of instructions received, counsel for petitioner has fairly submitted that petitioner would not raise claim to amount which has already been released and paid to third respondent –Writ Petition Allowed. (Paras 36, 37, 38, 39)
Facts of The case:
Petition arises out of award passed by the Labour Court in Adjudication Case whereby reference with regard to legality/validity of termination of services of third respondent has been answered by Labour Court by holding that termination having been made without following provisions same would amount to illegal retrenchment, and in view thereof direction has been issued for reinstatement of third respondent in service with full back wages and all consequential benefits –Records of case indicate that upon industrial dispute having been raised by third respondent, reference was made under Section 4K of the U.P.I.D. Act, 1947 –Apart from written statements being filed by parties, preliminary objections with regard to jurisdiction were also raised by petitioner asserting that petitioner being society of apartment owners which had been formed for looking after maintenance of apartments, and same having not been formed for any profit motive, provisions of U.P.I.D. Act, 1947 would not be applicable and proceedings which had been initiated were without jurisdiction – Rejoinders were filed by parties, and documentary and oral evidence were also adduced and thereafter the Labour Court passed award which is sought to be challenged in present petition.
Finding of The Court:
Jurisdictional essence is presence of industrial dispute –Petitioner being not "industry" and its employees being not "workmen" within meaning of terms defined under I.D. Act, 1947 there could not be said to have arisen any "industrial dispute" and award of Labour Court suffers from fundamental error of jurisdiction, and is thus legally unsustainable –Petitioner has pointed out that even if third respondent were held to be illegally retrenched retrenchment compensation payable under Section 6N of the U.P.I.D. Act, 1947 would be amount which would be much less than amount which has been released in favour of said respondent in terms of earlier order passed in present case – However, on basis of instructions received, counsel for petitioner has fairly submitted that petitioner would not raise claim to amount which has already been released and paid to third respondent.
Result: Appeal Allowed.
ORDER :
Yogendra Kumar Srivastava, J.
1. Heard Sri Diptiman Singh, learned counsel for the petitioner and Sri Shekhar Srivastava, learned counsel appearing on behalf of the third respondent.
2. The core issue which arises in the present petition is as to whether an association or society of apartment owners employing persons for rendering personal services to its members can be held to be an "industry" and its employees can be held to be "workmen" under the provisions of the Industrial Disputes Act, 1947 [the I.D. Act, 1947] or under the U.P. Industrial Disputes Act, 1947 [the U.P.I.D. Act, 1947].
3. The petition arises out of an award dated 22.07.2017 passed by the Labour Court in Adjudication Case No. 1493 of 2008 whereby the reference with regard to the legality/validity of the termination of services of the third respondent w.e.f. 04.12.2002 has been answered by the Labour Court by holding that the termination having been made without following the provisions of Section 6N of the U.P.I.D. Act, 1947, the same would amount to an illegal retrenchment, and in view thereof a direction has been issued for reinstatement of the third respondent in service with full back wages and all consequential benefits.
4. The records of the case indicate that upon an industrial dispute having been raised by the third respondent, a reference was made under Section 4K of the U.P.I.D. Act, 1947, and the question referred for adjudication was as follows:-
^^D;k lsok;kstdksa }kjk vius Jfed Jh jke ukjk;u feJk iq= Jh enu eksgu in pijklh dh lsok;sa fnukad 04-12-2002 ls lekIRk fd;k tkuk mfpr rFkk@vFkok oS/kkfud gS\ ;fn gk¡ vFkok ugha rks Jfed vius lsok;kstdksa ls D;k vuqrks"k izkIr djus dk vf/kdkjh gS vkSj fdl lhek Rkd ,oa vU; fdl fooj.k lfgr\**
5. Apart from the written statements being filed by the parties, preliminary objections with regard to jurisdiction were also raised by the petitioner asserting that the petitioner being a society of apartment owners which had been formed for looking after maintenance of the apartments, and the same having not been formed for any profit motive, the provisions of the U.P.I.D. Act, 1947 would not be applicable and the proceedings which had been initiated were without jurisdiction.
6. Rejoinders were filed by the parties, and documentary and oral evidence were also adduced and thereafter the Labour Court passed the award which is sought to be challenged in the present petition.
7. It has been submitted by the counsel for the petitioner that the petitioner-society was registered under the U.P. Co-operative Societies Act, 1965, and subsequently in the year 2000 the society was registered under the Societies Registration Act, 1860. The society was formed by resident members of Sectors 28, 29 and 37, Noida, and its main object is to provide the necessary maintenance facilities to the apartment owners who are its members. It was submitted that the residential area has been developed by Army Welfare Housing Organization, and the apartments were allotted to the serving and retired defence personnel. The object of the society is only to provide services to its members who are apartment owners and the society is not a profit earning body and as such the same cannot be held to be an industry and would not be covered by the provisions of the U.P.I.D. Act, 1947. It was further contended that the petitioner-society being not an industry and the provisions of the U.P.I.D. Act, 1947 being not applicable there would be no question of violation of provisions of Section 6N of the U.P.I.D. Act, 1947 or any other provisions of the said Act. Reliance in this regard has been placed on the judgment in the case of Som Vihar Apartment Owners Housing Maintenance Ltd. Vs. Workmen (2002) 9 SCC 652.
8. Per contra, the counsel appeared on behalf of the third respondent submits that the services of the workman having been terminated without any domestic enquiry and without complying with the provisions of Section 6N of the U.P.I.D. Act, 1947, the Labour
