W.P. (C) 16715/2006, C.M. Nos. 18322/2012, 20581/2014, W.P. (C) 16718/2006, C.M. Nos. 18454/2012 and 20503/2014. Case: UOI Vs Anil Kumar and Ors.. High Court of Delhi (India)
| Case Number | W.P. (C) 16715/2006, C.M. Nos. 18322/2012, 20581/2014, W.P. (C) 16718/2006, C.M. Nos. 18454/2012 and 20503/2014 |
| Counsel | For Appellant: Manish Mohan, Advocate, Sidhi Arora, Manisha Rana Singh, Hina Shaheen and Puja Sarkar, Advocates and For Respondents: Sangeeta Tomar, Advocate |
| Judges | Deepa Sharma, J. |
| Issue | Constitution of India - Articles 14, 16, 226, 227; Industrial Disputes Act, 1947 - Sections 2(00), 2(a), 2(j), 25F, 25F(1), 25F(b) |
| Judgement Date | May 18, 2015 |
| Court | High Court of Delhi (India) |
Judgment:
Deepa Sharma, J.
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Vide the present order I am disposing of Writ Petitions (Civil) No. 16718/2006 & 16715/2006 since in both the cases, common question of facts and law is involved.
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Admittedly, the petitioner had employed the respondents Sh.Ram Kumar and Sh.Anil Kumar as casual labour in November, 1993 and December, 1993 respectively and they had worked for about five years when their services were terminated on 21.07.1998. The respondents had challenged their termination which was referred for adjudication and vide award dated 02.02.2006 the Presiding Officer of the Central Government Industrial Tribunal-cum-Labour Court (CGIT) held that the termination of the workmen was illegal and directed the petitioner to reinstate them with 50 % back wages with effect from 21.07.1998 within two months from the date of the award.
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The case of workmen before CGIT was that their names were mentioned in the unit muster roll and pay register and on their demand for regularisation of their services, they were terminated on 21.07.1999 without any notice/compensation and the salary for three months was also not paid.
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In reply the petitioner had given the chart showing the number of days, for which both the workmen had worked with them: Number of days of service rendered by Sh.Anil Kumar
Number of days of service rendered by Sh.Ram Kumar
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The case of petitioner was that the respondents-workmen were also issued temporary passes to enter and leave the Defence Complex and that they were working as a casual labour and that their services were not terminated but they had stopped coming to the work and finally their names were struck off on 1.11.1998 after 55 days of their continuous absence. Another plea taken was that the petitioner is not an 'industry' within the meaning of Section 2(j) of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the I.D. Act).
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The labour court after recording the evidences in both the cases reached to the conclusion that the workmen had continuously worked for 240 days in the preceding year from the date of their termination and that at the time of retrenchment no compensation and no pay in lieu of notice was paid and that the termination was illegal. It was further held that since it was admitted by the management that muster roll register was maintained and the casual labour was employed and the management was not discharging the work of sovereign nature, although it was an undertaking of the government, it falls in the category of 'industry' in view of law laid down in Bangalore Water Supply & Sewerage Board vs. A. Rajappa: (1978) 2 SCC 213.
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This order has been challenged by the petitioner.
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The first plea of the petitioner is that the court had no jurisdiction since army is not an industry and it exercises sovereign function and the dispute arising therein cannot be termed as an industrial dispute and has relied on the findings in case of Bangalore Water Supply & Sewerage Board's case (supra) and in Jagmittar Sain Bhagat and Others vs. Director, Health Services, Haryana and Others: (2013) 10 SCC 136.
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It is argued by learned counsel for the respondents that this plea of the petitioner is baseless because the petitioner had themselves stated that they used to supply logistic support to army at supply depot which proves that they were not discharging the sovereign function. It is submitted that even defence establishments are covered under Schedule 1 entry 8 of the I.D. Act. Reliance is placed on the findings of the Supreme Court in the case of Agriculture Produce Market Committee vs. Ashok Harikuni and another (2000) 8 SCC 61.
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I have given due consideration to the rival contentions on behalf of the parties.
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The first contention of the petitioner is that they are not an 'industry' under Section 2(j) of the I.D. Act only because they are defence establishments which were only discharging sovereign function. It is further argued on behalf of the petitioner that the Supreme Court in State of U.P. vs. Jaibir Singh: (2005) 5 SCC 1 has not agreed with the findings in Bangalore Water Supply & Sewerage Board's case (supra) and that is why the matter was referred to the Chief Justice of India for referring it to a Larger Bench for reconsideration of the judgment in Bangalore Water Supply & Sewerage Board's case (supra).
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The Supreme Court in Bangalore Water Supply & Sewerage Board's case (supra) has clearly held that 'industry' as defined in Section 2(j) has a wide import, where, systematic activity organized by co-operation between employer and employee for the production and/or distribution of goods and service calculated to satisfy human wants and wishes, prima facie, there is an 'industry' in that enterprise. Absence of profit making motive or gainful objective is irrelevant. The decisive test is the nature of activity with special emphasis on the employer-employee relations. Sovereign functions strictly understood, (alone) qualify for exemption, not the welfare activities or economic adventures undertaken by the government or statutory bodies. Even in departments discharging sovereign functions, if there are units which are industries and they are substantially severable, then they fall within Section 2(j) of the I.D. Act. There is no dispute to the fact that the findings in Bangalore Water Supply & Sewerage Board's case is given by the seven judges' bench of the Supreme Court while the findings in Jaibir Singh's case (supra) has been given by five judges' bench of the Supreme Court and there is no stay to the operation of the order in Bangalore Water Supply & Sewerage Board's case. Hence, the law laid down in Bangalore Water Supply & Sewerage Board's case stands good. In this case seven Judges bench has given wide meaning to the definition to the expression "industry".
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Relying upon the findings in Bangalore Water Supply & Sewerage Board's case, the Supreme Court in Agricultural Produce Market Committee's case (supra) has held as under:
"21. In other words, it all depends on the nature of power and the manner of its exercise. What is approved to be "Sovereign" is defence of the...
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