The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (L) No. 2070 of 2008 Shashi Prakash Mishra son of Sri G.S. Mishra, presently residing at Dundas Point, South Andaman, Andaman and Nicobar Islands, Pin- 744206. Petitioner … … Versus 1.Indian Council of Agricultural Research through its Director General, Government of India, Krishi Bhawan, New Delhi. 2. Deputy Director General, Department of Agricultural Research and Education, Government of India, Krishi Bhawan, New Delhi . 3. Secretary, Indian Council of Agricultural Research, Government of India, Krishi Bhawan, New Delhi. 4. The Directoress, Holy Cross Krishi Vigyan Kendra, Kanary Hill, Hazaribagh, Post Office and Police Station-Sadar, Hazaribagh, District Hazaribagh. 5. Chairperson of Governing Body, Holy Cross Institute, Hazaribagh, P.O. and P.S. Sadar (Hazaribagh) Dist. Hazaribagh, Jharkhand. … Respondents … --- CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY --- For the Petitioner For the Respondents (4 & 5) : Ms. Chandana Kumari, Advocate :Mr. Nipun Bakshi, Advocate : Mr. Shubham Sinha, Advocate --- 25/21.10.2024 Heard the learned counsel for the parties. 2. This writ petition has been filed for the following reliefs:- “ That in the instant writ application, the petitioner prays for issuance of an appropriate writ, order or direction, particularly a writ in the nature of mandamus for quashing the order of punishment, as contained in Reference No. issued by JP/SD/HCKVK/190/2000 dated 29.12.2000, respondent no. 4, whereby, the petitioner has been dismissed from service and further prays for quashing the order dated 22.3.2001, passed by respondent no. 5, whereby, the appeal, preferred by the petitioner, has been dismissed and the petitioner also prays for quashing the order dated 19.11.2007, passed by the learned Presiding Officer, Labour Court, Hazaribagh, in B.S.E. Case No. 1 of 2001, which has been dismissed on the ground of maintainability and also prays for all the consequential reliefs after setting aside the order of punishment and/or to grant such other relief/reliefs as Your Lordships may deem fit and proper to do conscionable justice to the petitioner.” 3. The learned counsel for the petitioner has submitted that in this writ petition not only the judgment passed by the learned Presiding Officer, Labour Court, Hazaribagh is under challenge whereby it has been held that the respondent namely Holly Krishi Vigyan Kendra Hazaribagh is not an Establishment within the meaning of Bihar Shops and Establishment Act and hence the case challenging the order of dismissal of the petitioner was not maintainable but through this writ petition a prayer has also been made for setting aside the order of dismissal of the petitioner dated 29.12.2000. Meaning thereby, in case this Court does not choose to interfere with the judgment passed by the learned Labour Court, in B.S.E. Case No. 1 of 2001, the relief challenging the order of dismissal directly before this court can still be entertained under Article 226 of the Constitution of India. 4. The learned counsel has submitted that under the aforesaid circumstances the concerned Holly Cross Krishi Vigyan Kendra Hazaribagh was working under the Indian Council of Agricultural Research Government of India (hereinafter will be referred as ICAR) and therefore the ICAR has been made party respondent in the present case, although ICAR was not a party before the learned Labour Court. The learned counsel has submitted that the aforesaid Krishi Vigyan Kendra was involved in vocational training of farmers and they also used to sell farm products and consequently they were covered under the definition of Establishment as defined under section 2(6) of the Bihar Shops and Establishment Act. She has submitted that the terms establishment means an establishment which carries on any business, trade or profession and imparting training being a profession was covered under section 2(6) of the aforesaid Act but this aspect of the matter has not been properly considered by the learned Labour Court and therefore the impugned judgment by which said Krishi Vigyan Kendra has been held to be not an ‘establishment’ under the aforesaid Act calls for interference. 5. The learned counsel has relied upon the judgment passed by Hon’ble Supreme Court reported in (2005) 9 SCC 605 (Tata Iron and Steel Co. Ltd. versus Chief Inspecting Officer and Others) and has 2 submitted that in the said case the activity of Tata Main Hospital which claimed to be a charitable institution was held to be an ‘establishment’ within the meaning of the aforesaid Act. The learned counsel has referred to the findings of the learned court and has submitted that the judgment passed in the aforesaid case has not been properly considered. She has submitted that without prejudice to the aforesaid submission, the order of dismissal dated 29.12.2000 calls for interference under Article 226 of the Constitution of India. 6.
Legal Reasoning
The learned counsel appearing on behalf of the respondents has vehemently opposed the aforesaid submissions and has submitted that while challenging the order passed by the learned Labour Court under Article 226 of the Constitution of India, there was no scope for the petitioner to pray for an independent relief challenging the order of dismissal under Article 226 of the Constitution of India . He has submitted that two reliefs are distinct and could not have been clubbed in the present proceedings. Consequently, no relief can be granted to the petitioner. 7. The learned counsel has submitted that Indian Council of Agricultural Research and its authorities were never made party before the learned Labour Court. The learned counsel has submitted that the ICAR could not have been made respondent in this case challenging the award and so far as respondent no. 4 is concerned, he is opposing the prayer of the petitioner. The impugned judgment passed by the learned Labour Court does not call for any interference. 8. The learned counsel has relied upon the judgment passed by the Hon’ble Supreme Court reported in (2001) 2 SCC 115 (Ruth Soren versus Managing Committee, East IS.S.D.A. and Others) and has submitted that so far as educational institution is concerned, the same do not come within the meaning of the term ‘establishment’ as defined under Bihar Shops and Establishment Act. He has also submitted that the activity of the said respondent Krishi Vigyan Kendra was that of vocational training of farmers at large and the entire training programme was fully funded by ICAR. He has further submitted that the judgment passed in the case of Ruth Soren (supra) has been 3 followed by this Court in a number of judgments including the judgment passed in L.P.A. No. 105 of 2000 decided on 23.07.2002 (A.K. Khan versus State of Bihar) and in W.P. (L) No. 4917 of 2005 decided on 17.01.2006 (Harshvardhan Mathur versus Xavier Labour Relation Institute) reported in 2006 (2) JCR 950 Jhr. Paragraph no. 3. The learned counsel submits that the impugned judgment passed in this case is a well-reasoned judgment and does not call for any interference. He has also submitted that there is no element of commerce involved in the present case as there was no activity which was systematically or habitually undertaken for rendering material services to the committee at large. 9. After hearing the learned counsel for the parties this court finds that while challenging the impugned judgment passed by the learned Labour Court, Hazaribag in B.S.E. Case No. 1 of 2001, in which ICAR was not even a party, it was not open to the petitioner to add alternative relief of setting aside the order of dismissal directly under Article 226 of the Constitution of India. Such alternative relief has been prayed for by the petitioner in case this court is not inclined to interfere with the finding of the learned labour court in the impugned judgement holding that the case was not maintainable before the learned labour court under the shops and establishment Act. This court is of the considered view that so far as challenge to the impugned judgment passed in B.S.E. Case No. 1 of 2001 is concerned, the same is a distinct cause of action being a labour matter and the challenge to the order of dismissal directly under article 226 of the constitution of India would constitute a service matter and both the reliefs cannot be clubbed in the same writ petition as alternative to each other. The challenge to impugned judgment passed in B.S.E. Case No. 1 of 2001 would fall under the nomenclature W.P.(L) – a labour matter and direct challenge to order of dismissal would fall under the nomenclature W.P. (S)- a service matter and the nature of adjudication and also the party position as stated by the learned counsel for the petitioner are also different. 4 10. This Court is of the considered view that in the B.S.E. Case No. 1 of 2001, Indian Council of Agriculture Research was not the party and therefore in a writ petition challenging the order passed in B.S.E. Case No. 1 of 2001, another relief challenging the order of dismissal by making Indian Council of Agriculture Research as a respondent to
Decision
maintain the writ petition is not permissible under law. This Court is of the considered view that if the impugned order passed in B.S.E. Case No. 1 of 2001 is set aside then the matter has to be remitted back to the concerned court for adjudication on merit. Further, in order to decide the legality and validity of the order of dismissal on merits directly in this writ petition, one of the prime considerations would be as to whether the petitioner is an employee of ICAR and further whether the writ petition would be maintainable as against the said Krishi Vigyan Kendra and there are numerous other issues which may come up for adjudication of the legality and validity of the order of dismissal under Article 226 of the Constitution of India. Accordingly, this court is not inclined to decide the validity and legality of the order of dismissal directly under Article 226 of the Constitution of India in this writ petition and the adjudication is confined to the legality and validity of the impugned judgement passed by the learned Labour Court whereby the case filed by the petitioner has been held to be not maintainable. 11. So far as the impugned judgment passed by the learned Presiding Officer, Labour Court is concerned, this court finds that it is not in dispute that the respondent no. 4 was involved in imparting vocational training for agricultural activity to the farmers at large and was funded by ICAR. This court finds that the point regarding maintainability of the proceeding under Section 26(2) was challenged and was hotly contested by the parties and the petitioner had heavily relied upon the judgment passed in the case reported in (2005) 9 SCC 605(supra). This court finds that in the said judgment the definition of Establishment under Section 2(6) of the Bihar Shops and Establishment Act was duly considered and the activity of the said organization was taken into consideration. The argument of Tata Main 5 Hospital [which was the concerned establishment] that the hospital was not making any profit was held to be not the touchstone whereby it could be judged whether they were doing any business or not and it was held that irrespective of whether they were earning profit or not, their activity was to be taken into consideration. The Hon’ble Supreme Court found that the profit and loss is not an essential ingredient of business and held that the hospital was a part of the establishment of the main company and it catered to not only the employees of the management and its associate company but also to government and private patients from whom the fee was charged. The Hon’ble Supreme Court also referred to the fact that dominant purpose for establishing the hospital was not charitable. The law which has been laid by the Hon’ble Supreme Court in the other cases dealing with dominant purpose test should be found out from the activity or the business. If the dominant purpose appears as charity, then it will be admissible to the benefit of the charity and if it is incidental purpose then it will not be entitled to such benefit. The Hon’ble Supreme Court held that in the said case, neither situation arose. The establishment was the hospital catering by way of social measure to the employees of the management and its associate industries who were otherwise also under a legal obligation to provide medical facilities for their employees and in such circumstances, it was held that the hospital was an establishment under the provisions of Bihar Shops and Establishment Act and were required to be registered. 12. This court finds that the said judgment which has been heavily relied upon by the petitioner before the learned Labour Court and also before this Court does not help the petitioner in any manner. 13. In the present case, it was the specific case of the petitioner before the learned Labour Court that apart from imparting vocational training, the respondent no. 4 was also undertaking other activities by selling some product. This court finds that so far as the training activity is concerned, the same was vocational training for the farmers at large and was fully funded by ICAR and there was no element of 6 business activity involved in such vocational training for the farmers at large. 14. This court also finds that the learned Labour Court has recorded a finding that so far as the selling of some products is concerned, it was falling short of the element of activity being organized or arranged and the activity being systematically or habitually undertaken for rendering material services to the community at large or part of such community with the help of employees and that such activity generally involved co-operation of the employees. The finding of the learned labour court is based on appreciation of the materials on record. 15. This court is of the considered view that the learned Labour Court has considered the materials placed before it and held that the complaint filed against the said Krishi Vigyan Kendra was not maintainable as the Krishi Vigyan Kendra was not an ‘establishment’ in terms of the Section 2(6) of the Bihar Shops and Establishment Act as applicable in the State of Jharkhand. This court is of the considered view that the finding of the learned Labour Court that the complaint filed under Section 26(2) against the respondent no. 2 was not maintainable does not call for any interference as such finding is based on appreciation of materials on record and such finding does not suffer from any illegality or perversity calling for any interference under Article 226 of the Constitution of India. 16. However, the petitioner cannot be rendered remediless in connection with the order of dismissal. Consequently, it is observed that it will be open to the petitioner to challenge the order of dismissal dated 29.12.2000 before appropriate forum/court of law in accordance with law. It is further observed that as the case filed by the petitioner before the learned Labour Court Hazaribagh under Shops and Establishment Act has been held to be not maintainable, any finding and any observation made therein which touches upon the merit of the case will not prejudice the case of the parties in any manner if the order of dismissal is challenged by the writ petitioner. 7 17. This writ petition is accordingly disposed of in the aforesaid terms. Binit (Anubha Rawat Choudhary, J.) 8