Pawan Kumar v. Presiding Officer, Labour Court, Dehradun Others

workman Shri Pawan Kumar S/o Shri Ramchand Post “Helper” by his employer from

31.12.1984 is proper and/or legal? If not, then the concerned workman is entitled to what benefit/relief and with which description?”

5. Petitioner, in his written statement stated that he was appointed as helper on

31.12.1980 and he worked continuously till

31.12.1984, however, he was terminated from service without giving any notice, wages in lieu of notice or retrenchment compensation; while, his juniors were retained in service and they were subsequently absorbed in work charge establishment. Thus, he contended that 3 the termination is in violation of Section 6N of U.P. Industrial Disputes Act and thus illegal.

6. Executive Engineer, Irrigation Department filed written statement stating that petitioner did not serve continuously; he was engaged from time to time as per exigencies of work and he voluntarily abandoned his employment.

7. Before learned Labour Court, no witness was examined on behalf of the employer; while, petitioner made deposition in support of his claim.

8. Learned Labour Court decided the reference against petitioner by holding that Irrigation Department is not an Industry. Learned Labour Court placed reliance upon the judgments rendered by Hon’ble Supreme Court in the case of Secretary, State of Karnataka and others v. Umadevi and others, reported in (2006) 4 SCC 1, Executive Engineer (State of Karnataka) v. K. Somasetty, reported (1997) 5 SCC 434 and State of H.P. v. Suresh Kumar Verma, (1996) 7 SCC 562.

9. Learned counsel for the petitioner contends that Hon’ble Supreme Court in the case of Desh Raj and others v. State of Punjab, reported in AIR 1988 SC 1182 has held that State Irrigation Department comes within the purview of the term ‘Industry’, however, in the subsequent judgment rendered in the case of 4 Executive Engineer (State of Karnataka) v. K. Somasetty (supra), the judgment rendered in the case of Desh Raj and others v. State of Punjab (supra) was not considered. He submits that in the case of Desh Raj & others v. State of Punjab (supra), Hon’ble Supreme Court has taken into account various other judgments, including the Constitution Bench rendered in the case of Banglore Water Supply & Sewerage Board v. A. Rajappa, reported in (1978) 2 SCC

213. He further submits that the judgment rendered in the case of Executive Engineer (State of Karnataka) vs. K. Somasetty, reported in (1997) 5 SCC 434 has overlooked the earlier judgment, including the Constitution Bench judgment, therefore, the view taken in the case of Desh Raj & others v. State of Punjab (supra), is the correct view, which deserves to be followed.

10. Learned counsel for the petitioner submitted that identical question arose before Hon’ble Allahabad High Court, as to whether the view taken in the case of Desh Raj & others v. State of Punjab (supra) or Executive Engineer (State of Karnataka) v. K. Somasetty (supra), is the correct view. He further submits that a Single Judge of Hon’ble Allahabad High Court in the case of State of U.P. through Secy. Irrigation v. Mohd. Rais, reported in 2020 SCC OnLine All 2445, after considering all relevant judgments, arrived at the conclusion that the view taken in the case of Desh Raj & others v. State of Punjab (supra), is correct. 5 Relevant discussion made judgment, rendered by Hon’ble Allahabd High Court, is extracted below:- “8. As has been indicated hereinabove, the Hon'ble Supreme Court in the case of Des Raj (supra) has held that an Irrigation Department of particular Government to be an Industry in terms of the Act of 1947. The into account judgment has taken rendered by judgments various other Hon'ble the Supreme Court particularly a Constitution Bench rendered in Bangalore Water Supply and Sewerage Board v. A. Rajappa, reported in (1978) 2 SCC 213. On the contrary, the subsequent judgment rendered by Hon'ble Supreme Court in case of K. Soma Setty (supra) has not adverted to the aforesaid judgments of Des Raj (supra) and Bangalore Water Supply and Sewerage Board (supra). judgment

9. Upon perusal of Judgment rendered in the case of Desh Raj (supra) as compared to judgment rendered in the case of K. Soma Setty (supra), it is apparent that in the case of Desh Raj (supra) Irrigation Department has been held to come within the definition of Industry whereas judgment of K. Soma Setty holds otherwise. As such, there is clear conflict in the two judgments which are of Coordinate Bench.

10. The proposition of law required to be followed in conflicting judgments rendered by Hon'ble the Supreme Court by Benches of Coordinate strength has been discussed in the Full Bench of Allahabad High Court, AIR 1991 All 114 in Ganga Saran (supra). The Full Bench after considering the relevant aspect has held as follows: “7. One line of decision is that if there is a conflict in two Supreme Court decisions, the decision which is later in point of time would be binding on the High Courts. The second line of decisions is that in case there is a conflict between the judgments of Supreme Court consisting of equal authorities, incidence of time is not a relevant factor and the High Court must follow the judgment which appears it to lay down law elaborately, and accurately.

8. Similar situation arose before a Full Bench of Punjab and Haryana High Court in the case of M/s. Indo Swiss Time Limited, 6 P&H Dundahera, v. Umrao, AIR 213. What the Full Bench in the said case held is extracted below (at pp. 219-220 of AIR): 1981 inevitably must “Now the contention that the latest judgment of a co-ordinate Bench is to be mechanically followed and must have preeminence irrespective of any other consideration does not commend itself to me. When judgments of the superior Court are of co-equal Benches and therefore, of matching authority then their weight considered by the rationale and the logic thereof and not by the mere fortutious circumstances of the time and date on which they were rendered. It is manifest that when two directly conflicting judgments of the superior Court and of equal authority are extant then both of them cannot be binding on the courts below. Inevitably a choice, though a difficult one, has to be made in such a situation. On principle it appears to me that the High Court must follow the judgment which appears to it to lay down the law more elaborately and accurately. The mere incidence of time judgments of coequal whether Benches of the Superior Court are earlier later is a consideration which appears to me as hardly relevant.” This decision was followed by the Bombay High Court in the case of Special Land Acquisition Officer v. Municipal Corporation, AIR 1988 Bom 9. The majority of Judges in the Full Bench held that if there was a conflict between the two decisions of equal benches which cannot possibly reconcile, the courts must follow the judgment which appear to them to state the law accurately and elaborately. We are in respectful agreement with the view expressed by the Full Bench of Punjab & Haryana High Court in the case of M/s Indo Swiss Time Limited v. Umrao, (AIR 1981 P&H 213) (Supra) especially when the Supreme Court while deciding Qamaruddin's case (1990 All WC 308) (Supra) did not notice the U.P. amendment to S. 115, CPC and earlier decision of the Supreme Court.”

11. The aforesaid aspect has also been dealt with by a learned Single Judge of the High judgment Court of Bombay rendered by Hon'ble the Supreme Court in the case of Des Raj (supra) has been followed: in which “13. On considering all the concepts of industry and after reviewing the various 7 India v. Jai tests which need not be repeated, as the tests were laid down in Bangalore Water Supply case (supra). The concept of sovereign and function was explained in Chief Conservator of Forests (supra). The Apex Court in para 13 specifically rejected an argument that sovereign welfare activities partake functions on the ground that if such a view was taken it would be eroding the view taken by it in Bangalore Water Supply's case. While observing welfare activities partake sovereign functions the Apex Court did not notice this in Sub- Divisional Inspector of Post, Vaikam and Other (supra). Therefore, considering the various precedents of the Apex Court itself it is clear that the law declared by the Apex Court is that welfare activities do not necessarily partake sovereign functions. In Executive Engineer, State of Karnataka the reliance was placed on the judgment in the case of Union Narain Singh (supra). In Union of India v. Jai Narain Singh, the Apex Court has merely noted that the Central Ground Water Board is not an Industry. It is not possible to discern from that judgment as to what were the reasons for the Apex Court to so hold. The other judgment relied on is that of State of Himachal Pradesh v. Suresh Kumar Varma & Anr. (supra). On a perusal of the fact and the law laid down it does not seem that the issue as to whether a particular department was an industry or not was in issue. What was in issue was whether the work charged employees who perform duty of transitory nature were appointed to posts and their appointments were on daily wage basis in an appointment to a post. The Apex Court therein noted that appointments to the posts and, therefore, given to re-engage them in any work or appoint them against existing vacancies. Thus the two judgments relied upon by the Apex Court to arrive at the conclusion arrived at in Executive Engineer, State of Karnataka (supra), nowhere have laid down the tests to hold as to why Irrigation Department is to be excluded from the definition of industry. As pointed the case of Sub out earlier, even Divisional Inspector of Post, Vaikam and appointments directions 8 In Others was considered by the Apex Court in Physical Research Laboratory and explained the same in paragraph 10 of the judgment. After that, it proceeded to apply the tests as laid down in Bangalore Water Supply. the case of Des Raj v. State of Punjab (supra) the Apex Court had considered the tests laid down in various earlier judgments of the Apex Court itself, culminating in the judgment in Bangalore Water Supply (supra) and thereafter had arrived at a conclusion that the Irrigation Department falls within the definition of Industry within the meaning of Section 2(j) of the I.D. Act. I am, therefore, of the considered opinion that the view laid down in Des Raj's case is the better in point of law and hence it is the view in Des Raj's case which will have to be followed. Once it is so held and as I have already set out earlier the work of the Irrigation Department of the State of Punjab and the material placed before this Court including the written submissions petitioners the projects undertaken by the irrigation department of the State of Maharashtra is discharging the same or similar functions as the Irrigation Department of the State of Punjab. It, therefore, follows that the projects of the Irrigation Department or work connected with that of the State of Maharashtra, on the same tests as applied by the Apex Court in Des Raj's case would fall within the definition of an industry for the purpose of Section 2(j) of the I.D. Act.” filed on behalf of

12. Upon applicability of said factors to the present case, it is clear that the judgment rendered by Hon'ble the Supreme Court in Des Raj (supra) has elaborately dealt with the question as to whether Irrigation Department of the Government would come within the definition of Industry or not. After considering Bench Judgment of Hon'ble Supreme Court rendered in Bangalore Water Supply and Sewerage Board (supra), the Hon'ble Supreme Court has reached a definite conclusion that Irrigation Department of the Government would definition of Industry. come within Constitution

13. Judgment rendered in the case of K. Soma Setty has placed reliance on the 9 Judgment rendered by Hon'ble the Supreme Court in the case of State of H.P. v. Suresh Kumar Verma, reported in (1996) 7 SCC 562 and Union of India v. Jai Narain Singh, reported in 1995 Supp (4) SCC 672 to hold Government comes within the purview of term Industry. Irrigation Department

14. A reading of the aforesaid judgments cited in case of K. Soma Setty (supra) reveals that judgment of Suresh Kumar Verma (supra) has not held the Irrigation Department excluded from the definition of term Industry and was concerned only with regard to following of Recruitment Rules pertaining to fresh appointments being made to various services under the State or to a class of post under the State. In the case of Jai Narain Singh (supra) Hon'ble Supreme Court has held the Central Ground Water Board excluded from the definition of Industry. Matter pertaining to Irrigation Department of the Government has not been adverted to.

15. It is also clear that judgment rendered in K. Soma Setty (supra) has not taken into account the earlier judgment rendered by Hon'ble in Des Raj (supra) and Bangalore Water Supply and Sewerage Board (supra). Supreme Court

16. As such, it would be appropriate and according to judicial propriety that judgment rendered in the case of Des Raj (supra) be followed. Irrigation Department of the Government would come within term of ‘Industry’ as defined in Section 2(k) of the Act of 1947.” is accordingly held It

11. I am in respectful agreement with the view taken by Hon’ble Allahabad High Court in the case of State of U.P. through Secretary Irrigation v. Mohd. Rais (supra). Thus, the view taken by learned Labour Court “Irrigation Department” is not an ‘industry’ cannot be sustained. 10

12. Learned Labour Court had also relied upon the judgment rendered in the case of State of Karnataka & others v. Umadevi & others (supra). The said judgment, however, does not deal with the question whether Irrigation Department is an ‘industry’ or not. Moreover, in the said judgment, the practice of making ad-hoc / casual appointment through backdoor and thereafter to regularize them, with the aid of judicial order, was deprecated. The said judgment does not lay down any principle for adjudication of labour dispute by the forum provided under Industrial Disputes Act, therefore, reliance on the said judgment is misplaced.

13. Similarly in the case of State of H.P. v. Suresh Kumar Verma (supra) provisions of Industrial Disputes Act were not considered at all, and the question, whether a Department of the State is ‘industry’ or not was also not considered, therefore, the said judgment also is not applicable to the facts of the present case.

14. Since the reference was answered against the petitioner only on the ground that Irrigation Department is not an ‘industry’, which view is not correct, therefore, the impugned awards rendered by learned Labour Court deserves to be set aside and are hereby set aside. 11

15. Accordingly, the writ petitions are allowed. The matter is remitted back to learned Labour Court to decide the reference on merits, as per law. (Manoj Kumar Tiwari, J.) Pr