ORISSA HIGH COURT : CUTTACK O.J.C. NOs. 3451 AND 3380 OF 2002 In the matter of applications under Articles 226 and 227 of the Constitution of India. ------------- In OJC No. 3451/2002 The Management of Live Stock Breeding and Diary Farm, Cuttack …… Petitioner -Versus- Sri Prahallad Barik & another …… Opp. Parties For Petitioner : Addl. Govt. Advocate. For Opp. Parties : M/s. Satyabadi Das, Ramanath Acharya, S.Mohanty and S.K. Das. (For O.P.No.1) In OJC No. 3380/2002 The Management of Live Stock Breeding and Diary Farm, Cuttack …. Petitioner -Versus- Gosala Diary Farm Shramik Sangha and another. …. Opp. Parties. For petitioner: Addl. Govt. Advocate. For opp. Parties: M/s. Satyabadi Das, Ramanath Acharya, S.Mohanty and S.K. Das. (For O.P.No.1) ----------------------- Decided on 31.03. 2009. -------------------------- P R E S E N T : THE HONOURABLE SHRI JUSTICE M. M. DAS ------------------------------------------------------------------------------------------ M.M. Das, J. The dispute involved in these writ petitions was before this Court in a series of writ petitions. The opp. Party no. 1 - workman, namely, Prahallad Barik in O.J.C. No. 3451 of 2002, being terminated by the petitioner, the Management of Live Stock Breeding and Diary Farm, Cuttack (hereinafter referred to as the “Management”) raised a complaint/dispute. On failure of conciliation, a reference was made by the Government of Orissa in its Labour and Employment Department to the following effect:- “Whether the termination of service of Shri Prahallad Barik by the Management of Live Stock and Breeding Farm, Cuttack with effect from 24.12.1988 is legal and/or justified ? If not, to what relief is Shri Barik entitled ?” 2. The petitioner - Management took a stand that the establishment in which the workman was working is not an industry and, therefore, the provisions of the Industrial Disputes Act, 1947 (for short, ‘the Act’) had no application. The Labour Court passed an award on 20.3.1992 on the above reference in I.D. Case No. 103 of 1990 answering the reference in favour of the workman by holding that the termination of service of Shri Barik- workman by the Management is neither legal nor justified and the workman is entitled to be reinstated in service with effect from 24.12.1988 with full back wages till the date of his reinstatement in the Farm. The Management, being aggrieved, preferred O.J.C. No. 4847 of 1992 before this Court. This Court by judgment dated 9.12.1996 on analyzing the facts of the case as well as the law on the point held as follows:- 2 “Determination of a dispute as to whether the employee is a workman would largely depend on the factual backdrop. Unfortunately the Labour Court did not bring on record materials on the factual issues. A casual sale of milk cannot be termed to be a continued activity to bring in concept of business. What was primary function of the unit has not been highlighted. There was dispute as to whether there was any commercial activity. No attempt was made by the Labour Court to analyze the factual position. It adopted a short- cut by distinguishing the factual position as highlighted by this Court in OJC No. 3203 of 1990. A bare look at the factual position shows that there was practically no point of factual distinction so far as employees involved in OJC No. 3203 of 1990, and the present case are concerned. It has to be noted that employees accepted Veterinary Department not to be an industry, but has tried to bring in a distinction between the particular unit and the Department. Further, materials on record show that cross-breed, bull calves were supplied free of cost to Utkal Gomangal Samiti. It would, therefore, be appropriate if the Labour Court makes fresh adjudication of the matter keeping in view position of law elaborated above, and for that purpose the parties shall be permitted to lead further evidence”. The matter, after remand, was again taken up by the Labour Court and was disposed of by the award dated 30.11.1998 holding that the Management is not an industry as defined under section 2 (j) of the Act and, accordingly, the reference is not maintainable. The workman being aggrieved by the said award approached this Court in O.J.C. No. 978 of 1999. 3. It would be profitable to mention here that some other similarly placed workmen like the opp. Party no. 1 in O.J.C. No. 3451 of 2002, also raised an industrial dispute which, on being referred, to the Industrial Tribunal, was registered as I.D. 3 Case No. 37 of 1992. The learned Tribunal by its award dated 23.12.1998 decided the same question as to whether the Management is an industry or not and recorded the following findings on the issues framed by it in respect of those workmen. “The action of the management in delaying the regularization of the set of employees named in Annexure-A does not appear to be legal and justified as the principle of seniority in employment was not followed in matters of regularization of casual employees. Though the intervenor workmen examined one witness but his version does not throw any light on validity or otherwise of their employment. The intervenors do not dispute the year of their entry as casual labourers and going by the settled principles of seniority, the action of the management in ignoring the seniors and experienced labourers and regularizing the service of the members of the second party as named is Annexure-A is not supportable. The issue is, therefore, answered in negative. The question of maintainability of the reference is raised on the ground that the management is a unit of the Veterinary Department of the State Government and, as such, is not amenable to the provisions of the Industrial Disputes Act. Learned counsel for the workmen contends with reference to para-3 of the deposition of M.R.No.1 that as the business of the organization is sale of mill and cattle, the unit must be treated as an “Industry”. The evidence in the instant case is conclusive that the firm is engaged in breeding of male cows and production of milk. Cultivation of fodder is also incidental to the functions of the farm. Learned counsel for the workmen further draws my attention to the award in I.D. Case No. 103 of 1990 of the labour court, Bhubaneswar wherein the question of maintainability of the dispute was raised and answered in favour of the workmen in the award dated 20.3.92. He further draws my attention to the deposition of M.R.No.1 in the said dispute (I.D. Case No. 103 of 1990) which here clear admissions that the firm is engaged in selling bulls on auction when they become unproductive. They also sale milk and deposit the sale proceeds in treasury. In 4 this connection, it may be worth while to refer to a recent decision of the Supreme Court in General Manager, Telecom. Vrs. S. Srinivas, reported in AIR 1998 S.C.Page-656 wherein it is held that organizations with are engaged in commercial activity and do not discharge sovereign function of the State, must be held to be “Industry”. Maintaining and growing of cattle, cultivation of fodder and sale of milk do not by any parlance constitute sovereign functions of the state. The activities in which the concerned workmen are engaged are predominantly commercial. Accordingly, the establishment of the first party comes well within the purview of “Industry” within meaning of section 2 (j) of the Industrial Disputes Act. Issue no.1 is answered accordingly”. Being aggrieved by the award dated 30.11.1998 of the Labour Court holding that the Management is not an industry, the workman-opp. Party no. 1 in O.J.C. No. 3451 of 2002 preferred O.J.C. No. 978 of 1999. This Court by order dated 5.7.1999 again quashed the impugned award by which the Labour Court held that the Management is not an industry and remitted the matter back to the Labour Court. The operative portion of the said order dated 5.7.1999 is quoted hereunder:- “5. For the aforesaid reasons, impugned award at Annexure-2 is hereby quashed. The matter is remitted to the Presiding Officer, Labour Court, Bhubaneswar for fresh disposal of the case on merits. It may be noted that dispute relating to termination of service of the petitioner relates back to the year 1988. The matter therefore, requires expeditious disposal. The Labour Court is accordingly directed to dispose of the matter as expeditiously as possible, preferably by the end of October, 1999. The petitioner will appear before the Labour Court on 12.7.1999 to receive further instruction.” 5 After the second remand of the matter, the Labour Court has passed the impugned award on 26.10.1999 which is under challenge in the present writ petition. In the impugned award, the Labour Court keeping in view the observation of this Court in the above quoted order passed in O.J.C. No. 978 of 1999 came to the conclusion that the petitioner – Management is an industry and the opp. Party no. 1 – workman in O.J.C. No. 3451 of 2002 is to be reinstated with full back wages with effect from 24.12.1988. 4. It is pertinent to state that the award passed by the Industrial Tribunal in I.D. Case No. 37 of 1992 on 23.12.1998 has also been challenged in O.J.C. No. 3380 of 2002. Since the moot question to be decided in both the writ petitions is as to whether the petitioner – Management is an industry or not, both the writ petitions are decided by this common judgment. 5. It would be appropriate to deal with the award of the Industrial Tribunal dated 23.12.1998 passed in I.D. Case No. 37 of 1992, at the first instance, as the award passed by the Labour Court, which is under challenge in O.J.C. No. 3451 of 2002, is based on the award in the said I.D. Case No. 37 of 1992. The learned Tribunal, in I.D. Case No. 37 of 1992, has discussed the issue as to whether the petitioner – Management is an industry or not in his answer to issue no. 2 as already quoted above. The reasons assigned by the learned Tribunal for holding 6 that the petitioner - Management is an industry are legal and cogent and the findings have been arrived at relying upon the decision in the case of General Manager, Telecom. V. S. Srinibasa Rao and others, AIR 1998 SC 656. 6. It is submitted by the learned counsel for the opp. Parties that it is a well settled position of law that an unit of the Government is also an industrial establishment and the Industrial Disputes Act, 1947 is applicable to such an unit. Learned counsel for the State – Management submitted that the award passed in I.D. Case No. 37 of 1992 which is challenged in O.J.C. No. 3380 of 2002 has already been implemented by the petitioner – Management on 3.12.1998 by regularizing the services of the co- employees of the opp. Party no. 1 – workman in O.J.C. No. 3451 of 2002. But the opp. Party no. 1 – workman in O.J.C. No. 3451 of 2002 has not yet been regularized. According to the learned counsel for the workman, the award passed in I.D. Case No. 37 of 1992 on 23.12.1998 cannot be challenged by the petitioner – Management, which is estopped from doing so having already implemented the said award. 7. In the case of Bangalore Water Supply and Sewerage Board v. A.Rajappa and others, AIR 1978 SC 548, a seven Judges Bench of the Apex Court laid down the tests which 7 are to be undertaken to examine as to whether a Management (employer) is an industry or not, which reads as follows:- “ “Industry” as defined in S.2 (j) has a wide import. Where there is (i) systematic activity, (ii) organized by co-operation between employer and employee (the direct and substantial element is chimerical), (iii) for the production and/or distribution of goods and services calculated to satisfy human wants and wishes (not spiritual or religious but inclusive of material things or services geared to celestial bliss e.g. making, on a large scale, Prasad or food), prima facie, there is an “industry” in that enterprise. Absence of profit motive or gainful objective is irrelevant, be the venture in the public, joint, private or other sector. The true focus is functional and the decisive test is the nature of the activity with special emphasis on the employer-employee relations. If the organization is a trade or business, it does not cease to be one because of philanthropy animating the undertaking. Although S.2 (j) uses words of the widest amplitude in its two limbs, their meaning cannot be magnified to over-reach itself. “Undertaking” must suffer a contextual and associational shrinkage as explained in AIR 1953 SC 58, so also, service, calling and the like. This yields the inference that all organized activity possessing the triple elements above mentioned, although not trade or business, may still be “industry” provided the nature of the activity viz., the employer-employee basis, bears resemblance to what is found in trade or business. This takes into the fold of “industry” undertakings, callings and services adventures analogous to the carrying on of trade or business. All features, other than the methodology of carrying on the activity viz., in organizing the co-operation between employer and employee, may be dissimilar. It does not matter, if on the employment terms there is analogy. Application of these guidelines should not stop short of their logical reach by invocation of creeds, cults or inner sense of incongruity or outer sense of motivation for or resultant of the economic 8 operations. The ideology of the Act being industrial peace, regulation and resolution of industrial disputes between employer and workmen, the range of this statutory ideology must inform the reach of the statutory definition. Nothing less, nothing more. The consequences are (i) professions, (ii) clubs (iii) educational institutions, co-operatives, (iv) research institutes, (v) charitable projects and (vi) other kindred adventures, if they fulfil the triple tests listed above, cannot be exempted from the scope of S.2 (j). A restricted category of professions, clubs, co-operatives and even gurukulas and little research labs, may qualify for exemption if in simple ventures, substantially and, going by the dominant nature criterion, substantively, no employees are entertained but in minimal matters marginal employees are hired without destroying the non-employee character of the unit”. 8. The learned Tribunal in the award impugned in O.J.C. No. 3380 of 2002 applying the above tests has rightly come to the conclusion that the petitioner – Management is an industry and, thus, the industrial dispute is maintainable. Consequently, the Labour Court, in the award passed in I.D. Case No. 103 of 1992, could not have taken a different view and, has, therefore, rightly concluded that the petitioner – Management is an industry. 9. In the case of Sanat Kumar Dwivedi v. Dhar Jila Sahakari Bhoomi Vikas Bank Maryadit and others, 2001 LAB.I.C. 2373 , the Supreme Court considering the fact of the said case that the appellant therein was reinstated in service by order dated 12.5.1978 with a condition that he will not get any back wages and the appellant accepted such reinstatement without back wages by his joining report came to hold that the appellant 9 by his own conduct has accepted the correctness of the order of reinstatement without back wages and under such circumstances, subsequent dispute raised by him regarding back wages is clearly not maintainable. The Supreme Court gave the above finding relying upon an earlier decision in the case of State of Punjab and others v. Krishan Niwas, AIR 1997 SC 2349, wherein, it was held that a delinquent after accepting the punishment imposed and after joining in his post would be debarred from filing application in the Civil Court to declare imposition of reduced punishment and denial of back wages is improper. The corollary to the above ratio applies to the facts of the present case, where the Management having admittedly implemented the award passed in I.D. Case No. 37 of 1992, which is the subject matter of O.J.C. No. 3380 of 2002 is estopped from challenging the said award. In the said award passed in I.D. Case No. 37 of 1992, it having been held that the Management is an industry, it is no more open for the Management to contend that it is not an industry and, therefore, I.D. Case No. 103 of 1990 was not maintainable on that ground. 10. Considering the findings arrived at by the learned Tribunal relying upon which the Labour Court has passed the award in favour of the workmen in both the writ petitions and applying the law as laid down by the Apex Court in 10 the aforesaid cited cases, I do not find any merit to interfere with the awards dated 23.12.1998 and 30.11.2998 passed in I.D. Case No. 37 of 1992 and 103 of 1990 respectively, which have been impugned in the aforesaid two writ petitions. 11. In the result, both the writ petitions are dismissed, being devoid of merit. The petitioner – Management, in both the writ petitions, is directed to implement the award in I.D. Case No. 103 of 1990 by reinstating the workman-opp. Party no. 1 - Prahalla Barik, in O.J.C. No. 3451 of 2002, and making payment of the back wages to him within a period of one month from the date of communication of this order as the said workman-opp. Party no.1 in O.J.C. No. 3451 of 2002 was retrenched long back in the year 1988. ……………………… M.M. Das, J. Orissa High Court, Cuttack. March 31st , 2009/Biswal. 11 12 13 14