1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR ORDER S.B.CIVIL WRIT PETITION NO.4277/2006 Sampat Lal Teli and others Versus Judge, Labour Court and Industrial Tribunal, Ajmer and another DATE OF ORDER --- December 14,2010 PRESENT HON’BLE MR.JUSTICE PREM SHANKER ASOPA Mr.Amin Ali, for the petitioners Mr.Gajanand Mishra Manav, Addl. GC BY THE COURT (1) Heard learned counsel for the parties. (2) Initially, on 24.5.2006, this writ petition was filed by the petitioner Sampat Lal Teli challenging the Award dated 25.3.2006 (Anx.5) in LCR 72/99 (Reference No.F.1(1)805/ौं.िन./98 dated 9.6.1999) whereby common Reference relating to retrenchment of the services of three workmen i.e. Sampat Lal Teli, Mahaveer Prasad and Om Prakash, vide order dated 31.3.1993 has been answered in the negative on the ground that the Forest Department is not an industry, therefore, the reference is not maintainable. (3) Thereafter,Application No.30561 dated 28.8.2008 was filed on behalf of the other two workmen - Mahaveer Prasad and Om Prakash for their impleadment as petitioners in the writ petition, which was allowed on 10.9.2008. (4) The facts of the case relating to each of the three petitioners are as under: Petitioner No.1 Sampat Lal Teli (5) The petitioner No.1 Sampat Lal Teli was initially appointed on 2 23.3.1989 in the establishment of respondent employer on daily wage basis on the post of Beldar and thereafter, he was retrenched from service on 16.10.1990 without following due process of law against which an industrial dispute was raised by him and in the said dispute, the employer had entered into a settlement with the petitioner on 10.5.1991, pursuant to which, the petitioner was reinstated in service w.e.f. 16.4.1991 and his services were deemed to have been continuous for the period for which he remained out of job and thereafter he had worked continuously till 31.3.1993. Petitioner No.2 Mahaver Prasad (6) The petitioner was appointed in April, 1990 and on 1.12.1991, his services were retrenched. Thereafter, pursuant to the settlement arrived at the petitioner Mahaveer Prasad was taken back in service on 7.11.1992 with continuity of service. He worked up to 31.3.1993 in the establishment of the respondent employer. Petitioner No.3 Om Prakash (7) The petitioner was appointed on daily wages as Beldar on 7.2.1991 and on 1.4.1992, his services were retrenched. Thereafter, pursuant to the settlement dated 7.1.1993, the petitioner Om Prakash was taken back in service on 8.1.1993 with continuity of service. He worked up to 31.3.1993 in the establishment of the respondent employer. (8) It is further stated in the writ petition that the petitioner's services were governed by the Work Charged Rules, 1964 as such, upon completion of two years' of his service, the petitioners became entitled to be declared semi permanent in accordance with the provisions of the Rule 3 of the Work Charged Rules, 1964. (9) The respondent employer filed reply to the statement of claim wherein it was inter alia averred that on account of excess work, the petitioners were appointed to work on daily wage basis and further that the petitioners did not work continuously for 240 days, therefore, they are not entitled to any relief. 3 The respondent employer also averred that before retrenchment of the petitioners, due compliance of the provisions of the Industrial Disputes Act, 1947 as also the orders issued by the State Government, from time to time, was made and after preparing the seniority list, the petitioners were retrenched and on coming to know of their retrenchment, the petitioners left the work and therefore, the claim deserved to be dismissed. (10) No objection with regard to the Forest Department being not an industry was taken by the respondent employer in the reply to the statement of claim, still the Labour Court and Industrial Tribunal, Ajmer has framed and decided the issue “whether the Forest Department is an industry or not”. (11) Submission of counsel for the petitioner workmen is that although the issue was framed by the Labour Court with regard to the fact whether the Forest Department is an industry or not but the entire burden of the same was placed upon the petitioner workmen, and further, the settled position of law was also not considered, therefore, the impugned Award dated 23.5.2006 is liable to be set aside and the case deserves to be remanded back to the Labour Court and Industrial Tribunal. (12) Counsel for the petitioners further submits that in identical facts and circumstances of the case, this Court in Babu Lal V. State CWP No. 9132/2005 and nine other connected cases, considered the similar issue and came to the conclusion that the said issue is not a pure question of law but it is a mixed question of law and fact, therefore, it could not have been examined on mere oral submissions. (13) Submission of counsel for the respondent Department is that the Labour Court and Industrial Tribunal, Ajmer has rightly placed the entire burden upon the petitioner workmen to prove as to whether the Forest Department is an industry or not and the Tribunal has rightly considered the evidence led by Murlidhar, Divisional Forest Officer wherein it has been stated that the Forest Department is not an industry. 4 (14) I have gone through record of the writ petition and further considered the aforesaid submissions of counsel for the parties. (15) Before proceeding further, it is necessary to quote the relevant portion of the judgment of this Court in Babu Lal V.Labour Court (supra). The same is as under: “The learned Labour Court has further recorded a finding that the question as to whether th establishment where the workmen had been recruited is the industry or not, is a legal question. In my opinion, it is a mix question of law and fact and not a pure question of law, which could be examined on mere oral submissions. This court in the case of Ram Chandra (supra) has nowhere observed that the question as to whether the establishment is industry or not, is a question of law can be examined on oral submission. (emphasis supplied) Last submission made by the counsel that matter has been referred to Larger Bench by the apex court, is of no assistance. In fact, the definition of term `industry' defined u/s 2(j) as examined by the apex court in the case of Bangalore Water Supply & Sewerage Board Vs. A. Rajappa (1978 (2) SCR 213) has been referred to be considered by Larger Bench which is not related to a dispute in the instant petition. Consequently, all these writ petitions are allowed and the impugned awards passed by the Labour Court in LCR Nos.221/97, 139/96, 159/96, 92/6, 93/96, 308/97, 68/94, 94/96, & LCR No.126/94 dt.10th October, 2005 are set aside and the matter is remitted back to the concerned Labour Court for adjudicating the dispute on merits after affording opportunity of hearing to the parties to the dispute....” (16) On a perusal of the impugned Award, it appears that the entire burden has been thrown upon the petitioner workmen to prove that the Forest Department is an industry and further, has not considered the legal position on the issue whether a particular department of the State Government is an industry or not, as referred in 1988(1) RLR 931, 1992 (1) WLC 416, 1994(1) RLR 465, 2001(1) WLC 184, 2002(2) WLC 575 and 1996(2) FLR 840. In my view, it was also equally incumbent upon the respondent Department to lead evidence to the effect that any scheme or activity carried out by the Forest Department will be covered by the sovereign function of the Forest Department of the State of Rajasthan. Otherwise also, the same is a mixed question of fact and law and therefore, the legal issue settled in the aforesaid 5 judgments was also required to be considered but the Labour Court and Industrial Tribunal, Ajmer has failed to exercise its jurisdiction in not considering the aforesaid judgment of this Court and those referred at page 4 of the Award. (17) I am also of the view that in the instant case, one more opportunity be allowed to the petitioner Workmen to lead their evidence and the respondent Department will be at liberty to controvert the same. (18) Accordingly, the writ petition is partly allowed, the impugned award dated 25.3.2006 is set aside and the matter is remanded back to the Labour Court and Industrial Tribunal, Ajmer. The petitioner Workmen will be allowed an opportunity to lead their evidence and the respondent Department will be at liberty to controvert the same and after considering the entire material available on record, the Labour Court and Industrial Tribunal, Ajmer will also consider the aforesaid judgments of this Court and then decide the issue whether the Forest Department is an industry or not. (Prem Shanker Asopa) J. गोpa ल