CWP No. 16358 of 1996 and another connected writ petitions 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of decision: 15.04.2009 CWP No. 16358 of 1996 Director, Cultural Affairs, Archaeology and Museums, Punjab, Chandigarh and another .....PETITIONERS VERSUS Sh. Bhagwan Krishan and another ..... RESPONDENTS CWP No. 3916 of 2007 Director, Cultural Affairs, Archaeology and Museums, Punjab, Chandigarh .....PETITIONER VERSUS Presiding Officer, Industrial Tribunal, Punjab and another ..... RESPONDENTS CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present: Ms. Monica Chibbar Sharma, AAG, Punjab, for the petitioner. None for the respondents. *** AUGUSTINE GEORGE MASIH, J. (ORAL) By this order, I propose to decide CWP No. 16358 of 1996 titled as Director, Cultural Affairs, Archaeology and Museums, Punjab, Chandigarh and others vs. Bhagwan Krishan and another and CWP No. 3916 of 2007 titled as Director, Cultural Affairs, Archaeology and Museums, Punjab, Chandigarh vs. Presiding Officer, Industrial Tribunal, Punjab and another. In CWP No. 16358 of 1996, the petitioners have challenged CWP No. 16358 of 1996 and another connected writ petitions 2 the award dated 27.07.1995 (Annexure P-1) passed by the Labour Court, Jalandhar, vide which the reference has been answered in favour of the workman holding him entitled to reinstatement in service with continuity thereof and full back wages from the date of demand notice. The workman was appointed as Monument Attendant on 01.09.1986. He continued in service till 04.09.1989, when, according to the workman, his services were terminated, whereas according to the petitioner, the workman had abandoned his job. On this basis, it was contended by the counsel for the petitioners that there was no question of termination of the services of the workman. Since he had abandoned his job, the workman was not entitled to the protection of Section 25-F of the Industrial Disputes Act (hereinafter referred to as 'the Act') as there was no termination of the services of the workman, which would fall within the ambit of retrenchment. She further contends that the petitioner-department would not fall within the definition of industry as none of the characteristics, as provided in definition under Section 2 (j) of the Act, can be attributed to the department and, therefore, would not be an industry, which would grant protection to the respondent as a workman under the Act. She contends that the petitioner-department was engaged in maintenance of historical places, monuments and archaeological monuments situated in the State of Punjab. The department was created under the Punjab Ancient and Historical Monuments and Archaeological Sites and Remains Act, 20 of 1964, which was not performing any economic activity. No profit was earned and no source of income was being derived by the department. The expenditure was fully borne by the Punjab Government. Postings and appointments of the employees/officers of the department were being made by the State of Punjab. To fulfil the object of 1964 Act i.e. for providing preservation of CWP No. 16358 of 1996 and another connected writ petitions 3 ancient and historical monuments and archaeological sites and remains other than those of national importance for the regulation of archaeological excavations and for the protection of sculptures, carvings and other like objects, the department was brought in existence. None of these functions can be said to be related to the definition as provided under the Act for industry and, therefore, the findings, as recorded by the Labour Court holding the petitioner-department as an industry, cannot be sustained. She, on this basis, contends that since the petitioner-department would not fall within the definition of industry, the reference itself was bad and thus, the award dated 27.07.1995 passed by the Labour Court, Jalandhar, deserves to be set aside. Counsel for the petitioner, in CWP No. 3916 of 2007, contends that the impugned award therein is dated 20.04.2000 passed by the Industrial Tribunal, Punjab, Chandigarh (Annexure P-3), which cannot be sustained for the reason that no directions could be passed by the Labour Court in the award regularizing the services of the workman although the same was based on a policy decision and on the ground that persons junior to the workman stood regularized as per the policy of the State. She further relies upon the judgments of the Hon'ble Supreme Court in the cases of State of Karnataka vs. Uma Devi, 2006 (3) SLR 1 and Mahboob Deepak vs. Nagar Panchayat, Gajraula, (2008) 1 Supreme Court Cases 575. I have heard the counsel for the petitioners and have gone through the records of the case. As regards CWP No. 16358 of 1996 is concerned, the contention of the counsel for the petitioners that the department is not an CWP No. 16358 of 1996 and another connected writ petitions 4 industry, cannot be accepted in the light of the judgment passed by the Hon'ble Supreme Court in the case of Banglore Water Supply and Sewerage Board vs. A. Rajappa, 1978 (i) L.L.J. 349. There can be no dispute that the activity, which is being performed by the department, is maintaining of the historical monuments and cultural sites, which is a systematic activity. The relationship of the employer and the employee is very much there. It is a Government department, which is performing a function, which cannot be said to be of a nature, which would qualify it to be performing a sovereign function to bring it outside the purview of the definition of industry given under Section 2 (j) of the Act. The functions, which are being performed by the department, can even be performed by the private individuals in private jobs and by no stretch of imagination, it can be extended to bring it in consonance with a function, which no other can perform except the Government while performing its sovereign functions. That being the position, the contention, as raised by the counsel for the petitioners, cannot be accepted. The evidence, which has been brought on record, clearly shows that the workman had completed more than 240 days in the 12 calendar months preceding the date of the alleged termination of the workman. Nothing has been brought on record to show that the workman had indeed abandoned the job. No communication has been referred to, nor any evidence has been produced to justify the stand of the petitioners that the workman had abandoned his job. The contention, which has been raised by the petitioners before the Labour Court, was that the workman was engaged in his agricultural land in his village and, therefore, on his transfer at Kapurthala, it was not convenient for him to work there. This assertion has not been substantiated by the petitioners by way of any evidence. That being so, the findings, as CWP No. 16358 of 1996 and another connected writ petitions 5 recorded by the Labour Court with regard to non-compliance of the provisions of Section 25-F of the Act while terminating the services of the workman, cannot be interfered with. The contention of the counsel for the petitioners, with regard to the right of the workman in reinstatement on a public post, which was not filled in consonance with the statutory Rules, also cannot be accepted for the reason that there is no pleadings to this effect nor any evidence has been led by the parties before the Labour Court taking such stand. The judgments as relied upon by the counsel for the petitioners, therefore, are not applicable to the present case. The Rules, which are applicable, according to which, the appointments were to be made, which, according to the counsel for the petitioners, have not been complied with, have neither been pleaded nor have been brought on record. In this view of the matter, the finding, as recorded by the Labour Court, which is based on the pleadings and the evidence led by the respective parties, cannot be said to be not justified or being perverse. As regards CWP No. 3916 of 2007, wherein the award dated 20.04.2000 (Anneuxre P-3) is under challenge, suffice it to say that the award of the year 2000 stands challenged in the year 2007, that too after a period of about seven years. A perusal of the award would show that the benefit, which has been granted to the workman in the said award, is based on the policy decision of the Government entitling the workman for consideration for regularizing of his services, which according to the respondents, the workman did fulfil. Further, a finding given by the Labour Court that three similarly placed persons, who were junior to the workman, in compliance to and in accordance with the State Government Policy, stood regularized. The Labour Court has only issued directions on the basis of the evidence led by the parties that the workman is entitled to CWP No. 16358 of 1996 and another connected writ petitions 6 regularization of his services from the date first of the three juniors to the workman stood regularized as a consequential benefit of the policy of the State Government. A perusal of the writ petition would further show that in compliance of the policy of the State Government, the services of the workman, as per the award passed by the Labour Court, stood regularized vide order dated 23.01.2001. No explanation whatsoever has been given by the petitioners for challenging the award dated 20.04.2000 passed by the Labour Court after almost seven years of passing of the award and after six years of regularizing the services of the workman in consonance with the impugned award. The award having been complied with and there being no explanation whatsoever for the delay in not preferring the writ petition challenging the said impugned award, I see no justification in interfering with the award dated 20.04.2000. It would not be out of way to mention here that the right, which has been accrued to the workman as per the policy instructions and on the basis of the said policy decision of the Government, once a benefit has been conferred on the workman, it would not be open to the Government to withdraw the benefit subsequently without any justification merely because an earlier award passed by the Labour Court is under challenge before the High Court. As has been observed above that the writ petition challenging the earlier award in case of the petitioners has not been found to be in violation of law, in this view of the matter, both the writ petitions preferred by the petitioners stand dismissed. ( AUGUSTINE GEORGE MASIH ) JUDGE April 15, 2009 pj Whether referred to Reporters...................Yes/No. CWP No. 16358 of 1996 and another connected writ petitions 7 CWP No. 16358 of 1996 and another connected writ petitions 8