1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.705 OF 2002 The Deputy Director, Social Forestry Division, Osmanpura, Aurangabad. ..Petitioner. v e r s u s Shri Laxman Janardhan Chandratike, age – yrs, occ. r/o c/o. Trade Union Centre, Kotwalpura, Aurangabad. ..Respondent. Mrs. V. A. Shinde, AGP for petitioner. Shri A.S. Shelke, advocate for the respondent. ..... CORAM : S.S. SHINDE, J. DATE : 02/09/2009. ORAL JUDMENT :- 1. This writ petition is filed challenging the judgment and award dated 12.06.1997 in reference IDA No. 98/1988 passed by the learned Labour Court, Aurangabad and judgment and order dated 28 th of December, 2005 in complaint ULP No. 295 of 1999 by the Member, 2 Industrial Court, Aurangabad. Background facts of the case are as under :- It is the case of the petitioner herein that the respondent No.2 was engaged as a laborer in the establishment of the petitioner. He worked under different schemes as and when such schemes were available. Social Forest Department is established with intention to increase number of trees and maintain the environment. The activities undertaken by the department are for temporary period and on seasonal basis under various schemes, to implement schemes, delinquent laborers are required for limited period. There are no sanctioned posts under the said scheme. It is further case of the petitioner that the respondent put forth imaginary claim of termination and thereby raised dispute. 2. Matter was referred to Labour Court, Aurangabad vide reference IDA No.98/1988. The Labour Court, allowed reference and passed award directing the petitioner herein to re-instate the 3 respondent in service with continuity of service within one month from the date of publication of the award however Labour Court did not order back wages. 3. The petitioner aggrieved by the judgment and award of the Labour Court filed writ petition on 22 nd of October, 2001 before this Court. Pending writ petition, the respondent filed complaint ULP No. 295/1999 before the Member, Industrial Court, at Aurangabad. In the said complaint, the petitioner herein appeared and filed reply. The Industrial Court by judgment and order dated 28.02.2005 allowed the complaint and present petitioner was directed to implement the award within two months. 4. The petitioner herein amended the petition by inserting the additional grounds as well as additional prayer clauses. The order passed by the Labour Court as well as Industrial Court referred above, are under challenge in this petition. 5. This petition was heard for admission and this Court 4 granted Rule. The learned A.G.P. appearing for the petitioner submitted that, respondent was appointed under scheme which is sponsored by the Central Government and not against any post. It is further submitted that there are no any sanctioned post and consequently there is no question of absorption of respondent herein in the services of the petitioner. It is further submitted that the department in order to increase number of trees as implementing agency has offered work to the respondent to keep watch on the planted trees. It is further submitted that said scheme was for specific period. Out of said plantation of the trees no profit is earned by the petitioner. The Social Forestry department is not an industry. It is further submitted that the employees employed under different schemes on daily wages are temporary employees and as they are not appointed against the sanctioned posts, such employees are not entitled for the benefit of permanency. It is further submitted that the activities under taken by the Social Forestry department are not 5 continuous in nature. The work undertaken by the department for plantation of trees was for temporary period having temporary nature and work was given to the workers as per availability of the work. 6. It is further submitted that, the social forestry department has offered work to the respondent herein on 01.07.1986 to keep watch on the trees which are planted on Kanmad and Borgaon road side and to supply water to those trees. It is further submitted that on 10.12.1987 since the work was not available, the services of the respondent came to be orally terminated. It is further submitted that the provisions of Industrial Disputes Act are not applicable since the petitioner is Government Department and discharging its sovereign function. It is further submitted that, if the definition of 'industry' u/s 2 (j) is perused, it cannot be said that the petitioner department is an industry as contemplated by the provisions of section 2 (j) of the Industrial Disputes Act. The learned AGP in support of her contention that petitioner department is not an industry, relied on the reported 6 judgment of this Court in State of Gujarat and ors Vs. Pratamsingh Narsinh Parmar reported 2001 CLR (I) 968 more particularly paragraph No.6 and in case of Marathwada Sarwa Shramik V/s Assistant Director, Department of Social Forestry reported in 2002 (5) BCR 650 more particularly paragraph no.3 of the said judgment. On the basis of afore stated judgments, the learned AGP vehemently submitted that social forestry department of the State of Maharashtra cannot be treated as an industry and provisions of Industrial Disputes Act cannot be made applicable in the instant case. 7. The learned AGP further relied on the judgment of the Apex Court in case of Shristi Infrastructure Development Corporation Ltd., V/s Sunway Construction SDN BHD reported in 2008 AIR SCW 2059 and in case of Kamal Krishan Rastogi and another Vs. State of Bihar and anr. reported in AIR 2009 SCW 429 and submitted that the persons appointed under scheme or on daily wages has no right to claim permanency or continuity of service. Therefore, the learned AGP 7 submitted that this writ petition may be allowed by setting aside the impugned judgment and order of the Labour Court and impugned judgment and award of the Industrial Court. 8. The learned counsel appearing for the respondent invited my attention to the findings recorded by the Labour Court as well as Industrial Court and submitted that the reference was referred to the Labour Court by the Labour officer since conciliation proceedings failed. The learned counsel further submitted that though the present petitioner who is original respondent though duly served did not participate in the proceedings before the Labour Court, the vakalatnama was filed on behalf of the petitioner before Labour Court however no written statement was filed or no evidence what so ever was laid before the Labour Court. Therefore, in the submission of the learned counsel for the respondent, the averments in the complaint filed by the respondent went uncontroverted. 9. The learned counsel further invited my attention to the 8 contentions in the statement of claim by the respondent and submitted that in paragraph no.1 of the statement of claim, the respondent herein has stated the nature of work. In paragraph no.2 of the statement of claim, the respondent has categorically stated the activities carried out by the petitioner department which clearly attributes characteristics of industry and therefore, the learned counsel would submit that the case was made out by the respondent that the nature of the activities carried out by the petitioner-department is not the sovereign function but those activities are systematic activities other than sovereign function and therefore the Labour Court has rightly applied the provisions of Industrial Disputes Act in the instant case. The learned counsel further submitted that though the impugned judgment and award by the Labour Court is passed in 1997, and award was also published/within one month from the judgment and award of the Labour Court, present writ petition came to be filed by the petitioner on 22.10.2001, without any explanation on the point of delay. It is further submitted that when 9 the petitioner has approached belatedly invoking supervisory and equitable jurisdiction of this court under article 227, same may not be exercised on the ground of delay alone. The learned counsel further submitted that the petitioner did not participate in the proceedings before the Labour Court by filing written statement or by leading evidence and to that effect no explanation what so ever has been offered in the writ petition. Only vague statement is made in the petition that the circumstances were beyond control of the petitioner and therefore, written statement was not filed. 10. The learned counsel further submitted that the respondent filed application below Exh.U-3 for production of documents in the custody of the petitioner, including seniority list and some other documents, same were not produced by the petitioner before the Labour Court and consequently the Labour Court drawn the adverse inference against the petitioner. The learned counsel submitted that there was specific contention of the respondent before the Labour 10 Court that some of the junior persons to him, are appointed and given continuity in the service, however, petitioner's services came to be terminated and therefore, it was necessary on the part of the petitioner to produce seniority list before the Labour Court and since no seniority list was produced before the Labour Court, adverse inference was drawn against the petitioner. The learned counsel further submitted that it is not permissible to produce on record any documents before this court since those were not produced before the Labour Court. The learned counsel further submitted that chart which is produced on the record by the petitioner clearly shows that the respondent herein has worked for more than 357 days in last calender year. The learned counsel further submitted that there is clear violation of provisions of section 25-F of the Industrial Disputes Act by the petitioners by terminating services of the respondent orally without following procedure prescribed u/s 25-F of the Industrial Disputes Act, 1947. The learned counsel further submitted that though this court has granted 11 rule in the writ petition in 2001, no interim relief was granted in favour of the petitioners. The respondent is re-instated in the service in the year 2000 and he is in continuous service till date. The learned counsel invited my attention to the findings recorded by the Industrial Court and submitted that, the Industrial Court has taken a note of the Government Resolution dated 19.10.1996. According to the learned counsel, by virtue of said resolution, the persons similarly situated like petitioner and who are appointed between 1989 to 1994 are made permanent by granting continuity in the service. Therefore, the respondent by virtue of orders passed by the Labour Court granting continuity in the service is in the continuous service for the period 1989 to 1994, is entitled for the benefits mentioned in the said Government Resolution. The learned counsel further submitted that under article 227 of the Constitution, unless it is demonstrated by the petitioner that the findings recorded by the courts below are perverse or illegal no interference is warranted in impugned Judgment and order. 12 11. The learned counsel submitted that this court has rejected writ petition no.4604, 4605 and 4621 of 2004. The facts of those cases are almost similar to the facts of this case. The learned counsel invited my attention to the unreported judgment of this court dated 11.10.2004 in writ petition No.4605/2004 and more particularly to paragraph No.7 of the judgment and submitted that this court taken a note of the fact that the respondents therein had completed 10 years of service by the time when petition was finally heard, and therefore court observed that “it will be travesty of justice if the petitions are entertained after lapse of 10 years from the original order and that too when there is no plausible explanation forthcoming for seeking condonation of delay before the Industrial Court and there is no explanation given in the writ petitions as to why petitioner took two years to approach this court.” Therefore, in that case, court declined to entertain the writ petitions observing that if the writ petitions are allowed, the workers who are working in the forest department at least for more than two decades will 13 have to be dislodged which cannot be done by this court in its extraordinary jurisdiction conferred by the Constitution and ultimately this court rejected those petitions. The learned counsel further invited my attention to the order passed by this Court in LPA St. No.1531/2005 and LPA St No. 1524/2005 and submitted that the LPA which was filed challenging the judgment and order in above mentioned writ petition nos. 4604, 4605 and 4612 was dismissed by the Division Bench and against that state filed SLP (Civil) No.15881/2006 which was also dismissed by the Supreme Court by an order dated 29.09.2006. Therefore the counsel for the respondent submitted that this writ petition also deserves to be dismissed. 12. The learned counsel further submitted that documents which were not filed before the courts below cannot be allowed to be filed and prayer to place those documents on record cannot be entertained in view of the pronouncement of the Supreme Court in 14 case of Karnani Properties Ltd V/s State of West Bengal and others reported in AIR 1990 SC 2047. The learned counsel further submitted that whether any department of the State is industry or not is a mixed question of law and facts and unless necessary pleadings/evidence is brought on record, before the lower court, it is not open to the petitioner to agitate this point first time before this Court.The learned counsel further submitted that the reliance placed by the AGP on reported judgment of the Supreme Court in case of State of Gujarat and others V/s Pratamsingh Narsinh Parmer reported in 2001 (I) CLR 968 is wholly misplaced in the facts of this case. The learned counsel submitted that facts of the present case are more akin to Jagannath Kondhare's case reported in AIR 1996 S.C. 2898 in which Supreme Court held that The activities of the plantation carried out by the State department cannot be termed as sovereign function and therefore in that case the Supreme Curt held that respondent-employee was right in invoking jurisdiction of the industrial court. Therefore, the learned 15 counsel appearing for the respondent submitted that, writ petition is devoid of any merits and same deserves to be dismissed. 13. I have heard the learned AGP for the petitioner and counsel appearing for the respondent at length. The perusal of award passed by the Labour Court would show that after reference was received from Deputy Commissioner of Labour, Aurangabad, the office of the Labour Court issued notices to both the parties. In response to the same, the second party workman appeared before the court and filed his statement of claim at Exh.U-2 on 16.08.1990. 14. In said statement of claim, the respondent herein asserted that there are more than 200 daily wages workers working with the petitioner in different divisions. The respondent herein was employed with the first party i.e present petitioner, as a labour, watchman in Khultabad Division, w.e.f 01.07.1986. He was allotted work on Borgaon to Kannad road to keep watch on road side trees from 01.07.1986 to 10.12.1987 continuously without any break. According to the 16 respondent-claimant, the work assigned to the respondent is of permanent in nature for 12 months in a year. Though his services were satisfactory, and work is available, the officer of the petitioner terminated his service by giving him written termination order dated 11.12.1987. 15. It was the specific contention of the respondent before Labour Court that while terminating his service from 11.12.1987 the employer has not given him one month notice nor paid him notice pay in lieu of notice and also not paid him retrenchment compensation as per section 25F of the Industrial Disputes Act, 1947. The petitioner herein has not considered the seniority list of the employees at the time of terminating the services of the respondent. Junior to respondent were retained by the petitioner at the time of terminating the service of the respondent. The petitioner herein has also not published seniority list as per rules 81 of the Industrial Disputes ( Bombay) Rules, 1957 and violated the provisions of Section 25G of the Industrial disputes 17 Act, 1947. Before terminating the services of the respondent, no any enquiry was conducted or notice was given to the respondent. The respondent contended that, even the principles of natural justice were not followed while terminating the services. 16. It is specifically observed by the Labour Court in paragraph No.4 that the employer who is duly served did not file written statement or laid the evidence. The court has further noted that the officer of the petitioner herein did appear before the court and filed application at Exh.U -21 on 07.10.1993 for adjournment however no written statement was filed till 04.06.1996 and therefore the court passed the order of ‘No W.S.’. 17. In paragraph No.5 of the judgment the court has observed that inspite of notice issued on an application below Exh.U-3, filed by the respondent on 04.09.1996 seeking direction to the petitioner herein to produce the documents from the custody as enlisted therein i.e. attendance register the payment vouchers, receipts, seniority list etc, 18 no documents were produced by the petitioner before the Labour Court, no say was filed and therefor adverse inference was drawn against the petitioner. Therefore, in absence of any written statement by the present petitioner, or evidence, the Labour Court passed the order directing the petitioner herein to re-instate the respondent in service with continuity of service within one month from the date of publication of the award. Said order came to be passed on 12.06.1997. Therefore, on perusal of the award and order passed by the Labour Court, it clearly appears that the petitioner did not participate in the proceedings before the Labour Court and ultimately, the Labour Court in absence of any written statement or evidence what so ever by the petitioner answered the reference in favour of the respondent. 18. The present writ petition challenging the award of the Labour Court dated 12.06.1997 is filed on 08.11.2001 i.e almost after four years with no any explanation what so ever for delay in filing writ petition. That apart, the writ petition does not offer any explanation for 19 not filing written statement before the Labour Court or not leading evidence. Therefore, the contentions of the respondent that the writ petition which is filed after four years of passing of the award by the Labour Court, without any explanation for not filing written statement before the Labour Court is required to be rejected has considerable force. The learned counsel for the respondent is justified in placing reliance on paragraph No.7 of the judgment in writ petition No. 4605/2004 of this court in which almost facts are similar as case in hand. Paragraph No.7 of the judgment by this Court in writ petition No. 4605/2004 dated 11.10.2004 reads thus :- “7. I am afraid this contention is not available to the petitioners because on the facts as brought on record. It is apparent that initial order was passed in October, 1994 and in one matter, June 1995,. Pursuant to the said orders the workers are working with the Forests Department and thereby have virtually completed the service of 10 years, by now. Keeping in view of this aspect, it will be travesty of justice if the petitions are 20 entertained after lapse of ten years from the original order and that too when there is no plausible explanation forthcoming for seeking condonation of delay before the Industrial Court and there is no explanation given in the Writ Petitions as to why petitioners took two years to approach this Court. In view of this aspect, the question that fall for my consideration is whether this Court can exercise its extraordinary jurisdiction conferred on it by Article 227 of the Constitution of India. In my judgment, the workers who were working with the Forests Department i.e petitioners, at least from 1974, 1988, 1983, 1984 and 1985 and the complaints were filed in the court in the year 1990. Taking into consideration this aspect, in my judgment, this is not a fit case to entertain these petitions. By entertaining these petitions, the workers who are working in the Forests Department at least for more than two decades will have to be dislodged which cannot be done by this Court in its extraordinary jurisdiction conferred by the Constitution. Keeping in mind, this aspect, in my judgment, there is no substance in the petitions.” 21 19. In the present case also, writ petition is filed after four years. In this writ petition, no interim is relief is granted in favour of the petitioner. The respondent came to be re-instated again in service in the year 2000 and by this time he has almost put in 10 years service. Therefore, the observations of this Court in paragraph No.7 in afore stated judgment are squarely applicable in the instant case also. It would be relevant to mention that against the said judgment and order in writ petition no.4605/2004, LPA was filed, same came to be dismissed and against the said LPA even Special Leave Petition filed before Supreme Court being SLP (C) NO.15881/2006 was also dismissed on 29.09.2006. 20. Since the petitioner herein did not file written statement before the Labour Court or no evidence was laid therefore, it will have to be presumed that the statement of claim filed by the respondent herein before the Labour Court went uncontroverted. So far any new document or any new facts on behalf of the petitioner in this petition will 22 have to be kept aside without any reference to said facts or documents. 21. On perusal of the statement of claim filed by the respondent, it clearly appears that there was a systematic endeavor on behalf of the respondent to contend that activities carried out by the petitioner department are other than its sovereign function discharged in routine manner. Since there was no reply what so ever by the petitioner herein to the said averments, it is not open for the petitioner to agitate that the activities and work which was assigned to the respondent under scheme was sovereign function of the petitioner department. 22. It is also relevant to mention that during pendency of this writ petition, the respondent herein approached to the Industrial Court, Aurangabad by filing complaint ULP No.295/1999 for execution and implementation of the award passed by the Labour Court. The Industrial Court by its judgment and order dated 28.02.2005 allowed the complaint filed by the respondent herein and the petitioner was 23 directed to implement the award within two months from the date of order i.e. 28.02.2005. The present petitioners amended the writ petition as well as prayer clause adding new ground and adding new prayer clause however, it appears that there is no any interim order in favour of the petitioner. Therefore, nett result of the order passed by the industrial Court was to implement the award of the Labour Court. 23. Though the learned AGP has vehemently submitted that there is no post for which the petitioner was appointed or there are no sanctioned post and petitioner was given work only under scheme, has not been proved by the petitioner by filing written statement or by leading evidence before the Labour Court. In absence of such exercise, the contentions of the petitioner that the respondent was appointed under scheme and not on regular post, has little force. Though the learned AGP has vehemently argued that the petitioner department cannot be termed as industry and provisions of section 25- F of the Industrial Disputes Act are not applicable is required to be 24 rejected. Whether the particular department is industry or not is a mixed question of law and facts and therefore, in absence of any contentions raised before the Labour Court that the activities under taken by the petitioner is sovereign function, it cannot be said that the work under taken by the petitioner in which respondent was working is sovereign function. 24. The learned AGP in