IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 2643 of 1985 For Approval and Signature: Hon'ble MR.JUSTICE J.N.BHATT ============================================================ 1. Whether Reporters of Local Papers may be allowed to see the judgements? 2. To be referred to the Reporter or not? 3. Whether Their Lordships wish to see the fair copy of the judgement? 4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? -------------------------------------------------------------- LAXMAN N GOL Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 2643 of 1985 MRS DT SHAH for Petitioner MR MANKAD ASSITT.GOVT.PLEADER FOR RESPONDENTS -------------------------------------------------------------- CORAM : MR.JUSTICE J.N.BHATT Date of decision: 30/09/96,1-3/10/1996 ORAL JUDGEMENT Whether termination of service of a daily rated driver who has worked for more than five years in the Public Works department of the State of Gujarat is violative of provisions of Sections 25-F,25-G,25-H and 25-T of the Industrial Disputes Act,1947 ('ID Act') and whether it is also as a result of unfair labour practice employed by the respondent-State and whether the State has infringed the provisions of Sections 2(j),2(s), 25-D and 2(ra) of the ID Act are main questions raised in this petition under Article 226 of the Constitution of India. A resume of material facts may firstly be stated at this stage. The petitioner came to be appointed as a driver in the office of the Deputy Executive Engineer, Sub-Division 19,Capital Project of the Public Works Department, Gandhinagar ,respondent No.2, on 21.1.1979, The petitioner thereafter continuously had worked from 1979 to 1984 as a driver. His services as a driver came to be terminated with effect from 31.1.1985.He was as such initially appointed as a daily rated driver. The order of termination of services came to be passed by respondent No.2. The case of the petitioner is that he has continuously worked as daily rated driver and he was orally assured by the employer that he will be regularised and necessary orders will be issued in due course of time. Instead of getting the order of regularising or confirming him, he received a letter of termination from respondent No.2. The petitioner has also contended that he was taken as a driver on daily rated basis and it is also contended that he was appointed on 29 days basis with artificial intermittent breaks and thereby , he is deprived of benefit of regularisation and permanent service. The petitioner was working even on the last day of the month, but salary was not paid to show break .on record. It is in this context that the petitioner has contended that respondent-authority has exploited and has employed unfair labour practice in keeping the petitioner on daily rated basis and by showing artificial breaks on record. The petitioner is not paid any compensation or any notice pay or any monetary benefits. It is also the case of the petitioner that following three junior drivers working on daily rated basis came to be absorbed as permanent employees by respondent No.2: (i) Umedji Jagatji (ii) Gulabji Thakore, and (iii) Bachu Ravar. The junior most employee-driver Bachu Ravar is still working as driver on the post on which the petitioner was working before his termination. Therefore, it is contended that the impugned order of termination of his service is violative of provisions of Articles 14,16,38,39,4l and 311 of the Constitution of India and also against the provisions of Sections 25-B, 25-F, 25-G,25-H and 25-T of the ID Act.It is also submitted that Capital Project Division of Public Works Department of State is doing public utility services and, therefore, it is an Industry. The respondents have controverted the averments made in the petition by filing affidavit-in-reply.It is inter alia contended by the respondents that the petitioner's services are legally and validly terminated and he has no right to seek extra-ordinary remedy under Article 226 of the Constitution. According to the case of the respondents, the petitioner was taken on nominal muster roll as a driver since 14.2.1979 on daily rated basis. However, the impugned order of termination came to be served on him in January 1985 as 12 trucks and trailers were rendered unserviceable. Therefore, service of the petitioner and others who could not be assigned any duty were required to be terminated. His services were terminated by serving notice of one month. The respondents have also contended that no driver working on nominal muster roll has been given appointment on permanent post on work charge establishment. The appointment to the post of driver could be given from amongst the persons whose names have been recommended either by the Employment Exchange or by Social Welfare Department. Names of such eligible persons were called for from the Employment Exchange and Social Welfare Department and after holding interview, those who were found suitable were appointed as work charge drivers.It is the case of the respondents that the petitioner could not be given any regular appointment. It is denied that the petitioner was given assurance for permanent posting. The petitioner was granted only weekly off and medical treatment and no other benefits. He was paid wages according to approved rate alongwith D.A. There has been gradual increase in D.A. and therefore, the petitioner was given rise in wages. It is denied that any single day's artificial break has been given to the petitioner. The allegation of unfair labour practice is also denied. It is also contended that the said Capital Project and the department is not an 'Industry' and therefore, the ID Act would not apply. It is also contended that no driver working on nominal muster roll has been given any regular appointment. It is also denied that the petitioner had been appointed on 29 days basis and artificial breaks were marked on every 30th day of the month. However, it is also contended that he petitioner was appointed on daily rated basis and his absence was marked on the day he remained absent except weekly offs. It is not disputed that junior Bachu Ravar has been appointed on work charge establishment , but it is contended, after following the requisite procedure. In counter-affidavit, the petitioner has further challenged that Bachu Ravar was initially appointed as a daily wager and subsequently, he was made permanent on work charge establishment and without following any other procedure and formality. It is also contended in the rejoinder that the petitioner was appointed on the basis of 29 days with artificial breaks and that division of R & B where he was working is an'Industry'. It is also contended by the petitioner that the respondents had not appointed anybody amongst drivers working in the project on the basis of recommendations from the Employment Exchange or from the Social Welfare Department. It is also averred by the petitioner that junior drivers like Umedsingh Jagatsinh, Gandaji Thakore and Bachu Ravar are not appointed on the basis of any recruitment rules and his case was not considered and his juniors were retained in their employment and their services were regularied and are given permanency benefits. The following contentions are raised by the learned counsel Mrs.Shah for the petitioner: (i) That the impugned order of termination is violative of provisions of Section 25-F of the ID Act and,therefore, it is null,void and illegal. (ii) That while terminating the services of the petitioner,his juniors are retained in service and therefore, the impugned order isalso violative of Section 25-H and G of the ID Act. (iii) That the petitioner is entitled to reinstatement with full back wages with all incidental benefits of continuity of service in view of unfair labour practice. The learned Assistant Government Pleader Mr. Mankad while appearing for the respondents has raised the following contentions; (i) That the Capital Project of Public Works Department cannot be said to be an 'Industry'. It was a sovereign function of the State. (ii) That the petitioner cannot be said to be a 'workman' and,therefore, there would not arise any adjudication of an industrial dispute under the ID Act. (iii) That the petitioner's services were terminated on the ground that there was no work as 12 vehicles had become unserviceable. (iv) That the petitioner is not entitled to any relief under the ID Act.He has no right to hold the post as he was on daily rated basis and his services could be dispensed with at any time. (v) That the petitioner is not entitled to any relief under Article 226 of the Constitution of India and whether there was any violation of provisions of Section 25-F of the ID Act or not is not a pure question of law. (vi) That the petitioner should be relegated to other appropriate available alternative remedy under the Labour Law. Before examining the rival versions,it would be expedient at this stage to highlight a few facts : (i) that the petitioner came to be appointed as a driver on daily rated basis in the capital project division of R & B at Gandhinagar on 14.2.1979. (ii) the petitioner continuously worked as a driver in the said division from 1979 to 1984' (iii) the services of the petitioner came to be terminated with effect from 31.1.1985 after service of one month's notice. (iv) the petitioner was paid wages according to approved rate with D.A. (V) there had been gradual increase in the DA and,therefore, there was increase in wages of the petitioner.He was also granted weekly off and medical treatment. (vi) junior to the petitioner one Bachu Ravar came to be retained and his services came to be regularised. It is true that ordinarily, a workman has to pursue regular remedy available to him under the Labour Laws when the facts are in dispute. Therefore,ordinarily,the writ court will not entertain such a petition in a case of disputed facts and when alternative efficacious remedy is available. However, in the present case, there is no such impediment or hurdle in entertaining and adjudicating the petition on hand in absence of disputed questions of facts. Thus,in view of the facts and circumstances, which are not in dispute,or without any further investigation into the facts, the controversy or dispute raised in this petition under Article 226 could be successfully resolved. In the circumstances emerging from the record of the present case, it would not be expedient and desirable to relegate the petitioner to the remedy under the Labour law and that too after 11 years of legal battle in this court. For all these reasons, this court is inclined to entertain the present petition under Article 226. With the result, the objection with regard to maintainability of petition under Article 226 of the Constitution is required to be rejected. Again, the contention that the petition is not maintainable under Article 226 of the Constitution of India , as alternative remedy is available is not acceptable in view of the peculiar facts and special circumstances emerging from the record of the case. It is true that alternative remedy under Labour Law is available. Ordinarily, when efficacious alternative remedy is available, the court would not like to entertain the petition exercising the extraordinary, equitable, special,prerogative writ jurisdiction wherein the scope of judicial review is also circumscribed. However, it may be remembered that notwithstanding availability of alternative remedy, court can interfere in a given case if exceptional and extra-ordinary circumstances so arise. There is no ban or bar against exercise of jurisdiction when alternative remedy is available. Discretion vests in the High court to entertain a petition notwithstanding existence of such alternative remedy. This proposition of law is also very well celebrated and established since long. The apex court as early as in 1961 in A.V.Venkatswaran vs. R.S.Wadhwani,AIR 1961 SC 1506 has clearly held that despite existence of alternative remedy, it is open for the High court to exercise discretion to entertain a petition under Article 226 of the Constitution in a given case.Not availing alternative remedy does not disqualify or disentitle the petitioner consideration of his petition. Again the petition came to be admitted after hearing the respondents in 1985.More than a decade has passed. Therefore, it is not proper to dismiss the petition on the technical ground of availability of alternative remedy and to relegate the petitioner to pursue alternative remedy which again may take a decade or so. In case of nullity or order which is void ab initio or any ultra vires order, alternative remedy cannot be allowed to constitute a bar to entertain the petition and when the action under challenge is manifestly unjust,patently illegal, ex-facie null and void, the High court could entertain the petition despite existence of alternative remedy.In " Maheshkumar Chauhan vs.Prantij Municipal Borough,1996 (1) GLH 951, a petition was directly entertained though alternative remedy was available in view of the facts and circumstances of the case. The contention threfore that this petition is not maintainable is rejected. Next brings into sharp focus, the question whether Capital Propject Division of Public Works Department(later on R & B) can be said to be an 'Industry' as contemplated by Section 2(j) of the ID Act. As a sequitur to this plea, it was also urged that if respondent No.2 is not running any industry, then, the petitioner who was working under him at the relevant time would not become a workman as contemplated under Section 2(s) of the ID Act. In order to resolve this dispute and controversy, it would be necessary and appropriate to have a close look at the relevant provisions of the ID Act. The very long title of the ID Act shows that it is designed for resolution of industrial disputes. Expression 'industrial dispute' is statutorily defined by Section 2(k) which prescribes that any dispute or difference between employer and employer , or between employers and workmen, or between workmen and workmen which is connected with the employment or the terms of employment or with the conditions of labour,of any person. Along with the definition in Section 2(j) and Section 2(s),it forms the basic frame work of the ID Act. The dispute or difference; to come within the purview of the ID Act must be'industrial' that it must relate to'Industry' as defined in section 2(j) of the Act. A private dispute or a dispute between parties in an establishment which does not constitute industry within the meaning of the ID Act is not an industrial dispute within the meaning of Section 2(k). Section 2(k) reads as under : "'industrial dispute' means any dispute or difference between employers and employers,or between employers and workmen or between workmen and workmen,which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person". It could very well be seen that four following ingredients are required to be established so as to fall in the definition of industrial dispute under Section 2(k):- (a) There should be a dispute or difference, (b) The dispute or difference should be between employer and employer or between employer and workmen or between workmen and workmen. (c) The dispute or difference must be connected with the employment or conditions of labour and (d) of any person. There is no dispute about the fact that the respondents are employers and respondent No 2 had employed the petitioner as a daily rated driver in his division of Capital Project of Public Works Department ,as Deputy Executive Engineer. The question is -whether the petitioner is a workman. For that purpose, definition of expression 'workman' is required to be noted. Section 2(s) reads as under " "2(s). 'workman' means any person (including an apprentice) employed in any industry to do any manual,unksilled, skilled, technical,operatinal, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied,and for the purpose of any proceeding under this Act in relation to an industrial dispute,includes any such person who has been dismissed,discharged or retrenched in connection with,or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute,but does not include any such person- (i) who is subject to the Air Force Act,1950 (45 of 1950) or the Army Act,1950 (46 of 150) or the Navy Act, 1957(62 of 1957)'; or (ii) who is employed in he police service or as an officer or other employee of a prison,or (iii) who is employed mainly in a managerial or administrative capacity' or (iv) who,being employed in a supervisory capacity,draws wages exceeding one thousand six hundred rupees per mensem or exercise,either by the nature of the duties attached to the office or by reason of the powers vested in him,functions only of a managerial nature". The definition of workman,along with the definition of 'Industry' and industrial dispute' forms the basic tripod on which the super structure of the ID Act rests. The present definition was substituted by he I D` Amendment Act,1982, and contains a few drafting changes,but the same would not affect the merits of the case.It could very well be seen from the aforesaid definition of 'workman' that the fact of employment or existence of employer-employee relationship must be clearly established before the status of workman within the meaning of definition under Section 2(s) is claimed. It is an essential condition of a person being a workman within the term of the definition that he should be employed to do work in an industry. In other words, there should be employment of his by the employer and that there should be relationship of employer-employee or between master and servant. Then, he is a workman. Such employment or establishment must be an industry as defined under the ID Act. Section 2(j) defines 'industry'. It would,therefore, be necessary at this stage to refer the said term. Section 2(j) reads as under : "2(j) 'industry' means any business, trade undertaking, manufacture or calling of employees and includes any calling, service,empoyment, handicraft or industrial occupation or avocation of workmen." The definition pin points two essential ingredients of industry- employer and body of workmen. The definition thus has two limbs: in the first part, the approach is from the aspect of an employer and the definition talks of business, trade,undertaking,manufacture or calling of employer. The underlying design and purport obviously is all these terms connote an activity with common and similar characteristics.The second part of the definition talks of calling,service, employment, handicraft or industrial occupation or a vocation of workmen. The purpose of the ID Act is very comprehensive. As observed above, it is in two parts;one part defines it from the standpoint of the employer and the other from the standpoint of the employee. If an activity falls under either part of the definition,it will be an industry within the meaning of section 2(j). The history of industrial disputes and the legislation recognizes the basic concept that the activity shall be an organised one and not that which pertains to private or personal employment. The regal functions prescribed as primary and inalienable functions of State though statutorily delegated to a corporation are necessarily excluded from the purview of the definition. Such regal functions shall be confined to legislative power, administration of law and judicial power. If a service rendered by an individual or a private person would be a an industry it would equally be an industry in the hands of a corporation. If a service rendered by a corporation is an industry, the employees in the departments connected with that service,whether financial,adminisrative,or executive would be entitled to the benefits of the Act. If a department discharges many functions,some pertaining to industry as defined in the Act and other non-industrial activities, the predominant functions of the department shall be the criterion for the purposes of the Act. Industrial disputes revolving around the connotation of the term industry under Section 2(j) of the ID Act came up on several occasions for judicial review but no consensus on the scope of the term has so far been evolved. The industrial activity involved in the disputes ranged from municipal services, research institutions,charitable organisations,religious and philanthropic trusts,commercial bodies like chambers of commerce, professional associations such as those of solicitors,educatinal bodies like University, hospitals including charitable ones and Government and semi-Government agencies.Profit motive seemed the test in some cases while nature of activity such as analogous to trade or industry,as these terms are popularly understood,appeared to be the criteria in some others. The landmark judgment of the Honourable apex court on the definition of 'industry' in Section 2(j) was rendered in "Bangalore Water Supply and Sewerage Board vs. A.Rajappa," 1978 (l)LLJ 349 where the question was whether the Bangalore Water Supply Board of the Bangalore Municipal Corporation was an industry. The said question had come up in connection with an application under Section33-C of the ID Act.The decision rendered in that judgment of the Honourable apex court is very important. It was observed in the said case - "It behoves us hopefully to abolish blurred edges, illumine penumbral areas, and overrule what we regard as wrong. We proceed to formulate the principles deducible from our discussion,which are decisive,positively and negatively,of the identify of an industry under the Act.We speak not exhaustively but to the extent,authoritativey,until over-ruled by a larger Bench or superceded by the legislative branch" The Honourable Supreme court in its judgment in "Bangalore Water Supply case (supra) reviewed what it called 'The rather zigzag cure of the landmark cases and the tangled web of judcial thought that have perplexed one branch of industrial law viz. the basic concept of industry under the Act". After reviewing the historical background of law as it developed in the earlier cases, the apex court formulated its views on the connotation of the term industry in Section 2(j) in the following propositions: (a) where systematic activity organized by cooperation between employer and employee, the direct and substantial element is clerical ; 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 i.e. making on a large scale of 'prasad' or food prima facie there is an industry in that enterprise. (b) absence of profit motive or gainful objective is irrelevant, be the venture in the public,joint,private or other sector. (c) the true focus is functional and the decisive test is the nature of the activity with special emphasis on employer-employee relations' (d) if the organisation is a trade or business it does not cease to be one because of philanthropy animating the undertaking. The petitioner was working as a driver on daily rated basis in Capital Project Division of Public Works Department at Gandhinagar. Considering the observations and guidelines in various judicial pronouncements of the apex court, this court in "P.W.D. Employees' union vs. State, 28(2) GLR 1070 has held that irrigation department of the PWD is an industry. It is observed in the said Division Bench case that merely because the legislative power in respect of National Highways or for that matter State highways is left to the Union or the State Governmment, it would not become such a function that it can be treated as sovereign function strictly understood.It cannot be claimed to be a function akin to the legislative function or judicial function or one akin to the defence of the State or Union.It is further observed that it is difficult to conceive that such an activity can be organised otherwise than by co-operation between employer and employees and in any case, the purpose of such activity is anything else but for the production of services for the welfare of the people so as to enable them to carry on their agriculture and other allied activities in an economic and efficient manner.It was clearly held that concerned irrigation and allied activity in connection therewith is welfare activity or economic adventure undertaken by the Government as contradistinguished from sovereign functions stricto senso.