Civil Writ Petition No.3859 of 1987 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** Civil Writ Petition No.3859 of 1987 Date of Decision:15.09.2008 Bachna Ram .....Petitioner Vs. Presiding Officer, Labour Court, Ambala and another .....Respondents CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present:- Mr. J.C. Verma, Senior Advocate with Ms. Meenakshi Verma, Advocate for the petitioner. Mr. Rajnish Narula, Advocate for respondent No.2. **** HARBANS LAL, J. This petition is moved by Bachna Ram under Articles 226/ 227 of the Constitution of India for quashing the impugned award dated 13.3.1987 (Annexure P.6) being illegal and without jurisdiction. The brief facts giving rise to this petition are that Bant Ram, the present respondent joined employment of Bachna Ram as a Hali on his agricultural land. Bachna Ram agreed to pay 1/5th share of the total crop to be produced to Bant Ram. All the expenses on the agriculture were to be borne by Bachna Ram. Bant Ram being illiterate did not know as to how much quantity of different crops of what value has been obtained by Bachna Ram. So by moving an application under sub-Section 2 of Section 33-C of the Industrial Disputes Act, 1947 (for short, `the Act') claimed minimum wages at the rates fixed by the Haryana Government under the Minimum Wages Act, 1948 for the period shown in the award. Bachna Ram came up with the plea that the application is not maintainable as the agriculture Civil Writ Petition No.3859 of 1987 -2- labour does not come within the purview of the Act. The applicant was employed as a crop sharer, so, no relief is available to him under the Act. Similar claim was filed by him in the Labour Office, Kurukshetra under the appellate authority, which has been dismissed as withdrawn. It was also alleged that he never worked as a crop sharer on the agriculture land of Bachna Ram so he is not entitled to any wages. The following issues were framed:- 1. Whether applicant is entitled to relief claimed for, if not its effect? 2. Whether application is not maintainable? OPR 3. Whether there is no relationship of employer and employee between the parties, if so its effect? OPR 4. Whether Labour Court has got no jurisdiction to try this dispute? OPR 5. Whether application is barred by the principle of resjudicata, if so its effect? 6. Relief. After hearing the representatives of the parties and perusing the oral as well as documentary evidence, the learned Presiding Officer of the Labour Court passed the impugned award allowing a sum of Rs.10,000/- to Bant Ram. Feeling aggrieved therewith, Bachna Ram has preferred this petition. In the written statement, Bant Ram has inter-alia pleaded that the petitioner is not a small farmer but a big landlord. He had been engaging the persons in his employment and the answering respondent was also in his employment. The answering respondent has based his claim on Civil Writ Petition No.3859 of 1987 -3- the minimum rates of wages. Thus, the petitioner being a employer comes within the definition of `industry'. There is ample evidence on the record to prove that the petitioner has 24 acres of land and running the agricultural operations as a trade and business by investing capital and employing the labour and thus falls under the definition of Section 2(j) of the Act. It is settled law that neither Section 24 of the Minimum Wages Act, 1948 nor Section 22 of the Payment of Wages Act, 1948 bars the jurisdiction of the Labour Court to entertain and adjudicate upon an application under Section 33-C(2) of the Industrial Disputes Act. The answering respondent has claimed the wages on the minimum rates which has been fixed. Lastly, it has been prayed that this petition may be dismissed with costs. I have heard learned counsel for the parties, besides perusing the findings returned by the learned Presiding Officer of the Labour Court with due care and circumspection. Mr. J.C. Verma, learned Senior Advocate appearing on behalf of the petitioner argued with a good deal of force that the petitioner is a small farmer cultivating his land measuring about five and half acres. The relationship of employer and employee has been denied and that being so, the labour Court was not empowered to entertain the application under Section 33(C)(2) of the Act. Such application does not fall under the purview of the Act. Even if Bant Ram is assumed to be a `Siri' of the petitioner, the Industrial Court had no jurisdiction to entertain the application when such an application had already been dismissed by the authorities under the Payment of Wages Act. The activities of the petitioner in cultivating his own land do not fall in the industry as is defined under Section 2(j) of the Act. In these premises, the award is liable to be quashed. Civil Writ Petition No.3859 of 1987 -4- He further pressed into service that the principle of res-judicata is applicable to the act and withdrawal of the earlier application made by respondent No.2 in view of the observations made in re: Super Surgical Co., v. Desikan and another, 1969 Lab. I.C. 1347. To tide over these submissions, Mr. Rajnish Narula, Advocate appearing on behalf of respondent No.2 maintained that the petitioner is holding as much as 24 acres of land and he is running agricultural operations as a trade and business by investing capital and employing the labour and that being so, the case of the respondent, Bant Ram falls within the definition of Section 2(j) of the Act. I have given a deep and thoughtful consideration to the rival contentions. The most crucial question to be determined herein is as to whether the relationship of employer and employee did subsist between the parties. It is own case of respondent No.2 that he was engaged as a Hali by the petitioner who had agreed to pay him one fifth share of total crop to be obtained by them. It would be apparent on the face value of these facts, that the respondent- workman was a Siri with the petitioner. The meaning of the word `Siir' as given in Punjabi English Dictionary published by Punjabi University, Patiala is `partnership'. As a matter of fact, Siri is known as a partnership in joint cultivation. Obviously, as alleged by the respondent- workman, he was to get one fifth share of the total crop. It implies that the relationship between the parties was not of employer and employee rather of partners in the joint cultivation. If we go by common sense, a partner cannot be considered to be a servant/ employee. There is no denying the fact that the respondent- workman had filed an application in Labour Office, Kurukshetra which was dismissed as withdrawn by him. In re: Harinagar Civil Writ Petition No.3859 of 1987 -5- Cane Farm v. The State of Bihar and others, AIR 1964 Supreme Court 903, it has been ruled as under:- “It has been urged by the respondents that this decision supports their argument that S.2(j) includes all agriculture and agricultural operations, and in support of this proposition, they have invited our attention to the statement in the judgment delivered by Chandrasekhara Aiyar J., where it is observed that the concept of industry in the ordinary non-technical sense applies even to agriculture horticulture, pisciculture and so on and so forth. We are not impressed by this argument. The context in which this sentence occurs shown that the Court was there dealing with the ordinary non-technical sense according to what is understood by the man in the street as the denotation of the word `industry' or business,and so, the observations made in that connection cannot be taken to amount to the broad and unqualified proposition that agriculture of all kinds is included in S.2(j). It can be culled out from these observations that agriculture of all kinds is not included in Section 2(j) of the Act. After surveying the entire law on the point including Harinagar Cane Farm's case (supra), it has been held in re:- Maheswar Rao and others v. State of Orissa and others, 1974 Lab I.C. 1512, that “it has also been settled that for determining whether an organisation is an industry or not, it must be ascertained as to whether its activity partakes the nature of a business or trade or is an undertaking or manufacture or calling of employers. If it is that and there is cooperation of the employer and the employee resulting in Civil Writ Petition No.3859 of 1987 -6- the production of material services, it is an industry. From the decisions it would appear that unless agriculture is adopted as a business or calling, the operations in the hands of the petitioners No.2, 3 and 4 cannot partake the character of industry. It would, therefore, follow that the petitioners do not run any industry and any dispute in regard to employment under them would not constitute “industrial dispute” within the definition of that term under the Industrial Disputes Act. The referring authority without application of mind and without examining the facts of the case suddenly proceeded to make the reference in exercise of powers vested in it under the Act.” Adverting to the facts of the case in hand, as noted supra, the relationship of employer and employee did not exist between the parties. The respondent- workman was to get share from the produce. This fact in itself is sufficient to describe him as a partner. There is nothing on the record to show that the agriculture being adopted by the petitioner was a business or calling. That being so, the operations in his hands cannot be described to be an industry. The learned Presiding Officer has relied upon Harinagar Cane Farm's case (supra). From the observations rendered therein, it follows that agriculture of all kinds is not included in Section 2(j). As a matter of fact, M/s Harinagar Cane Farm had been purchased by the Harinagar Mills Limited in March, 1956 and since then it was functioning as a department of the said mills. M/s Motipur Zamindari Co. (Pvt.) Ltd. was a private limited company registered under the Indian Companies Act. Herein, it is not the case of the respondent- workman that the petitioner is a company carrying on the business of agricultural operations, so the facts of that case are distinguishable from the one in hand. To conclude, the provisions of the Act are not attracted to the facts of the instant case. Civil Writ Petition No.3859 of 1987 -7- In re: M/s M.D. Oswal Hosiery (Regd.) v. D.D. Gupta, 1994 (3) SCT 504, it has been observed that Section 33-C(2) of the Act applies when the workman has an existing established right to receive from employer any money or benefit which is capable of being computed in terms of money and in such eventuality, he can move the Labour Court for release of amount due to him. Once there is an admission of the existing right of workman by employer in regard to the benefit which the former is entitled to receive from the latter, Section 33-C(2) of the Act would come into play. Harking back to the facts of the present case, the workman has not adduced any evidence before the Labour Court showing that he has an existing right to receive from employer any money. To add further to it, the alleged employer has not admitted the existing right of the workman in regard to the benefit claimed by him. The petitioner has rather denied the employment of the workman- respondent. Thus, in view of the observations extracted from D.D. Gupta's case (supra), the application moved by the respondent- workman before the Labour Court under Section 33-C(2) of the Act was not maintainable. In view of the above discussions, the interference under Articles 226/227 of the Constitution of India is warranted. Sequelly, the impugned award dated 13.3.1987 (Annexure P-6) is set aside and this petition is allowed. September 15, 2008 ( HARBANS LAL ) renu JUDGE