CW 2828/06 //1// In the High Court of Judicature for Rajasthan Jaipur Bench ** Civil Writ Petition No.2828/2006 Murari Lal Napit Versus Dy. Forest Conservator Sawai Madhopu, Labour Court, Bharatpur & Anr. Date of Order ::: 21/01/09 Hon'ble Mr. Justice Ajay Rastogi Mr. S. Zakarwat Ali, for petitioner Mr. JK Agrawal, Addl. Govt. Counsel, for respondent-State At joint request, matter has been finally heard at admission stage. Instant petition has been filed by workman assailing Award dt.01/10/05 (Ann.3) passed by Labour Court, Bharatpur, declining to answer Reference made by appropriate Government (LCR-266/97) while holding that Department of Forest is not an ”Industry” U/s 2(j) of the Industrial Disputes Act, 1947 (“the Act”). As alleged, after having worked with the respondent NO.2 from 01/06/87 to 28/02/93 petitioner-workman was terminated from service w.e.f. 01/03/93 – against which he approached Conciliation Officer, on whose failure report, Reference was made by appropriate Government vide notification dt.17/09/97. After taking note of material on record, and hearing the parties, vide Award impugned, the learned Labour Court after holding that employer Department of Forest CW 2828/06 //2// is not an “industry”, declined to answer the reference. Counsel for petitioner submits that in the absence of objection having been raised by respondent Department in their written statement before Labour Court, the petitioner (workman) was precluded from placing material on record to justify that nature of work being undertaken by his employer (department) where he was posted, is an “industry” covered U/s 2(j) of the Act while the Labour Court proceeded merely based on oral submission and it being a mixed question of law & facts and in the absence of supporting material on record; as such very finding recorded by learned Labour Court in its Award impugned of holding the Department of Forest being not an industry is totally perverse and deserves to be set aside. Counsel also submits that the issue raised herein has been decided by this Court in Babulal Vs. Labour Court (CWP- 9132/05 & (8) cognate cases, decided vide order dt.25/01/06, wherein it has been observed ad infra: “It is true that if the dispute has been raised as to whether a particular establishment or part whereof the recruitment has been made is an 'industry' or not ? Primarily it is for CW 2828/06 //3// the person concerned who claims protection under the Act, to give positive facts for coming to the conclusion that the establishment where he had worked is an 'industry' U/s 2(j) of the Act of 1947 and such duties undertaken are not sovereign function of the State. But, in the present case, indisputably no objection was raised by the respondents in their written statement. In the absence of which, there was no opportunity available to the workman to prove and place material for establishing the fact that nature of work undertaken is not sovereign function of the State and it is an industry within the meaning of Section 2 (j) of the Act of 1947 and the learned Labour Court has committed an error in proceeding to examine the issue without there being factual material on record and merely on the basis of oral submissions made by the parties.” Keeping in view aforesaid aspect of there being no factual material placed on record, this Court remitted the matter back to the Labour Court for adjudication of dispute on merits after affording opportunity of hearing to the parties. Per contra, Government Counsel without disputing the decision of this Court in Babulal Vs. Labour Court (supra), however, submits that an opportunity be afforded to the employer department to raise additional pleas to its CW 2828/06 //4// written statement to the claim, as well. I have considered contentions of Counsel for both the parties and with their assistance, pondered over material on record. Facts almost are not in dispute as is apparent from written statement (Ann.2) filed by respondent-Department before Labour Court that no objection was raised, whether the establishment where workman (petitioner) was posted is an “industry” U/s 2 (j) of the Act or not; and merely oral submissions were made – on the basis whereof, vide Award impugned, Labour Court held that respondent Department of Forest is not an “industry” U/s 2(j) of the Act. In the absence of material in support thereof and opportunity being afforded to petitioner workman to come out with his defence placing material and other documents on record to establish that place of his working in Department of Forest is an “industry” U/s 2(j) of the Act and is within his right to invoke provisions of the Act, the finding recorded by learned Labour Court is not legally sustainable. In the light of what has been observed (supra) by this Court in Babulal Vs. Labour Court, the writ petition is allowed and Award dt.01/10/05 (Ann.3) in LCR-266/97 is hereby set CW 2828/06 //5// aside. Matter is remitted back to the Labour Court, Bharatpur for adjudicating the dispute on merits after affording opportunity of hearing to the parties who will be free to raise their additional pleas in support of their respective claim/counter claim to the dispute under Reference made by appropriate Government, if so advised. Both the parties are directed to appear before Labour Court, Bharapur on 16/03/09. Since the dispute is old one, Labour Court is expected to decide it expeditiously. A copy of this order be sent to the Labour Court for compliance, alongwith record, if received. No order as to costs. (Ajay Rastogi), J. K.Khatri/p.5/2828CW06-21Jn-IDFrst.doc