1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3881 OF 2008 The State of Maharashtra through Dy. Conservator of Forest. ..Petitioner. Vs. Ramdas Chindha Khairnar ..Respondent. .... Mr. D.A. Patil, AGP for the State – Petitioner. Mr. Bhavesh Parmar for the Respondent. .... CORAM: DR. D.Y. CHANDRACHUD, J. 29th September, 2008. P.C. : 1. Rule, made returnable forthwith. Counsel appearing for the Respondent waives service. By consent of the learned counsel, taken up for hearing and final disposal. 2. The State of Maharashtra has instituted these proceedings in order to challenge an order passed by the Industrial Court at Nashik on 21st February, 2006 in a complaint of unfair labour practices under items 5, 6, 9 and 10 of Schedule IV to the Maharashtra Recognition of Trade Unions and Prevention of 2 Unfair Labour Practices Act, 1971. 3. The case of the Respondent was that he was employed by the establishment under the Deputy Conservator of Forests at Nashik since June 1985 as a daily wager. According to the Respondent he was transferred to Malegaon and then to Satana range and was engaged on daily wages as a forest worker. According to him the work was of a permanent nature and he had completed 240 days' service each year. 4. The Petitioner filed a written statement denying that the activities of the Forest Department constitute an industry within the meaning of Section 2(j) of the Industrial Disputes Act, 1947. The Industrial Court framed the issues and the second issue was to the following effect : “Does the respondent prove that the complaint is not maintainable?” 5. While answering the aforesaid issue, the Industrial Court 3 held that the Petitioner herein had made no attempt by leading documentary or oral evidence to establish under what circumstances the activities in Forest Department do not fall within the definition of industry. 6. On behalf of the Petitioner, the order of the the Industrial Court is sought to be questioned by submitting that in the complaint which was filed by the Respondent, there was not even an averment to the effect that the activities in the Forest Department constitute an industry under Section 2(j). Hence, it was submitted that there was neither any pleading nor any evidence to that effect. With the assistance of the learned counsel this Court has perused the complaint filed by the Respondent before the Industrial Court, a copy of which is annexed at Exhibit A. Prima facie, it would appear from a reading of the complaint that there is absolutely no averment as regards the activities of the Forest Department being an industry within the meaning of Section 2(j). Counsel appearing for the Respondent has not been in a position to controvert this position. There is merit in the submission 4 that the Industrial Court was in error in casting the burden upon the Petitioner of establishing that the Forest Department is not an industry within the meaning of Section 2(j). In the absence of a pleading on the part of the Respondent, the observations contained in the judgment of the Supreme Court in State of Gujarat v. Pratamsingh Narsinh Parmar1 must govern. In that view of the matter, the alternative submission which was urged on behalf of the Respondent was that in such an event it would be appropriate for this Court to remit the proceedings back to the Industrial Court with a view to enable the Respondent to amend the complaint and to make appropriate averments. This course of action would appear to be fit and proper. In these circumstances, the impugned order of the Industrial Court dated 21st February, 2006 (Exhibit C) is set aside. Complaint (ULP) 23 of 2001 is restored to the file of the Industrial Court. Parties are directed to appear before the Industrial Court for receiving directions on 28th October, 2008. The Industrial Court shall endeavour disposal of the complaint expeditiously within a period of four months. The Petition is disposed of in the aforesaid terms. 1 2001 (4) SCC 227. 5 All the rights and contentions of the parties are kept open. *****