IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5766 of 2001 The Management of the Forest Plantation Divisional Officer Gaya. .......Petitioner Versus 1. The Presiding Officer, Labour Court, Dalmianagar. 2. Rajendra Prasad Singh, resident of village and P.O.-Karisowa, P.S. Wazirganj, District-Gaya. ......Respondents. --------- For the petitioner: Kumar Uday Bhanu Roy, G.A. 4 ---------- 4. 27.01.2009 Heard parties. In this writ application the award dated 29.04.1999 passed in Reference Case No. 2 of 1993 has been assailed. Counsel for the petitioner with reference to aforementioned prayer has tried to contend that as a matter of fact the very reference made by the State of Bihar in the first occasion on 26th March, 1987 and the consequential award given by the Labour Court in Reference Case No. 6 of 1987 dated 5th December 1989 was wholly without jurisdiction inasmuch as the Forest Department of the State Government in which Respondent No.2 was employed would not fall within the meaning of industry under the Industrial Disputes Act. He has also submitted that it is this aspect of the matter which would render the impugned award in Reference Case No. 2 of 1993 being only subsequent 2 and consequential equally had both on fact and in law. Counsel for the petitioner in this context has submitted that the respondent workman was a night guard in the establishment of Forest Department but the Forest Department as a whole can not be held to be industry in terms of Industrial Dispute Act. He would therefore contend that since this question raised as the first ground by the petitioner before the Labour Court in Reference Case No. 6 of 1987 was not even answered in the award dated 26.3.1987, it must be held that the first award was itself without jurisdiction and consequently any clarification /improvement of that award in the subsequent Reference Case No. 2 of 1993 by passing the impugned award dated 29.4.1999 must be held to be equally bad and unsustainable. The aforesaid ingenious and intelligent submission of the counsel for the petitioner however on being scrutinized would expose a clever attempt on the part of the petitioner to re-open the entire dispute which is only 29 years old. It has to be noted that the respondent no.2, the workman was working as a casual worker as a Night Guard in the Forest Department till the year 1984 and when he was sought to be removed unceremoniously by the authorities of the petitioner, he having failed in the conciliation proceeding, had got a 3 reference made to the Labour Court by a notification dated 26th March, 1987 for an adjudication as to “whether the termination of services of Sri Rajendra Prasad Singh is proper and justified? If not, whether Sri Singh is entitled to reinstatement or any other relief?” It is not in doubt that the said reference made by the State of Bihar in terms of Section 10 of the Industrial Disputes Act (hereinafter to be referred to as “the Act”) led to institution of Reference Case No. 6/1987 wherein after a full-fledged proceeding before the Labour Court, an award was pronounced on 5th December, 1989 holding that termination of services of the aforesaid Rajendra Prasad Singh was illegal and as such, he was fit to be reinstated on a permanent basis. This award dated 5.12.1989 was never challenged by the petitioner on any ground whatsoever and in fact, it was the workman who had moved this Court in a writ application C.W.J.C. No. 12736 of 1992 seeking implementation of award. The petitioner, even after acquiring knowledge of C.W.J.C. No. 12736 of 1992, had not assailed the award dated 5.12.1989 and when this Court had posed a question to the Commissioner- cum-Secretary of the Forest Department as with regard to the implementation of the award dated 5.12.1989, a plea was taken by the then Commissioner Mr. D. P. 4 Maheshwari, I.A.S., that there was some difficulty for the Government in the implementation of the award inasmuch as the respondent no.2, workman on his own showing, was only a casual employee and therefore, the Labour Court was not justified in directing his reinstatement in permanent service. Noticing this submission, this Court had held that the petitioner had an appropriate remedy under Section 36A of the Act for interpretation/clarification of the award dated 5.12.1989. This aspect of the matter is fully born out from the following order passed by this Court on 21.5.1993 in CWJC No. 12736 of 1992:- “In this case Mr. Maheshwari, the Commissioner-cum-Secretary has pointed out that so far as the implementation of the award is concerned there is some difference of opinion between the petitioner and the department involved. In that view of the matter, the appropriate course is to refer in the matter under Section 36 of the Industrial Disputes Act to the Labour Court for interpretation. The Commissioner is accordingly directed to refer the matter to the court concerned by 15th June, 1993. The Commissioner-cum-Secretary Labour Department is further directed to communicate the order to the petitioner in person. This application is accordingly disposed of.” Thus, on account of own aforesaid stand of the petitioner and its officials including the Commissioner-cum-Secretary of the Forest Department before this Court cannot be heard to say that it was still open for the petitioner to question the correctness of 5 any finding of the award dated 5.12.1989 in any subsequent proceedings. As a matter of fact, the petitioner in terms of the undertaking giving to this Court as recorded in the aforesaid order dated 21.5.1993 in C.W.J.C. No. 12736 of 1992, had also approached the Labour Department and had got a reference made under Section 36A of the Act vide Notification No. 4/D2-19032/93L.E.804 dated 15th June, 1993 to the following extent:- “Whether Sri Rajendra Prasad Singh daily waged workman is to be reinstated permanently on daily wages or in regular pay scale by the Divisional Forest Officer (Plantation), Gaya, in accordance with the Award given by the Presiding Officer, Labour Court, Dalmianagar, in Ref. Case 6/87.” The aforesaid terms and reference dated 15th June 1993 would therefore leave nothing for speculation that the only difficulty for the petitioner in implementing the award was as with regard to the status of respondent no.2, the workman, in the matter of reinstatement whether as a permanent workman or as a regular workman. Such reference in fact, was answered in the impugned award dated 29.4.1999 in Reference Case No. 2 of 1993 holding therein:- “Rajendra Prasad Singh is to be reinstated in regular pay scale by the Divisional Forest Officer (Plantation), Gaya w.e.f. 05.12.1989.” 6 From the facts noted above, it would thus be clear that the Labour Court had in fact, modified its award dated 5.12.1989 by clarifying that the workman, respondent no.2, was not to be reinstated as a permanent workman but only in the regular pay-scale with effect from 5.12.1989, the date of the earlier award. The submission of the counsel for the petitioner that even on two occasions and in the second reference case, the petitioner had raised the question of the respondent no.2, being not a workman, in view of his casual employment and the Forest Department, being not an industry within the meaning of the Act, has to be rejected on the basis of the statement recorded in the impugned award dated 29.4.1999 wherein it has been categorically mentioned that the petitioner in fact did not adduce any evidence and in fact also declined to cross-examine the workman who had got himself examined in support of his case. The Labour Court in fact had also noted that since no witnesses was examined on behalf of the petitioner it had come to the following findings on the basis of admitted facts namely:- “After going over the pleadings of the parties, the documents and evidence on record the 7 workman was in employment during the period 2.1.80 to 20.10.84. The Management allowed him to work on daily wage for years with the sole object of depriving him status and privilege of a permanent workman. Neither there is any document on record nor there is any evidence to deny the workman the status of a permanent workman. The Management failed to produce any document to show the total number of workman employed during the period 1980 to 1984. No document was on record to show as to what is the sanctioned strength and as to how many posts are vacant. In this case, the scope of enquiry under Section – 36A is limited to resolving of the difficulty or doubt as regards the relief granted by this Court in Ref. 6 of 87. The relief portion as pronounced in Ref. 6 of 87 runs as follows :- - “ Shri Rajendra Prasad Singh KI SEWAMUKTI UCHIT EVAM NYASANGAT NAHI HAI, TATHA PRABANDHAN UNHE TATKALIK PRABHAV SE ASTHAT ROOP SE PUNAHSTHAPIT KARE” This, I give my Award and hold that Rajendra Prasad Singh is to be reinstated in regular Pay-Scale by the Divisional Forest Officer (Plantation), Gaya, with effect from 5.12.1989.” In that view of the matter, this Court would find it difficult to now allow the petitioner to agitate the question of the Forest Department being not an 8 industry within the meaning of the Act. The reliance placed also by the petitioner on the Full Bench Judgment of this Court in the case of Bijoy Kumar Bharti & Ors. Vs. State of Bihar & Ors. reported in 1984 BBCJ 335 seems to be misplaced also based on a halfhearted appreciation of the ratio of the aforementioned Full bench judgment. This aspect of the matter would be clear from the following passage of the judgment of the Full Bench:- “------On the materials produced it is difficult to hold that the primary activity of the Department is analogous to trade or business. As such, the whole Department cannot be held to be an industry. However, I may hasten to add that even in such a Department if any unit is severable and satisfies the tests mentioned above then that unit certainly should be held to be industry. For example, a Lac Manufacturing Factory run by the Department of Forrest can certainly be held to be an industry taking it as a separate unit.” (underlining for emphasis) It would thus, become apparent that this Court had never held as a bald proposition that no part of Forest Department can be held to be an industry rather the aforementioned underlining observation would go to show that in a given case, even a particular wing or part of Forest Department could be very well 9 classified as an industry. It has to be noted that at no point of time, the petitioner had adduced evidence as with regard to the nature of the work/activities being carried out in the wing of Forest Department in which the petitioner was working nor any evidence was led to show that the petitioner working in such a part of the Forest Department, which could not be classified as an industry. The question as to whether one wing of Department of Government is an industry or not is a question of fact and can be only appreciated and decided by the Labour Court if the evidence to this extent is led by the party seeking to establish this fact. Since the petitioner miserably failed in this aspect as is also recorded in the impugned award, this Court would find that the attempt on the part of the petitioner to now wriggle out of a concluded award in a dispute of last 25 years, is only a last ditch and infact a desperate attempt to overcome the implementation of the award dated 5.12.1989 as explained by the award dated 29.4.1999. The submission of the counsel for the petitioner that the workman, respondent no.2 is not interested in his reinstatement and has not even been responding to the repeated calls given to him to join the 10 post, cannot be made subject matter of this writ application especially when no such statement has been given in this writ application nor any document has been enclosed to establish that after the award dated 29.4.1999, which entitles the workman, respondent no.2 to be reinstated in regular scale of pay from 5.12.1989, any order was passed by the competent authority for his reinstatement for payment of his salary with effect from 5.12.1989. In that view of the matter, this Court would find absolutely no merit in this writ application which is accordingly dismissed and the petitioner is directed to reinstate the respondent no.2 in service by implementing the award dated 29.4.1999 in its letter and spirit within a period of one month from the date of receipt/production of a copy of the order failing which the appropriate authority under the Act would initiate immediate action under Section 29 of the Act. Vikash/- (Mihir Kumar Jha, J.)