1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 138 OF 1994 Dy. Director of Social Forestry, Jalna. .. PETITIONER VERSUS Keshavrao Pandurang Fukat age major, r/o Jalna. .. RESPONDENT Mr. S.V. Warad, Advocate for the petitioner. Mr. R.R. Imale, Advocate for the respondent. ===== CORAM : R. M. BORDE, J. DATE : 29 th APRIL, 2010 ORAL JUDGMENT : 1 Reference tendered at the instance of respondent / second party employee under sections 10 and 12 of the Industrial Disputes Act was taken up for consideration by the Presiding Officer, Labour Court, Aurangabad and after going through the contentions raised by the respondent / second 2 party, the learned Judge of the Labour Court was pleased to direct the first party / petitioner herein to re-instate the second party employee in service with continuity and backwages. The impugned order is passed by the Labour Court on 9-9-1993. 2 Second party in his statement has contended that he was employed as watchman with the first party since 1-7-1987. He was posted at Kumbhari Hasnabad for performing his functions. It is contended that since 1-7-1988 his services have been wrongfully terminated. The second party further claims that he was serving with the first party on wages of Rs.14/- per day during his continuance in employment. Second party further contends that while dispensing with his employment, the first party has not followed the procedure contemplated by section 25(g) of the Industrial Disputes Act. It is further contended that there was no seniority list maintained by the department and without observing the rules of seniority, the services of the second party have been terminated. It is also alleged by the employee that his juniors were continued in service whereas the services of the second party have been dispensed with. Second party further contends that the action of the first party is in violation of the employment standing orders and model standing orders. The employee therefore claims re-instatement from 3 the date of termination of services i.e. 1-7-1988 with full backwages. 3 First party inspite of notice did not cause appearance nor filed any statement controverting the contentions raised by the second party. Considering the contentions raised by the second party and on perusal of the affidavit tendered by the employee, the Presiding Officer of the Labour Court was pleased to allow the reference and issued order as referred to above. 4 I have heard arguments advanced by respective counsel for the parties. I have also perused statement of claim presented by the first party and the impugned order. It is vehemently contended by learned counsel for the petitioner that the work provided to respondent / employee was for a short duration. The work itself was under the scheme framed by the Government. It is contended that there are no permanent posts available and as such, it was not permissible for the court to grant any relief in favour of the employee. A doubt is also expressed relying upon the certain reported judgments of the Apex Court that the department of Social Forestry is not an industry and as such reference itself is not tenable. 4 5 Learned counsel for the respondent has controverted the contentions raised by the petitioner and contended that there is absolutely no material placed on record either before the Labour Court or alongwith this writ petition to derive conclusion to the effect that the work provided to the employee was under a specific scheme. There is absolutely no material placed on record to support the contentions raised by the petitioner. In the absence of any defence statement presented by the petitioner / first party before the Labour Court, the court below was justified in allowing the reference. So far as the question in respect of whether the Social Forestry is an industry is concerned, it is contended that there are conflicting views expressed and the question relating to definition of industry is determined in the reported judgment in the matter of Banglore Water Supply and Severage Board Vs. A. Rajappa reported in AIR 1978 SC 969. It is further contended by the second party that the objection can be raised before the Labour Court and the issue is required to be answered in the proceeding. 6 Learned Counsel appearing for Respondent has contended that it is well established that the Division of Social Forestry is an Industry within the meaning of Section 2(j) of Industrial Disputes Act, 1947. Learned Counsel seeks to place reliance on the judgment of the Apex Court in the 5 matter of Chief Conservator of Forests and another Vs. Jagannath Maruti Kondhare, reported in AIR 1996 SC 2898. Paragraphs 15, 16 and 17 are relevant for consideration. Those are: “15 A perusal of the affidavit filed by the Chief Conservator of Forests on 5-12-1992, pursuant to our order of 6-11-1992, shows that the Pachgaon Parwati Scheme was framed as per the Government Resolution based on the policy decision taken in April, 1976. The Scheme was to be initially for a period of 5 years and an area of about 245 hectares situated on a hilll plateau on the southern outskirts and within easy access of Pune City was selected for creation of a park under bio-aesthetic development for the benefit of the urban population. It is further stated that the scheme was “primarily intended to fulfill bio-aesthetic, recreational and educational aspirations of the people which will have inestimable indirect benefit of producing enlightened generation of conservations of nature inclusive of forests and wild life for the future”. (Para 137). The affidavit goes on to state (at page 138) that the Pune Forest Division is also doing afforestation for soil/moisture conservation under various State level schemes as well as Employment Guarantee Schemes all of which are for a period of 5 years. 16 The aforesaid being the crux of the scheme to implement which some of the respondents were employed, we are of the view that the same cannot be regarded as a part of inalienable or inescapable function of State for the reason that the scheme was intended even to fulfill the recreational and educational aspirations of the 6 people. We are in no doubt that such a work could well be undertaken by an agency which is not required to be even an instrumentality of the State. 17 This being the position, we hold that the aforesaid scheme undertaken by the Forest Department cannot be regarded as a part of sovereign function of the State, and so, it was open to the respondents to invoke the provisions of the State Act. We would say the same qua the social foresting work undertaken in Ahmednagar district. There was, therefore, no threshold bar in knocking the door of the Industrial Courts by the respondents making a grievance about adoption of unfair labour practice by the appellants.” 7 Thus, there can be no dual opinion that applying the principle laid down by the Apex Court in Banglore Water Supply and Severage Board , the Apex Court in the aforesaid judgment has laid down that Forest Department of the State Government is an Industry within meaning of Section 2(j) of Industrial Disputes Act. The provisions of Industrial Dispute Act, therefore, can be made applicable in the instant matter. 8 Considering the facts and circumstances of the case and considering the fact that the first party has not presented any written statement before the Labour Court, on request made by the petitioner, the matter is required to be remitted back to the Labour Court for fresh consideration. Issue raised 7 in the petition as regards availability of work or that the work provided to the employee was under the scheme can be gone into by the trial court after considering the evidence that would be placed before it. A note is also to be taken of the fact that the respondent / employee was directed to be re- instated in employment by the Labour Court in the year 1993. Order passed by the Labour Court was stayed by this court in the year 1994. It is stated by respondent that the employee is deprived of the work since 1993 onwards for number of years. He would be again required to prosecute the litigation before the Labour Court. While remitting the matter back to the trial court, the petitioner needs to be directed to pay cost. Considering all the relevant circumstances and considering the time lapsed from 1983 till 2010, I am of the opinion that the ends of justice would be met if the petitioner / employee is directed to pay cost of Rs.25,000/- to the respondent / employee. For the reasons stated above, writ petition is allowed. Impugned order passed by the Presiding Officer, Labour Court, Aurangabad on 9-9-1993 is quashed and set aside and the matter is remitted back to the Labour Court for re-consideration. Labour Court after extending opportunity of hearing to both the parties shall proceed to decide the reference in accordance with the provisions of law. Considering the fact that the reference is of the year 1989, the Labour Court is directed to dispose of the 8 matter expeditiously. Petitioner herein shall deposit the amount of cost wtih the labour court within eight weeks from today. On deposit of amount of cost, respondent shall be entitled to withdraw the same. Rule is accordingly made absolutely. ( R. M. BORDE, J.) dyb/office/wp138.94.odt