V.K. Shukla, J.
1. State of UP. has approached this Court for quashing of the award dated 14.12.1999, by means of which, Presiding Officer, Labour Court, Gorakhpur, has directed reinstatement of respondent workman with back wages.
2. Brief background of the case as reflected on the writ petition is that Ram Lai son of Buddhu was engaged on daily wage basis in Social Forestry Scheme, proposal in respect of which was accepted by the State Government and fund had been allotted. It has been stated that as per said scheme land of Gaon Sabha is obtained, open which plantation is carried out by petitioners, and such scheme continues for about three years and at the moment, trees are matured, the land in question is given back to Gaon Sabha, and the scheme in question comes to an end. One such scheme had been sanctioned at Kaptanganj Nursery situated in Harraiaya Range. It has been stated that after development of said Range, Basti, land in question was given back to block concerned, and thereafter, State Government had no concern with the same. In respect to respondent workman it has been contended that after the scheme came to an end, he was assigned the work at Bhiura Scheme, from where on his own accord, he voluntarily abandoned the job. It has also been asserted that after 1988 at no point of time respondent workman approached the petitioner for providing employment to him. Thereafter, it appears that he applied for conciliation and the same having failed; State Government in its turn referred the dispute to the Labour Court for adjudication of the industrial dispute. Written statement was filed on behalf of respondent workman. From the side of petitioner also written statement supported by affidavit was filed. One Gopal Ojha had appeared as employer's witness. Thereafter, impugned award has been passed, which is subject matter of challenge before this Court.
3. On presentation of writ petition, this Court stayed operation of the impugned award. Thereafter, counter affidavit has been filed by respondent workman mentioning therein that his work and conduct had been satisfactory, and there had been no complaint, whatsoever, against him. It has also been mentioned that by registered letter request was made to permit the respondent workman to permit him to discharge his duties, but at no point of time any work was assigned to him, and even during conciliation proceedings no such offer was made. Respondent-workman has laid much emphasis on the feet that incorrect statement has been made that he left the work at his own, rather the fact is that his services were terminated illegally, and in this background, it has been prayed that no interference be made by this Court.
4. To this counter affidavit^ rejoinder affidavit has been filed and therein statement of fact mentioned in the counter affidavit has been disputed, and it has been reiterated that petitioner being State discharges sovereign function and does not fall within the definition of industry' as such industrial dispute itself was incompetent and not maintainable, and further that respondent workman had been appointed in the scheme and scheme having come to an end, his appointment automatically came to an end, as such award in question is liable to be quashed.
5. Learned Standing Counsel assailed the validity of the award on the ground that State discharges sovereign function and does not fall within the definition of 'industry' as such entire proceedings are without jurisdiction and further respondent-workman has been appointed under a scheme and scheme having come to an end, no relief could have been accorded to Respondent-workman.
6. Sri S.K. Srivastava appearing for respondent-workman has contended with vehemence that at no point of time any such pleas has been taken before the Labour Court that petitioner is not an industry, and further it has been pointed out that services of respondent-workman have been illegally retrenched without following the procedure prescribed under Section 6-N of the U.P. Industrial Disputes Act.
7. From the respective arguments and the pleadings available on record, the first question which arises for consideration is as to whether in the facts and circumstances of the present case, petitioner can be held as an 'industry'. In this connection on behalf of petitioner reliance has been placed on a judgment of Hon'ble Apex Court in case of State of Gujarat and Ors. v. Pratam Singh Nashing Parmar, 2001 (89) FLR. 323, wherein it has been held that Forest Department of State Government cannot be held to be an industry, other it is part of sovereign function. It has been held that when dispute arises, as to whether a particular establishment or part of it, wherein appointment has been made was an industry or not, it would be for the person concerned who claims the same to be an industry, to give positive facts for coming to the conclusion that it constitutes 'an industry'. As per facts of the side case there was no material on record on the basis of which said conclusion could have been drawn, as such Hon'ble Apex Court ruled that burden is on the employee to establish that where he had been appointed is an industry or not. In the said case, as there was no evidence, as such the view taken by learned Single Judge without examining the nature of the duties discharged by respondent-workman as well as nature of job of the organisation, the conclusions dawn were held to be vitiated. The judgment in case of Chief Conservator of Forest and Anr. v. Jagannath Maruti Kondhare and Ors., JT 1995 (9) SC 465, was distinguished on the ground that in the said case there was no material on the basis of which conclusions have been drawn.
8. Now taking the case in hand, the impugned award reflects that in the scheme run by petitioner, plantation was done, and after the trees in question had attained maturity, the scheme was wrapped up and land in question was returned to Gaon Sabha. In case of Chief Conservator of Forest and Anr. v. Jagannath Maruti Kondhare and Ors. JT 1995 (9) SC 465, it has been held that distinction has to be drawn in between sovereign function and welfare activities, and in the said case after considering the scheme in question, Hon'ble Apex Court concluded that nature of the work which was being carried out in the said scheme, the same can be carried out even by agencies, which is not required by even an instrumentality of the State. The scheme noted in the aforementioned judgment while considering the same in context to sovereign function is being quoted below:
'As to which function could be, and should be taken as legal or sovereign function has been recently examined by a Bench of this Court, top which one of us (Hansaria, J.) was a party. This was in Nagendra Rao and Co. v. State of Andhra Pradesh, JT (1994) 5 SC 572. In which case Sahai, J., speaking for the Bench, examined this question in detail in the background of the stand of respondent State pleading absence of vicarious liability because of the doctrine of sovereign immunity, This aspect has been dealt with in Paras 21 to 24. Para 21 opens by saying that old and archaic concept of sovereignty does not survive as sovereignty now sets in the people. It is because of this in the aforesaid Australian case, 1928 - 29 (41) CLR 569, 585, the distinction between sovereign and non-sovereign functions were categorised as regal and non-regal. In some cases, the expression used is State function, whereas in some Governmental function.
We may not go by the labels. Let us reach the hub. And the same is that the dichotomy of sovereign and non-sovereign does not really exist- it would all depend on the nature of power and manner of its exercise, as observed in Para 23 of Nagendra Rao's Case, As per decision in this case, one of the tests to determine whether the executive function is sovereign in nature is to find out whether the State is answerable fort such action in Courts of Law. It was stated by Sahai, J. that acts like defence of the country, raising armed forces and maintaining it, making peace or war, foreign affairs, power to acquire and retain territory, are the functions, which arc indicative external sovereignty and are political in nature. They are, therefore, not amenable to jurisdiction of ordinary Civil Court inasmuch as the State is immune from being sued in such matters. But, then according to this decision the immunity ends there. It was then observed there that in a welfare State, functions of the State are not only the defence of the country or administration of justice or maintaining law and order but it extends to regulating and controlling the activities of people in almost every sphere, educational commercial, social, economic, political and even marital. Because of this, the demarcating line between sovereign and non-sovereign powers has largely disappeared.
The aforesaid shows that if we were to extent the concept of sovereign function to include all welfare activities as contended on behalf of appellants, the ratio of Bangalore Water Supply's case, 1978 (36) FLR 266 (SC), would get eroded, and substantially. We would demur to do so on the face of what was stated in the aforesaid case according to which except the strictly understood sovereign function, welfare activities of the State would come within the purview of the definition of industry, and not only this, even within the wider circle of sovereign function, there may be an inner circle encompassing some units which could be considered as industry if substantially severable.
This is not all, as Shri Dholakia has submitted that the Pachgaon Parwati Scheme (and fort that matter the social forestry work undertaken in Ahmednagar District, in appeals relating to which Shri Bhandare has addressed us) being meant for the preservation of forests and environment has to be regarded, in any case, as part of inalienable function inasmuch as the type of work which was undertaken under the scheme could not have been done by a private individual or entity.
A perusal of the affidavit filed by the Chief Conservator of Forests of December 5, 1995, pursuant to our order of November 6, 1992, shows that the Pachgoan Pasrwati Scheme was framed as per the Government resolutions based-on the policy decision taken in April, 1976. The scheme was to be initially for a period of five years and an area of about 245 hectares situated on a hill plateau on southern outskirts and within easy access of Pune city was selected for creation of a park under bio- aesthetic development for the benefit of 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 conservation of nature inclusive of forests and wild life for the future' (page 137). The affidavit goes on to state.(at page 138) that: the Pune Forest Division is also doing afforestation for soll/molsture conservation under various State level schemes as well as the Employment Quarters Schemes all of which are for a period of five years.
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 the State for the reason that the scheme was intended even, to fulfill the recreational and educational aspirations of the 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.
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 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.'
9. In the present case, nature of the scheme reflects that petitioners develop Gaon Sabha land by doing plantation there from money received by State Government; and after trees mature , petitioners return back the aforementioned land to Gaon Sabha. This particular scheme is welfare scheme. This particular welfare scheme, is more or less akin to the scheme in the case of Chief Conservator of Forests v. J.M. Kodhare, IT 1995 (9) SC 465, where also as per 'Government Scheme, park was to be created under bio-aesthetic development for the benefit of urban population. Here the scheme of for rural population by plantation of trees. Said scheme was not held to be inalienable or inescapable function of the State. It was also observed that such a work could be very well undertaken by an agency, which is not required to be an instrumentality of State Similarly, in the facts of present case also, carrying out scheme, in no way and manner exempts the petitioner from the provisions of the UP. Industrial Dispute Act, 1947 as same is not a part of sovereign function as it is strictly understood. In the facts and circumstances of present case petitioners do not fall within the definition of 'industry'.
10. Now coming to the next submission of petitioner in respect to right of workman who had been daily wager and appointed in scheme which had come to an end. In this connection reliance has been placed on the judgment reported in AIR 1997 (3) SC 219, State of U.P. v. Ajai Kumar and Judgment reported in AIR 1997 SC 1445, State of Himanchal Pradesh v. Nodha Ram, for the proposition that daily wage appointment will be in relation to contingent establishment in which there cannot exist any post and it continues so long the work exist and further no right is created in them and they .will have to go with the post. Both these decisions, are not at all in context to Labour Laws which connotes rights under different parameters and which are beneficial piece of legislation and has to be interpreted in favour of beneficiaries. The answer to these questions, have been given by Hon'ble Apex Court in the case of SM. Nilajkar v. Telecom District Manager, Kamataka, 2003 (97) FLR. 608, Paragraph 14 of the aforementioned judgment is being quoted below :
'14. The engagement of a workman as a daily-wager does not be itself amount to putting the workman on notice that he was being engaged in a scheme or project which was to last only for a particular length of time up to the occurrence of some event, and therefore, the workman ought to know that his employment was short lived. The contract of employment consciously entered into by the workman with the employer would result in a notice to the workman from the date of commencement of employment itself that his employment was short lived and as per the terms of the contract the same was liable to termination on the expiry of the contract and the scheme or project coming to an end. The workman may not therefore, complain that by the act of employer his employment was coming to an abrupt termination. To exclude the termination of the scheme or project employee from the definition of retrenchment it is for the employer, to prove tile abovesaid ingredients so as to attract the applicability of sub-clause (bb) above said. In case at hand, the respondent-employer has failed in alleging and proving the ingredients of sub-clause (bb) as stated herein above. All that has been proved is that the appellants were engaged as casual workers or daily wagers in a project. For want, of proof attracting applicability of sub-clause (bb); it has to be held that the termination of the services of the appellants amounted to retrenchment:'
11. Here in the present case, tit is not the case of petitioner that with the end of project, services of respondent-workman came to an end, rather respondent workman was transferred and he did not join and discharged his duties and abandoned the job. Theory set up by petitioners has not at all been accepted by Labour Court and it has been observed that while conducting dispute, there has been lot of carelessness on the part of the petitioner. Said findings are based on appreciation of evidence, as such same warrants no interference by this Court.
12. At last it has been submitted that reinstatement with back wages has been awarded as a matter of course and petitioners being public functionary, there would be large scale financial implication. In the present case award in question reveals that back wages have been awarded as a rule. Hon'ble Apex Court in the case of Hindustan Motors Ltd v. Tapan Kumar Bhattacharya, 2002 (6) SCC 41, has held that reinstatement with back wages should not be awarded as a matter of course and facts and circumstances of each case should be seen. Similarly, in the case of Municipal Corporation of Delhi v. Praveen Kumar Jain, 1998 (2) LLJ 674 (SC), Hon'ble Apex Court has ruled that where public money is involved, interest of State should also he seen. In both the cases cited above 50% of the back wages were made admissible. In the facts of the present case also, award is modified to the extent that respondent-workman shall be entitled for 50% of the back wages till he is reinstated within a month. Rest of the award is maintained.
13. With these observations, present writ petition is disposed of.
14. No order as to costs.