State of U.P. and anr. Vs. Labour Court and anr. - Court Judgment

Excerpt:
- - 3. brjef facts for the decision of this petition are that the respondent-workman approached the conciliation officer with the allegation that he has been working since july, 1978 in the forest department but without any reason or complying with the provisions of the act, his services were dispensed with on 141.1992. upon a failure report a reference under section 4-k of the act was made to the labour court, ghazipur, which registered it as adjudication case no. prom the record, it is evident that the reference was made by the deputy labour commissioner, varanasi region on 29.3.1995 and the standing counsel has failed to point out any other notification or order of the state government withdrawing the power from the aforesaid official. we are in no doubt that such a work con id well be undertaken by an agency which is not required to be even an instrumentality of the state.d.p. singh, j.1. pleadings have been exchanged and the learned counsel for the parties, agree that the petition may be disposed of finally under the rules of the court.2. heard learned counsel for the petitioner.this writ petition is directed against an award of the labour court dated 27.1.1997 by which the claim of the respondent-workman has been accepted and his termination has been held to be against the provisions of the u.p. industrial disputes act (hereinafter referred to as the act) and a direction has been issued for his reinstatement with full back-wages.3. brjef facts for the decision of this petition are that the respondent-workman approached the conciliation officer with the allegation that he has been working since july, 1978 in the forest department but without any reason or complying with the provisions of the act, his services were dispensed with on 141.1992. upon a failure report a reference under section 4-k of the act was made to the labour court, ghazipur, which registered it as adjudication case no. 72 of 1995. upon issuance of notice written statement on behalf of the petitioner and workman were filed. the case as set up by the petitioner was that the workman was, employed on daily wage basis fox additional work and he has not completed 240 days in the last 12 calendar months, apart from the aforesaid pleadings, no other document or record was produced or filed by the petitioner before the labour court. on behalf of the workman certificate of employment from july, 1983 to august, 1983, from september, 1986 to july, 1987, and from august, 1988 to 31st, october, 1992 were filed alongwith his affidavit. on the application of the workman, the petitioner produced the pay-sheets from 11.11.1991 to october, 1992 which showed that the workman had continuously worked from november, 1991 to october, 1992. the labour court recorded categorical findings that the workman had continuously worked for more than 240 days in the last 12 calendar months and thus it held that the termination without complying with the provisions of section 6-n etc. was illegal and it accepted the claim of the workman directing reinstatement and back-wages vide the impugned award.4. learned standing counsel for the petitioner has firstly urged that the deputy labour commissioner did not have any jurisdiction to make a reference under section 4-k of the u.p. industrial disputes act, as the power vests only with the state government. though, this point was never urged before the labour court as is evident from the award while the copy of the written statement filed on behalf of the petitioner has not been made part of this writ petition, nevertheless, since it is purely a legal question it has to be considered.5. section 11-a of the u.p. industrial disputes act empowers the government to delegate any of its powers under the act to the subordinate officers. the state government under the aforesaid provision delegated its power to the additional/deputy labour commissioner, varanasi region, varanasi for making a reference under section 4-k of the act vide government notification no. 2513 (hi)/xxxvi-2-155(sm)-90, dated 29th august, 1990 for the districts of varanasi, ghazipur, ballia and jaunpur. prom the record, it is evident that the reference was made by the deputy labour commissioner, varanasi region on 29.3.1995 and the standing counsel has failed to point out any other notification or order of the state government withdrawing the power from the aforesaid official. thus, this argument of the learned counsel for the petitioner has no force.6. he has finally urged that the forest department of the state of uttar pradesh is not an 'industry' within the meaning of the act and, therefore, the entire proceedings stood vitiated. again this point was never urged before the labour court as is evident from the award while the copy of the written statement filed on behalf of the petitioner has also not been annexed. to prove that the forest department was not an 'industry', it was incumbent upon the petitioner to have laid evidence to that effect and demonstrated before the labour court that by the nature and the functions carried out by the department it was not an industry. no such evidence at all, in fact no evidence whatsoever, was laid on behalf of the petitioner before the labour court. in the writ petition the only averment on this issue is that the workman was employed in a scheme known as 'samajik vaniki van prabhag' under which plantation of trees takes place. nothing further has been said. a three fudges bench of the apex court in the case of chief conservatory of forest and anr. v. jagannath maruti kondhare etc. 1996 (72) flr 840 (sc), was confronted with somewhat similar facts where it was alleged on behalf of the forest department that the scheme was 'primarily intended to fulfil bio-aesthetc, recreational and educational aspirations of the people which will have inestimable indirect benefit of producing enlightened generation of conservationists of nature inclusive of forests and wild life for the future.' thus, it was claimed that it was sovereign function. the apex court held in paragraph 16 to the following effect: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 the stale for the reason that the scheme was intended even to fulfil the recreational and educational aspirations of the people. we are in no doubt that such a work con id well be undertaken by an agency which is not required to be even an instrumentality of the state.and it went on to hold that the forest department was an industry. a single judge of our court in the case of u.p. forest corporation, lucknow and anr. v. presiding officer, labour court, rampur 2005 alj 427, has held to the following effect in paragraph 16:16. the petitioners in paragraph 5 of the writ petition, themselves, have stated that it is engaged in maintenance or felling of timber. the activities, being welfare activities undertaken by the corporation, the petitioners-corporation is fully covered by definition industry and the first submission of counsel for the petitioners cannot be accepted.7. on the same premise the argument of the learned standing counsel cannot be accepted.no other point has been urged.for the reasons given herein above, i do not find that this is a fit case for interference under article 226 of tin constitution of india. rejected.