CW/10793/2009 of SMT KAMERI Vs JUDGE LABOUR COURT AND ANR on 24 December 2010

ORDER

S.B.CIVIL WRIT PETITION NO.10793/2009Smt.KameriVersusJudge, Labour Court, Bharatpur & another DATE OF ORDER --- December 24,2010

PRESENT

HON’BLE MR.JUSTICE PREM SHANKER ASOPA

Mr.Jitendra Pandey, for the petitioner

BY THE COURT

(1) Heard learned counsel for the petitioner.

(2) By this writ petition, the petitioner has challenged the Award dated30.9.2005 (Anx.3) passed by the Judge, Labour Court, Bharatpur wherebyclaim of the petitioner-workman has been dismissed on the ground that theForest Department is not an `industry' in terms of Sec. 2(j) of the IndustrialDisputes Act, 1947 (in short `the Act of 1947').

(3) Counsel submits that in the present case, in their reply to the statementof claim, the respondents have not taken the objection as to whether theForest Department is an industry or not. Counsel further submits that the oralobjection whether the Forest Department is an industry or not, has beendecided by this Court vide common order dated 25.1.2006 in CWPNo.9132/2005 and (8) others in identical cases, whereby the finding arrived atby the Labour Court holding the Department of Forest being not an `industry'has been set aside. In the aforesaid case, this Court inter alia observed asunder:

“It is true that if the dispute has been raised as towhether a particular establishment or part whereof therecruitment has been made is an `industry' or not ? primarily itis for the person concerned who claims protection under theAct, to give positive facts for coming up to the conclusion thatthe establishment where he had worked is an `industry' u/s 2(j)of the Act of 1947 and such duties undertaken are not soverign function of the State. But, in the present case, undisputedly noobjection was raised by the respondents in their writtenstatement. In the absence of which there was no opportunityavailable to the workmen to provide and place material forestablishing the fact that nature of work undertaken is notsoverieign function of the State and it is an industry within themeaning of Section 2(j) of the Act of 1947 and the learnedLabour Court has committed an error in proceeding to examinethe issue without there being factual material on record andmerely on the basis of oral submissions made by the parties.”

(4) Similar issue came before this Court in Rameshwar Dayal V Judge, Labour Court Bharatpur and two others(2008 WLC (Raj.) UC 681) and afterconsidering the aforesaid judgment dated 25.1.2006 in Babu Lal V. LabourCourt, Bharatpur, the case was remanded.

(5) Having considered the aforesaid judgments of this Court, I am of theview that the case deserves to be remanded back to the Labour Court.

(6) Consequently, this writ petition under Article 227 of the Constitutionof India is allowed, the Award dated 30.9.2005 (Anx.3) passed by the LabourCourt is set aside and the matter is remanded back to the Labour Court,Bharatpur for adjudicating the dispute on merits after affording opportunity ofhearing to the parties to dispute.

(Prem Shanker Asopa) J.

गोpa ल