CW/5158/2006 of RAJENDRA PRASAD Vs LABOUR COURT, BHARATPUR on 22 December 2008

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In the High Court of Judicature for Rajasthan Jaipur Bench **

Civil Writ Petition No.5158/2006

Rajendra Prasad Versus

Labour Court, Bharatpur & Anr.

Date of Order ::: 22/12/08

Hon'ble Mr. Justice Ajay Rastogi

Mr. Sudesh Bansal, for petitioner

Mr. JK Agrawal, Addl.Govt. Counsel, for respondent-State Matter has come up on application seeking early hearing of the petition, whichstands allowed; and at joint request, matter hasbeen finally heard at admission stage.

Instant petition has been filed byworkman assailing Award dt.01/10/05 (Ann.1)passed by Labour Court, Bharatpur, declining toanswer Reference made by appropriate Government(LCR-334/91) while holding that Department ofForest is not an ”Industry” U/s 2(j) of theIndustrial Disputes Act, 1947 (“the Act”).

As alleged, after having worked with therespondent NO.2 from 02/07/1984 to 15/11/1988

petitioner-workman was terminated from servicew.e.f. 16/11/1988 – against which he approachedConciliation Officer, on whose failure report,Reference was made by appropriate Governmentvide notification dt.04/12/1991. After takingnote of material on record, and hearing theparties, vide Award impugned, the learned Labour

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Court after holding that employer Department ofForest is not an “industry”, declined to answerthe reference.

Counsel for petitioner submits that inthe absence of objection having been raised byrespondent Department in their written statementbefore Labour Court, the petitioner (workman)was precluded from placing material on record tojustify that nature of work being undertaken byhis employer (department) where he was posted,is an “industry” covered U/s 2(j) of the Actwhile the Labour Court proceeded merely based onoral submission and it being a mixed question oflaw & facts and in the absence of supportingmaterial on record; as such very findingrecorded by learned Labour Court in its Awardimpugned of holding the Department of Forestbeing not an industry is totally perverse anddeserves to be set aside. Counsel also submitsthat the issue raised herein has been decided bythis Court in Babulal Vs. Labour Court (CWP- 9132/05 & (8) cognate cases, decided vide orderdt.25/01/06, wherein it has been observed adinfra:

“It is true that if the dispute hasbeen raised as to whether a particularestablishment or part whereof therecruitment has been made is an

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'industry' or not ? Primarily it is forthe person concerned who claimsprotection under the Act, to givepositive facts for coming to theconclusion that the establishment wherehe had worked is an 'industry' U/s 2(j)of the Act of 1947 and such dutiesundertaken are not sovereign function ofthe State. But, in the present case,indisputably no objection was raised bythe respondents in their writtenstatement. In the absence of which,there was no opportunity available tothe workman to prove and place materialfor establishing the fact that nature ofwork undertaken is not sovereignfunction of the State and it is anindustry within the meaning of Section 2(j) of the Act of 1947 and the learnedLabour Court has committed an error inproceeding to examine the issue withoutthere being factual material on recordand merely on the basis of oralsubmissions made by the parties.”

Keeping in view aforesaid aspect of there beingno factual material placed on record, this Courtremitted the matter back to the Labour Court foradjudication of dispute on merits afteraffording opportunity of hearing to the parties.

Per contra, Government Counsel withoutdisputing the decision of this Court in BabulalVs. Labour Court (supra), however, submits thatan opportunity be afforded to the employer //4//

department to raise additional pleas to itswritten statement to the claim, as well.

I have considered contentions of Counsel

for both the parties and with their assistance,pondered over material on record. Facts almostare not in dispute as is apparent from writtenstatement (Ann.2) filed by respondent-Departmentbefore Labour Court that no objection wasraised, whether the establishment where workman(petitioner) was posted is an “industry” U/s 2(j) of the Act or not; and merely oralsubmissions were made – on the basis whereof,vide Award impugned, Labour Court held thatrespondent Department of Forest is not an“industry” U/s 2(j) of the Act. In the absenceof material in support thereof and opportunitybeing afforded to petitioner workman to come outwith his defence placing material and otherdocuments on record to establish that place ofhis working in Department of Forest is an“industry” U/s 2(j) of the Act and is within hisright to invoke provisions of the Act, thefinding recorded by learned Labour Court is notlegally sustainable.

In the light of what has been observed(supra) by this Court in Babulal Vs. LabourCourt, the writ petition is allowed and Award

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dt.01/10/05 (Ann.6) in LCR-334/91 is hereby setaside. Matter is remitted back to the LabourCourt, Bharatpur for adjudicating the dispute onmerits after affording opportunity of hearing tothe parties who will be free to raise theiradditional pleas in support of their respectiveclaim/counter claim to the dispute under Reference made by appropriate Government, if soadvised. Both the parties are directed to appearbefore Labour Court Bharapur on 09/02/09. Sincethe dispute is old one, Labour Court is expectedto decide it expeditiously.

Labour Court for compliance, alongwith record,if received. No order as to costs.

(Ajay Rastogi), J.

K.Khatri/p.5/5158CW06-2212-IDFrst.doc