COMMON ORDER The Chief Executive Officer/District Forest Officer, Sandalwood Industrial Complex, Tirupattur has filed a batch of 22 Writ Petitions challenging the Common Award dated 14.12.2000 passed in I.D.Nos.15, 26, 33, 30, 22, 29, 21, 16, 27, 25, 31, 32, 20, 23, 34, 36, 35, 24, 28, 18, 19 and 17 of 1999 respectively on the file of the second respondent Labour Court, Vellore.
2. The first respondent in each one of the cases are women who have been employed as Grade-III Mazdoors in the Additional Sandalwood Depot on daily wage basis. The wages were fixed by the Principal Chief Conservator of Forests/Conservator of Forests on the basis of the rate fixed by the Labour and Employment Department for the Sandalwood Depot workers and also complying with the requirements of Minimum Wages Act. It includes dearness allowance. The nature of employment of the first respondent workmen is to transport sandalwood kept in the Additional Depot to the Final Cleaning Depot. According to the petitioner Department, the women 1st respondent in each case were appointed as casual labourers and were paid on daily wage basis. It is stated in the affidavit that on 16.3.1997, there was a big fire in the additional Sandalwood Depot which resulted in closing down the Depot. Consequently, the Department was unable to give any work to the first respondent workmen in all the petitions and they were stopped from 10.9.1997. The first respondent women employees raised 22 Industrial Disputes before the Labour Court to reinstate them with full back wages and continuity of services.
3. Before the Labour Court, all the 22 Industrial Disputes were taken up together and disposed off by a common award. On behalf of the workmen, two of the workmen were examined as W.W.1 and W.W.2 and Exhibits W1 to W4 were marked. On behalf of the management, one witness was examined as M.W.1 and Exhibits M1 to M12 were marked.
4. The Labour Court, in the common award, after discussing the factual aspects of the claim, the stand taken by the management and further considering the evidence on record upheld the claim and held as follows:-
"For the foregoing reasons, the contention of the petitioners had been accepted, that of the respondent had been rejected and the Industrial Dispute raised by each of the petitioners is upheld. The respondent, to reinstate the petitioners with full backwages, continuity of service and all other monetary benefits, if any as the case may be. These petitions are allowed with an all inclusive cost of Rs.500/- at one set, directed against the respondent and in favour of the petitioners. Time for compliance till one month."
Challenging the common award, these writ petitions have been filed by the management.
5. On 27.1.2003, the interim stay order dated 23.2.2001 was modified as follows:-
"The interim stay, already granted, is made absolute, subject to the petitioners depositing the entire backwages till the date of filing of the writ petitions with the second respondent, within a period of eight weeks from today. On such deposit, the second respondent shall invest the same in any one of the nationalised banks, in Fixed Deposit, initially for a period of three weeks to be renewal periodically depending upon the progress of the cases. The workmen are entitled to withdraw the interest on the Fixed Deposits once in three months pending disposal of the writ petitions.
The petitioners shall comply with Section 17B of the Industrial Dispute Act.
The contesting respondents to file an affidavit of non-employment.
Expedite the main Writ Petition."
6. At request of the petitioner management, the matters were listed before the Court for extension of time to deposit the amount on the ground that the Government had taken time to pass appropriate orders and the Court considering such request and after the Government sanctioned the money, the time was extended for deposit of the amount subject to compliance of the order dated 27.1.2003.
7. The writ petitions have now come up for final disposal on merits. The main plea taken by the learned Special Government Pleader Mr.S.N.Kirubanandham, appearing for the writ petitioner is that the petitioner, the Forest Department, the District Forest Office, Tiruppattur is not an "industry" and therefore, the Labour Court has no jurisdiction to entertain the Industrial Disputes raised by the first respondent workman in each one of the cases and the common award is therefore, contrary to law.
8.
Section 2(j) of the Industrial Disputes Act, 1947 reads as follows:-
"(j) "industry" means any business, trade, undertaking, manufacture or calling of employers and includes any calling service, employment, handicraft or industrial occupation or avocation of workmen'"
9. The point raised by the learned Special Government Pleader (Forest) to contend that the Department of Forest and the Tamil Nadu Forest Act, 1882 (State Act) will not come within the purview of the "industry" stands resolved against the petitioner in view of the decision of the Apex Court in Chief Conservator of Forests and another vs. - Jagannath Maruti Kondhare and another reported in (1996)2 SCC 293. In the above said case, the first and foremost question that was considered by the Apex Court is whether the Forest Department of State is an "industry" within the meaning of 2(j) of the Industrial Disputes Act, 1947 (hereinafter referred to "the Central Act"). In the said case a scheme by name "Pachgaon Parwati Scheme was framed to develop a large extent of land, a hill plateau on the outskirts of Pune City, for creation of a park under bioaesthetic development for the benefit of the urban population. In the said scheme, casual labourers were employed and they having worked for a long period of time, claimed the privilege and status of a permanent employee which was denied by the Forest Department and therefore, they approach the Labour Court. The Labour Court found that the workmen were employed as "badlis" casuals or temporaries denying them the permanent employee status and the Forest Department was adopting unfair labour practice and hence the Labour Court granted the relief which came to be challenged before the High Court in vain. Having failed before the High Court, the matter was taken up by the Forest Department to the Apex Court.
10. On the first contention with regard to the issue as to whether the Forest Department can be termed as "industry", the Apex Court, in Chief Conservator of Forests vs. - Jagannath Maruti Kondhare (cited supra) relied upon the Bangalore Water Supply & Sewerage Board - v. - A.Rajappa reported in (1978)2 SCC 213 : 1978 SCC ( L & S) 215 : (1978)3 SCR 207. In the Bangalore Water Supply and Sewerage Board's case, the Apex Court formulated what is termed as "dominant nature test". The nature of work or project undertaken by the Forest Department of the State should be tested on the basis of definition of
Section 2(j) of the Act. The "dominant nature test" has been summarised in the Apex Court's decision reported in 1996(2) SCC 293 (cited supra). Paragraph 5 of the decision reads as follows;-
"5. The aforesaid shows that the conclusions reached by Krishna Iyer,J. had been endorsed fully by two other learned Judges and Beg,C.J. did the same but for different reasons. We would, therefore, confine our attention to the conclusions reached by Krishna Iyer,J. which appear at pp. 282 and 283 of the Report. The one which is relevant for our purpose is what finds place under serial title IV "The dominant nature test", which was spelt out as below: (SCC pp.283-84, para 143)
(a) Where a complex of activities, some of which qualify for exemption, others not, involves employees on the total undertaking, some of whom are not 'workmen' as in the University of Delhi case (University of Delhi v. Ram Nath reported in (1964)2 SCR 703 : AIR 1963 SC 1873 : 1(1963)2 LLJ 335) or some departments are not productive of goods and services if isolated, even then, the predominant nature of the services and the integrated nature of the departments as explained in Corpn. of Nagpur (Corporation of the City of Nagpur v. Employees, (1960)2 SCR 942 : AIR SC 675 :(1960)1 LLJ 523) will be the true test. The whole undertaking will be 'industry' although those who are not 'workmen' by definition may not benefit by the status.
(b) Notwithstanding the previous clauses, sovereign functions, strictly understood, (alone) qualify for exemption, not the welfare activities or economic adventures undertaking by Government or statutory bodies.
(c) Even in departments discharging sovereign functions, if there are units which are industries and they are substantially severable, then they can be considered to come within
Section 2(j).(d) Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby."
(It may be stated that it is pursuance to what was stated under (d) above that the aforesaid amendment of 1982 was made which provided for exclusion of some categories, one of which is "any activity of the Government relatable to the sovereign functions of the Government including all the activities carried on by the departments of the Central Government dealing with defence research, atomic energy and space". This is exception 6 of the 9 mentioned in the amended definition."
11. One of the contentions raised in Jagannath Maruti Kondhare case (cited supra) based on the Bangalore Water Supply and Sewerage Board case (cited supra) is that all activities of the State is not exempted from the provisions of the Central Act, unless the provision of the Central Act are excluded specifically. The Apex Court in Jagannath Maruti Kondhare case (cited supra) after considering the rival contention came to the conclusion that all activities of the Forest Department cannot be covered under the term Sovereign Function, thereby eroding the concept of "industry" as held by the Seven Judges Bench in Bangalore Water Supply and Sewerage Board case (cited supra). The Apex Court in Chief Conservator of Forests vs. - Jagannath Maruti Kondhare case (cited supra), considering the activities of the Maharashta Forest Department's plea held as follows:-
"12. We may not go by the labels. Let us reach the hub. And the same is that the dichotomy of sovereign and non-sovereign functions does not really exist it would all depend on the nature of the power and manner of its exercise, as observed in para 23 of Nagendra Rao case [(1994)6 SCC 205 : 1994 SCC (Crl) 1609 : JT (1994)5 SCC 527]. As per the 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 for 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 functions which are indicative of external sovereignty and are political in nature. They are therefore, not amenable to the 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 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 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."
"13. The aforesaid shows that if we were to extend the concept of sovereign function to include all welfare activities as contended on behalf of the appellants, the ratio in Bangalore Water Supply case 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 wider circle of sovereign function, there may be an inner circle encompassing some units which could be considered as industry if substantially severable."
"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 State 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 could well be undertaken by an agency which is not required to be even an instrumentality of the State."
The plea of the State taken that it is not covered under the definition of "industry" was rejected, though such plea was taken for the first time before the court and not before the Tribunal, to set at rest any controversy that may arise for the reason stated in para 2 of the Apex Court's judgment reported in Jagannath Maruti Kondhare case (cited supra).
12. As could be seen from the facts of this case, the activities of the Forest Department of Tamil Nadu is trading in sandalwood as a commercial activity and the petitioner is managing the depot for the purpose of storing sandalwood on transit. The Forest Department in this case is engaged in augmenting its revenue from natural source for which men and women of various categories, viz., Grade-I to Grade-III are engaged in cleaning the sandalwood for further processing at the depot. It is set out in paragraphs 1 and 2 of the writ petition as follows:-
"..... In the Sandalwood sales Depot the following works being carried out in respect of cleaning of Sandalwood:-
(a) Forming and checking the uncleaned Sandalwood trees being received from Forest Depots.
(b) Reforming and checking of the uncleaned Sandalwood tree lots in a quarter.
(c) Rough cleaning of the uncleaned Sandalwood trees.
(d) Collection of Sandalwood in the rough cleaning yard.
(e) Final cleaning the rough cleaned Sandalwood trees.
(f) Forming and checking the final cleaned wood by the Double Lock Officer in the presence of the Single Lock Officer and adding to the Double Lock.
(g) Lotting the final cleaned wood for sale.
(h) Delivery of final cleaned wood and sapwood.
(i) Reweighment of the final cleaned wood in the Double Lock.
2. I respectfully state that the above works are being carried out in the sale Depot itself and there where 3 types of Labourers engaged in the Depot.
13. The activities of the Forest Department is commercial in nature. The State Act and the Tamil Nadu Sandalwood Transit Rules, 1967, does not contain any specific clause to exclude the provision of the Central Act, (i.e.) Industrial Disputes Act, 1947 (Act 14 of 1947). The petitioner Department, therefore, cannot take the plea that they are not an industry. The activities of the Forest Department engaged in processing of sandalwood at the Tiruppattur Sandalwood Depot cannot be said to in discharge of sovereign function of the State. It is nothing, but a commercial activity intended to regulate, control the movement of sandalwood and to augment the income of the State thereby. In view of the decision in Chief Conservator of Forests vs. - Jagannath Maruti Kondhare (cited supra) case, relying upon the seven Judges Bench decision in Bangalore Water Supply and Sewerage Board case, the plea that the petitioner department, that it is not an industry is rejected.
14. Insofar as the merits of the case is concerned, a formal plea was placed by the learned Special Government Pleader appearing for the petitioner department to state that the Labour Court has not taken into consideration the oral and documentary evidence placed by the Department in the proper perspective.
15. In the common award, the Labour Court held that the documents filed by the Departments, viz., Exs.M4, M5, M8 and M12 are totally irrelevant for disposal of the case and the finding is not controverted by the petitioner's counsel. The Labour Court came to conclusion that the plea of the Department that there was fire accident and hence the Depot was closed was held to be incorrect for the reason that the fire accident occurred in another depot and the first respondent workmen were working in the main depot and there was no fire accident in the main depot. Therefore, the reason for denial of regular employment and the retrenchment without following procedure prescribed under the Central Act and the Rules was found to be improper. The Labour Court also came to conclusion that the activities in the main depot was continuing and some are working on consolidated wages. The Labour Court further held that as per the deposition of M.W.1, the department witness, who conceded in his cross-examination that the work done by Grade III workers is still going on and the sandalwood godown has not been closed down due to fire. It held that the retrenchment was bad. The Labour Court further held that the Department was trying to wriggle out of claim for irrelevant and mala fide reason. According to the Labour Court, based on an false plea of fire accident and closure of depot, the department has resiled from its duty to employ the women employees without any just or reasonable cause. The Labour Court also came to conclusion that the Forest Department had taken an untenable plea that the nature of work done by the first respondent workmen are a temporary in nature and therefore, they cannot be given regular employment, was only to deny the first respondent's rightful claim to which they are entitled under law.
16. The Labour Court also found fault with the conduct of the officers of department in para 13 of the award. It held that M.W.1, the department witness, has stated that after termination of service all arrears were paid. The Labour Court came to conclusion based on the statement that what has been paid to the workmen till then is far below the minimum wages as otherwise the question of paying arrears will not arise. The Tribunal further held that most of the payment receipts contained mere thumb impressions and held that the Department has not given the labour, their rightful due.
17. The first respondent workmen viz., one Mrs.Mallika, I.D.No.15 of 1999 claims that she is working from 5.2.1985; Mrs.Rathinammal, I.D.No.16 of 1999 claims that she is working from 18.11.1970; Mrs.P.Janaki, I.D.No.17 of 1999 claims that she is working from 17.11.1978; Mrs.Vasantha, I.D.No.18 of 1999 claims that she is working from 14.5.1980; Mrs.K.Vijaya, I.D.No.19 of 1999 claims that she is working from 6.2.1985; Mrs.Pachaiammal, I.D.No.20 of 1999 claims that she is working from 3.10.1977 and so on. This fact is not disputed by the petitioner management which clearly goes to show that the first respondent workmen were working for a considerable period of time as casual workers. The Labour Court clearly came to conclusion that the case of the first respondent workmen has not been properly contraverted by the department and the termination of service was therefore held to be bad. Even before this court, the petitioner management is not able to state, on the basis of any record produced before the Labour Court, as to any glaring infirmity in the finding on facts. No records or documents have been shown to prove that the finding of the Labour Court is perverse or improper. In such view of the matter, this court is unable to find any good reason as to why the order of the Labour Court should be interfered with or set aside.
18. Finding no merits all the writ petitions are dismissed. No order as to costs. The first respondent workmen in all the writ petitions will be entitled to the benefits as per the order of the Labour Court.
19. In the last, a plea was made by the learned Special Government Pleader appearing for the petitioner management that for the period during which the employees had not worked, they are not entitled to backwages as ordered by the Labour Court. Since the first respondent workmen have been illegally retrenched, they are entitled to claim all benefits on reinstatement as ordered by the Labour Court. There can be no dispute that the first respondent workmen in all the cases are entitled to the consequential benefits as held by the Apex Court in Swadesamitran Ltd. - vs. - Their Workmen reported in 1960 Supreme Court 762. The financial burden on the Department with regard to payment to casual employees on reinstatement was raised by the Forest Department in Chief Conservator of Forests and another vs. - Jagannath Maruti Kondhare and another reported in (1996)2 SCC 293 and the same was rejected by the Apex Court. In para 28 of the Apex Court's decision, it is held as follows:-
"28. Insofar as the financial strain on the State Exchequer is concerned, which submission is sought to be buttressed by Shri Dholakia by stating that in the Forest Department itself the casual employees are about 1.4 lakhs and if all of them were to be regularised and paid at the rate applicable to permanent workmen, the financial involvement would be in the neighbourhood of Rs.300 crores a very high figure indeed. We have not felt inclined to bear in mind this contention of Shri Dholakia as the same has been brought out almost from the hat. The argument relating to financial burden is one of despair or in terrorem. We have neither been impressed by the first nor frightened by the second inasmuch as we do not intend that the view to be taken by us in these appeals should apply, proprio vigore, to all casual labourers of the Forest Department or any other Department of the Government."
The said plea has no legs to stand and therefore, is rejected. The petitioner management is therefore, liable to pay all the consequential benefits in terms of the order of the Labour Court. The Labour Court to ensure that the individual workmen are physically present and verify their identity as per records before disbursing the benefits.
ts To
1.The Presiding Officer, Labourt Court, Vellore.
2.Chief Executive Officer/ District Forest Officer, Sandalwood Industrial Complex, Tirupattur 635 601