JUDGMENT R.K. Agrawal, J.
1. By means of the present writ petition, the petitioner, New Okhla Industrial Development Authority, Ghaziabad, (hereinafter referred to as 'the Noida') seeks a writ, order or direction in the nature of certiorari quashing the award dated 26th June, 1990, passed by the Labour Court, Ghaziabad, respondent No. 1, filed as Annexure-2 to the writ petition, and also the reference made by the State Government under Section 4K of the U. P. Industrial Disputes Act, 1947, (hereinafter referred to as 'the Act') and other consequential reliefs.
2. Briefly stated, the facts giving rise to the petition are as follows:
According to the petitioner, it is an authority created under Section 3 of the U. P. Industrial Area Development Act, for the object of development of land for industrial, commercial and residential purposes in the industrial area in Noida in the district of Ghaziabad, now Gautam Buddh Nagar. K.D. Sharma, respondent No. 3, was employed on daily wages as a casual labour for a specified period with effect from 13th December, 1984. His work was not found satisfactory and the petitioner did not assign any work from 21st August, 1986, According to the petitioner, the respondent No. 3 worked from 13th December, 1984, to 20th August, 1986, for different periods. The details of the period during which he had worked is given below :
3. On a dispute being raised by the respondent No. 3, the Reconciliation Officer, Ghaziabad, made efforts to amicably settle the dispute but on its failure, State of U. P. referred the following dispute for adjudication to the Labour Court :
"Kya sewayojako dwara apne shramik D. Sharma putra Shri Satyadeo Sharma pad Junior Engineer ki sewayen dinank 21.8.1986 se samapt kiya jana uchit tatha/athwa uaidhanik hai, Yadi ha, to sambandhit shramik kya labh/anutosh (relief) pane ka adhikari hai, tatha anya kin vivrano sahit."
4. The reference was registered as Adjudication Case No. 230 of 1989, before the Labour Court (II), U. P., Ghaziabad. The parties filed their written statements and rejoinder statement before the Labour Court. An objection was raised by the petitioner that it does not come within the ambit of the definition of the word "industry" and the provisions of Section 4K of the Act, has no application. Consequently, the provisions of Section 6N of the Act, will have no application. The Labour Court after considering the written statements, the objections and the material and evidence on record, vide award passed on 26th June, 1990, had held that the termination of the services of the respondent No. 3 with effect from 21st August, 1986, is illegal and void. It directed for reinstatement with continuity of service and back wages. The award dated 26th June, 1990, is under challenge in the present writ petition.
5. I have heard Sri U, S. Awasthi, the learned counsel for the petitioner and Shri Shyam Narain on behalf of the respondent No. 3.
6. The learned counsel for the petitioner submitted that the respondent No. 3 was not continuously employed with the petitioner. He was only a casual labour and had been assigned work for certain specified period. According to him, since the respondent No. 3 was not employed as a permanent labour, the provisions of the Act are not applicable. He further submitted that the provisions of the Act, are not applicable to the petitioner as it is not an "industry". It is a statutory body created for the purposes of planned industrial, commercial and residential development of the industrial area in Noida under Section 3 of the U. P. Industrial Area Development Act. Thus, he submitted that the entire proceedings before the Labour Court were wholly without jurisdiction. He also submitted that the petitioner has its own service regulations governing the service conditions of all the employees and, therefore, the provisions of the Act are not applicable. He further submitted that the petitioner was not given opportunity for filing the rejoinder statement, which has resulted in gross violation of justice.
7. Shri Shyam Narain, the learned counsel for the respondent No. 3 workman, submitted that the respondent No. 3 had worked for more than 240 days in a year preceding the date of his retrenchment and, therefore, the provision of Section 6N of the Act, ought to have been complied with. Non-compliance of Section 6N had rendered the termination void. He invited the attention of the Court to the order sheet filed as Annexure-C.A. 4 to the counter-affidavit of the respondent No. 3 and submitted that for filing the rejoinder statement, the labour court had given time on 25th June, 1988. 16th July, 1988, Gth August, 1988, 17th September. 1988. 1st October. 1988 and 22nd October, 1988 and when in spite of several opportunities being given, the petitioner did not file the rejoinder-statement and also did not pay the costs, the labour court vide order dated 7th November, 1988, decided to proceed ex parte without giving any further lime to the petitioner to file rejoinder-statement. Thus, the petitioner is liable to be blamed for not filing the rejoinder-statement within the time allowed by the Labour Court. He further submitted that the petitioner is engaged in the planned development of industrial, commercial and residential area in Noida and, therefore, it is an "industry" covered by the provisions of the Act.
8. Having heard the learned counsel for the parties, I find that the Labour Court has found that there is no provision under the U. P. Industrial Area Development Act, 1976, which excludes the provisions of the Act and, therefore, the provisions of the Act would be applicable. It further found that the respondent No. 3 comes within the meaning of word "workman" and, therefore, the reference is not bad. It also held that the workman had worked for more than 240 days in a year preceding the date of his retrenchment and, therefore, he will be deemed to be in continuous service notwithstanding the fact that he was given artificial break. The Labour Court did not accept the plea of the employer that the workman was employed for specified work and for some specified period. It found that the provisions of Section 6N of the Act, were not complied with and, therefore, the retrenchment is bad.
9. So far as the question as to whether the petitioner is an "industry" or not is concerned, it may be mentioned here that in the case of Bangalore Water Supply and Sewerage Board v. A. Rajappa, 1978 (36) FLR 266, the seven Judges' Constitution Bench of the Apex Court, has held that for deciding as to whether an establishment is an industry, the dominant nature test has to be followed. It has summarised the dominant nature test as under :
"143. The dominant nature test :
(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 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 the Corporation Of Nagpur 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) quail fy for exemption, not the welfare activities or economic adventures undertaken 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."
10. In the case of Chief Conservator of Forests and Anr. v. Jagannath Maruti Kondhare, 1996 (72) FLR 840. the Hon'ble Supreme Court has held that the scheme which was being implemented by the Chief Conservator of Forests cannot be regarded as a part of inalienable or inescapable function of the State and, therefore, cannot be regarded as part of the sovereign function of the State. Thus, there was no threshold bar in knocking the door of the Industrial Courts by the respondents making a grievance about the adoption of unfair labour practice by the appellants.
11. So far the question as to what is the sovereign function of the State, it was considered by the Hon'ble Supreme Court in the case of Corporation of the City of Nagpur v. Its Employees, AIR 1960 SC 675 ; Nagendra Rao and Co. v. State of Andhra Pradesh, JT 1994 (5) SC 572, and Agricultural Produce Market Committee v. Ashok Harikuni and Anr. etc., 2001 (1) AWC 2.1 (SC) (NOC) : AIR 2000 SC 3116. In the case of Agricultural Produce Market Committee (supra), the Hon'ble Supreme Court has considered as to what is a sovereign function. The Apex Court has held as follows :
"In other words, it all depends on the nature of power and the manner of its exercise. What is approved to be "Sovereign" is defence of the country, raising armed forces, making peace of war, foreign affairs, power to acquire and retain territory. These are not amenable to the jurisdiction of ordinary civil courts. The other functions of the State including welfare activity of State could not be construed as "sovereign" exercise of power. Hence, every governmental function need not be "sovereign". State activities are multifarious. From the primary sovereign power, which exclusively inalienably could be exercised by the sovereign alone, which is not subject to challenge in any civil court to all the welfare activities, which would be undertaken by any private, person. So merely one is employee of statutory bodies would not take it outside the Central Act. If, that be then Section 2 (a) of the Central Act, read with Schedule I gives large number of statutory bodies should have been excluded, which is not. Even, if a statute confers on any statutory body, any function which could be construed to be "sovereign" in nature would not mean every other function under the same statute to be also sovereign. The Court should examine the statute to severe one from the other by comprehensively examining various provisions of that statute. In interpreting any statute to find it is "industry" or not we have to find its pith and substance. The Central Act is enacted to maintain harmony between employer and employee which brings peace and amity in its functioning. This peace and amity should be the objective in the functioning of all enterprises. This is to the benefit of both, employer and employee. Misuse of rights and obligations by either or stretching it beyond permissible limits have to be dealt with within the framework of the law but endeavour should not be in all circumstances to exclude any enterprise from its ambit. That is why Courts have been defining "industry" in the widest permissible limits and "sovereign" functioning within its limited orbit."
It further held the sovereign function in the new sense as follows :
"So, sovereign function in the new sense may have very wide ramification but essentially sovereign functions are primary inalienable functions which only State could exercise. Thus, various functions of the State, may be ramifications of 'sovereignty' but they all cannot be construed as primary inalienable functions. Broadly, it is taxation, eminent domain and police power which covers its field. It may cover its legislative functions, administration of law, eminent domain, maintenance of law and order, internal and external security, grant of pardon. So, the dichotomy between sovereign and non-sovereign function could be found by finding which of the functions of the State could be undertaken by any private person or body. The one which could be undertaken cannot be sovereign function. In a given case, even in subject on which the State has the monopoly may also be non-sovereign in nature. Mere dealing in subject of monopoly of the State would not make any such enterprise sovereign in ature. Absence of profit making or mere quid pro would also not make such enterprise to be outside the ambit of "industry" as also in State of Bombay case, AIR 1960SC 610 (supra)."
The Hon'ble Supreme Court came to the conclusion that the Agricultural Produce Market Committee established under the Karnataka Agricultural Produce Marketing (Regulation) Act, 1966, is "an Industry".
12. In the case of Management of Dandakaranya Project, Koreput v. Workmen through Rehabilitation Employees Union and Anr., 1997 Lab IC 858, the Apex Court has held that the rehabilitation project undertaken by the Government of India to rehabilitate the refugees from Pakistan, popularly known as "Dandakaranya Project" is an industry within the meaning Section 2 (j) of the Industrial Disputes Act.
13. In the case of General Manager, Telecom v. S. Srinivasa Rao and Ors.. 1998 (1) AWC 658 (SC) : AIR 1998 SC 656, the Apex Court has held that the Telecom Department of the Union of India is an industry.
14. Applying the principles laid down by the Hon'ble Supreme Court regarding sovereign function and dominant nature test to the facts of the present case, I find that the planned development undertaken by the petitioner is in the nature of a work undertaken in industry and cannot be said to be a sovereign function. Thus, the development undertaken by the petitioner falls within the definition of the word "industry" and consequently the provisions of the Act are applicable.
15. It is not in dispute that the petitioner is engaged in the planned development of the industrial, commercial and residential area in Noida. The respondent No. 3 was employed as a Labour from 13th December, 1984, to 20th August, 1986, and had worked for certain periods. Even, according to own showing of the petitioner, the respondent No. 3 had worked for about 268 days in a calendar year preceding the date of his retrenchment. It is also admitted that the petitioner had neither been given any show cause notice nor any pay in lieu of the notice period or retrenchment compensation as provided under Section 6N of the Act. Thus, the provisions of Section 6N have not been complied with. In this view of the matter, the order of the Labour Court does not suffer from any legal infirmity.
16. So far as the contention that in view of the specific service regulations being framed which govern the service conditions of the employees of the petitioner, the provisions of the Act, shall stand excluded is concerned, it may be mentioned here that Section 6R of the Act, excludes the applicability of all other Acts. Section 6R of the Act, reads as under :
"6R. Effect of laws inconsistent with Sections 6J to 6Q.--(1) The provisions from Sections 6J to 6Q shall have effect notwithstanding anything inconsistent therewith contained in any other law (including Standing Orders) made under the Industrial Employment (Standing Orders) Act, 1946 :
Provided that nothing contained in this Act, shall have effect to derogate from any right which a workman has under the Minimum Wages Act, 1948, or any notification or order issued thereunder or any award for the time being in operation or any contract with the employer.
(2) For the removal of doubts, it is hereby declared that nothing contained in Sections 6J to 6R shall be deemed to effect the provision of any other law for the time being in force so far as that law provides for the settlement of industrial disputes, but the rights and liabilities of employers and workmen in so far as they relate to lay off and retrenchment shall be determined in accordance with the provisions of Sections 6J to 6Q."
17. It starts with a rum obstante clause and makes applicable the provisions of Sections 6J to 6Q of the Act, which is inclusive of Section 6N of the Act. In this view of the matter, the provisions of Section 6N have to be complied with notwithstanding the provisions contained in the service regulations.
18. In view of the foregoing discussion, I do not find any merit in this petition. It is dismissed.