TMI Blog1995 (12) TMI 341X X X X Extracts X X X X X X X X Extracts X X X X ..... the position, we hold that the aforesaid scheme undertaken by the Forest Department cannot be regarded as a part of sovereign function of the State, and so, it was open to the respondents to invoke the provisions of the State Act. We would say the same qua the social foresting work undertaken in Ahmednagar district. There was, therefore, no threshold bar in knocking the door of the Industrial Courts by the respondents making a grievance about adoption of unfair labour practice by the appellants. The object of the State Act, inter alia, being prevention of certain unfair labour practices, the same would be thwarted or get frustrated if such a burden is placed on a workman which he cannot reasonably discharge. In our opinion, it would be permissible on facts of a particular case to draw the inference mentioned in the second part of the item, if badlis, casuals or temporaries are continued as such for years. We further state that the present was such a case in as much as from the materials on record we are satisfied that the 25 workmen who went to Industrial Court of Pune (and 15 to Industrial Court, Ahmednagar) had been kept as casuals for long years with the primary object of dep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question, that the contention may be gone into as would appear from the order passed on 6.11.1992. But as a contention was advanced for the respondents-workmen that the dispute is fairly old and if the matter were to be remanded to Industrial Court, the workmen would suffer second round of litigation causing hardship to them, a direction was given to the counsel for the appellants to place the factual data, on record of this Court itself, on the basis of which it was contended that the Forest Department was not an industry . It was so done. 3. Shri Dholakia, appearing for the appellants, first urged, and persistently, that to decide this question we may not be guided by what was held in this regard by a 7-Judge Bench of this Court in Bangalore Water-Supply Sewerage Board, etc. vs. R.Rajappa others, 1978 (3) SCR 207. According to the learned counsel this decision needs reconsideration and we should so order. As this was not the stand of the appellants even when the order of 6.11.1992 was passed we did not permit Shri Dholakia to address us on the need of reconsidering the ration of the aforesaid decision. 4. We, therefore, propose to examine the first question on the touch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pursuance to what was stated under (d) above that the aforesaid amendment of 1982 was made which provided for exclusions 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 no.(6) of the 9 mentioned in the amended definition). 6. Shri Dholakia being required to address us as to whether the Forest Department can be said to be an "industry" as per the ration in Bangalore Water-Supply case, urges that it cannot be, because the function discharged by the department, more particularly the one relatable to the scheme in question, named Pachgaon Parwati Scheme undertaken in Pune district, is sovereign in nature, which would as per the aforesaid decision itself qualify for exemption. This is also the contention advanced by Shri Bhandare, appearing for the appellants in the cases relatable to Ahmednagar district. This stand of the learned counsel for the appellants is strenuously challenged by Ms. Jaising, appearing for the respondents-workmen. 7. As per the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f a private company similarly authorised." SLE The Bench thereafter observed that the aforesaid clearly mark out the ambit of the regal functions as distinguished from the other powers of a State. This shows that as per the Corporation of Nagpur case those functions alone which are inalienable can be called sovereign. Ms. Jaising would like us to take the same stand. 9. Shri Dholakia and Shri Bhandare, however, urged that in view of the constitutional duty imposed on States, to undertake many activities including preservation of environment, a la - Article 48A of the Constitution, the extent of sovereign functions may not be confined to the aforesaid three in as much as other functions could also be inalienable : and protection of environment in the present state of pollution is one such function, which cannot be, and would not be, undertaken by any private agency in a meaningful way. 10. In support of the aforesaid contention, the learned counsel for the appellants have relied on a decision of a Division Bench of the Gujarat High Court rendered by one of us (Ahmadi, J. as he then was) in the case of J.J. Shrimali v. District Development Officer, Mehsana Ors., 1989(1) G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , are functions which are indicative of external sovereignity and are political in nature. They are, therefore, not amenable to the jurisdiction of ordinary civil court in as much 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 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 purview of the definition of i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of sovereign function of the State, and so, it was open to the respondents to invoke the provisions of the State Act. We would say the same qua the social foresting work undertaken in Ahmednagar district. There was, therefore, no threshold bar in knocking the door of the Industrial Courts by the respondents making a grievance about adoption of unfair labour practice by the appellants. 18. This takes us to the second main question as to whether on the facts of the present case could it be held that the appellants were guilty of adopting unfair labour practice. As already pointed out, the respondents alleged the aforesaid act by relying on what has been stated under item 6 of Schedule IV of the State Act which reads as below : "To employ employee as "badlis", casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent employees." 19. The Industrial Court has found the appellants as having taken recourse to unfair labour practice in the present cases because the respondents-workmen who had approached the Court had admittedly been in the employment of the State for 5 to 6 years and in each year had wor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d rival contentions and, according to us, the object of the State Act, inter alia, being prevention of certain unfair labour practices, the same would be thwarted or get frustrated if such a burden is placed on a workman which he cannot reasonably discharge. In our opinion, it would be permissible on facts of a particular case to draw the inference mentioned in the second part of the item, if badlis, casuals or temporaries are continued as such for years. We further state that the present was such a case in as much as from the materials on record we are satisfied that the 25 workmen who went to Industrial Court of Pune (and 15 to Industrial Court, Ahmednagar) had been kept as casuals for long years with the primary object of depriving them the status of permanent employees in as much as giving of this status would have required the employer to pay the workmen at a rate higher than the one fixed under the Minimum Wages Act. We can think of no other possible object as, it may be remembered that the Pachgaon Rarwati Scheme was intended to cater to the recreational and educational aspirations also of the populace, which are not ephemeral objects, but par excellence permanent. We would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jects having permanent basis as adverted to by us. 26. Therefore, what was stated in the aforesaid case cannot called in aid at all by the appellants. According to us, the case is more akin to that of State of Haryana v. Piara Singh and others 1992 (4) SCC 118, in which this Court favoured the State Scheme for regularisation of casual labourers who continued for a fairly long spell - say two or three years. (paragraph 51). As in the cases at hand the concerned workmen had, by the time they approached the Industrial Courts worked for more or less 5 years continuously, no case for interference with this part of the relief has been made out. 27. We may also meet the contention that some of the workmen had been employed under the Maharashtra Employment Guarantee Act, 1977. As to this, we would first observe that no factual basis for this submission is on record. Indeed, in some of the cases it has been pointed out that the employer had not even brought on record any order of appointment under this Act. This apart, a perusal of this Act shows that it has not excepted the application of the Industrial Disputes Act, 1947. This is apparent from the perusal of section 13 of this Act. It ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
