Executive Engineer, Minor Irrigation Division, Vikas Bhawan, Raebareli and Another vs Raj Kumar Srivastavaand Another

S.S. Chauhan, J.

1.This writ petition has been filed challenging the award dated 9.2.2005 passed by the Labour Court in Adjudication Case No.28 of 2001 mainly on the ground that the Minor Irrigation Department is not an industry and, therefore, the award given by the Labour Court is per se bad in law.

The brief facts as stated, are that the respondent No.1 preferred a writ petition before this Court, which was registered as Writ Petition No.234 (S/S) of 1998, Rai Kumar Srivastava v. State of U.P. and another. In the said writ petition a claim was made by the respondent No.1 that he was engaged on daily wage basis on 1.1.1990 and he continued in the same capacity till 31.8.1997, but because of the fact that his services were orally terminated he filed a writ petition before this Court. The said writ petition was dismissed by means of order dated 23.11.1998 on the ground that the petitioner has an alternative remedy before the Labour Court and, therefore, the petitioner may raise his grievances before the said forum. In pursuance to the said order the petitioner raised an industrial dispute before the State Government and the State Government by means of order dated 27.3.2001 had referred the matter for adjudication before the Labour Court, U.P., Lucknow. The Labour Court considered the case of the respondent No.1 and proceeded to hold that the termination of the services of the petitioner was illegal in absence of any notice and for violation of Section 6N of the U.R Industrial Disputes Act (hereinafter referred to as the ''Act''). Written statement were filed by the petitioner as well as by the respondent No.1, but none of the parties filed replication to the written statement. The Labour Court adjudicated the claim and passed an award reinstating the respondent No.1, but without any back wages. It was also provided that the respondent No.1 would be entitled for salary from the date of publication of the award.

A counter affidavit has been filed denying the allegations made in the writ petition. The petitioners have filed rejoinder affidavit.

I have heard the learned counsel for the parties and gone through the record.

The only point, which has been argued before this Court by the learned Standing Counsel, is that Minor Irrigation Department is not an industry and, therefore, the award given in favour of the respondent No.1 is�wholly illegal and without authority of law.

The argument of the learned Standing Counsel cannot preval under law on account of the fact that principles of estoppel will operate against the State, as the State was a party in the earlier writ petition, which was dismissed on the ground of alternative remedy before the Labour Court. It is obvious that an objection must have been raised from the side of the State in this regard. The petitioners cannot approbate and reprobate and shall be deemed to be bound by their earlier statement that the petitioner''s case is cognizable by the Labour Court.

The argument of the petitioners in regard to the fact that the Minor Irrigation Department is not an industry has been repelled by the learned counsel for the respondent No.1 by relying upon three decisions reported in (1988) 2 SCC page 537, Des Raj and others v. State of Punjab and others. (1999) 3 SCC page 14. Samishta Dube v. City Board. Etawah and another and Anand Regional Coop. Oil Seeds Growers Union Ltd, v. Shailesh Kumar Harshadbhai Shah. (2006) 6 SCC page 548.

Learned counsel for the respondent No.1 has specifically submitted that in the similar situation in the matter pertaining to the Irrigation Department of the State of Punjab, the Apex Court considered the matter at length and then came to the conclusion that the Irrigation Department of the State of Punjab was covered within the definition of industry. In para 13 of Des Raj (supra) case the Apex Court held as under:

"13. The Administrative Report of the facts found by the High Court in the instant case have attempted to draw out certain special features. The legal position has been indicated in the earlier part of our judgment. On the tests, as already laid down in the judgments, we do not think these facts found in this case can take out the Irrigation Department outside the purview of the definition of ''industry''. We have already referred to the Dominant Nature test evolved by Krishna Iyer, J. The main functions of the Irrigation Department were subjected to the Dominant Nature test clearly come within the ambit of industry. We have not been able togather as to why even six years after the amendment has been brought to the definition of Industry in Section 2(j) of the Act the same has been brought into force. This Court on more than one occasion has indicated that the position should be clarified by an appropriate amendment and when keeping in view the opinion of this Court, the law was sought to be amended, it is appropriate that the same should be brought into force as such or with such further alterations as may be considered necessary, and the legislative view of the matter is made known and the confusion in the field is cleared up."

In the case of Samishta Dube (supra) their Lordships again came to the conclusion that the Typist/Clerk working in the administrative office of the Nagar Palika is covered within the definition of workman''. In para 6 of the aforesaid case the Apex Court held as under:

"6. Coming to the question whether a Clerk/Typist could be ''workman'' within Section 2(z) of the U.P. Industrial Disputes Act, 1947 we may refer to certain cases under Section 2(s) of the Industrial Disputes Act, 1947. In Indian Iron & Steel Co. Ltd, v. Workmen and Bihar SRTC v. State of Bihar, a person doing clerical work in the industry was treated as a workman''. The appellant, therefore, falls within the definition of ''workman'' in Section 2(z) of the U.P. Industrial Disptues Act, 1947."

In the case of Anand Regional Coop. Oil Seeds Growers'' Union Ltd, (supra) the Apex Court held as under:

"For determining the question as to whether a person employed in an industry is a workman or not; not only the nature of work performed by him but also the terms of the appointment in the job performed are relevant considerations.

Supervision contemplates direction and control. While determining the nature of the work performed by an employee, the essence of the matter should call for consideration. An undue importance need not be given for the designation of an employee, or the name assigned to, the class to which he belongs. What is needed to be asked is as to what are the primary duties he performs. For the said purpose, it is necessary to prove that there were some persons working under him whose work is required to be supervised. Being in charge of the section alone and that too it being a small one and relating to quality control would not answer the test.

The precise question came up for consideration in Ananda Bazar Patrika (P) Ltd, v. Workmen, wherein it was held; (SCC p.249, para 3)

"3. The question, whether a person is employed in the supervisory capacity or on clerical work, in our opinion, depends upon whether the main and principal duties carried out by him are those of a supervisory character, or of a nature carried out by a clerk. If a person is mainly doing supervisory work, but, incidentally or for a fraction of the time, also does some clerical work, it would have to be held that he is employed in supervisory capacity, and, conversely, if the main work done is of clerical nature, the mere fact that some supervisory duties are also carried out incidentally or as a small fraction of the work done by him will not convert his employment as a clerk into one in supervisory capacity."

A person indisputably carries on supervisory work if he has power of control or supervision in regard to recruitment, promotion etc. The work involves exercise of tact and independence."

Considering the dictum of the Apex Court in the above cases and the specific pleading of the parties that the respondent No.1 was engaged in a project of the Minor Irrigation Department, it is clear that the respondent No.1 falls within the category of ''workman'' and the termination of his services as held by the labour Court being not in accordance with law is valid and, therefore, the reinstatement as ordered by the Labour Court does not require any interference.

The Labour Court correctly came to the conclusion that the respondent No.1 was a workman and his services were terminated without issuing any notice as contemplated under Section 6N of the Act. The Labour Court also recorded a specific finding that in rebuttal of evidence of the respondent No.1 no evidence has been adduced by the petitioners to rebut it, so in absence of any rebuttal from the side of the petitioners the evidence of the respondent No.1 has to be accepted as correct. The respondent No.1 has worked for a long period and, therefore, the finding recorded by the Labour Court does not require any interference.

I find no force in the writ petition. It is accordingly dismissed.

(Petition dismissed)