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S.B. Sinha, J.—Whether Doordarshan is an ''industry'' within the meaning of Section 2(j) of the Industrial Disputes Act, 1947 (hereinafter to be referred to as the said Act) is the common question involved in these writ applications. However, the facts of both the cases are required to be noted separately :
C.W.J.C. 810 of 1992(R) :
In the aforementioned case, an award dated 26.9.1991 passed by Sri S.K. Mitra (respondent no. 1) in Reference case no. 249 of 1990 as contained in Annexure-4 to the writ application is in question. By a notification dated 12.10.1990 the Central Government in exercise of its power conferred upon it u/s (10)(1)(D) of the Act referred the following dispute for adjudication to respondent no. 1 :
Whether the action of the management of the Doordarshan Kendra, Ranchi in not regularising the services of S/Sri 1. Vinod Kumar Mahto, 2. Hare Ram Singh, 3. Rama Shankar Dayal, 4. Lal Bahadur Rai, 5. Ratan Ram, 6. Bhuneshwar Thakur, 7. Vijay Devgam, 8. Munna Ram, 9. Mahabir Kumar Singh, 10. Karimullah Ansari, 11. Manbodh Ram Munda, 12. Jatru Oraon, 13. Manga Oraon, 14. Lakho Kujur, 15. Ashok Kumar Ohdar, 16. Thappa Pradhan, 17. Gauri Kumari, 18. Sunita Choudhari, 19. Ganesh Lohar is justified? If not what relief the workmen concerned are entitled to?
In the aforementioned reference, the respondent no. 1 upon taking into consideration the evidence on records and the policy decision of Doordarshan directed it to regularise the services of its employees by giving the following awards :
Accordingly, the following award is rendered :
The action of the management of Doordarshan Kendra, Ranchi in not regularising the services of the concerned workers is not justified. The management is directed to regularise all the concerned workmen in service in a phased manner preferably within a period of six months from the date of publication of the award and all of them should be paid wages according to grade and scale of regular workmen similarly situated, less wages already paid from the date of reference i.e. 12.10.1990. The management is further directed to reinstate S/Smt. Gouri Kumari and Sunita Choudhary in service within one month from the date of publication of the award and to pay them wages at par with regular workmen similarly situated less wages already drawn from the date of the present reference as aforesaid.
In the circumstances of the case, I award no cost.
C.W.J.C. no. 2144 of 1990(R) :
In this writ petition the award dated 21.3.1900 passed by respondent no. 1 in Reference No. 36/89 as contained in Annexure-4 is in question. In the aforementioned case, the Central Government issued a notification dated 20th March, 1989 referring the following dispute for adjudication to the Tribunal below :
Whether the action of the management of Doordarshan Kendra, Ranchi, in terminating the service of S/Shri P.K. jha, Satish Kumar, Nand Kumar and Saryug Das is satisfied? If not what reliefs the concerned workmen are entitled to?
In the aforementioned case, the Management did not adduce any evidence whatsoever nor produced the Registers, vouchers and other documents which were relevant for the purpose of determination of the said dispute before the Tribunal below. The Tribunal below upon taking into consideration all the evidences on record came to the conclusion that the concerned workmen are workmen within the meaning of Section 2(s) of the Industrial Dispute Act and as they had completed more than 240 days of service; termination of their services without complying with the provisions of Section 25F of the Industrial Dispute Act was illegal.
Mr. Debi Prasad, learned Standing Counsel, Central Government has raised two questions in support of the applications. Firstly the Learned Counsel submitted that the concerned workmen being holders of civil posts within the meaning of Article 309 of the Constitution of India, the reference made by the Central Government before the Tribunal below was illegal as the remedy of the concerned respondents, if any, was to move the Central Administrative Tribunal constituted under the provisions of Administrative Tribunal Act, 1985.
Learned Counsel further submitted that Doordarshan is not an "industry" within the meaning of Section 2(j) of the said Act on the following grounds stated in the writ petition :
i. Doordarshan is run by Central Government through Ministry of information and Broadcasting to disseminate knowledge among people
ii. Doordarshan runs from the Budget allotted to Ministry of Information and Broadcasting and paid from the consolidated fund of India.
iii. Director General, Doordarshan''s office is a purely and wholly an attached office of the Government of India and its Kendras etc. are the subordinate offices of the Government of India.
iv. Doordarshan is engaged in the activities which form the sovereign functions of the State.
v. That Tribunal had no jurisdiction. The remedy was to approach Central Administrative Tribunal
Learned Counsel in support of his contention has place strong reliance upon Union of India (UOI) Vs. M.A. Chowdhary, ; and in Y.K. Mehta and Others Vs. Union of India (UOI) and Another, .
Learned Counsel further submitted that the learned court below committed illegality in relying upon the decision of the Allahabad High Court in Doordarshan Karamchari Congress vs. Union of India & ors. reported in 1988(2) LLJ 83 inasmuch as the said decision has not laid down any ratio.
In relation to C.W.J.C. 810/92(R), Learned Counsel submitted that as all the concerned workmen were appointed for a fixed period, no relief for regularisation of their services could have been granted in their favour.
Mr. D. Dash Learned Counsel appearing for the workmen in C.W.J.C. 2144 of 1990(R) submitted that Doordarshan is an industry within the meaning of section 2(j) of the Industrial Disputes Act. In support of his contention the Learned Counsel has relied upon the following decisions :
(1) 1988 (2) LLJ 83, Doordarshan Karamchari Congress. vs. Union of India and ors.
(2) 1990(4) SCC 472. Karnani Properties Ltd. vs. State of West Bengal.
(3) 1991 SCC 32. Prithipal Singh vs Union of India; and
(4) Des Raj and Ors Vs. State of Punjab and Ors,
Learned Counsel further submitted that as in the aforementioned case, the Management has not adduced any evidence whatsoever, this Court should not interfere with the findings of fact arrived at by the Tribunal below.
Mr. A.K. Sinha, Learned Counsel appearing for the workmen in C.W.J.C. no. 810 of 1992(R) submitted that from a perusal of the impugned award as contained in Annexure-4 to the writ application, it would appear that the Management has not adduced any evidence whatsoever with regard to the activities and functions of Doordarshan so as to exclude the same from the purview of the definition of ''industry'' as contained in section 2(j) of the said Act.
Learned Counsel, therefore, submitted that in this situation the petitioner should not be permitted to raise the said question for the first time before this Court.
Learned Counsel further submitted that in any view of the matter even upon taking into consideration the activities and functions of Doordarshan as has been contended on behalf of the petitioner, it would come within the purview of the definition of Industry. Learned Counsel in this connection apart from the decisions relied upon by Mr. Dash has also relied upon a Full Bench decision of this Court in Bijay Bharati vs. State of Bihar reported in 1983 PLJR 667.
It was further submitted that in view of the policy decision of the Doordarshan, the workmen concerned were bound to be regularised.
Learned Counsel in this connection has relied upon Bhagwati Prasad Vs. Delhi State Mineral Development Corporation, .
Re. Contentions 1 and 2 :
As both the questions are inter related the same are taken up for consideration together.
From a perusal of the impugned awards which are contained in Annexure 4 to each of the writ applications, it would appear that the Management had not adduced any evidence whatsoever with regard to the activities and functions of Doordarshan. It is only at the stage of argument, a question had been raised as to whether Doordarshan is an industry or not.
Section 2(j) of the said Act reads as follows :
Industry means any business, trade, undertaking manufacture or calling of employers and includes any calling, service, employment, handicraft or industrial occupation or avocation or workmen.
The aforementioned provision is both exhaustive and inclusive. It not only brings within its sweep business, trade undertaking, manufacture or calling of employers but also includes service, employment, handicraft or industrial occupation or avocation of workmen.
In Bangalore Water Supply and Sewerage Board Vs. A. Rajappa and Others, , the Supreme Court interpreted the word ''industry'' saying :
Industry as defined in S.2(j) has a wide import. Where there is (i) systematic activity (ii) organized by co-operation between employer and employee (the direct and substantial element is chimerical) (iii) for the production and/or distribution of goods and services calculated to satisfy human wants and wishes not spiritual or religious but inclusive of material things or services geared to celestial bliss e.g. making, on a large scale, prasad or (food) prima facie, there is an ''industry'' in that enterprise.
Absence of profit motive or gainful objective is irrelevant be the venture in the public, joint, private or other sector. The true focus is functional and the decisive test is the nature of the activity with special emphasis on the employer-employee relations.
If the organization is a trade or business it does not cease to be one because of philanthropy animating the undertakings.
Although S.2(j) uses words of the widest amplitude in its two limbs, their meaning cannot be magnified to overreach itself.
The word ''industry'' must be given a broader meaning so as to include systematic activities involving participation of the employers and employees. A department of the Central Government or the State Government does not cease to be an industry only because fund thereof is allotted from the consolidated fund of India.
Doordarshan, All India Radio, Railway Administration etc. are the commercial Departments of the Central Government. Such commercial activities on the part of the Central Government come within the purview of the definition of ''Industry'' as contained in Section 2(j) of the Industrial Disputes Act.
In Bijay Bharati''s case (Supra) it has been held that the Irrigation Department of the State of Bihar is an industry.
This aspect of the matter has also been considered by a Division Bench of this Court in Purnea Zila Mazdoor Union vs. State of Bihar and others reported in 1989 PLJR 493 wherein it was held that grant of irrigational facility comes within the purview of the definition of Industry. In the aforementioned decision, this Court relied upon a decision of Bijay Kumar Bharti and others vs. State of Bihar (1983 PLJR 607) and Des Raj and Ors Vs. State of Punjab and Ors,
Mr. Debi Prasad, when questioned further could not point out that the activities of Doordarshan come within the purview oh pure regal functions of the State so as to exclude the same from the purview of the definition of ''industry''.
In view of the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board (Supra) the quest ion which is to be posed is not as to what is an ''industry'' but what is not an industry. The regal functions of the State stricto sensu may be outside the purview of the industrial activities.
In Karnani Properties Ltd. Vs. State of West Bengal and others, , the Supreme Court observed following its earlier decision in Bangalore Waterways (Supra) that the activities of the appellant before it which was a Real Estate Company owning mansions and leasing them out wherein workers were employed for their maintenance like sweepers, durwan, plumbers, bill collectors, mistries liftman etc. came within the purview of the definition of ''industry''.
The decision in Prithipal Singh Vs. Union of India, upon which reliance has been placed by Mr. Dash has no relevance inasmush as it has not been decided therein as to whether the Ministery of Surface Transport conies within the purview of the definition of ''industry''. Similarly the decision of the Allahabad High Court in 1988(2) LLJ 83 is not relevant inasmuch as in that case no ratio decidendi has been laid down.
In Bijay Bharti''s case (Supra) the following are the categories of functions of the State which would not come within the purview of the industrial activity namely :
(1) the sovereign or the regal functions of the State which are the primary and inalienable rights of a constitutional Government.
(2) Economic adventures clearly partaking of the nature of trade and business undertaken by it as part of its welfare activities.
(3) Organized activity not stamped with the total indicia of business yet bearing a resemblance to or being analogous to trade and business.
(4) The residuary organized governmental activity which may not come within the ambit of the aforesaid three categories.
The Full Bench held the first and the last categories will not fall within the lour corners of the definition of ''industry'' while the second and the third would.
This aspect of the matter has recently been considered by me in Jamshedpur Notified Area Committee, Jamshedupur Vs. Presiding Officer Industrial Tribunal, Ranchi 1992 (1) PLJR 624 wherein it has been held that the notified area committee would come within the purview of the definition of ''industry''.
The High Court cannot shut its eyes to the fact that Doordarshan carries on commercial activities as it earns a huge amount by way of advertisement of commercial products of the advertisers.
In this view of the matter, there cannot be any doubt that Doordarshan is an ''industry'' within the meaning of section 2 (j) of the Industrial Disputes Act.
The question which now arises for consideration is as to whether Section 14 of the Administrative Tribunals Act 1985 takes away the jurisdiction of the Industrial Tribunal in granting reliefs to the concerned workmen?
Section 14 of the Administrative Tribunals Act provides that the Central Administrative Tribunal shall exercise all the jurisdiction, powers and authority exercisable immediately before the appointed day by all courts in relation to the matters enumerated therein.
It is now well known that Industrial Tribunals and Labour Courts are not courts although they have all the trappings of a court.
Reference in this connection may be made to The Bharat Bank Ltd., Delhi Vs. Employees of the Bharat Bank Ltd., Delhi and The Bharat Bank Employees'' Union, Delhi, .
Both Administrative Tribunals Act and the Industrial Disputes Act are self-contained Codes. The jurisdiction of the industrial courts is not curtailed by reason of the provisions of the Administrative Tribunals Act. Thus, although the employees of Doordarshan might be holders of civil posts as has been held by the Supreme Court in Union of India (UOI) Vs. M.A. Chowdhary, and in Y.K. Mehta and Others Vs. Union of India (UOI) and Another, , but the aforementioned decisions are not authorities for the proposition that thereby the jurisdiction of the Industrial Tribunal would be excluded.
The jurisdiction of the Central Administrative Tribunal and the industrial courts, in my opinion, are concurrent.
In this view of the matter, in my opinion, the references made by the Central Government in exercise of its powers conferred upon it u/s. 10 (1) of the Industrial Disputes Act, 1947 were not illegal.
So far as the merit of the case in C.W.J.C. 2144/90 R is concerned, as noticed hereinbefore, Mr. Debi Prasad did not question the award passed by the Industrial Tribunal on merits However, he merely submitted that in C.W.J.C. 810/92 R, the appointees having been appointed for a fixed period, they would not come within the purview of the definition of ''workmen'' This submission of Mr. Debi Prasad is only stated to be rejected. The definition of workmen as contained in Section 2 (s) of the Industrial Disputes Act is of wide import.
There is nothing Jo show that the employees or the concerned workmen were for a fixed period. The learned Tribunal below categorically held that the workmen were employed as casual workers on daily rated basis. They had worked, even according to the petitioners, for a long period as is evident from paragraph 8 of the impugned award. It is further evident that the Assistant Station Engineer, Doordarshan Kendra, Ranchi, recommended the cases of 9 workmen by his letter dated 29.10.1988 for their regularisation before the Director General, Doordarshan Kendra. The said letter further discloses that 22 posts of helpers were created for 11 Stations in the State of Bihar. By another letter dated 26.11.1987, the Audition Research Officer on behalf of Doordarshan Ranchi prepared a list of casual workers to the Director General, Doordarshan, New Delhi. In the said letter only the name of two workmen namely Smt. Sunita Choudhury and Ganesh Lohar did not figure.
The Tribunal has further taken into consideration the fact that Smt. Sunita Choudhury had been working since 17.11.88 and she and Ganesh Lohar both had worked for more than 240 days in a calendar year; whereas oilier workmen had worked for a number of years. The Tribunal also arrived at a finding of fact that the services of Smt. Gauri Kumari and Sunita Choudhury earlier terminated without complying with the mandatory provision of Section 25F of the said Act although they have worked for more than 240 days as they were slopped from performing their duties on and from 28.7.91 and 8.7.91 respectively.
The workmen in C.W.J.C. 810/92 (R) have annexed with their counter affidavit a copy of the judgment of the Central Administrative Tribunal, Principal Bench, New Delhi dated 5th October, 1990 (Annexure-B) wherein the Central Administrative Tribunal directed as follows :
We have heard the Learned Counsel for the parties. On the question of protection of pay and absorption of the daily rated casual employees on regular basis on posts of Floor Assistant, Production Assistant General Assistant, Lighting Assistant, Carpenter, Painter, Camera-man, Make-up man etc. etc. we are of the view that the principles enunciated by the Supreme Court in the above quoted judgments are applicable to these cases also. We, therefore, direct the Union Government as well as its subordinate office, i.e. the Director General Doordarshan, respondent no. 1 to frame a rational scheme (a) for regularisation of the daily rated casual workers (described as casual artist) in regular cadres; and (b) terms and conditions for engagement of daily rated casual employees in future and their absorption in due course. We further direct that no recruitment on the aforesaid posts shall take place till such a scheme is submitted or accepted by the court as for as possible unless the recruitment is confined only to daily rated casual workers (called casual artists by the Doordarshan Kendras) as engaged in the past. These cases shall stand adjourned by three months. Meanwhile the respondents shall frame a scheme as directed above and submit to us for acceptance.
These cases need not be treated as part-heard.
It is not in dispute that the Doordarshan has taken a policy decision for regularisation of its employees. It is not the case of the petitioner that the concerned workmen do not fulfill the conditions laid down in the said policy. From the facts as noticed hereinbefore, the cases of all the workmen (except two workmen whose services have been terminated) have been recommended. For the reasons aforementioned, in my opinion, it cannot be said that the learned Tribunal below acted illegally and without jurisdiction in passing the impugned award. There is, thus, no merit in these applications which are accordingly dismissed. In the facts and circumstances of this case, the concerned workmen shall also be entitled to cost which is assessed at Rs. 500/- in each of the writ applications.