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Panchayat Union v. S. Bhagavath Singh - Writ Petition No. 16988 of 1995  RD-TN 595 (16 August 2002)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
The Hon'ble Mr. Justice P. SATHASIVAM
Writ Petition No. 16988 of 1995
W.M.P.Nos. 19676 and 19677 of 1997
represented by its Commissioner,
Rajapalayam, Kamarajar District. ..... Petitioner -Vs-
1. S. Bhagavath Singh,
2. The Presiding Officer,
Labour Court, Madurai. ..... Respondents Petition under Article 226 of the Constitution of India, for issuance of a Writ of Certiorari as stated therein.
For petitioner: Mr. B. Ravi for Mr. V.P.Venkat. For 1st respondent: Mr. V. Chandrakanthan.
Panchayat Union, Rajapalayam, aggrieved by the award of the Labour Court, Madurai dated 27-6-94 in I.D.No.613 of 91, granting relief of reinstatement with back wages in favour of the first respondent-workman, has filed the above writ petition to quash the same on various grounds. 2. The case of the petitioner is briefly stated hereunder: According to the Commissioner, Rajapalayam Panchayat Union, his Panchayat Union has on its employment a full-time PumpFitter to repair hand pumps of the petitioner Panchayat Union. There is a Government Order which permits hiring of temporary hands on daily wages basis if there are more than 100 hand pumps at the rate of one, temporary hand for every 30 pumps. Accordingly, the first respondent herein was employed as Fitter from 4-5-83 on daily wages basis. He was paid for the days he worked. There was audit objection for hiring of temporary hands for more than 90 days, consequently the Commissioner, Panchayat Union by his proceedings dated 27-2-91, terminated the service of the first respondent with effect from 28-2-91. However, in view of the drought conditions that were prevailing, the first respondent was again appointed as Additional Fitter on a purely temporary basis on daily wages with effect from 15-4-91. Though the first respondent has prayed for regularisation, he could not be appointed as Fitter on permanent basis since he was not qualified as a Fitter but only in wiring. In view of the instructions of the District Collector dated 9-8-88 by which additional fitters should be appointed only on a temporary daily wages basis based on need, the first respondent's request for permanent appointment could not be honoured. The first respondent raised an industrial dispute which resulted in I.D.613/91 on the file of the Labour Court, Madurai. The petitioner Panchayat Union had taken the stand that the respondent is not a workman and the Panchayat Union is not an industry and the first respondent is not entitled to file a petition under Industrial Disputes Act. In any event, he was a daily wage worker and not qualified as a Fitter and if the Government authorized the appointment of additional Fitters, the Panchayat Union is ready and willing to appoint him. The Labour Court by the impugned award dated 27-6-94, after holding that the first respondent is a workman and the termination of the first respondent is illegal, set aside the same with a direction to take him back on work with back wages; hence the present writ petition. 3. Heard the learned counsel for the petitioner Panchayat Union as well as first respondent-workman.
4. The Tribunal has framed the following questions for consideration: (i) Whether the first respondent herein (petitioner therein) is a workman in terms of the provisions of the Industrial Disputes Act; (ii) Whether the Panchayat Union is justified in terminating the services of the first respondent herein on 13-3-91;
(iii) Whether the Panchayat Union is liable to provide employment with back wages;
(iv) Any other relief.
5. The first respondent herein was examined as W.W.1 and Exs. W-1 to W-7 marked in support of his claim. On the side of the Panchayat Union, their Officer one Sukuamr was examined as M.W.1. It is the case of W.W.1 that he was working as a Fitter in the Panchayat Union for the last 5 years and getting wages at the rate of Rs.25/- per day. On the other hand, M.W.1 has specifically stated that W. W.1 is only a temporary employee and he was paid wages whenever the Panchayat Union has work. Though M.W.1 has explained the nature of work being given to W.W.1, wages paid etc., because he failed to appear on subsequent dates and the workman had no opportunity to crossexamine him, the Labour Court rejected his evidence as unacceptable. After perusing Exs.W-2 and W-5 to W-7, it came to the conclusion that the first respondent herein is a workman and he is entitled to file a petition before the Labour Court. I have already referred to the fact that M.W.1 has explained the nature of work and wages being paid to W.W.1, his evidence was not considered by the Labour Court because his evidence was not subjected to cross-examination. Further, it is also brought to my notice that according to the Government, there cannot be any need to appoint any one as a Fitter permanently and it is also brought to my notice the instructions of the District Collector dated 9-8-88 in and by which the Collector has instructed that Additional Fitters should be appointed only on a temporary daily wages basis depending on the need. No doubt, those documents have not been placed by the Panchayat Union before the Labour Court.
6. There is no dispute that as per the decision of the Supreme Court in General Manager, Telecom v. S. Srinivasan Rao, reported in 1998 (1) L.L.N. 326, the seven-Judge Bench decision in Bangalore Water Supply and Sewerage Board v. A. Rajappa and others (1978 (1) L.L.N. 376) holds the field. In other words, the definition of industry as explained in Bangalore Water Supply and Sewerage Board case still holds the field. However, the triple test laid down in Bangalore Water supply and Sewerage Board case have not been considered by the Labour Court. The triple tests mentioned being: "(a) where
(i) systematic activity,
(ii) organized by co-operation between employer and employees ( 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, i.e., making on a large scale prasad or food) prima facie, there is an 'industry' in that enterprise". The Labour Court failed to apply the above test and ascertain whether any one of the tests is satisfied or fulfilled. In this regard, the learned counsel for the Panchayat Union has very much relied on a Division Bench decision of the Bombay High Court in Gram Panchayat, Katil v. P.O., First Labour Court, Nagpur and others (1991 (2) LLJ 147). After referring to the triple test observed in the Bangalore Water Supply and Sewerage Board's case, the Division Bench of Bombay High Court has held that Pound- keeper of a village panchayat is not a workman. Though the said decision supports the case of the petitioner Panchayat Union, inasmuch as the Labour Court has not considered the definition of "industry", "workman" in terms of the Industrial Disputes Act and by applying triple test enunciated in Bangalore Water Supply and Sewerage Board's case, I am of the view that the matter has to be re-assessed by the Labour Court. Hence, I am not offering my opinion at this stage. In the absence of categorical finding supported by acceptable reason, the impugned order of the Labour Court cannot be sustained. On this ground, the writ petition is allowed. The award of the Labour Court dated 27-6-94 is set aside. The second respondent-Labour Court, Madurai is directed to restore I.D.613 of 1991 on its file and dispose of the same afresh after affording adequate opportunity to both parties within a period of 6 (Six) months from the date of receipt of a copy of this Order. The Writ Petition is allowed to the extent mentioned above. No costs. Consequently, W.M.P.Nos. 19676 and 19677 of 97 are closed.
The Labour Court,
P. SATHASIVAM, J.
and WMP Nos.19676 and
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