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Prabhagiya Nideshak & Another v. Prescribed Authority/Dy. Labour Commissioner & Another - WRIT - C No. 333 of 2001 [2005] RD-AH 433 (17 February 2005)


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Hon'ble Rakesh Tiwari,J

Heard S/Sri Sandeep Mukherjee. Mohan Yadav, S.P.Singh and Mrs. Gauri Singh for the State and Sri S. Tiwari for the respondent- workman.

Respondent no. 4 was engaged on daily wage basis as Camp Khalasi in Social Forestry Division, Azamgarh on 27.9.1992.  He discharged his duties till 31.8.1998.  He did not work thereafter and was paid waged for the period he actually worked.  The workman disputed the amount of wages and filed P.W. case no. 27 of 1999 under Section 15(3) of the Payment of Wages Act, 1936 on 2.11.1999 claiming arrears of wages and compensation.  The petitioner filed written statement on 1.12.1999 before the Prescribed Authority denying the averments made in the application and pleading therein that since Forest Department is not an industry, the application of the workman is not maintainable.  It was also averred in the objection that the Prescribed Authority appointed under the Payment of Wages Act had no jurisdiction to try and decide the case.  The petitioner also moved an application on 1.12.1999 raising a preliminary objection on the ground of jurisdiction praying therein that the question of jurisdiction be decided as preliminary issue.

The Prescribed Authority by the impugned order dated 24.2.2000 rejected the preliminary objection of the petitioner and held that the authority has jurisdiction to try and decide the case.  At the time of admission, the following ad interim mandamus was issued by this court :-

Hon. O.P.Garg, J

Issue notice to Moti Bhatt- respondent no. 2 who may file counter affidavit within six weeks and list immediately thereafter.

In the meantime, the operation of the impugned order dated 24.2.2000, Annexure 6 to the writ petition shall remain stayed provided the petitioner deposits the entire amount of back wages payable to respondent no. 2 with respondent no. 1 within 45 days from today.  The petitioner shall permit the respondent no. 2 to join his duties immediately pursuant to the award and shall continue to pay his current salary.

5.1.2001 Sd/- Illigible."

The claim application was filed against Regional Director, Social Forestry Division, Azamgarh and Divisional Director, Social Forestry Division, Sidhari, Azamgarh. Payment of Wages Act regulates payment of wages to certain classes of persons employed in industry.

The Act applies proprio vigore to the payment of wages to persons employed in any factory or to persons employed in a railway by a railway administration either directly or through a sub-contractor. Further, the State Government can extend the provisions of the Act to cover persons employed in any industrial establishment or any class or group of industrial establishments as defined in the Act specified in sub clauses (a) to (g) of sub-clause(2) of Section  2. Payment of Minimum Wages Act has been made applicable to the Department of Social Forestry as it is a scheduled employment under the Minimum Wages Act.

I have perused the impugned order.  It appears from the impugned order that the case of the petitioner before the Prescribed Authority was that the Prescribed Authority has held that as per Government Order No. 11844 (HI)/33-C-1202(SM)-60 dated 30.1.1965 and Government Order No. 4293(V)/36-3-1029(MW)/77 dated 31.3.1971, the U.P. Payment of Wages Act and U.P. Payment of Wages (Procedure) Scheduled Rules 1963 are applicable to Social Forestry. Forest Department is not covered within the ambit of the words ''Social Forestry' used in the notification.  

Standing counsel have failed to show any infirmity or illegality in the order passed by the Prescribed Authority. The writ petition has been filed against an interlocutory order.

The apex court in the case of Bangalore Water Supply and Sewerage Board Vs. Rajappa (1978)2 S.C.C-213 has laid down the following tests for determination of industry.:-

"(1) ''Industry' as defined in the sub-section has a wide import.

(a) Where there is (i) systematic activity, (ii) organized by co-operation between employer and employee (the direct and substantial element is chimerical), and (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), prima facie, there is an industry in the enterprise.

(b) Absence of profit motive or gainful objective is irrelevant, be the venture in the public, joint, private or other sector.

(c) The true focus is functional and the decisive test is the nature of the activity with special emphasis on the employer-employee relations.

(d) If the organization is a trade or business it does not cease to be one because of philanthropy animating the undertaking."

These tests are fully applicable to ''Social Forestry" Department.

In Chief Conservator of Forests and another Vs. Jagannath Maruti Kondhare and others, - (1996)2 S.C.C-293.the apex court considered whether ''Social Forestry" work undertaken by the Forest Department of State Government in Ahmednagar district was covered under ''industry' or not. It was held that:-

".................... the ''dichotomy of sovereign and non sovereign functions of the State does not really exist.  Social Forestry Schemes cannot be regarded as a part of sovereign functions of the State and so it was open to the workman to invoke the provisions of the Maharastra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971.  One can say the same qua the social forestry 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.  

Applying the ratio laid down by he apex court in the aforesaid two judgements, the petitioner is an industry.  Reference may also be made to the dissenting judgement of Isaacs,J in Federated State School Teachers' Association of Australia V. State of Victoria in which it has been observed that "Regal functions are inescapable and inalienable. Such are the legislative power. Non-regal functions may be assumed by means of legislative power.  

In my opinion, it is not a case for exercise of powers under Article 226 of the Constitution of India at this stage.

The writ petition fails and is dismissed.  Interim order dated 5.1.2001 is vacated.  No order as to costs.

Dt. 17.2.2005



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