1. This is a writ petition by the employer arising out of the proceedings under the Bombay Industrial Relations Act, 1947 (for short 'the BIR Act'). The respondent employee had filed an application under S. 78 of the BIR Act challenging the dismissal from service by an order dated 8th January, 1968 passed by the petitioners. The petitioners filed written statement denying that the impugned order of dismissal was illegal and liable to be set aside. It, however, appears that during the proceedings before the Labour Court it was found by the petitioners that the departmental enquiry was not legal and proper and in accordance with the principles of natural justice. The petitioners, therefore, led evidence before the Labour Court to prove independently the charges against the respondent and so justify the order of dismissal issue against him. The respondent employee also led evidence in rebuttal of the charges against him.
2. The learned Labour Court held in favour of the employee on the basis of the evidence before him. He held that the charges against him were not proved. The learned Labour Court also held that the activities of the petitioner's department wherein the respondent was employed were covered by the definition of the word 'industry' given in S. 3(19) of the BIR Act. He, therefore, set aside the order of dismissal and directed reinstatement of the respondent with back wages.
3. An appeal was preferred by the petitioners before the Industrial Court against the aforesaid order of the learned Labour Court, Nagpur, under S. 84 of the BIR Act. the learned Industrial Court affirmed the order of the Labour Court holding that the activity of the Soil Conservation Department in which the respondent employee was working was an 'industry' within the meaning of the definition of the said expression under the BIR Act. He also affirmed the finding on merit that charges against the respondent employee were not proved by the petitioners in the Labour Court. The point was raised before the Industrial Court that since the dismissal was for a misconduct prior to six months from the date of dismissal it was illegal being in contravention the of provisions of S. 78(1)(D)(i) of the BIR Act. The learned Industrial Court also upheld the above contention raised on behalf of the employee on the ground that no explanation had been given by the petitioners why the impugned order of dismissal was passed after a period of six months from the date of the misconduct. Being aggrieved by the orders of the Courts below the petitioners have impugned the said orders by way of the instant writ petition in this Court.
4. The first contention raised on behalf of the petitioners is that the Soil Conservation Department of the State Government is not an 'industry' within the meaning of the definition of that expression given in S. 3 Cl. (19) of the BIR Act which is mostly analogous to the definition of the said expression in S. 2(j) of the Industrial Disputes Act, 1947. Reliance is principally placed for the above proposition upon the decision of the Full Bench of the Punjab High Court in the case of State of Punjab v. Sh. Kuldip Singh and another . The question involved in the above decision of the Punjab High Court was whether the department of the State relating to the establishment, construction and maintenance of National and State Highways was an 'industry' within the meaning of S. 2(j) of the Industrial Disputes Act or not. The Full Bench of the Punjab High Court held in the aforesaid case that the above department of the State was not an 'industry' within the meaning of S. 2(j) of the Industrial Disputes Act.
5. On behalf of the respondents/employee two unreported decisions of this Court was relied upon on the very question of 'industry' which are in respect of this very department, viz., the Soil Conversation Department of the State. The said unreported decisions are in Writ Petition No. 1194 of 1974 with Writ Petition No. 1082 of 1977 decided on 23rd October 1980 by Justice D. B. Deshpande, as he then was. There is one more decision of the same learned Judge delivered on the same date in Writ Petition No. 1383/73 taking the same view. At the outset I must say that the above decision of this Court are binding upon me in preference to the decision relied upon on behalf of the petitioners of the Punjab High Court (supra). The learned Counsel for the petitioners, has, therefore, tried to persuade me to take a different view from the decision of Deshpande, J. in the aforesaid writ petition and to make a reference to the larger bench in the instant case. However, after hearing the learned counsel for the petitioners, I find no reason to discharge with the view taken by Deshpande, J. in above writ petitions.
6. So far as the question of 'industry' as defined in the Industrial Disputes Act is concerned the leading case of the Supreme Court now is the case of Bangalore Water Supply and Sewerage Board v. A Rajappa : (1978)ILLJ349SC . The ratio of the decision is in para. 131 of the report. Sub-paras. 1(a), (b) and (c) at page 404 of the said para are reproduced below for the sake of convenience :
'I (a) Where (i) systematic activity, (ii) organised by co-operation between employer and employee (the direct and substantial element is chemical), (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.
(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 employee relations.'
In sub-para II (a) of para 131 at page 404 it is observed by the Supreme Court as follows :
'II (a) 'Undertaking' must suffer a contextual and associational shrinkage as explained in Banerji and in this judgment; so also, service, calling and the like. This yields the inference that all organized activity possessing the triple element in I (supra), although not trade or business, may still be 'industry' provided the nature of the activity, viz., the employer-employee basis, bears resemblance to what we find in trade or business. This takes into the fold 'industry' undertakings, callings and services, adventures analogous to the carrying on of trade or business. All features, other than the methodology of carrying on the activity viz. in organizing the co-operation between employer and employee, may be dissimilar. It does not matter, if on the employment terms there is analogy.'
7. It is thus clear from the above para 131 in the judgment of Bangalore Water Supply and Sewerage Board that a systematic activity organised by the co-operation between the employer-employee for the production and/or distribution of goods and services calculated to satisfy human wants and wishes or in other words for rendering maternal services to the whole or part of the community is within the definition of the word 'industry' under the Industrial Disputes Act. Who carries such an activity, whether the State Government, the public sector or private sector is immaterial. The decisive test is the nature of the activity with special emphasis on the employer-employee relations as in the case of a trade or business and not upon the profit motive or gainful objective which is one of the principal characteristics of a trade or business. It may be seen that the principal object of the Industrial Dispute Act is to resolve industrial disputes between the employer and employees. The word 'industry' is defined in the Industrial Disputes Act in a wide sense so as to include within the fold of the Act the industrial disputes between the employer and employees in all the organised active based upon the employer-employee relationship.
8. However, to the wider communication of the definition of the word 'industry' certain necessary exceptions have been pointed in the sub-para (IV) of para 131 of the judgment of the Supreme Court in the case of Bangalore Water Supply and Sewerage Board. In sub-para (IV)(b) of para 131 the exception from the definition of the word 'industry' is carved out in favour of the sovereign functions strictly so understood as distinguished from the welfare activities or economic adventures undertaken by the Government or statutory bodies. It is further provided in sub-para (IV)(c) of para 131 that even the departments discharging sovereign functions if they are units which are industries and if they are substantially severable they can be considered to come within the definition of the word 'industry'. The question, therefore, in the instant case would be whether the functions discharged in the Soil Conservation Department can be said to be sovereign functions of the State described as the primary and inalienable functions of the sovereign Government.
9. Much emphasis is laid on behalf of the petitioner upon the fourth category enunciated in the Punjab High Court decision supra. At this stage I may refer to para II of the report of the Punjab High Court judgment (supra) which has categorised the Government activities into four categories.
(1) The sovereign or the legal 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 its welfare activities.
(3) Organised activity not stamped with the total indicia of business yet bearing a resemblance to or being analogous to trade and business.
(4) The residuary organised governmental activity which may not come within the ambit of the aforesaid three categories.
10. With reference to the category No. (4) referred to above it is urged that the said category of the government activity is not contemplated in the case of Bangalore Water Supply (supra). In para 19 of the report of other Punjab High Court decisions (supra), the Full Bench has taken the view that it is an activity neither strictly trade or business in nature nor something remotely resembling or analogous to it. In may be again pointed out at this stage that the difference sought to be made by the Full Bench of the Punjab High Court is with respect to the difference in degree so far as the categories (3) and (4) enumerated in para 11 of the report are concerned. It my view, the whole question has to be judged in the light of the tests laid down by the Supreme Court in the case of Bangalore Water Supply which are reproduced above. The principal test as it emerges from para 131 is whether there is (i) systematic activity, (ii) organised by co-operation between employer and employee, and (iii) for the production and/or distribution of goods and services calculated to satisfy human wants and wished. What has to be, therefore, found out in this case is whether the activity carried on in the Soil Conservation Department of the Government satisfies the requirements of the tests propounded by the Supreme Court in para 131 of the report.
11. It is not in dispute that the activity in the Soil Conservation Department of the State is carried on as a systematic activity with the co-operation between the employer and the employees. So far as this activity is concerned there is no question of production or distribution of goods. It is an activity in which service is rendered to a class of citizens, viz., the agriculturists. It is a service relating to the wants of a class of citizens, viz., the agriculturists. The same thing is described by the common and usual expression 'a material service'. As held by the Courts below the Soil Conservation Department of the State renders material service to the agriculturists in the State. It is thus a service which is covered by the definition of the word 'industry' under the Industrial Disputes Act whose provisions in this regard are in pari materia with the provisions of the BIR Act.
12. Emphasis is, however, laid on behalf of the petitioners upon the proviso in sub-para. 11(a) of para. 131 of the report in Bangalore Water Supply and Sewerage Board's case in which the Supreme Court has observed that the organised activity possessing the triple element referred to in sub-para 1(a) of para 131 although not trade or business, may still be an 'industry' provided the nature of the activity, viz., the employer-employee basis, bears resemblance to what we find in trade or business. The submission is that the activity in the Soil Conservation Department does not bear any resemblance to any trade or business. In the instant case it has to be held that the activity is carried on by the Soil Conservation Department with the help of the employees whose relationship resembles to relationship of employer and employees which we find in any trade or business. As already stated, the observations that 'the nature of activity, viz., employer-employee basis, bears resemblance to what we find in trade or business' have understood in the context of the object of the Industrial Disputes Act or the BIR Act where the primary purpose of the Legislation is to resolve the industrial disputes between the employer on the one hand and the employees on the other and if there is likelihood of such disputes occurring in the State or public sector, viz., the disputes regarding the conditions of service, such as wages etc., which arise between the employers and employees in trade or business i.e. in the private sector then the definition of the word 'industry' is extended so as apply to such activities in the State or Public sector. Viewed in this manner the activity in the Soil Conservation Department which renders material service to a part of the community and which is carried on with the co-operation of the employees wherein industrial disputes analogous to disputes in trade or business can arise is converted by the definition of the word 'industry' under the BIR Act. The activities in the Soil Conservation Department of the State Government cannot claim exemption on the ground that it is a primary or inalienable function of the State because the said activities are in the nature of welfare or economic activities of the State.
13. Looking at it from another angle it has to be seen that in case of Bangalore Water Supply the Supreme Court has affirmed it earlier decisions in Banerji's case : 4SCR302 and Nagpur Corporation case : (1960)ILLJ523SC . It is pertinent that in Banerji's case the question involved related to the sanitary and conservancy service of the Municipal Council which was not in the true nature of trade or business. No distinction can be drawn between the activities in the sanitary and conservancy department of the Municipality and the Soil Conservation Department of the State from the point of view of the definition of the word 'industry' because both render material services to the community or a part of the community. In the Nagpur Corporation case the Public Works Department of the Corporation has been held to be an industry within the meaning of the definition of the said word in the C.P. & Berar Industrial Disputes Settlement Act, 1947 vide para. 20, sub-para. (12) of the report. It is thus clear that as per the tests laid down by the Supreme Court in Bangalore Water Supply case the activity of the Government in the Soil Conservation Department of the State is an industry within the meaning of the definition of the said word under the BIR Act. The view taken by this court in the earlier decisions is correct and there is no necessity for any reference to the larger Bench as canvassed by the learned counsel for the petitioners.
14. The next contention which is urged before me is that the Government vide its Notification dated 17th October, 1967 has exempted the activity carried on in the Soil Conservation Department of the Government from the application of the BIR Act. The said notification is reproduced in para. 9 of the impugned order of the Industrial Court. It is clear from the said Notification that it applies to the industry engaged in the construction or maintenance of roads or in building operations in the Vidarbha area of the State of Maharashtra. It is sought to be contended that building bunds is a construction of building within the meaning of the above Notification. The submission is merely stated to be rejected. The normal and ordinary connotation of the word 'building' cannot and does not take within the activity of the construction of bunds. It has, therefore, been rightly held by the Industrial Court that the said Notification is not applicable to the Soil Conservation Department of the Government.
15. The further contention that is advanced is that the Industrial Court erred in holding that the impugned order of dismissal is illegal and invalid because it is passed after a period of six months from the date of the misconduct. The first submission in this regard is that this point has been raised for the first time before the Industrial Court. The learned counsel for the respondent employee has brought to my notice allegation in para. 27 of the application in which he has categorically alleged that the impugned order of dismissal is passed for a misconduct which is alleged to be committed prior to a period of six months. It is clearly stated by the respondent employee that the order of dismissal was passed on 2st January, 1968 whereas the enquiry commenced on 6th July, 1967 on which date the enquiry officer was appointed and the dated of the commission of misconducts ranged from 17th March, 1963 backwards upto 1960. By this allegation the respondents employee is obviously referring to the dates of the acts of misconduct on which the charge-sheet is based. In reply on behalf of the petitioners, in their written statement there is only vague denial of the above allegations. The contents of the reply merely relate to the illegality of the order of dismissal. No explanation is given by the petitioners why the impugned order of dismissal was passed much after a period of six months from the dates of the illegal misconducts. No doubt it has been held by the Supreme Court in the case of Bombay Electricity Supply & Transport Workers Union (1973) M.H.L.J. 461 that the provision of S. 78(1)(D)(i) of the BIR Act are not mandatory but are directory. However, it is clear that when the provisions are held to be directory, substantial compliance with the same is necessary. When it was pointed out that the order of dismissal was beyond the period of six months from the dates of the act of misconduct the burden was upon the petitioners to show why the order was passed after a period of six months. No explanation was given by the petitioner in this regard. As shown above, there is no substance in the contention on behalf of the petitioners that no such plea was raised by the respondent employee. Secondly, since the petitioners have failed to give any explanation from passing the order of dismissal beyond the period if six months the findings of the learned Industrial Court is proper that the impugned order is in violation of S. 78(1)(D)(i) of the BIR Act.
16. The only question that remains is the question on merits. It is urged that the learned Courts below have erred in holding that the charges against the respondent employee are not proved. As I have already stated the evidence was led by both the parties before the Labour Court on the merits of the charges. Both the Courts below after appreciating the evidence on record have come to the conclusion that the charges against the respondent employee are not proved. Nothing is brought to my notice to show that the finding arrived at on merits by both the Courts below is perverse. In the circumstances it is not open to me to disturb the said finding of fact in my writ jurisdiction.
17. In result, the writ petition fails and is dismissed. However, in the circumstances of the case, there would be no order as to costs.