# Prabhagiya Nideshak Van v. Van. Evam Sangik Vanki Karmachari& Ors

- **Citation:** (2024) 1 ILRA 1352
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-11
- **Case number:** Writ-C No. 1005250 of 1990
- **Bench:** Alok Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prabhagiya-nideshak-van-v-van-evam-sangik-vanki-karmachari-ors-51053
- **Pages:** 6

## Headnote

A. Labour Law - Industrial Dispute Act,
1947 - Sections 2 (k) & 6-E - Industry -
Ambit - Undertaking of sovereign function
by the Forest Department, how far exclude
it from definition of Industry - Charan
Singh's
case
relied
upon
-
Person,
continuously working for four years as a
Mali, how far entitled to be treated as
workmen - Held, where the workmen were
working on the post of Mali and were
involved in the task of plantation in the
forest and distribution of forest produce,
the
said
exercise
was
definitely
a
systematic activity and they have been
working for four years continuously, it
cannot be said that they were daily or
casual
employees
engaged
only
intermittently - High Court rejected the
arguments of petitioner that the Forest
Department is not an industry and so the
Act of 1947 is not applicable. (Para 9 and
11)

Writ petition dismissed. (E-1)

List of cases cited:

## Text

1352 INDIAN LAW REPORTS ALLAHABAD SERIES
appeared before the Prescribed Authority
after service of notice, the Prescribed
Authority has narrated their objections in
detail in his impugned orders dated 26.6.1985
and nowhere it has been stated that had they
challenged the issuance of notice to them.
Even before the Appellate Authority this
question never raised. It is only in the present
petition, the averment has been made that the
notice was not served as prescribed. This
being a question of fact cannot be a permit to
be raised in the present writ petition for the
first time and also that apart from the bare
averments made in the present petition
neither has the notice been annexed and from
the order of the Prescribed Authority, it is
evident that the notices were in-fact served
and thereafter detail objections were filed and
accordingly the contentions of the learned
Senior Advocate appearing on behalf of the
petitioners is clearly contrary to record, bereft
of merit and accordingly rejected.

14. Contrary to the said arguments, the
order of the Prescribed Authority dated
26.08.1985 duly records that he had complied
with the order of the Additional District
Judge, Sultanpur dated 24.11.1981 and he
had served notices in pursuance to which the
petitioners had duly appeared before him and
filed his objections. From the said order, it is
evident that he had complied with the order
of Appellate Authority dated 24.11.1981 and
duly served the notice on the petitioners. The
argument of petitioners in this regard does
not merit any interference and being devoid
of merit is accordingly, rejected. Considering
the aforesaid facts, this Court does not find
any reason to interfere with the order of the
Prescribed Authority as well as Appellate
Authority.

15. The writ petition is, accordingly,
dismissed.
----------
(2024) 1 ILRA 1352
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 11.01.2024

BEFORE

THE HON'BLE ALOK MATHUR, J.

Writ-C No. 1005250 of 1990

Prabhagiya Nideshak Van ...Petitioner
Versus
Van. Evam Sangik Vanki Karmachari& Ors.
 ....Respondents

Counsel for the Petitioner:
C.S.C.

Counsel for the Respondents:
C.S.C., J.N. Srivastava, Ramesh Kumar

A. Labour Law - Industrial Dispute Act,
1947 - Sections 2 (k) & 6-E - Industry -
Ambit - Undertaking of sovereign function
by the Forest Department, how far exclude
it from definition of Industry - Charan
Singh's
case
relied
upon
-
Person,
continuously working for four years as a
Mali, how far entitled to be treated as
workmen - Held, where the workmen were
working on the post of Mali and were
involved in the task of plantation in the
forest and distribution of forest produce,
the
said
exercise
was
definitely
a
systematic activity and they have been
working for four years continuously, it
cannot be said that they were daily or
casual
employees
engaged
only
intermittently - High Court rejected the
arguments of petitioner that the Forest
Department is not an industry and so the
Act of 1947 is not applicable. (Para 9 and
11)

Writ petition dismissed. (E-1)

List of cases cited:

1. St. of Gujrat Vs Pratamsingh Narsinh Parmar;
(2001) 9 SCC 713
1 All. Prabhagiya Nideshak Van Vs. Van. Evam Sangik Vanki Karmachari & Ors.
1353
2. Bangalore Water Supply & Sewerage Board
Vs A. Rajappa; 1978 (2) SCC 213

3. St. of U.P. Forest Department, U.P., Lucknow
Vs Presiding Officer, Industrial Tribunal, U.P.,
Lucknow; (1996) 3 UPLBEC 1984

4. Chief Conservator of Forest Vs Jagannath
Maruti Kondhare; 1996 Lab IC page 967

5. Fisheries Department Vs Charan Singh;
(2015) 8 SCC 150

6. St. of U.P. Vs Presiding Officer, Labour Court,
U.P., & anr.; (2023) 4 ALJ 73

(Delivered by Hon'ble Alok Mathur, J.)

1. Heard learned Standing counsel on
behalf of the petitioner and Sri Ramesh
Kumar Srivastav for respondent No.1

2. By means of the present writ
petition the petitioners have challenged the
award passed by Industrial Tribunal (II),
U.P. at Lucknow whereby the claim
preferred by the workmen has been allowed
and the petitioner who is employer has
been directed to pay the same wages to all
15 workmen with effect from 1.1.1985 and
three workmen who were terminated from
employment during pendency of the
conciliation proceedings have been directed
to be reinstated.

3. It has been submitted by learned
counsel for the petitioner that the workmen
for whose benefits the claim was filed by
respondent No.1 are working on daily
wages in Biswan Range of Sitapur Forest
Department. It was stated that some of the
casual employees working in that division
were made permanent but the 15 workmen
were not considered or made permanent
and accordingly the Employees' Union
raised industrial dispute. Reference was
made by the State Government which was
referred to Industrial Tribunal. Before the
Tribunal notices were issued to the
petitioner who initially did not appear and
participate
in
the
proceedings
but
subsequently
sought
adjournments
on
various dates and also did not comply with
the order of the Tribunal directing them to
produce evidence. The workmen, on the
other hand, produced five witnesses in their
support but the petitioner did not produce
either any written or oral statement but only
submitted that Forest Department was not
an
industry
within
the
meaning
of
Industrial Disputes Act and consequently
stated that the Tribunal did not have any
jurisdiction to decide the controversy.

4. The Tribunal duly considered the
objections raised by the petitioner and held
that the petitioner would fall within the
definition of industry and accordingly
proceeded to decide the claim preferred by
the workmen wherein they were able to
demonstrate that they have been working
for four years and accordingly have worked
for 240 days in a calendar year. They were
also able to establish that they are being
paid lesser wages than regular employees
and consequently for the same work they
are able to demonstrate that they were
being paid the lesser wages than which are
being paid to the regular employees. It is in
aforesaid circumstances that the industrial
tribunal allowed the claim and directed the
petitioner to pay the same amount of wages
which are being paid to regular employees.
The other aspect which has been noticed by
the Tribunal in the impugned order is the
fact that during pendency of conciliation
proceedings three of the employees were
dismissed which was illegal and arbitrary
and contrary to the statutory provisions
contained under Section 6 E of U.P.
Industrial
Disputes
Act,
1947
and
accordingly directed the petitioner to
1354 INDIAN LAW REPORTS ALLAHABAD SERIES
reinstate the three persons whose services
have been terminated during pendency of
the said proceedings.

5. Learned Standing counsel while
assailing the impugned order passed by
the Industrial Tribunal has canvased only
one issue regarding maintainability of the
proceedings
before
the
Industrial
Tribunal on the ground that Forest
Department is not an industry within the
meaning of Section 2 (k) and accordingly
the award is illegal, arbitrary and without
jurisdiction and the impugned order
should be set aside. He has relied upon
Supreme Court judgements in the case of
State
of
Gujrat
Vs.
Pratamsingh
Narsinh Parmar, (2001) 9 Supreme
court Cases 713 where the Hon'ble
Supreme Court was examining the order
of the High Court which held that Forest
Department of Gujarat was an industry
and the Supreme Court while setting
aside the judgment of the Gujarat High
Court held that Single Judge did not
examine the nature of the job of the
organization and had merely followed the
judgment of Supreme Court in the case of
Bangalore Water Supply & Sewerage
Board v. A. Rajappa, 1978 (2) SCC 213
Supreme Court held that whenever such a
question arises it would be incumbent
upon the High Court to go into the nature
of the work do be done in that particular
organization on the basis of positive
delineation
of
'industry'
and
only
thereafter one can conclude whether the
concerned unit is a industry or not.
Accordingly
it
was
stated
that
interference is required in the impugned
award.

6. Sri Ramesh Kumar Srivastava, on
the other hand, has opposed the writ
petition. He submits that the question as to
whether U.P. Forest Corporation is an
industry or not was specifically raised on
numerous occasions before this High Court
as well as Supreme Court and after
examining this issue it has been held that
U.P. Forest Corporation is an industry
within the meaning of U.P. Industrial
Disputes Act, 1947. It is undisputed fact
that the respondent was working as a casual
worker in Social Forestry Scheme of Uttar
Pradesh Government. They were involved
in programme pertaining to tree plantation
in the forest. It is on these facts that the
Tribunal held that they were functioning in
systemic
activities, planting nurseries,
selling plants and distributing the plants
and forest produce.

7. In the case of State of U.P. Forest
Department, U.P., Lucknow Vs. Presiding
Officer,
Industrial
Tribunal,
U.P.,
Lucknow (1996) 3 UPLBEC page 1984,
this Court had examined as to whether
Kanpur Prani Udyan which is established
by Forest Department of State of U.P.
would be an industry or not. In paragraph 6
and 8 it has been held as under:-

"6. That the Udyan is an industry
and the respondent No.3 in each of these
petitions are workmen covered by the
Industrial Disputes Act, 1947, is concluded
by the principles laid down by the Supreme
Court in Chief Conservator of Forests and
another Vs. Jagannath Maruti Kendhare,
reported in 1996 Lab IC 967. In the said
case
also
relating
to
the
Forest
Department, while executing a scheme
framed as per Government resolution for
creation of a park under bio-aesthetic
development for the benefit of urban
population, the Pune Forest Divisions
function was held not to be a part of
sovereign function of the State, and the
Forest Department qua the scheme was
1 All. Prabhagiya Nideshak Van Vs. Van. Evam Sangik Vanki Karmachari & Ors.
1355
held to be an 'industry' within the meaning
of Section 2 (j) of the Industrial Disputes
Act, 1947".

"8. Now as to next contention,
reliance has been placed on behalf of the
petitioner by the learned Standing Counsel
on a decision of a Bench comprising
Hon'ble the Chief Justice and Hon'ble
Sudhir Narain, J. in Special Appeal No.371
of 1995- State of U.P. V. Sheo Babu Garg,
decided on 24.5.1966 wherein based on the
decision of the Supreme Court on the
subject of regularisation of ad hoc / daily
wage employees, it has been held that such
regularisation could not be ordered by a
Court, rather would have to be done by the
concerned appointing authority on a
consideration of validity of appointment,
eligibility, conduct, availability of posts
and funds, an although in suitable cases
direction can be given to consider such
regularization, the same cannot be done by
the court or Tribunal itself. This contention
however loses sight of the fact that
Tribunal in these cases has not undertaken
the exercise of nor ordered, regularization
of the respondents, nor has it allowed them
a running time scale, or other benefits like
confirmation or promotion. It has merely
acted upon the principle of equal pay for
equal
work,
and
finding
that
the
respondents concerned are performing
similar job as the regular employees, has
awarded them only an amount equal to the
minimum of the time scale with addition of
D.A. and other allowances. It has not put
them in any running scale. The impugned
awards thus are not obnoxious even on this
ground. These writ petitions thus being
devoid of force are liable to be dismissed."

8. Hon'ble Supreme Court had also
examined this issued in the case of Chief
Conservator of Forest Vs. Jagannath
Maruti Kondhare, 1996 Lab IC page 967
where also the workers engaged in the
social forestry by the Forest Department of
State Government of Maharashtra had
made
similar
claims
and
in
that
circumstances it was held in para 15, 16
and 17 and 30 as under:-

"15. A perusal of the affidavit
filed by the Chief Conservator of Forests
on 5.12.1992, pursuant to our order of
6.11.1992
shows
that
the
Pachgaon
Parwati Scheme was framed as per the
Government Resolution based on the policy
decision taken in April 1976. The Scheme
was to be initially for a period of 5 years
and an area of about 245 hectares situated
on a hill plateau on the southern outskirts
and within easy access of Pune City was
selected for creation of a park under bioaesthetic development for the benefit of the
urban population. It is further stated that
the scheme was "primarily intended to fulfil
bio-aesthetic, recreational and educational
aspirations of the people which will have
inestimable indirect benefit of producing
enlightened generation of conservationists
of nature inclusive of forests and wild life
for the future". (Page 137) The affidavit
goes on to state (at page 138) that the Pune
Forest Division is also doing afforestation
for
soil/moisture
conservation
under
various State level schemes as well as
Employment Guarantee Schemes all of
which are for a period of 5 years.

16. The aforesaid being the crux
of the scheme to implement which some of
the respondent were employed, we are of
the view that the same cannot be regarded
as a part of inalienable or inescapable
function of the State for the reason that the
scheme was intended even to fulfil the
recreational and educational aspirations of
the people. We are in no doubt that such a
1356 INDIAN LAW REPORTS ALLAHABAD SERIES
work could well be undertaken by an
agency which is not required to be even an
instrumentality of the State.

17. This being the position, we hold
that the aforesaid scheme undertaken by the
Forest Department cannot he regarded as a
part of sovereign function of the State, and
so, it was open to the respondents to invoke
the provisions of the State Act. We would say
the same qua the social foresting work
undertaken in Ahmednagar district. There
was, there-fore, 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.

30. For the reasons aforesaid, we
find no ground to interfere with the impugned
order of the Industrial Courts. The appeals
are, therefore, dismissed. In the facts and
circumstances of the case, we, however, make
no order as to costs."

9. The argument of the petitioner is that
the departments of the State Government
undertake sovereign functions and, hence,
they cannot be declared as industry. This
argument has not been accepted by the
Supreme Court in the above cases. In the case
of Fisheries Department Vs. Charan Singh
(2015) 8 SCC page 150 it has held to be an
industry within the meaning of Section 2 of
Industrial
Tribunal
Act.
The
relevant
paragraph is being reproduced as under:-

"13. In support of the above-said
conclusions arrived at by us, we record our
reasons here-under: it has already been
rightly held by the Industrial Tribunal that
the Department of Fisheries is covered under
the definition of "industry" as defined under
Section 2 (k) of the Act and also in
accordance with the statement of RW1 and
EW1, Shri R. B. Mathur, on behalf of the
appellant before the Industrial Tribunal,
because the object of the establishment of the
appellant Department is fulfilled by engaging
employees and that the Department is run on
a regular basis. Thus, the matter of
termination of the services of the workman of
the
said
Department
can
be
legally
adjudicated by the Industrial Tribunal as the
matter is covered under the provisos of the
Act read with Schedule II Entry 10. Thus, it
has been rightly held by the courts below that
the dispute raised by the workman in relation
to the termination of his services by the
appellant is an industrial dispute."

10. He has also relied upon the
judgment in the case of State of U.P. Vs.
Presiding Officer, Labour Court, U.P., and
another, (2023) 4 ALJ 73 decided by this
Court in Writ C No.25182 of 2016 wherein in
paras 19 and 21 it has been held as under:-

"19. The submission of the learned
counsel
for
the
respondent-workman,
therefore, is that once the Supreme Court as
well as this Court have already held in the
aforesaid
authorities
that
Irrigation
Department and also the departments of the
like nature depending upon the services
rendered by the said departments, shall be
covered by definition of ''Industry' and,
further, once the respondent was treated as
an employee in the petitioner establishment,
no error can be pointed out in adjudication of
the dispute by the Labour Court and the
provisions of U.P. Industrial Disputes Act,
1947 were fully applicable.

....

21. In view of above discussions,
the first contention of the State to the effect
that Irrigation Department does not fall
within the definition of "Industry" or that
1 All. Ganga Sagar Yadav & Anr. Vs. Smt. Dulari & Ors.
1357
provisions of Act of 1947 are not
applicable, does not have any force and is
hereby rejected. Even, the Labour Court, in
the impugned award has also given the
same interpretation after relying upon the
judgments in the case of Des Raj and etc.
(supra) and other authorities. I do not find
any error in the view taken by the Labour
Court in this regard."

11.

Considering
the
aforesaid
judgments and also nature of the work
involved in the present case where the
workmen were working on the post of Mali
and were involved in the task of plantation
in the forest and distribution of forest
produce, the said exercise was definitely a
systematic activity and they have been
working for four years continuously, it
cannot be said that they were daily or
casual
employees
engaged
only
intermittently. Accordingly the arguments
of the petitioner cannot be accepted.
Hon'ble Supreme Court in the case of
Fisheries Department (supra) has held
U.P. Forest Corporation to be an industry
and accordingly we do not find any
infirmity with the impugned order.

12. In view of the above, this Court is
of the considered view that there is no
merit in the writ petition and no infirmity is
found in the order of the Industrial Tribunal
which is affirmed and the writ petition is
accordingly dismissed.
----------
(2024) 1 ILRA 1357
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 09.01.2024

BEFORE

THE HON'BLE ALOK MATHUR, J.

Writ-C No. 1008497 of 2013
Ganga Sagar Yadav & Anr ...Petitioners
Versus
Smt. Dulari & Ors. ...Respondents

Counsel for the Petitioners:
Rajesh Chandra Mishra

Counsel for the Respondents:
Prashant Arora, Dhirendra Pratap Singh

A. Electricity Law - Electricity Act, 2003 -
Section 145 - Civil Court - Jurisdiction -
Bar of suit - Suit seeking injunction to
restrain the defendants/petitioners not to
erect electricity poles and electricity line
over plaintiff's plot - Maintainability -
Held, S. 145 excludes jurisdiction of the
Civil Courts in the matter where orders
have been passed by the assessing officer
referred in S. 126 or appellate authority as
mentioned in Section 127 or adjudicating
officer appointed u/s 6 - The controversy
raised with regard to erection of electric
poles and electric line over the plaintiff's
plot is clearly not barred by S. 145 and
consequently, the trial Court did not
commit any error while holding that the
suit in this regard was maintainable and
not barred under Section 145 of the Act,
2003. (Para 10 and 11)

Writ petition dismissed. (E-1)

List of cases cited:

1. Dwarka Prasad Agarwal Vs Ramesh Chander
Agarwal; (2003) 6 SCC 220

2. Ram Swarup Vs Shikar Chand; AIR 1966 SC
893

(Delivered by Hon'ble Alok Mathur, J.)

1. Heard Sri Rajesh Chandra Mishra,
learned counsel for the petitioners. No one
appears for the respondents.

2. Learned counsel for the petitioners
at the very outset has prayed that he may be
permitted to make amendment in the memo