Uttarakhand High Court
Pawan Kum Ar … Pet It Ioner vs Presiding Officer on 7 January, 2025
I N THE HI GH COURT OF UTTARAKHAND AT
NAI NI TAL
W r it Pe t it ion ( M / S) N o. 2 8 7 8 of 2 0 2 2
Pawan Kum ar ... Pet it ioner
Versus
Presiding Officer, Labour Court , Dehradun
& Ot hers ... Respondent s
W it h
W r it Pe t it ion ( M / S) N o. 6 0 of 2 0 2 3
Mr. M.C. Pant , Adv ocat e, for t he pet it ioners.
Mr. Yogesh Chandra Tiwari, St anding Counsel,
for t he St at e.
7.1.2025
H on'ble M a noj Kum a r Tiw a r i, J.
The indust rial disput e raised by t he
pet it ioners was decided against t hem by
holding t hat I rrigat ion Depart m ent , where t hey
were serving before t erm inat ion, is not an
indust ry.
2. I n t hese writ pet it ions, pet it ioners
have challenged t he award rendered by
learned Labour Court . Since com m on quest ion
of law and fact are involved in t hese writ
pet it ions, t herefore, t hese are being heard and
decided t oget her. However, for brevit y, fact s of
Writ Pet it ion ( M/ S) No. 2878 of 2022 alone are
being considered and discussed.
3. Pet it ioner in Writ Pet it ion ( M/ S) No.
2878 of 2022 has sought t he following relief: –
2
” ( i) I ssue writ rule or direct ion in t he
nat ure of cert iorari quashing t he im pugned
award dat ed 01.02.2022, passed by t he
Labour court , in adj udicat ion case no.
24/ 2003 along wit h it s effect and oper at ion
calling t he ent ire record and allow t he claim
of t he workm an in t ot o keeping in view t he
fact highlight ed in t he body of t he pet it ion or
t o m ould t he relief appropriat ely in favour of
t he pet it ioner.”
4. According t o t he pet it ioner, he was
appoint ed as helper on daily wages in St at e
I rrigat ion Depart m ent w.e.f. 31.12.1980 and
he served in t he said capacit y for four years,
and ult im at ely, his services were t erm inat ed
w.e.f. 31.12.1984. He raised disput e against
t erm inat ion, which was referred for
adj udicat ion t o t he Labour Court and was
regist ered as Adj udicat ion Case No. 24 of
2003. The quest ion, which was referred t o t he
Labour Court is ext ract ed below: –
” Whet her t erm inat ion of services of
workm an Shri Pawan Kum ar S/ o Shri
Ram chand Post ” Helper” by his em ployer from
31.12.1984 is proper and/ or legal? I f not , t hen
t he concerned workm an is ent it led t o what
benefit / relief and wit h which descript ion?”
5. Pet it ioner, in his writ t en st at em ent
st at ed t hat he was appoint ed as helper on
31.12.1980 and he worked cont inuously t ill
31.12.1984, however, he was t erm inat ed from
service wit hout giving any not ice, wages in lieu
of not ice or ret renchm ent com pensat ion;
while, his j uniors were ret ained in service and
t hey were subsequent ly absorbed in work
charge est ablishm ent . Thus, he cont ended t hat
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t he t erm inat ion is in violat ion of Sect ion 6N of
U.P. I ndust rial Disput es Act and t hus illegal.
6. Execut ive Engineer, I rrigat ion
Depart m ent filed writ t en st at em ent st at ing t hat
pet it ioner did not serve cont inuously; he was
engaged from t im e t o t im e as per exigencies of
work and he volunt arily abandoned his
em ploym ent .
7. Before learned Labour Court , no
wit ness was exam ined on behalf of t he
em ployer; while, pet it ioner m ade deposit ion in
support of his claim .
8. Learned Labour Court decided t he
reference against pet it ioner by holding t hat
I rrigat ion Depart m ent is not an I ndust ry.
Learned Labour Court placed reliance upon t he
j udgm ent s rendered by Hon’ble Suprem e Court
in t he case of Secret ary, St at e of Karnat aka
and ot hers v. Um adevi and ot hers, report ed in
( 2006) 4 SCC 1, Execut ive Engineer ( St at e of
Karnat aka) v. K. Som aset t y, report ed in
( 1997) 5 SCC 434 and St at e of H.P. v. Suresh
Kum ar Verm a, ( 1996) 7 SCC 562.
9. Learned counsel for t he pet it ioner
cont ends t hat Hon’ble Suprem e Court in t he
case of Desh Raj and ot hers v. St at e of Punj ab,
report ed in AI R 1988 SC 1182 has held t hat
St at e I rrigat ion Depart m ent com es wit hin t he
purview of t he t erm ‘I ndust ry’, however, in t he
subsequent j udgm ent rendered in t he case of
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Execut ive Engineer ( St at e of Karnat aka) v. K.
Som aset t y ( supra) , t he j udgm ent rendered in
t he case of Desh Raj and ot hers v. St at e of
Punj ab ( supra) was not considered. He subm it s
t hat in t he case of Desh Raj & ot hers v. St at e
of Punj ab ( supra) , Hon’ble Suprem e Court has
t aken int o account various ot her j udgm ent s,
including t he Const it ut ion Bench rendered in
t he case of Banglore Wat er Supply & Sewerage
Board v. A. Raj appa, report ed in ( 1978) 2 SCC
213. He furt her subm it s t hat t he j udgm ent
rendered in t he case of Execut ive Engineer
( St at e of Karnat aka) vs. K. Som aset t y,
report ed in ( 1997) 5 SCC 434 has overlooked
t he earlier j udgm ent , including t he Const it ut ion
Bench j udgm ent , t herefore, t he view t aken in
t he case of Desh Raj & ot hers v. St at e of
Punj ab ( supra) , is t he correct view, which
deserves t o be followed.
10. Learned counsel for t he pet it ioner
subm it t ed t hat ident ical quest ion arose before
Hon’ble Allahabad High Court , as t o whet her
t he view t aken in t he case of Desh Raj &
ot hers v. St at e of Punj ab ( supra) or Execut ive
Engineer ( St at e of Karnat aka) v. K. Som aset t y
( supra) , is t he correct view. He furt her subm it s
t hat a Single Judge of Hon’ble Allahabad High
Court in t he case of St at e of U.P. t hrough
Secy. I rrigat ion v. Mohd. Rais, report ed in
2020 SCC OnLine All 2445, aft er considering all
relevant j udgm ent s, arrived at t he conclusion
t hat t he view t aken in t he case of Desh Raj &
ot hers v. St at e of Punj ab ( supra) , is correct .
5
Relevant discussion m ade in t he said
j udgm ent , rendered by Hon’ble Allahabd High
Court , is ext ract ed below: –
” 8. As has been indicat ed hereinabove, t he
Hon’ble Suprem e Court in t he case of Des
Raj ( supra) has held t hat an I rrigat ion
Depart m ent of part icular Governm ent t o be
an I ndust ry in t erm s of t he Act of 1947. The
said j udgm ent has t aken int o account
various ot her j udgm ent s rendered by
Hon’ble t he Suprem e Court part icularly a
Const it ut ion Bench j udgm ent rendered
in Bangalore Wat er Supply and Sew erage
Board v. A. Raj appa, report ed in ( 1978) 2
SCC 213. On t he cont rary, t he subsequent
j udgm ent rendered by Hon’ble Suprem e
Court in case of K. Som a Set t y ( supra) has
not advert ed t o t he aforesaid j udgm ent s
of Des Raj ( supra) and Bangalore Wat er
Supply and Sewerage Board ( supra) .
9. Upon perusal of Judgm ent rendered in t he
case of Desh Raj ( supra) as com pared t o
j udgm ent rendered in t he case of K. Som a
Set t y ( supra) , it is apparent t hat in t he case
of Desh Raj ( supra) I rrigat ion Depart m ent
has been held t o com e wit hin t he definit ion
of I ndust ry whereas j udgm ent of K. Som a
Set t y holds ot herwise. As such, t here is
clear conflict in t he t wo j udgm ent s which are
of Coordinat e Bench.
10. The proposit ion of law required t o be
followed in conflict ing j udgm ent s rendered
by Hon’ble t he Supr em e Court by Benches of
Coordinat e st rengt h has been discussed in
t he Full Bench of Allahabad High Court , AI R
1991 All 114 in Ganga Saran ( supra) . The
Full Bench aft er considering t he relevant
aspect has held as follows:
” 7. One line of decision is t hat if t here is a
conflict in t wo Suprem e Court decisions,
t he decision which is lat er in point of t im e
would be binding on t he High Court s. The
second line of decisions is t hat in case
t here is a conflict bet ween t he j udgm ent s
of Suprem e Court consist ing of equal
aut horit ies, incidence of t im e is not a
relevant fact or and t he High Court m ust
follow t he j udgm ent which appears it t o
lay down law elaborat ely, and accurat ely.
8. Sim ilar sit uat ion arose before a Full Bench
of Punj ab and Har yana High Court in t he
case of M/ s. I ndo Swiss Tim e Lim it ed,
6Dundahera, v. Um rao, AI R 1981 P&H
213. What t he Full Bench in t he said case
held is ext ract ed below ( at pp. 219- 220 of
AI R) :
” Now t he cont ent ion t hat t he lat est
j udgm ent of a co- or dinat e Bench is t o be
m echanically followed and m ust have
preem inence irrespect ive of any ot her
considerat ion does not com m end it self t o
m e. When j udgm ent s of t he superior
Court are of co- equal Benches and
t herefore, of m at ching aut horit y t hen
t heir weight inevit ably m ust be
considered by t he r at ionale and t he logic
t hereof and not by t he m ere fort ut ious
circum st ances of t he t im e and dat e on
which t hey were rendered. I t is m anifest
t hat when t wo direct ly conflict ing
j udgm ent s of t he superior Court and of
equal aut horit y are ext ant t hen bot h of
t hem cannot be binding on t he court s
below. I nevit ably a choice, t hough a
difficult one, has t o be m ade in such a
sit uat ion. On principle it appears t o m e
t hat t he High Court m ust follow t he
j udgm ent which appears t o it t o lay
down t he law m ore elaborat ely and
accurat ely. The m ere incidence of t im e
whet her t he j udgm ent s of coequal
Benches of t he Superior Court are earlier
lat er is a considerat ion which appears t o
m e as hardly relevant .”
This decision was followed by t he Bom bay High
Court in t he case of Special Land Acquisit ion
Officer v. Municipal Corporat ion, AI R 1988 Bom
9. The m aj orit y of Judges in t he Full Bench held
t hat if t here was a conflict bet ween t he t wo
decisions of equal benches which cannot possibly
reconcile, t he court s m ust follow t he j udgm ent
which appear t o t hem t o st at e t he law accurat ely
and elaborat ely. We are in respect ful agreem ent
wit h t he view expressed by t he Full Bench of
Punj ab & Haryana High Court in t he case of M/ s
I ndo Swiss Tim e Lim it ed v. Um rao, ( AI R 1981
P&H 213) ( Supra) especially when t he Suprem e
Court while deciding Qam aruddin’s case ( 1990
All WC 308) ( Supra) did not not ice t he U.P.
am endm ent t o S. 115, CPC and earlier decision
of t he Suprem e Court .”
11. The aforesaid aspect has also been dealt
wit h by a learned Single Judge of t he High
Court of Bom bay in which j udgm ent
rendered by Hon’ble t he Suprem e Court in
t he case of Des Raj ( supra) has been
followed:
” 13. On considering all t he concept s of
indust ry and aft er reviewing t he various
7t est s which need not be repeat ed, as t he
t est s were laid down in Bangalore Wat er
Supply case ( supr a) . The concept of
sovereign and regal funct ion w as
explained in Chief Conservat or of Forest s
( supra) . The Apex Court in para 13
specifically rej ect ed an argum ent t hat
welfare act ivit ies part ake sovereign
funct ions on t he ground t hat if such a
view was t aken it would be eroding t he
view t aken by it in Bangalore Wat er
Supply‘s case. While observing t hat
welfare act ivit ies part ake sovereign
funct ions t he Apex Court did not not ice
t his in Sub- Divisional I nspect or of Post ,
Vaikam and Ot her ( supra) . Therefore,
considering t he various precedent s of t he
Apex Court it self it is clear t hat t he law
declared by t he Apex Court is t hat
welfare act ivit ies do not necessarily
part ake sovereign funct ions. I n Execut ive
Engineer, St at e of Karnat aka t he reliance
was placed on t he j udgm ent in t he case
of Union of I ndia v. Jai Nar ain
Singh ( supra) . I n Union of I ndia v. Jai
Narain Singh, t he Apex Court has m er ely
not ed t hat t he Cent ral Ground Wat er
Board is not an I ndust ry. I t is not
possible t o discern from t hat j udgm ent as
t o what were t he reasons for t he Apex
Court t o so hold. The ot her j udgm ent
relied on is t hat of St at e of Him achal
Pradesh v. Suresh Kum ar Varm a &
Anr. ( supra) . On a perusal of t he fact and
t he law laid down it does not seem t hat
t he issue as t o whet her a part icular
depart m ent was an indust ry or not was in
issue. What was in issue was whet her t he
work charged em ployees who perform
dut y of t ransit ory nat ure were appoint ed
t o post s and t heir appoint m ent s were on
daily wage basis in an appoint m ent t o a
post . The Apex Court t herein not ed t hat
such appoint m ent s were not
appoint m ent s t o t he post s and, t herefore,
no direct ions could have been
given t o re- engage t hem in any work or
appoint t hem against exist ing vacancies.
Thus t he t wo j udgm ent s relied upon by
t he Apex Court t o arrive at t he conclusion
arrived at in Execut ive Engineer, St at e of
Karnat aka ( supra) , nowhere have laid
down t he t est s t o hold as t o why
I rrigat ion Depart m ent is t o be excluded
from t he definit ion of indust ry. As point ed
out earlier, even t he case of Sub
Divisional I nspect or of Post , Vaikam and
8Ot hers was considered by t he Apex Court
in Physical Research Laborat ory and
explained t he sam e in paragraph 10 of
t he j udgm ent . Aft er t hat , it proceeded t o
apply t he t est s as laid down in Bangalore
Wat er Supply. I n t he case of Des
Raj v. St at e of Punj ab ( supra) t he Apex
Court had considered t he t est s laid down
in various earlier j udgm ent s of t he Apex
Court it self, culm inat ing in t he j udgm ent
in Bangalore Wat er Supply ( supra) and
t hereaft er had arrived at a conclusion
t hat t he I rrigat ion Depart m ent falls w it hin
t he definit ion of I ndust ry wit hin t he
m eaning of Sect ion 2( j ) of t he I .D. Act . I
am , t herefore, of t he considered opinion
t hat t he view laid down in Des Raj ‘s case
is t he bet t er in point of law and hence it
is t he view in Des Raj ‘s case which will
have t o be followed. Once it is so held
and as I have already set out earlier t he
work of t he I rrigat ion Depart m ent of t he
St at e of Punj ab and t he m at erial placed
before t his Court including t he writ t en
subm issions filed on behalf of t he
pet it ioners show t hat t he proj ect s
undert aken by t he irrigat ion depart m ent
of t he St at e of Maharasht ra is discharging
t he sam e or sim ilar funct ions as t he
I rrigat ion Depart m ent of t he St at e of
Punj ab. I t , t herefore, follows t hat t he
proj ect s of t he I rrigat ion Depart m ent or
work connect ed wit h t hat of t he St at e of
Maharasht ra, on t he sam e t est s as
applied by t he Apex Court in Des Raj ‘s
case would fall wit hin t he definit ion of an
indust ry for t he pur pose of Sect ion 2( j ) of
t he I .D. Act .”
12. Upon applicabilit y of said fact ors t o t he
present case, it is clear t hat t he j udgm ent
rendered by Hon’ble t he Suprem e Court
in Des Raj ( supra) has elaborat ely dealt wit h
t he quest ion as t o whet her I rrigat ion
Depart m ent of t he Governm ent would com e
wit hin t he definit ion of I ndust ry or not . Aft er
considering t he Const it ut ion Bench
Judgm ent of Hon’ble Suprem e Court
rendered in Bangalore Wat er Supply and
Sewerage Board ( supra) , t he Hon’ble
Suprem e Court has reached a definit e
conclusion t hat I rrigat ion Depart m ent of t he
Governm ent would com e wit hin t he
definit ion of I ndust ry.
13. Judgm ent rendered in t he case of K.
Som a Set t y has placed reliance on t he
9
Judgm ent rendered by Hon’ble t he Suprem e
Court in t he case of St at e of H.P. v. Suresh
Kum ar Verm a, report ed in ( 1996) 7 SCC
562 and Union of I ndia v. Jai Narain Singh,
report ed in 1995 Supp ( 4) SCC 672 t o hold
t hat I rrigat ion Depart m ent of t he
Governm ent com es wit hin t he purview of
t erm I ndust ry.
14. A reading of t he aforesaid j udgm ent s
cit ed in case of K. Som a Set t y ( supra)
reveals t hat j udgm ent of Suresh Kum ar
Verm a ( supra) has not held t he I rrigat ion
Depart m ent excluded from t he definit ion of
t erm I ndust ry and was concerned only wit h
regard t o following of Recruit m ent Rules
pert aining t o fresh appoint m ent s being
m ade t o various services under t he St at e or
t o a class of post under t he St at e. I n t he
case of Jai Narain Singh ( supra) Hon’ble
Suprem e Court has held t he Cent ral Ground
Wat er Board excluded from t he definit ion of
I ndust ry. Mat t er pert aining t o I rrigat ion
Depart m ent of t he Governm ent has not
been advert ed t o.
15. I t is also clear t hat j udgm ent rendered
in K. Som a Set t y ( supra) has not t aken int o
account t he earlier j udgm ent rendered by
Hon’ble t he Suprem e Court in Des
Raj ( supra) and Bangalore Wat er Supply and
Sewerage Board ( supra) .
16. As such, it would be appropriat e and
according t o j udicial propriet y t hat j udgm ent
rendered in t he case of Des Raj ( supra) be
followed. I t is accordingly held t hat
I rrigat ion Depart m ent of t he Governm ent
would com e wit hin t erm of ‘I ndust ry’ as
defined in Sect ion 2( k) of t he Act of 1947.”
11. I am in respect ful agreem ent wit h
t he view t aken by Hon’ble Allahabad High
Court in t he case of St at e of U.P. t hrough
Secret ary I rrigat ion v. Mohd. Rais ( supra) .
Thus, t he view t aken by learned Labour Court
t hat ” I rrigat ion Depart m ent ” is not an
‘indust ry’ cannot be sust ained.
10
12. Learned Labour Court had also relied
upon t he j udgm ent rendered in t he case of
St at e of Karnat aka & ot hers v. Um adevi &
ot hers ( supra) . The said j udgm ent , however,
does not deal wit h t he quest ion whet her
I rrigat ion Depart m ent is an ‘indust ry’ or not .
Moreover, in t he said j udgm ent , t he pract ice of
m aking ad- hoc / casual appoint m ent t hrough
backdoor and t hereaft er t o regularize t hem ,
wit h t he aid of j udicial order, was deprecat ed.
The said j udgm ent does not lay down any
principle for adj udicat ion of labour disput e by
t he forum provided under I ndust rial Disput es
Act , t herefore, reliance on t he said j udgm ent is
m isplaced.
13. Sim ilarly in t he case of St at e of H.P.
v. Suresh Kum ar Verm a ( supra) provisions of
I ndust rial Disput es Act were not considered at
all, and t he quest ion, whet her a Depart m ent of
t he St at e is ‘indust ry’ or not was also not
considered, t herefore, t he said j udgm ent also
is not applicable t o t he fact s of t he present
case.
14. Since t he reference was answered
against t he pet it ioner only on t he ground t hat
I rrigat ion Depart m ent is not an ‘indust ry’,
which view is not correct , t herefore, t he
im pugned awards rendered by learned Labour
Court deserves t o be set aside and are hereby
set aside.
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15. Accordingly, t he writ pet it ions are
allowed. The m at t er is rem it t ed back to
learned Labour Court t o decide t he reference
on m erit s, as per law.
( M a noj Ku m a r Tiw a r i, J.)
Pr