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TMI Blog1990 (10) TMI 375X X X X Extracts X X X X X X X X Extracts X X X X ..... as specified under Section 15 of the Act. By its Order dated December 17, 1980, the Respondent No. 1 - Board informed the Petitioner that the question of Petitioner's confirmation as an Inspector in the services of the Board was considered by the Board in its meeting held on December 5, 1980 and the Board was not in favour of confirmation of the petitioner. The petitioner was informed that his services were terminated with effect from December 18, 1980. 4. Being aggrieved by the said termination order, the petitioner made a demand for his reinstatement in the service. Conciliation proceedings were held. On failure of the conciliation proceedings, the dispute was referred to the Labour Court at Bombay by an order passed by the Deputy Commissioner of Labour. The said dispute was in respect of the claim of the petitioner for reinstatement with full back wages and continuity of service with effect from December 10, 1980. 5. During the course of the said reference proceedings, the petitioner filed his statement of claim contending that the said termination order was mala fide and unjust. The petitioner also proceeded on the footing in the said statement of claim that the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... first and foremost question which is required to be considered in this Writ Petition is as to whether the Respondent No. 1 - Board is an 'industry' under Section 2(j) of the Industrial Dispute Act, 1947. Section 2(j) of the Industrial Disputes Act defines the expression 'industry' as under :- 'industry' means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft or industrial occupation or avocation of workman. The definition of the expression 'industry' was amended by Section 2(a) of the Amending Act (46 of 1982) in view of the observations made in the judgment of the Hon'ble Supreme Court in the case of Bangalore Water Supply and Sewerage Board and Ors. v. A. Rajappa and Ors, reported in (1978-I-LLJ-349). The said amended definition has not yet been brought into force. 8. Before I refer to the rival contentions of the learned Counsel for the petitioner and the learned Counsel for the Respondent No. 1 - Board, I think it necessary to refer to the provisions of the Act, viz. Maharashtra Act No. XXX of 1969. It may also be mentioned at this stage that Entries 23 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le to constitute the Board for the scheduled employment in accordance with the provisions of Section 6. It is of considerable relevance to refer to the provisions of Section 7 of the Act, as Section 7 of the Act prescribes powers and duties of the Board. Section 7(1) of the Act provided that the Board shall be responsible for administering a scheme, and shall exercise such powers and perform such functions as may be conferred on it by the scheme. Section 7(2) of the Act provided that the Board may take such measures as it may deem fit for administering the scheme. Section 7(3) of the Act imposes an obligation on the Board to submit periodical statements to the State Government in respect of administration of the scheme by the Board. It was also provided by the Act that every such report received by the State Government shall be placed before each House of the State Legislature. Section 7(4) of the Act is also of considerable significance. The said Section reads as under :- 7(4). In exercise of the powers and discharge of its functions, the Board shall be bound by such directions as the State Government may, for reasons to be stated in writing, give to it from time to time. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; Provided that, no one shall be required under the provisions of this section to answer any question or make any statement tending to incriminate himself. (3) Every Inspector appointed under this section shall be deemed to be a public servant within the meaning of Section 21 of the Indian Penal Code. 10. In exercise of the powers conferred by sub-section (1) of Section 4 of the Act, the State Government framed a scheme know as the Bombay Iron and Steel Unprotected Workers (Regulation of Employment and Welfare) Scheme, 1970. The said Scheme confers various powers on the Chairman of the Board and also prescribed for classification of workers, registration of employers, promotion and transfer of workers, surrender of cards, etc. The above referred Act and the scheme framed thereunder are liable to be read together to ascertain the functions of the Board. 11. Right at the outset, I must mention that the Respondent No. 1 - Board is a 'statutory authority' in charge of administering the Act and the scheme as provided in the Act subject to statutory control of the State Government. The Board is entitled to exercise powers of administration under the Act and its Inspe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n a later judgment concerning Calcutta Dock Labour Board reported in (1973-II-LLJ-254). It cannot be disputed that the functions of the Dock Labour Board constituted under the Dock Workers (Regulation of Employment) Act, 1948, are similar to the functions of the Respondent No. - 1 Board under Maharashtra Act No. XXX of 169. The first Labour Court has also relied upon the above-referred judgment of the Hon'ble Supreme Court in the case of Vishakhapatnam Dock Labour Board (supra), for its conclusion that the Respondent No. 1 - Board was not an 'industry'. Mr. Grover, learned counsel for the petitioner, has submitted that in the matter pertaining to Vishakhapatnam Dock Labour Board, there was no occasion for the Court to consider as to whether the Board was an 'industry' or not and once it was held that the Board was not the employer of the Dock Workers, it was not necessary to consider as to whether the Dock Labour Board was an 'industry'. Mr. Grover has further submitted that this decision is per incuriam, as it does not take notice of the various facts having bearing on the question arising for consideration as to whether the Board is an 'industry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... functions of the State, performed by the State or by the Statutory Corporation to which such functions are delegated, are outside the purview of the definition of the expression 'industry' as defined under Section 2(j) of the Industrial Disputes Act, 1947. It is useful to refer to the observations of Isaac, J., in his dissenting judgment in the Australian case of Federated State School Teachers' Association of Australia v. State of Victoria reported in (1929) 41 CLR 569 at page 585, expressly approved by the Hon'ble Supreme Court. The relevant passage reads as under :- Regal functions are inescapable and inalienable. Such are the legislative powers, the administration of laws, the exercise of the judicial power ... The above test was approved by the Hon'ble Supreme Court. Thus it was held in this case that regal functions of the State, i.e. 'function of the administration of the law' in addition to other regal or sovereign functions of the State, are liable to be excluded from the definition of the expression 'industry'. It is of no relevance for our purpose as to whether the administration of the law is done by the State Government itse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... work would have been required to be done by the State Government through its own department. Merely because the State Government has constituted a Statutory Corporation with the delegated powers, can it be said that the Board is not discharging the regal functions of the State ? I am conscious of the fact that in a Welfare State, Statutory Corporations can be constituted to implement directive principles of the Constitution. I am conscious of the fact that if the Board is discharging such functions which could be discharged by a private party, the Board cannot be considered as an authority discharging regal functions of the State. In my judgment, the Respondent No. 1 - Board is entrusted with such functions which could not be delegated to a private party at all. These functions are 'functions of administration' in a country where the Government is enjoined to regulate employer-employee relationship. The Board is set up as independent statutory authority to administer the law and to take steps to enforce the same. Applying the dominant nature test laid by Krishna Iyer, J., in the case of Bangalore Water supply and Sewerage Board (supra), in his leading judgment on behalf of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g action against the defaulting employers, collecting amount of levy, could have been performed by a private individual ? The answer is obviously in the negative. The Respondent No. 1 - Board discharges the regal functions of the State. Accordingly, the test laid down by the Hon'ble Supreme Court in the case of Bangalore Water Supply and Sewerage Board (supra) is satisfied in this behalf. I have no hesitation to hold that the Respondent No. 1. Board is not an 'industry'. In view of my finding that the Board is not an 'industry', it is not necessary to pursue the discussion on the question as to whether the petitioner would have been treated as a 'workman' or not, if the Board was held to be an 'industry'. I need not discuss the Madras Gymkhana case in detail. In that case, it was observed by Chief Justice Hidayatullah that the Gymkhana could not be considered as an 'industry', as it was a self-serving institute. The Hon'ble Supreme Court in the case of Bangalore Water Supply and Sewerage Board (supra) came to the conclusion that the Gymkhana clubs were not self-serving institutes. I have examined the issue in the light of the provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16. Keeping all this in mind, it is still required to be examined as to whether a department of the Government, or a Statutory Corporation entrusted solely with the administration of law or the administration of a scheme, can be treated as an 'industry'. If the function discharged by the Respondent No. 1 - Board is a sovereign function or part of regal functions, the Board cannot be held to be an 'industry'. Even if the function of the Board is a mere 'governmental function', it cannot be classified as an 'industry'. On both the counts, I hold that the Board is not an 'industry'. In this view of the matter, prima facie the petitioner cannot claim to be a workman employed by an industry. In this view of the matter, I uphold the finding of the First Labour Court that the Board is not an 'industry'. I also uphold the finding of the First Labour Court that the petitioner is not a 'workman'. If there would have been an occasion to consider the merits of the case, it would have been necessary to examine as to whether the petitioner was automatically confirmed on the probation period of three months having come to an end or not. Pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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