Civil Writ Petition No.3859 of 1987 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
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Civil Writ Petition No.3859 of 1987
Date of Decision:15.09.2008
Bachna Ram
.....Petitioner
Vs.
Presiding Officer, Labour Court, Ambala and another
.....Respondents
CORAM:- HON'BLE MR. JUSTICE HARBANS LAL
Present:- Mr. J.C. Verma, Senior Advocate with
Ms. Meenakshi Verma, Advocate for the
petitioner.
Mr. Rajnish Narula, Advocate for respondent
No.2.
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HARBANS LAL, J.
This petition is moved by Bachna Ram under Articles 226/ 227
of the Constitution of India for quashing the impugned award dated
13.3.1987 (Annexure P.6) being illegal and without jurisdiction.
The brief facts giving rise to this petition are that Bant Ram, the
present respondent joined employment of Bachna Ram as a Hali on his
agricultural land. Bachna Ram agreed to pay 1/5th share of the total crop to
be produced to Bant Ram. All the expenses on the agriculture were to be
borne by Bachna Ram. Bant Ram being illiterate did not know as to how
much quantity of different crops of what value has been obtained by Bachna
Ram. So by moving an application under sub-Section 2 of Section 33-C of
the Industrial Disputes Act, 1947 (for short, `the Act’) claimed minimum
wages at the rates fixed by the Haryana Government under the Minimum
Wages Act, 1948 for the period shown in the award. Bachna Ram came up
with the plea that the application is not maintainable as the agriculture
Civil Writ Petition No.3859 of 1987 -2-
labour does not come within the purview of the Act. The applicant was
employed as a crop sharer, so, no relief is available to him under the Act.
Similar claim was filed by him in the Labour Office, Kurukshetra under the
appellate authority, which has been dismissed as withdrawn. It was also
alleged that he never worked as a crop sharer on the agriculture land of
Bachna Ram so he is not entitled to any wages. The following issues were
framed:-
1. Whether applicant is entitled to relief claimed for, if not
its effect?
2. Whether application is not maintainable? OPR
3. Whether there is no relationship of employer and
employee between the parties, if so its effect? OPR
4. Whether Labour Court has got no jurisdiction to try this
dispute? OPR
5. Whether application is barred by the principle of
resjudicata, if so its effect?
6. Relief.
After hearing the representatives of the parties and perusing the
oral as well as documentary evidence, the learned Presiding Officer of the
Labour Court passed the impugned award allowing a sum of Rs.10,000/- to
Bant Ram. Feeling aggrieved therewith, Bachna Ram has preferred this
petition.
In the written statement, Bant Ram has inter-alia pleaded that
the petitioner is not a small farmer but a big landlord. He had been
engaging the persons in his employment and the answering respondent was
also in his employment. The answering respondent has based his claim on
Civil Writ Petition No.3859 of 1987 -3-
the minimum rates of wages. Thus, the petitioner being a employer comes
within the definition of `industry’. There is ample evidence on the record to
prove that the petitioner has 24 acres of land and running the agricultural
operations as a trade and business by investing capital and employing the
labour and thus falls under the definition of Section 2(j) of the Act. It is
settled law that neither Section 24 of the Minimum Wages Act, 1948 nor
Section 22 of the Payment of Wages Act, 1948 bars the jurisdiction of the
Labour Court to entertain and adjudicate upon an application under Section
33-C(2) of the Industrial Disputes Act. The answering respondent has
claimed the wages on the minimum rates which has been fixed. Lastly, it
has been prayed that this petition may be dismissed with costs.
I have heard learned counsel for the parties, besides perusing
the findings returned by the learned Presiding Officer of the Labour Court
with due care and circumspection.
Mr. J.C. Verma, learned Senior Advocate appearing on behalf
of the petitioner argued with a good deal of force that the petitioner is a
small farmer cultivating his land measuring about five and half acres. The
relationship of employer and employee has been denied and that being so,
the labour Court was not empowered to entertain the application under
Section 33(C)(2) of the Act. Such application does not fall under the
purview of the Act. Even if Bant Ram is assumed to be a `Siri’ of the
petitioner, the Industrial Court had no jurisdiction to entertain the
application when such an application had already been dismissed by the
authorities under the Payment of Wages Act. The activities of the petitioner
in cultivating his own land do not fall in the industry as is defined under
Section 2(j) of the Act. In these premises, the award is liable to be quashed.
Civil Writ Petition No.3859 of 1987 -4-
He further pressed into service that the principle of res-judicata
is applicable to the act and withdrawal of the earlier application made by
respondent No.2 in view of the observations made in re: Super Surgical
Co., v. Desikan and another, 1969 Lab. I.C. 1347.
To tide over these submissions, Mr. Rajnish Narula, Advocate
appearing on behalf of respondent No.2 maintained that the petitioner is
holding as much as 24 acres of land and he is running agricultural
operations as a trade and business by investing capital and employing the
labour and that being so, the case of the respondent, Bant Ram falls within
the definition of Section 2(j) of the Act.
I have given a deep and thoughtful consideration to the rival
contentions. The most crucial question to be determined herein is as to
whether the relationship of employer and employee did subsist between the
parties. It is own case of respondent No.2 that he was engaged as a Hali by
the petitioner who had agreed to pay him one fifth share of total crop to be
obtained by them. It would be apparent on the face value of these facts, that
the respondent- workman was a Siri with the petitioner. The meaning of the
word `Siir’ as given in Punjabi English Dictionary published by Punjabi
University, Patiala is `partnership’. As a matter of fact, Siri is known as a
partnership in joint cultivation. Obviously, as alleged by the respondent-
workman, he was to get one fifth share of the total crop. It implies that the
relationship between the parties was not of employer and employee rather of
partners in the joint cultivation. If we go by common sense, a partner cannot
be considered to be a servant/ employee. There is no denying the fact that
the respondent- workman had filed an application in Labour Office,
Kurukshetra which was dismissed as withdrawn by him. In re: Harinagar
Civil Writ Petition No.3859 of 1987 -5-
Cane Farm v. The State of Bihar and others, AIR 1964 Supreme Court
903, it has been ruled as under:-
“It has been urged by the respondents that this decision
supports their argument that S.2(j) includes all agriculture and
agricultural operations, and in support of this proposition, they
have invited our attention to the statement in the judgment
delivered by Chandrasekhara Aiyar J., where it is observed that
the concept of industry in the ordinary non-technical sense
applies even to agriculture horticulture, pisciculture and so on
and so forth. We are not impressed by this argument. The
context in which this sentence occurs shown that the Court was
there dealing with the ordinary non-technical sense according
to what is understood by the man in the street as the denotation
of the word `industry’ or business,and so, the observations
made in that connection cannot be taken to amount to the broad
and unqualified proposition that agriculture of all kinds is
included in S.2(j).
It can be culled out from these observations that agriculture of
all kinds is not included in Section 2(j) of the Act. After surveying the
entire law on the point including Harinagar Cane Farm’s case (supra), it
has been held in re:- Maheswar Rao and others v. State of Orissa and
others, 1974 Lab I.C. 1512, that “it has also been settled that for
determining whether an organisation is an industry or not, it must be
ascertained as to whether its activity partakes the nature of a business or
trade or is an undertaking or manufacture or calling of employers. If it is
that and there is cooperation of the employer and the employee resulting in
Civil Writ Petition No.3859 of 1987 -6-
the production of material services, it is an industry. From the decisions it
would appear that unless agriculture is adopted as a business or calling, the
operations in the hands of the petitioners No.2, 3 and 4 cannot partake the
character of industry. It would, therefore, follow that the petitioners do not
run any industry and any dispute in regard to employment under them would
not constitute “industrial dispute” within the definition of that term under
the Industrial Disputes Act. The referring authority without application of
mind and without examining the facts of the case suddenly proceeded to
make the reference in exercise of powers vested in it under the Act.”
Adverting to the facts of the case in hand, as noted supra, the
relationship of employer and employee did not exist between the parties.
The respondent- workman was to get share from the produce. This fact in
itself is sufficient to describe him as a partner. There is nothing on the
record to show that the agriculture being adopted by the petitioner was a
business or calling. That being so, the operations in his hands cannot be
described to be an industry. The learned Presiding Officer has relied upon
Harinagar Cane Farm’s case (supra). From the observations rendered
therein, it follows that agriculture of all kinds is not included in Section 2(j).
As a matter of fact, M/s Harinagar Cane Farm had been purchased by the
Harinagar Mills Limited in March, 1956 and since then it was functioning
as a department of the said mills. M/s Motipur Zamindari Co. (Pvt.) Ltd.
was a private limited company registered under the Indian Companies Act.
Herein, it is not the case of the respondent- workman that the petitioner is a
company carrying on the business of agricultural operations, so the facts of
that case are distinguishable from the one in hand. To conclude, the
provisions of the Act are not attracted to the facts of the instant case.
Civil Writ Petition No.3859 of 1987 -7-
In re: M/s M.D. Oswal Hosiery (Regd.) v. D.D. Gupta, 1994
(3) SCT 504, it has been observed that Section 33-C(2) of the Act applies
when the workman has an existing established right to receive from
employer any money or benefit which is capable of being computed in terms
of money and in such eventuality, he can move the Labour Court for release
of amount due to him. Once there is an admission of the existing right of
workman by employer in regard to the benefit which the former is entitled
to receive from the latter, Section 33-C(2) of the Act would come into play.
Harking back to the facts of the present case, the workman has
not adduced any evidence before the Labour Court showing that he has an
existing right to receive from employer any money. To add further to it, the
alleged employer has not admitted the existing right of the workman in
regard to the benefit claimed by him. The petitioner has rather denied the
employment of the workman- respondent. Thus, in view of the observations
extracted from D.D. Gupta’s case (supra), the application moved by the
respondent- workman before the Labour Court under Section 33-C(2) of the
Act was not maintainable.
In view of the above discussions, the interference under
Articles 226/227 of the Constitution of India is warranted. Sequelly, the
impugned award dated 13.3.1987 (Annexure P-6) is set aside and this
petition is allowed.
September 15, 2008 ( HARBANS LAL ) renu JUDGE