TaxTMI 
TaxTMI 
1995 (12) TMI 341
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....estions would be answered in affirmative, we would be required to consider whether the directions given by the aforesaid Industrial Courts need our interference. 2. Before applying our mind to the first question, it would be apposite to mention that this point had not been before the Industrial Court and it is because of this that the High Court, on being approached against the award of the Industrial Court, did allow this point to be agitated before it. This Court, however, felt, in view of the importance of the question, that the contention may be gone into as would appear from the order passed on 6.11.1992. But as a contention was advanced for the respondents-workmen that the dispute is fairly old and if the matter were to be remanded to Industrial Court, the workmen would suffer second round of litigation causing hardship to them, a direction was given to the counsel for the appellants to place the factual data, on record of this Court itself, on the basis of which it was contended that the Forest Department was not an 'industry'. It was so done. 3. Shri Dholakia, appearing for the appellants, first urged, and persistently, that to decide this question we may not be guided by....
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....ious clauses, sovereign functions, strictly understood, alone qualify for exemption, not the welfare activities or economic adventures undertaken by government or statutory bodies. (c) Even in departments discharging sovereign functions, if there are units which are industries and they are substantially severable, then they can be considered to come within section 2(j). (d) Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby." (It may be stated that it is in pursuance to what was stated under (d) above that the aforesaid amendment of 1982 was made which provided for exclusions of some categories, one of which is "any activity of the Government relatable to the sovereign functions of the Government including all the activities carried on by the departments of the Central Government dealing with defence research, atomic energy and space". This is exception no.(6) of the 9 mentioned in the amended definition). 6. Shri Dholakia being required to address us as to whether the Forest Department can be said to be....
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....gment of the Isaacs, J. in The Federated State School Teachers Association of Australia v. The State of Victoria, (1929) 41 C.L.R. 569, in which the learned Judge stated as below at page 585 : "Regal functions are inescapable and inalienable. Such are the legislative power, the administration of laws, the exercise of the judicial power. Nonregal functions may be assumed by means of the legislative power. But when they are assumed the State acts simply as a huge corporation, with its legislation, as the charter. Its action under the legislation, so far as it is not regal execution of the law is merely analogous to that of a private company similarly authorised." <SLE> The Bench thereafter observed that the aforesaid clearly mark out the ambit of the regal functions as distinguished from the other powers of a State. This shows that as per the Corporation of Nagpur case those functions alone which are inalienable can be called sovereign. Ms. Jaising would like us to take the same stand. 9. Shri Dholakia and Shri Bhandare, however, urged that in view of the constitutional duty imposed on States, to undertake many activities including....
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....tal function. 12. We may not go by the labels. Let us reach the hub. And the same is that the dichotomy of sovereign and nonsovereign functions does not really exist - it would all depend on the nature of the power and manner of its exercise, as observed in para 23 of Nagendra Rao's case As per the decision in this case, one of the tests to determine whether the executive function is sovereign in nature is to find out whether the State is answerable for such action in courts of law. It was stated by Sahai, J. that acts like defence of the country, raising armed forces and maintaining it, making peace or war, foreign affairs, power to acquire and retain territory, are functions which are indicative of external sovereignity and are political in nature. They are, therefore, not amenable to the jurisdiction of ordinary civil court in as much as the State is immune from being sued in such matters. But then, according to this decision the immunity ends there. It was then observed that in a welfare State, functions of the State are not only the defence of the country or administration of justice or maintaining law and order but extends to regulating and controlling the activities of peop....
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....arantee 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 respondents 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 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 be 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, therefore, 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. 18. This takes us to the second main question as to whether on the facts of the present case could it be held that the appellants were guilty of ....
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....being sufficient to describe the same as unfair labour practice, which is apparent from what has been in the second part of the item, it was the burden of the workmen to establish that the object of continuing them for years was to deprive them of the status and privileges of permanent employees. Ms. Jaising answers this by contending that it would be difficult for any workmen to establish what object an employer in such a matter has, as that would be in the realm of his subjective satisfaction known only to him. She submits that we may not fasten a workman with such a burden which he cannot discharge. 22. We have given our due thought to the aforesaid rival contentions and, according to us, the object of the State Act, inter alia, being prevention of certain unfair labour practices, the same would be thwarted or get frustrated if such a burden is placed on a workman which he cannot reasonably discharge. In our opinion, it would be permissible on facts of a particular case to draw the inference mentioned in the second part of the item, if badlis, casuals or temporaries are continued as such for years. We further state that the present was such a case in as much as from the materia....
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....aim for regularisation was dealt in the aforesaid case was entirely different from that of the scheme in which the respondents-workmen were employed. Jawahar Rozgar Yojna was evolved to provide income for those who are below the poverty line and particularly during the periods when they are without any source of livelihood and, therefore, without any income whatsoever. It is because of this that the Bench observed that the object of the scheme was not to provide right to work as such even to the rural poor, much less to the unemployed in general. As against this, the workmen who were employed under the schemes at hand had been so done to advance objects having permanent basis as adverted to by us. 26. Therefore, what was stated in the aforesaid case cannot called in aid at all by the appellants. According to us, the case is more akin to that of State of Haryana v. Piara Singh and others 1992 (4) SCC 118, in which this Court favoured the State Scheme for regularisation of casual labourers who continued for a fairly long spell - say two or three years. (paragraph 51). As in the cases at hand the concerned workmen had, by the time they approached the Industrial Courts worked for more....