Tilak Raj vs State of J & K

Arun Kumar Goel, J.—When this case was taken up for hearing on 19.4.2001 learned Counsel for the parties stated that the pleadings are

complete and writ petition may be disposed of at this stage only. Shri Kakkar, Government Advocate, further submitted that objections filed may

be treated as counter on behalf of respondents, prayer granted. Thus writ petition si being disposed of with the consent of learned counsel for the

parties after it was formally admitted.

Admitted facts which emerge from the pleadings of the parties are that petitioners were engaged by respondent No. 3 as watchmen for keeping

watch and ward of the Fruit & Vegetable Complex, Narwal, on a consolidated pay of Rs. 1800/ per month. A copy of the said order is

AnnexureA to writ petition. Both the petitioners remained working as such on the aforesaid emoluments. The initial engagement of petitioners was

for six months which remained continued till date. Here it may be worthwhile to notice that both petitioners approached the authorities concerned

for release of regular grade. Copies of such communications are annexed as Annexures B & D with the writ petition.

Vide AnnexureC to writ petition, the Marketing Supervisor Horticulture (P&M), Jammu, as respondent No. 4 recommended the case of the

petitioners to respondent No. 3 i.e. Deputy Director, Horticulture (P&M), Jammu. Contents of AnnexureC have some bearing on the decision of

this case, as such those are extracted below :

No. MSJ/WM/3032

Dated : 21.1.1999

To

The Deputy Director,

Horticulture (P&M),

Jammu.

Subject : Release of regular grade in favour of Sh. Tilak Raj and Sh. Pawan Kumar, Watchmen.

Sir,

While forwarding the representation/application dated 20.1.1999 of Sh. Tilak Raj and Sh. Pawan Kumar, Watchmen who were engaged in May,

1998, I am to state that the work and conduct of the officials has remained quite excellent during the period of their service till date as also their

attendance.

It is, therefore, recommended that the release of regular grade of Chowkidar may please be considered in their favour.

Yours faithfully,

Sd/

(J.P. Sharma)

Marketing Supervisor,

Horticulture (P&M),

Jammu.

Since petitioners apprehended their dispensation of services, therefore, they have filed this writ petition with a prayer to regularise their services

from the date each one of them completed six months of probation; or in the alternative to adjust/regulate them at least against two class IV posts

in Rajouri District.

Respondents were put to notice on 8.11.2000. They have filed their objections. Their stand is that in order to look after and manage the affairs

of the Fruit Mandi Complex (Rail Head Complex) Narwal, Jammu, the Government vide Government Order No. 622Agri of 1997 dated

22.12.1997 had constituted a Market Administrative Committee consisting of the following members :

(a) Director of Horticulture (P&M) Chairman

(b) Vice Chairman, JDA Member

(c) Deputy Director, Horticulture (P&M) Jammu MemberSecretary

(d) Two representatives of traders from Jammu and Srinagar Members

This Market Administrative Committee in turn had appointed a Market Sub Committee to deal with the daytoday management problems in the

Fruit Mandi Complex, Narwal, Jammu. Vide Annexure R1 with the objections, the Committee was reconstituted with the following membership

for administration of the New Fruit Mandi Complex (Rail Head), Jammu :

(1) Director of Horticulture, Planning and Marketing Chairman

(2) Vice Chairman, JDA Member

(3) Two representatives of Fruit Dealers Association (one each from Jammu and Kashmir Division) Member

(4) Deputy Director, Horticulture (P&M) Jammu MemberSecretary

The SubCommittee generates its own funds out of the entry fee charges to meet the expenditure on account of Market Management/Maintenance.

It is this Committee who in its meeting held on 25.5.1988 resolved to engage two persons out of its own funds for watch and ward duties and to

check the entry of stray animals in Narwal Fruit/Vegetables Mandi, Jammu. It was pursuant to decision of respondent No. 3 dated 28.5.1998 that

both the petitioners were engaged as watchmen temporarily for a period of six months. Further stand of these respondents is that on 17.8.2000 it

was resolved to take up the matter regarding the cattle catching service with the Jammu Municipality. The Jammu Municipality vide order dated

5.10.2000 extended such facility against payment of Rs. 50/ per cattle to be paid for the funds of Market Administrative Committee. Taking note

of this development the Market Committee in its meeting held on 9.10.2000 resolved that the services of the Watch and Ward staff engaged for

this purpose may be disbanned with effect from 18.10.2000. This was in pursuance of the minutes of meeting Annexure RII with the objections.

Petitioners are alleged to have refused to accept the same, therefore, notices sent to them remained unserved. Petitioners are alleged to have

severely injured the staff of the Market Committee on 20.10.2000 and 21.10.2000. This resulted in lodging of the FIR with the Police Station,

Trikutanagar.

Even on merits of the case respondents have admitted the engagement of the petitioners as watchmen to keep away the stray animals in the Fruit

and Vegetable Market, Narwal, on a consolidated sum of Rs. 1800/ per month w.e.f. 25.8.1998 till a decision was taken to call upon the Jammu

Municipality to extend its cattle catching service to Narwal Fruit and Vegetable Market against payment of Rs. 50/ per cattle to be paid from out

of the Market Administrative Committee funds. Thus a resolution was passed on 9.10.2000 in the Meeting of Market SubCommittee constituted

by the Market Administrative Committee. Copy of these minutes are annexed as AnnexureRII with the objections and so far the minutes relating to

disenegagment of the petitioners is concerned it is at last page under the heading Watch and Ward of these minutes.

At the time of hearing of this petition, learned Counsel for the petitioners submitted that so far petitioners are concerned they are workmen and

the Market Administrative Committee including its subcommittee at Fruit Vegetable Market, Narwal, is an Industry within the meaning of Section 2

of the Industrial Disputes Act, 1947, as applicable to the State. As such unless recourse is had to be provisions of Industrial Disputes Act, the

impugned order cannot be sustained and thus it is liable to be set aside.

On the other hand Shri Kakkar, learned Government Advocate, has controverted this position. He submitted that the market committee as well

its subcommittee is perfectly justified in doing away with the services of the petitioners and they have no right to maintain this writ petition.

According to him, the petitioners were engaged as Watchmen on consolidated salary, thus there is no question of there being any right to them to

claim any benefit of the provisions of Industrial Disputes Act. Alternatively, he submitted that Market Administrative Committee as well as its

subcommittee manages the affairs of Fruit and Vegetables Market, Narwal, and while managing the affairs it exercises sovereign functions which

are primarily inalienably exercisable only by the State. Thus such an action is outside the purview of Industrial Disputes Act, including Section 2

thereof. Thus, according to him, this writ petition is liable to be dismissed.

Another plea urged by Shri Kakkar was that no indefeasible right is vested in the petitioners to claim any relief as claimed in the writ petition,

which is wholly misconceived.

After having considered respective submission of learned Counsel for the parties and for the reasons set out hereinafter this writ petition

deserves to be allowed.

In this behalf it may be appropriately observed that so far Market Administrative Committee is concerned, it is creation of the statute and,

therefore, this by itself does not make its functions sovereign functions. Market Administrative Committee, which in turn has constituted the Market

SubCommittee, who engaged the petitioners, is a creation of statute was not disputed at the time of hearing. Primary functions of constitution of

such Committee is to regulate the sale and purchase of agricultural produce in a marketing yard in a regulated manner.

While dealing with almost identical pleas in the case of Agricultural Produce Market Committee v. Ashok Hari Kuni and another, 2000(4)

SCT 674 (SC) : 2000 AIR SCW 3442(2) , it was held that the Market Committee does not discharge sovereign functions and being creation of

statute was held to be an Industry within the meaning of Industrial Disputes Act. Plea of sovereign functions after examination was negatived in this

decision.

Similarly in Chief Conservator of Forests and another v. Jagan Nath Maruti Kondhare and others, 1996(2) SCT 165 (SC) : 1996(2) Supreme

Court Case 293 , plea of sovereign functions was rejected on the part of the appellant and in relation to Pachgaon Parwati Scheme in Pune District

and Social Forestry work in Ahmednagar District undertaken by the Forest Department of State Government of Maharashtra was held to be

covered under Section 2(j) of the Industrial Disputes Act as an Industry.

Faced with this situation Shri Kakkar submitted that both these decisions do not apply and at the same time he urged that even if it be assumed

without being admitted that Industrial Disputes Act applies, still petitioners must be asked to go to Conciliation Officer first and in case of failure

report submitted by him, they may have recourse of reference etc.

Ordinarily this prayer should have found favour with the Court. However, in view of the interim order passed by this Court on 8.11.2000,

petitioners need not be asked to go to Labour Court as urged by Shri Kakkar.

No other point is urged.

In view of the aforesaid discussion, this writ petition is allowed and it is ordered that the services of the petitioners shall not be dispensed with

pursuant to resolution of the Marketing SubCommittee constituted by the Market Administrative Committee, Narwal, Jammu, save and except by

having recourse to law.

17.With these directions, this writ petition is allowed, with no order as to costs.

CMP No. 2291/2000

In view of the order passed in main matter, it stands finally disposed of.