SREEDHARAN Vs. LABOUR COURT QUILON

JUDGEMENT

(1.) THE petitioner was the highest bidder in the auction for vending toddy from shop No. 12 of Pullikada, Quilon for the three successive years 1960-61,1961-62 and 1962-63. THE period for which the petitioner purchased the right to vend toddy at the last of these occasions or the petitioner's licence, as it is called expired on 1-4-1963 ; and at the auction for the year 1963-64 the petitioner was not the successful bidder. Respondents 2 to 9 were toddy tappers employed for the purpose of collecting toddy from the trees comprised in the petitioner's auction, and were getting wages at 18nps. per bottle of toddy. THEy filed claim petitions 783 to 789 and 793 of 1963 before the Labour court Quilon, claiming retrenchment compensation as well as notice pay, on the ground that they had been in continuous service for three years under the petitioner, and had been retrenched from service. Ext. P-1 is a copy of the claim petition No. 783 of 1963; Ext. P-2 is a copy of the objection filed by the petitioner thereto; and ex. P-3 is copy of the order of the Labour Court on the said petition. THE Labour Court adjudged that the claimants were entitled to retrenchment compensation but not to notice pay. This order of the Labour court is sought to be quashed in this O. P.

(2.) THE petitioner's counsel raised three points: (1) That S. 33 C (2) of the Industrial Disputes Act of 1947 is inapplicable to the case and the Labour Court had no jurisdiction to decide the controversy, (2) That the petitioner was not the "employer" of the claimants respondents, but that the Government, or the Excise Department thereof was their employer, and (3) That the claimants-respondents had voluntarily quitted service under the petitioner long before the period of his auction expired on 1-4-1963 and had entered service under the new contractor who bid for 1963-64 and that therefore there was no retrenchment.

(3.) THE argument that the Government or the Excise department thereof, and not the petitioner should be regarded as the employer must be repelled on the state of the authorities as they stand. S. 2 (g) (1) of the Industrial Disputes Act" employer means (1) in relation to an industry carried on by or under the authority on any department of the Central Government or a State Government the authority prescribed in this behalf, or where no authority is prescribed, the head of the department. " S. 10 of the Travancore Abkari Act 10 of 1073 provides interalia that no toddy shall be drawn from any tree except under the authority and subject to the terms and conditions of a licence granted by the collector. Inter-relating, language of the above two provisions, the petitioner's counsel argued that the industry of toddy tapping was carried op by or under the authority of Government, and therefore, the government is the employer. In Carlsbad Mineral Water Manufacturing Co. , Ltd. , v. P. K. Sarkar and others (AIR. 1952 Cal. 6) the question arose whether the Mineral Water manufacturing Company which had secured the rights of providing mineral water on the East Indian Railway System, subject to the right of the Government to fix the price and to control the work of the company to some extent was the employer" with respect to the workmen employed under them; or whether the government by reason of the contract entered into with the company for providing amenities for railway passengers was to be regarded as the "employer" Whose "authority the industry was earned on. Harries c. J. who the judgment of the court expressed himself thus; It seems to me that what is referred to in S. 2 (a) (f)and S. 2 (g) (i) is any Industry owned by Government which is being carried on by government itself either through department or by some authority created by government to carry on that industry. An'industry carried on by or under the authority of Government is a Government industry which as I have said may be carried on directly by Government or by somebody or person nominated by government for that purpose. No business owned and carried on by a private person or a Limited company can be a business carried on by or under the authority of Government It was further observed: ' "if the business of manufacturing and supplying these mineral water was carried on by authority of Government the workmen would be the workmen of Government. But Such obviously is not the case. In my judgment it is quite impossible to hold that the. Carlsbad Mineral Water manufacturing Company Limited is a business carried on by authority of government. It is a business not owned by Government, but is on the other hand owned by the Carlsbad Mineral Water 'manufacturing Company Limited. It is carried on on their behalf and for their benefit and any 'control' of government only arises because of the terms" of the contract which this company has entered into with Government a contract which gives them an exclusive right to sell certain articles on railway THE principle of the above decision was followed in Shri sankara Allom Ltd. , Trivandrum v. State of Travancore-Cochin (AIR. 1953 T. C. 622) where it was ruled: THE provisions in the Central Excise and Salt Act of 1944 and the Central Excise Rules. 1944 are Intended merely to carry out the fiscal and public policy of the State and riot to convert the industry for which the licence is issued from a private concern into a Government business or a business carried under the authority of the Government. Nor can an over-all control given to the Central Government, over a class of industries in general of account of the fiscal policy of the State or on considerations of Public policy convert individual units of that industry, owned and worked by private persons or companies 'in to Government concerns or industry carried on by or under the authority of the Central Government. " In a recent decision of this court is Indian Naval Canteen Control Board v. Industrial Tribunal, ernakulam (1965-II-L. L. J. 366), it was pointed out that the conception of "any industry carried on by or under the authority of the Government" within the meaning of S. 2 (a) (i) of the Industrial Disputes Act, 1947, "involves a directness with the industry through servants or agents. Such nexus is obviously absent in the present case. Following the principles laid down in the above decisions, I reject the second of the contentions urged by the counsel for the petitioner.