While imploring the Indian Army to take a compassionate view with regard to the services rendered by the porters, the Jammu and Kashmir and Ladakh High Court has clarified that the predominant duty of the Army is in the character of sovereign function and thus it cannot be termed as “Industry” under Section 2(j) of the Industrial Disputes Act.

The intra-court appeals before the High Court were filed by the appellants under Clause 12 of the Letters Patent against an order of a Single Judge (Writ Court) and two clubbed matters, whereby the Writ Court upheld the award of the Industrial Tribunal-cum- Labour Court, J&K, Srinagar (Labour Court).

The Division Bench comprising Justice Puneet Gupta and Justice Sanjeev Kumar said, “The security of borders from external aggression is thus undoubtedly an inalienable function of the Army, and, therefore, a sovereign activity…Viewed from any angle the Indian Army, or for that matter, the 15 Corps, Headquartered at Badami Bagh, cannot be termed as “Industry‟ as defined under Section 2(j) of the ID Act.”

DSGI T. M. Shamsi represented the Appellants while Advocate M.M.Dar represented the Respondents.

Factual Background

The Writ Petitioners were engaged as casual porters for rendering services to the appellants on a need basis from April 2010 till December 2012. They were thrown out of service after December 2012 on the ground of non-availability of work. The writ petitioners served a legal notice upon the appellants for their arbitrary ouster from the services. The writ petitioners also staked their claim for the regularization of their services. The notice was replied by the appellants informing the writ petitioners that there was no provision for the regularization of casual porters.

The Writ Petitioners’ application before the Assistant Labour Commissioner, was dismissed on the ground that the dispute was outside the scope of the Industrial Disputes Act. The Petitioners approached the Regional Labour Commissioner, Central, Jammu by way of an application filed under Section 15 of the Payment of Wages Act, 1936 for recovery of their unpaid wages but this too was dismissed. The Labour Court, however, directed the appellants to reinstate the writ petitioners forthwith with a further direction to the appellants to pay full back wages. Aggrieved thereby, the Appellants approached the High Court.

Reasoning

The Bench referred to the judgment in Bangalore Water-Supply & Sewerage Board vs. A. Rajappa & others (1978) where the Supreme Court has excluded the sovereign functions of the State from the purview of Industry, though sounding a caution that mere welfare measures undertaken by the State may not be disguised for sovereign functions.

The Bench found that there is a Standard Operating Procedure (SOP) between the Directorate of Defence Labour Procurement Department of Government of J&K (DLPD) the and Army and BSF in the Northern Command Zone, which provides for meeting the requirements of the Army/BSF. The porters and ponies required by the Army and BSF for assisting in their operational duties are not engaged by them on their own but are provided by DLPD.

Noting that the porters perform the labour job and render assistance to the Army Units working on different fronts, the Bench stated that the security of borders from external aggression is undoubtedly an inalienable function of the Army, and, therefore, a sovereign activity. “Viewed from any angle the Indian Army, or for that matter, the 15 Corps, Head quartered at Badami Bagh, cannot be termed as “Industry” as defined under Section 2(j) of the ID Act”, it held.

The Bench also explained that the Central Government, which would be an “appropriate government” in the instant case, has not appointed ALC, Srinagar, to be a Conciliation Officer to hold conciliation proceedings in respect of an industrial dispute between an employer and an employee.

As per the Bench, the ALC, Srinagar was not a Conciliation Officer appointed by the Central Government ( appropriate government), and, therefore, the proceedings filed before him by the writ petitioners were without jurisdiction and non-existent.
“Failure of the ALC, Srinagar to conclude the proceedings within forty five days did not give any cause of action to the writ petitioners to approach directly to the Labour Court, that too, a Court not appointed by the Central Government (appropriate government). Neither the Conciliation proceedings before ALC, Srinagar nor the reference adjudicated by the Labour Court appointed by the government of Jammu & Kashmir were maintainable before the said authorities”, it held.

Allowing the appeal and setting aside the impugned judgment, the Bench called upon the Indian Army to ensure that the services of these writ petitioners are re-engaged as porters provided there is nothing adverse found against them. The Bench further held that if the appellants decide not to re-engage the writ petitioners, the amount of Rs. 5 lakhs deposited in the Registry shall be paid to them in equal shares, to enable them to settle in life.

Cause Title: General Officer Commanding & Ors. v. Mohd Amin Mir & Ors. (Case No: LPA No.119/2024)

Appearance:

Appellants: DSGI T. M. Shamsi, CGSC Fizan Ahmad Ganai

Respondents: Advocates M.M.Dar, U.M.Banday, Zaffar Mehdi

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Jammu & Kashmir & Ladakh High CourtJustice Puneet GuptaJustice Sanjeev Kumar

Tulip Kanth

Assistant Editor

Tulip Kanth is an Assistant Editor at Verdictum having over 5 years of experience in the field of legal journalism and editing. She extensively covers judgments of the Supreme Court, High Courts as well as Tribunals. She has previously worked with a legal publishing website where she oversaw the work of other editors and has also created updates on notifications of different Government Ministries. She holds an English Honours Degree from SGTB Khalsa College, Delhi University and has completed her LLB course with specialisation in Corporate Law from Amity University.