Safiya Malik

The Division Bench of the High Court of Jammu & Kashmir and Ladakh at Srinagar, comprising Justice Sanjeev Kumar and Justice Puneet Gupta, has set aside a judgment of the Labour Court and the Writ Court that had ordered the reinstatement of three porters and payment of their back wages by the Army. The Bench recorded that the Army’s engagement of porters falls within the realm of sovereign functions and therefore cannot be construed as ‘industry’ within the meaning of Section 2(j) of the Industrial Disputes Act, 1947. The Court further directed that the writ petitioners may explore alternative legal remedies and called upon the Indian Army to “ensure that services of these writ petitioners are re-engaged as porters provided there is nothing adverse found against them and the need for such engagement persists.”

The appeals arose from an order dated 23 February 2024, passed by the learned Single Judge, who upheld the award of the State Industrial Tribunal-cum-Labour Court, J&K, dated 15 June 2016. The Labour Court had directed the appellants to reinstate the writ petitioners with full back wages and interest.

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The writ petitioners, Aijaz Ahmad Mir, Tariq Ahmad Malla, and Mohd Amin Mir, were engaged as casual porters by the appellants, including General Officer Commanding, HQ 15 Corps, and other senior officers of the Army, on a need basis from April 2010 until December 2012. They were disengaged thereafter on the ground that there was no work available for them. The writ petitioners sought their reinstatement and regularization of services, which was denied by the appellants citing the absence of any provision for regularization.

Subsequent to the disengagement, the writ petitioners approached the Assistant Labour Commissioner, Srinagar (ALC, Srinagar), whose conciliation proceedings were inconclusive, followed by an application to the Regional Labour Commissioner (Central), Jammu, which was also dismissed on jurisdictional grounds. The petitioners then invoked Section 2-A(2) of the Industrial Disputes Act and approached the Labour Court, which framed two issues: whether the appellants’ establishment constituted an ‘industry’ under the Act and whether the direct reference to the Labour Court was maintainable.

The appellants contended before the Labour Court that the writ petitioners were casual porters engaged on a need basis and were neither entitled to reinstatement nor regularization. However, they subsequently remained absent from the proceedings and were set ex parte.

The Labour Court concluded that the Army’s activities involving porters fell within the ambit of ‘industry’ under Section 2(j) of the Industrial Disputes Act and declared the disengagement of the petitioners as violative of Sections 25-B and 25-F of the Act.

The Division Bench recorded that both the Labour Court and the Writ Court erred in categorizing the Army’s activities as an ‘industry’ under Section 2(j). Referring to the Supreme Court's judgment in Bangalore Water Supply & Sewerage Board v. A. Rajappa, (1978) 2 SCC 213, the Court observed: “The Army does not perform any duty other than protecting the security, integrity and sovereignty of the nation. There should be no manner of doubt that the predominant rather the only duty that is performed by the Army partakes the character of sovereign function.”

The Court stated that “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.”

The Bench further noted that the writ petitioners were performing menial tasks assisting Army units, such as transporting supplies and ammunition, which, although valuable, were integral to the Army’s sovereign activities.

With regard to the jurisdictional aspect, the Court recorded: “the appropriate government in relation to the industrial dispute, if any, between the writ petitioners and the appellants would be the Central Government,” and not the State Government or authorities functioning under it. It was observed that ALC, Srinagar, was not a Conciliation Officer appointed by the Central Government, and hence, proceedings before him were without jurisdiction.

The Bench elaborated: “The Conciliation Officer, who was approached by the writ petitioners is ALC, Srinagar, who acts as a Conciliation Officer appointed by the Government of Jammu & Kashmir. 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.”

The Court, therefore, concluded that the Labour Court lacked jurisdiction to adjudicate the dispute, stating that “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.”

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The Division Bench allowed the appeals and set aside both the Labour Court’s award and the Writ Court’s judgment. The Court, however, directed that: “the writ petitioners shall, however, be at liberty to explore the permissible legal remedies available to them in law and nothing said herein above shall be an impediment for invoking such remedies.”

Additionally, while acknowledging the contributions of the porters, the Court advised the Army to consider their re-engagement, recording: “We are issuing this direction only having regard to the fact that the need of the porters in the formations of the appellants is perennial and continuous.” The Court further directed the appellants to pay pending wages, if any, and stipulated that if the porters were not re-engaged, an amount of Rs. 5 lakhs deposited in the Registry would be disbursed among them equally.

Advocates Representing the Parties

For the Petitioners: Mr. M.M. Dar Advocate with Mr. U.M. Banday and Mr. Zaffar Mehdi Advocates

For the Respondents: Mr. T. M. Shamsi DSGI with Mr. Fizan Ahmad Ganai CGSC

Case Title: General Officer Commanding HQ 15 Corps & Ors. vs. Aijaz Ahmad Mir & Ors.

Neutral Citation: 2025:JKBH:1589

Case Number: LPA No. 119/2024, LPA No. 120/2024, LPA No. 121/2024

Bench: Justice Sanjeev Kumar and Justice Puneet Gupta

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