Gujarat High Court
Sunni vs Abdulgani on 17 March, 2011
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
Print
SCA/4389/2008 29/ 29 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 4389 of 2008
With
SPECIAL
CIVIL APPLICATION No. 1106 of 2008
For
Approval and Signature:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Sd/-
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
YES
2
To be
referred to the Reporter or not ? YES
3
Whether
their Lordships wish to see the fair copy of the judgment ?
YES
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ? NO
5
Whether
it is to be circulated to the civil judge ?
NO
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SUNNI
MUSLIM WAKF COMMITTEE - Petitioner(s)
Versus
ABDULGANI
ISHABHAI KACHHOT - Respondent(s)
=========================================================
Appearance
:
MR
PRABHAKAR UPADYAY for
Petitioner(s) : 1,
MR HARSHAL M SHAH for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 17/03/2011
ORAL
JUDGMENT
1. Heard learned advocates appearing on behalf of respective parties.
2. By way of filing above petitions, both parties have challenged very award passed by Labour Court, Ahmedabad in Reference (LCA) No.841 of 1987 dated 22nd June, 2007, where, Labour Court has partly allowed reference and awarded lump-sum amount of compensation Rs.40,000/- with cost of Rs.1,000/- in favour of workman in lieu of relief of back wages of interim period and relief of reinstatement.
3. In both Special Civil Applications, following order is passed by this Court (Coram : Justice K.M. Thaker) on 28th August, 2008 :
"Mr. Sonagra, learned advocate, appears for Mr. Upadyay, learned advocate for the respondent. In the present petitions, the award dated 22.6.2007 is under challenge. The impugned award is challenged by both the sides. The workman has preferred petition being special civil application No.1106 of 2008 and the employer has preferred petition being special civil application No.4389 of 2008. As per the case of the workman, he was illegally terminated since 1987 and hence, since more than 22 years, the respondent workman is out of employment. For the reasons recorded in the petition, the labour court has not granted the relief of reinstatement and instead has considered it appropriate to grant compensation in lieu of the reinstatement which is quantified at Rs.40,000/- by the labour court. The employer has raised the contention that his establishment could not fall within the purview of section 2(J) of the Industrial Disputes Act, 1947. Since the employer and the workman have challenged the same award, it is appropriate to admit the petitions for further consideration hence, RULE in both the petitions. As the order passed by the labour court is clearly in the nature of money decree, the employer committee is directed to deposit the decreed amount in this court on or before 5th September, 2008. If the amount is not deposited on or before 5th September, 2008, then, the same shall carry interest at the rate of 10% from the date of award till the actual date of deposit. Office is directed to list these petitions for final hearing in the week beginning from 29th September, 2008. A copy of this order to be kept in special civil application No.4389 of 2008."
4. Thereafter, another order was passed by this Court (Coram : Justice S.R. Brahmbhatt) on 24th September, 2008, which is quoted as under :
"Shri Upadhyay, learned counsel for the petitioner in Special Civil Application No. 4389 of 2008 states that, as ordered an amount of Rs.40,000/- (Rs. Fourty thousand only) has already been deposited with the Registry of this Court, and he has no objection if the said amount is permitted to be withdrawn by concerned workman, who has also filed petition challenging the award being Special Civil Application No. 1106 of 2008 on an appropriate undertaking that may be obtained that this withdrawal will be subject to out come that may be passed in these matters. Accordingly, office is directed to permit withdrawal of Rs.40,000/- to the workman, namely Abdulgani Ishabhai Kachhot, petitioner in Special Civil Application no. 1106 of 2008 by account payee cheque, on proper identification and on furnishing an appropriate undertaking with a copy to the other side, that withdrawal of this amount would be subject to outcome that may be passed in these matters."
5. It is necessary to note that this Court has permitted to withdraw of Rs.40,000/- to workman, but, till date, Rs.40,000/- is not withdrawn by respondent workman as per submission made by learned advocate Mr.Shah, because, workman is not having any bank account. He is in very poor condition and aged 71 years. His son is also not having any bank account, however,his daughter-in-law viz., Asrafunneesa Yusufbhai Shaikh is having bank account with State Bank of India, Vasna Branch, Ahmedabad.Therefore, learned advocate Mr. Shah submitted that it is very difficult for respondent workman to withdraw amount as per direction issued by this Court, because, workman and his son both are not having account in any bank.But,learned advocate Mr. Shah submitted that daughter-in-law by account payee cheque, then, he is prepared to produce receipt from workman that aforesaid amount is received by workman through his daughter-in-law. Therefore, request is made by learned advocate Mr. Shah to direct registry to issue account payee cheque in name of daughter-in-law - Asrafunneesa Yusufbhai Shaikh who will be identified by learned advocate Mr. Shah and on condition that learned advocate Mr. Shah placed on record receipt of workman of aforesaid amount paid to daughter-in-law. This submission made by Learned Advocate Mr Shah has not been seriously objected by Learned Advocate Mr. Upadhyay.
6. Therefore, it is directed to registry to pay Rs.40,000/-, which is deposited by employer, by account payee cheque in name of Asrafunneesa Yusufbhai Shaikh - daughter-in-law. The said cheque shall be handed over to learned advocate Mr. Shah who is representing workman, so, at least, amount can be utilised by workman at the end of life for having treatment for disease of cancer at the age of 71 years.
7. Learned advocate Mr. Prabhakar Upadhyay appearing on behalf of Sunni Muslim Wakf Committee - Employer raised two contentions before this Court challenging award in question passed by Labour Court. He raised contention that petitioner Committee is not covered by definition of 'Industry' under Section 2(j) of Industrial Disputes Act, 1947. He referred evidence of workman, Page 40 and submitted that even workman has admitted in his evidence that petitioner Committee being a Public Trust is maintained on the basis of receiving donation from Muslim community. He submitted that no production activities or manufacturing process is carried out by petitioner Committee. He also submitted that petitioner Committee is not selling any article or any item and therefore, petitioner Committee is not an 'Industry' within a meaning under Section 2(j) of Industrial Disputes Act, 1947. He also pointed out Para 10 of written statement, Page 32, that in case, if Labour Court has come to conclusion that workman's service has been terminated without holding any departmental inquiry, then, opportunity may be given to petitioner Committee to prove misconduct before Labour Court by leading proper evidence. He submitted that this specific averments were made in Para 10 of written statement which is annexed to present petition of employer - Page 29 to 32, even though, this opportunity has not been given by Labour Court while adjudicating dispute raised by workman. Therefore, according to him, Labour Court has committed gross error in granting relief in favour of respondent workman. He also referred cross examination of workman from Page 47 to 50 and pointed out that petitioner committee being a religious Trust, not carried out any activities on profit or loss basis, therefore, this aspect of cross-examination of workman is not properly appreciated by Labour Court. In short, his submission is that Labour Court has committed gross error in granting lump-sum amount of Rs.40,000/- in favour of workman when petitioner Committee/Trust is not an 'Industry', therefore, Labour Court has no jurisdiction to grant any relief in favour of workman.
8. In petition preferred by petitioner Committee, petitioner has annexed award passed by Labour Court, copy of statement of claim, written statement, evidence of workman Ex.20 with cross examination Exh.51 and evidence of Mustaqali Kadari, who was witness of petitioner Committee Ex.26 are annexed at Page 37 to 39 and at Page 40 - an evidence of workman Ex.51. Except that, no other documents are produced on record by petitioner Committee.
9. Similarly, in petition filed by workman, original copy of award passed by Labour Court along with xerox copy of award has also produced on record by workman. The workman has also produced judgment of Small Causes Court No.9 passed in H.R.P. No.1479 of 1987 which has been decided on 5th April, 1999 where suit filed by petitioner Committee has been dismissed.
10. The petitioner Committee being a public registered Trust also filed a suit before City Civil Court, Ahmedabad, Page 35. A copy of judgment is produced on record, where, suit filed by plaintiff Committee has been dismissed against present workman. The aforesaid both suits in short filed for a purpose of receiving possession of property which has been occupied by respondent workman. The property which is in occupation of respondent workman known as 'Pir Kamal Kabrastan' which is situated opposite Nagari Hospital, bearing Survey No.137/A and 137/B which has been described in Para 2 of plaint. Therefore, petitioner Committee has made sincere efforts for vacating premises occupied by workman.
11. One criminal complaint was also filed by Salalkhan against present respondent workman in Summary Case No.5 of 1987 under Section 447 of Indian Penal Code, wherein also, workman has been declared acquittal while giving benefit of doubt and judgment is delivered on 22nd January, 1990.
12. Against which, criminal appeal was preferred by Ahemad Patel against respondent workman before this Court being No.54 of 1991, which has been dismissed on 25.2.2000 by this Court (Coram : Justice H.H. Mehta).
13. It is necessary to note that Labour Court has passed an award in Reference (LCA) No.841 of 1987 dated 11th April, 2001 which has been challenged by respondent workman before this Court being Special Civil Application No.6671 of 2003 along with Civil Application No.10311 of 2006, wherein, this Court has passed following order in Civil Application No.10311 of 2006 in Special Civil Application No.6671 of 2003 on 5th September, 2006 :
"Heard the learned advocate Mrs.Krishna Rawal on behalf of petitioner and learned advocate G.M.Joshi appearing on behalf of respondent.
Today, Civil Application No.10311/2006 in main petition filed by original petitioner-workman with a prayer to fix the matter for final hearing. Considering the submissions made by both the learned advocates and after perusing the award passed by Labour Court, Ahmedabad with consent of both the learned advocates, matter has been taken up for final hearing, today.
In the main petition, petitioner has challenged the award passed by Labour Court, Ahmedabad in Ref.No.841/87, dated 11th April, 2001. On behalf of respondent before the Labour Court contention was raised that the respondent is not covered by definition of Industry under Section 2J of I.D.Act, 1947. Both the respective parties, produced documentary evidence as well as oral evidence before the Labour Court. But, Labour Court has examined the question of industry in light of the definition, which is not in statue book and on that basis Labour Court has come to conclusion in Paragraph No.9 that respondent-Trust is not covered by definition of Section 2J of I.A.Act, 1947.
Labour Court has committed a gross error in considering the definition of industry under Section 2J, which is not in statue book being amended definition, which being a basic error committed by Labour Court require interference by this Court, under Article 227 of the Constitution of India.
Therefore, only on this short ground, award passed by Labour Court in Ref.No.841/87 dated 11th April, 2001 is set aside without expressing any opinion on merits. It is directed to Labour Court, Ahmedabad to decide the Ref.No.841/87 afresh including the question of industry within a period of 6 months from the date of receiving the copy of the said order. It is open for both the parties to produce all the relevant documents and to lead further evidence before the Labour Court and it is directed to Labour Court, Ahmedabad to give reasonable opportunity to both the respective parties and to decided the reference within a period of 6 months.
Accordingly, present petition, is allowed. Rule made absolute. No order as to costs.
In view of facts that main matter is allowed by this Court, today, therefore no order is required to pass in Civil Application."
14. In aforesaid order, this Court has set aside award and remanded matter back to Labour Court concerned for deciding entire reference on merits. This petition was preferred by workman and on his petition, award was set aside by this Court. So, aforesaid papers have been annexed by workman in Special Civil Application No.1106 of 2008.
15. The contention raised by learned advocate Mr. Upadhyay is that averments made in Para 10 of written statement Ex.6, no opportunity has been given by Labour Court to petitioner Committee/Trust for conducting inquiry before Labour Court. This contention cannot be accepted by this Court simply on the ground that before Labour Court, no such submission has been made by advocate of petitioner Trust to permit petitioner Trust to conduct departmental inquiry before Labour Court. Merely, raising such plea in written statement is not enough, but, it should have to be pressed in service before Labour Court at the relevant time when matter was remanded back to Labour Court by this Court. In entire award, no such submission was made by petitioner Trust and therefore, first time, such contention has been raised before this Court that opportunity was not given to conduct departmental inquiry against workman cannot be accepted. Apart from that, even otherwise also, looking to facts which are on record, workman who reached age of superannuation in year of 2000, then, question of conducting departmental inquiry against workman does not arise and having no purpose to permit employer to hold inquiry after retirement of concerned workman. It is necessary to note that after remanding matter back to labour court by this court, only workman was examined vide Exh. 51, at that occasion, though opportunity was available to petitioner Committee to lead evidence and prove misconduct of workman but no evidence was led and no request was made to labour court to permit lead evidence for proving misconduct against workman then though opportunity was available to committee, even though, such opportunity was not availed by committee then such contention cannot be accepted. The request not made to labour court by committee for permitting to lead evidence for proving misconduct against workman then to raise contention before this court first time that no opportunity was given by labour court cannot be accepted being an after thought.
16. I have considered submissions made by both learned advocates appearing on behalf of respective parties. I have scanned all the papers annexed to these petitions by respective parties. I have also scanned award passed by Labour Court, Ahmedabad.
17. The industrial dispute raised by workman against termination was referred for adjudication on 23rd April, 1987. In support of industrial dispute, statement of claim was filed by workman Ex.5 and according to workman, initially, he was working in post of Peon. Thereafter, he was working as Recovery Clerk and he was joined petitioner Committee on 3rd May, 1961 as Peon and thereafter, on 1st April, 1972 appointed as Recovery Clerk. His salary was Rs.652=50 ps., and his service was terminated on 7th November, 1986. But, at that occasion, no legal procedure has been followed and Section 25F is also not followed, no departmental inquiry was conducted against respondent workman and according to workman, he was remained in service from 3rd May, 1961 to 7th November, 1986 continuously, in between, his service was not terminated by petitioner Committee.
18. Against statement of claim, written statement was filed by petitioner Committee vide Ex.6 denying averments made in statement of claim and raising contention that workman is not covered by definition of 'Workman' under Section 2(s) of Industrial Disputes Act, 1947 and petitioner Committee has not covered by definition of 'Industry' under Section 2(j) of Industrial Disputes Act, 1947 and therefore, Labour Court has no jurisdiction, because, Industrial Disputes Act is not applicable to petitioner Committee. The reason for termination was given by petitioner Committee that workman was unauthorisedly made encroachment upon property of petitioner Committee at 'Pir Kamal Kabrastan' and unauthorisedly made construction which creates hurdle for Muslim Community those who are coming at Kabrastan, which also adversely feels bad to Muslim Community and considering these activities of unauthorised encroachment and construction in the property of 'Pir Kamal Kabrastan' which has been considered to be an activity against interest of petitioner Committee, therefore, it was unanimously decided by petitioner Committee to terminate services of workman and accordingly, services of workman were terminated.
19. Initially, reference was dismissed, but, this Court has set aside award in Special Civil Application No.6671 of 2003 and remanded matter back to Labour Court concerned. Thereafter, intimation has been issued by Labour Court to both respective parties vide Ex.51, affidavit was filed by workman and vide Ex.52 and 53, documentary evidence were produced on record by petitioner Committee and no oral evidence has been led by petitioner Committee before Labour Court after remanding matter by this Court. However, it is necessary to note that workman was initially examined vide Ex.20 on 3rd October, 1994, at that occasion, he was aged about 50 years and was unemployed. Thereafter, Ex.26, one legal adviser viz., Mustakali Kadari was examined on 17th January, 1996. These both evidence were taken at the time of first award passed by Labour Court, but, after matter remanding back to Labour Court, only workman was examined vide Ex.51, but, thereafter, on behalf of petitioner Committee, , no oral evidence was led before Labour Court. Therefore, in award, Labour Court has made clear that after remand, no oral evidence was led by petitioner Committee except to produce two documentary evidence Ex.52 and Ex.53.
20. After aforesaid evidence, which are on record and considering direction issued by this Court, Labour Court has considered evidence of workman and documents which have been produced by petitioner Committee and considering decision of Apex Court in case of Bangalore Water Supply & Sewerage Board v. A. Rajappa and Others reported in AIR 1978 SC 548 and come to conclusion that various kind of activities have been carried out by petitioner Committee as per evidence of workman. The respondent workman was working initially as a Peon and thereafter, as Recovery Clerk. The respondent workman was not working in Masjid, but, he was working in office of petitioner Committee situated opposite GPO Office Salapas Road and income of rent is to be recovered from Kabrastan, Masjid, Classes which has been maintained by petitioner Committee and religious work has been maintained from income of rent as well as having the income of share and interest and amount is invested by petitioner Committee and whatever rent has been recovered by respondent workman is required to be deposited by workman in office of petitioner Committee. The workman has made it clear in his evidence that land which is occupied by him has not been vacated though it was directed by petitioner Committee, but, he has not vacated it, therefore, his service was only on that ground terminated by petitioner Committee. The workman remained unemployed and he has studied up to seven standard and he was not gainfully employed.
21. According to evidence of Mustaqali Kadari, Ex.26, a witness of petitioner committee also admitted facts that main activities are carried out by petitioner Committee to maintain Dargah, Masjid and Kabrastan from income of rent, received from various properties belonging to petitioner Committee. The petitioner Committee is also running technical school and other institutions. From that, rent has been recovered and no notice has been given before terminating service of workman and no departmental inquiry conducted by petitioner Committee against respondent workman. The premises which has been occupied by workman is belonging to petitioner Committee and rent of Rs.5/- has been deposited by workman in Court. Further evidence was given by workman vide Ex.51 after remanding matter back to Labour Court by this Court. According to evidence of workman, he has to recover rent from various premises belonging to petitioner Committee and more than 25 to 30 employees are working with petitioner Committee those who are maintaining various properties belonging to petitioner Committee. In petitioner Committee, eight to ten Watchmen are there and various kind of Classes are running and also engaging Instructor in various Faculties including technical staff and Provident Fund also deducted from salaries of employees and gratuity amount is also made available to employees those who are working with petitioner Committee. The petitioner is a Public Trust registered under provisions of Bombay Public Trust Act. The petitioner Trust is receiving various kind of donation from various persons.
22. The petitioner Committee is having properties at Gandhi Road, Jama Masjid and all shops which are surrounding to Jama Masjid near Manek Chowk belonging to petitioner Trust. Not only that but various shops which are situated in Rajano Hajiro and Ranino Hajiro are also belonging to petitioner Committee and property of shops in Manek Chowk, Vasan Bazar, Karanj Khas Bajar, Near Masjid and also having main office at Salapas Road and various buildings and shops are also at Shahibaug having large Kabrastan at Ishanpur and new flats near Kabrastan at Ishanpur and also having large Kabrastan at Gomtipur and lands, shops and buildings surrounding to Kabrastan at Gomtipur. The petitioner Committee runs computer classes, mobile repairing classes, ITI classes, etc., and collects high fees and hostels for boys and collects fees from students. The petitioner Committee is having these all sources of income, which suggest that petitioner Committee is doing commercial activities.
23. It is not a case of petitioner Committee that except spiritual work, no other activities are carried out by petitioner Committee. It is necessary to note that Ex.51, evidence of workman giving aforesaid all details not challenged in cross-examination by petitioner Committee and subsequent to evidence after remand, no oral evidence was led by petitioner Committee except to produce two documents Ex.52 and Ex.53. Therefore, considering evidence of workman not challenged by other side, Labour Court has come to conclusion that various activities are carried out by petitioner Committee means systematic activities have been carried out with help of relationship as 'employer - employee' and service rendered to mankind for satisfying human needs and requirement of public at large satisfied the ingredients of triple tests laid down by Apex Court in case of Bangalore Water Supply (supra). Therefore, this being a finding of fact examined and decided by Labour Court after remanding matter to Labour Court, therefore, contentions raised by learned advocate Mr. Upadhyay cannot be accepted, because, there was no positive evidence produced by petitioner Committee to the effect that these activities are not carried out by petitioner Committee means there is no denial to evidence of workman Ex.51.
24. The service of workman was terminated on 7th November, 1986 and he was terminated by President Jabbarhusain Kadari for misconduct committed by him, even no written order was served to workman. No notice or notice pay as well as compensation was given to workman and his service was terminated on 7th November, 1986. On 8th November, 1986, it was a Saturday, even though, workman had collected and recovered rent and deposited in office of petitioner Committee. On 9th November, 1986, it was a Sunday and on 10th November, 1986, total amount has been given by workman to petitioner Committee. At that time, Secretary was Abdulkhan Chauhan and on that day, Mr. Chauhan made it clear orally to workman that his service was terminated w.e.f. 7th November, 1986 and accordingly, public notice was issued in daily newspaper that now, it is not required to report for duty by workman. During pendency of reference, workman was taken back in service, but, with ulterior motive and victimise him, again, his service was terminated by petitioner Committee while giving written order on 30th August, 1997. The date of birth of workman is 8th December, 1940, therefore, his date of superannuation was 8th December, 2000. No doubt, in petitioner Committee, retirement age is not fixed, however, considering termination and unemployment of workman and having cancer of lungs and his wife was doing household work and inspite of number of efforts made by workman, he was not able to get any employment and he was totally remained unemployed.
25. In cross-examination also, workman has given evidence that inspite of sincere efforts made by him, he was not able to get any employment and he remained unemployed and his monthly last salary was Rs.652=50 ps. The evidence of witness of petitioner Committee Mr. Kadari, in terms, before Labour Court stated that due to unauthorised encroachment made in premises and construction was made by respondent workman in Kabrastan, opposite Nagari Hospital, services of workman was terminated by petitioner Committee. Undisputedly, no departmental inquiry was conducted before terminating service of workman and this evidence has been considered by Labour Court and come to conclusion that service of workman was illegally terminated by petitioner Committee while giving conclusion that petitioner Committee is covered by definition of Section 2(j) of Industrial Disputes Act, 1947. The Labour Court has appreciated oral evidence led before him as well as also considered documentary evidence and also considered undisputed facts that before terminating service of workman, no show-cause notice was served to him. No departmental inquiry was conducted and come to conclusion that prima facie, order of termination is based on allegation/misconduct as alleged by petitioner Committee/Establishment and it was a punishment imposed by petitioner Committee upon workman. Before that, no opportunity was at all given by petitioner Committee. Therefore, in absence of conducting departmental inquiry, no punishment can be imposed against workman which violates basic principles of natural justice. The petitioner Committee also admitted in Para 10 of written statement at Ex.6 that no departmental inquiry was conducted against workman.
26. The Labour Court has considered that more than 20 years have been passed for adjudication of industrial dispute which was referred in year of 1987 and looking to date of birth of workman 8th December, 1940, who was reached age of 60 years in year of 2000, therefore, considering bitterness / not having a good terms between employer and employee, therefore, not granted relief of reinstatement and considering age of retirement reached by workman, a lump-sum amount has been awarded. The Labour Court has committed gross error in coming to conclusion only on the presumption that evidence of workman cannot be believed that he was totally unemployed and his son was earning and maintaining family. On what basis, evidence of workman has not been believed. For that, no evidence has been produced by petitioner Committee before Labour Court. Such presumption is contrary to record drawn by Labour Court. The Labour Court has also committed gross error drawing adverse inference against workman which is contrary to evidence of workman that during interim period, workman must have earned something and maintained family. The Labour Court has considered that provident fund amount is not available to workman, but, amount of gratuity and retrenchment compensation are available to workman according to law and considering back wages of interim period, in all, only Rs.40,000/- has been awarded by Labour Court being a lump-sum compensation in favour of workman.
27. I have considered evidence of workman Ex.51, against which, no oral evidence was led by petitioner Committee/Trust disproving facts stated by workman in his evidence. The evidence of workman suggests various properties belonging to petitioner Committee situated in various areas of Ahmedabad City and outside City Areas receiving rent amount, maintaining different kind of Classes, giving training to such students and engaging more than 35 employees including Instructor, Secretary, Clerks, Peons, Watchmen, etc., and maintaining Trust after receiving aforesaid income from various sources which includes commercial transactions and activities carried out by petitioner Trust as per deposition given by workman. The petitioner Committee/Trust is also investing amount in Share, FDR and receiving interest and also receiving fees from different technical classes run and maintain by petitioner from students. These are the income received by petitioner and it was not a only function of spiritual activities, but, on the contrary, main activities of petitioner Committee is commercial activities carried out with help of relationship between employer and employee which is considered to be a systematic joint efforts of employer and employees made to satisfy human wants. This aspect has been recently considered by Division Bench of Madras High Court in case of Thilagavathi S. v. Presiding Officer, Labour Court, Madurai and Another report in 2010-I-LLJ 101 (Mad.).
The relevant discussion is made in Para 8 to 12 which are quoted as under :
"8. The evidence placed on record before the Labour Court discloses that the second respondent society is being used as an observation home for children and that the Government is providing aid to this institution and that apart the expenses are met out by getting donations. The society is giving vocational training to the children for self-help jobs and also in gardening and as per the bye-laws of the Management, properly allocated works are being carried out as per the rules and regulations in accordance with the duty hours and further its accounts are being audited every year. It is evident from the above that there are systematic activities in the second respondent Society and there are joint efforts by the employer and employees and further, it is being carried out for human necessities.
9. In Bangalore Water Supply and Sewerage Board v. A. Rajappa and Others (supra) case, the Hon'ble Supreme Court held that Bombay Pinjrapoles in the said case was an 'industry', justifying the conclusion with a different process of reasoning, that Pinjrapoles are 'industry', not because they have commercial motives, but, because despite their companssionate objectives, they share business like orientation and operation.
10. The Hon'ble Supreme Court further held that two categories of charitable institutions would fall within the definition of 'industry' and they are :
(1) where the enterprises, like any other, yields profits but they are siphoned off for altruistic objects.
(2) where the institution makes no profit but hires the services of employees as in other like businesses but the goods and services, which are the output, are made available, at low or no cost to the indigent needy who are priced out of the market.
11. The second one, as stated supra, could be applied to the present case, for the reason, the manner in which the activity in question is organized or even arranged in the second Respondent society is with the cooperation between the employer and the employee for its success and the object is to render material service to the community, and they are the tests which identifies the second respondent as an industry.
12. It is pertinent to point that merely because the society is run with the aid of the Government, it will not be exempted from the definition of industry and the said view gains credence from the decision Workmen of Indian Standards Institution v. Management of Indian Standards Institution, AIR 1976 SC 145 : (1975) 2 SCC 847 : 1960-I-LLJ-33. In the said case, the majority of the Three udges Bench relied more upon the State of Bombay v. Hospital Mazdoor Sabha (supra) case, than on the Safdarijung Hospital v. Kuldip Singh Sethi (supra) case and ultimately held that the Indian Standards Institution which was run by the Government of India is an industry. This was also pointed out in Bangalore Water Supply & Sewerage Board v. A. Rajappa and Others (supra) case by the Hon'ble Supreme Court. By applying the said principles stated supra, we have no difficulty to hold that the second respondent society is an 'industry' within the meaning of Industrial Disputes Act."
28. In view of aforesaid discussion and observations made by Division Bench of Madras High Court and considering evidence which are on record, contentions raised by learned advocate Mr. Prabhakar Upadhyay cannot be accepted, hence, rejected. Therefore, petition preferred by petitioner Committee being Special Civil Application No.4389 of 2008 is required to be dismissed, because, there is no substance in petition, hence, dismissed.
29. Now, I am considering petition filed by workman being Special Civil Application No.1106 of 2008. The question is whether amount of compensation which has been awarded by Labour Court can be considered to be a reasonable, adequate and proper or not ?
30. The total service rendered by workman from date of joining 3rd May, 1961 and his service was terminated on 7th November, 1986 more than 26 years. Considering age of retirement 60 years, then, workman must have to be remained in service upto period of 2000, therefore, Labour Court has not property applied its mind while fixing compensation in lieu of reinstatement and back wages of interim period. Once order of termination found to be illegal, contrary to principles of natural justice and violates provisions of Section 25F of Industrial Disputes Act, 1947, then, such order of termination is ab initio void and workman is deemed to be in service for all purposes as decided by Apex Court in case of Mohan Lal v. Management of M/s. Bharat Electronics Ltd. reported in AIR 1981 SC 1253.
The gainful employment has not been proved by petitioner Trust and unemployment has been proved by workman, therefore, workman is entitled a relief of back wages of interim period from date of termination to date of reaching age of superannuation. Therefore, considering date of termination 7th November, 1986 to 2000, workman is entitled back wages of 14 years period. The workman is also entitled benefit of gratuity, retrenchment compensation considering 14 years interim period, in all, amount of Rs.40,000/- is considered to be a very meager amount awarded by Labour Court which requires to be enhanced by this Court, because, Rs.40,000/- is awarded without application of mind and ignoring relevant factors for determining such compensation in light of background that workman who was remained out of job for more than 14 years and his service was illegally terminated and gainful employment is not proved by petitioner Committee/Trust, therefore, according to my opinion, considering legal retrenchment, then, workman is entitled 15 days salary for retrenchment compensation and 15 days wages for gratuity amount. In all, it comes to one month salary for one year period and for date of joining 3rd May, 1961 to 2000, total period comes to 39 years and therefore, workman is entitled a salary of 39 months considering his salary Rs.652=50 ps., then, it comes to Rs.25448/-. The workman is also entitled amount of back wages for interim period from date of termination to date of reaching age of superannuation about 14 years. According to my opinion, considering from both sides and workman remained unemployed throughout and gainful employment is not proved by employer, therefore, workman is entitled 75% back wages of interim period for 14 years who was remained out of job, considering last drawn monthly salary of, it comes to Rs.82,152/-, therefore, total amount comes to Rs.1,07,600/-. Out of that amount, Rs.40,000/- which has been awarded by Labour Court being a lump-sum amount is required to be deducted, then, net amount comes to Rs.67,600/-. Therefore, according to my opinion, on the basis of aforesaid calculation which is worked out by this Court to determine a reasonable compensation for workman who is suffering from serious ailment i.e. cancer of lungs at last stage, aged about more than 71 years and not having any sufficient means or adequate facility even to have medical treatment for such a serious disease,
31. Therefore, considering entire matter as it is as discussed above by this Court, workman - Abdulgani Ishabhai Kachhot is entitled additional amount of compensation Rs.67,600/- after deducting Rs.40,000/- as awarded by Labour Court, Ahmedabad. Accordingly, petitioner - Sunni Muslim Wakf Committee has to pay further additional amount of compensation Rs.67,600/-, over and above Rs.40,000/- awarded by Labour Court, to respondent workman - Abdulgani Ishabhai Kachhot.
32. Accordingly, award passed by Labour Court in Reference (LCA) NO.841 of 1987, Ex.72 dated 22nd June, 2007 is hereby modified to the effect that workman is entitled to get total compensation of Rs.1,07,600/- and after deducting Rs.40,000/- as awarded by Labour Court, rest of amount comes to Rs.67,600/-, which is required to be paid by petitioner Committee to respondent workman with cost of Rs.10,000/- imposed upon petitioner Committee.
33. Accordingly, petition preferred by workman being Special Civil Application No.1106 of 2008 is partly allowed and rule is made absolute to aforesaid extent.
34. In result, it is directed to petitioner - Sunni Muslim Wakf Committee to deposit Rs.67,600/- along with cost Rs.10,000/- before registry of this Court within a period of one month from today, without fail.
35. After realising said amount which deposited by petitioner Committee, registry is directed to issue an account payee cheque of said amount in name of daughter-in-law - Asrafunneesa Yusufbhai Shaikh on behalf of respondent workman and hand over said cheque to learned advocate Mr. Shah who is representing respondent workman in these matters immediately. Learned advocate Mr. Shah will acknowledge same on behalf of respondent workman and thereafter, he will produce receipt of respondent workman that respondent workman has received said amount through his daughter-in-law.
36. Accordingly, petition preferred by petitioner - Committee is hereby dismissed and petition preferred by respondent workman is hereby partly allowed to the aforesaid extent with cost of Rs.10,000/-.
Sd/-
[H.K. RATHOD, J.] #Dave Top