Gujarat High Court
State vs Ramesh on 5 April, 2010
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
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SCA/3905/2010 1/ 12 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 3905 of 2010
=========================================================
STATE
OF GUJARAT - Petitioner(s)
Versus
RAMESH
VALJIBHAI GOHIL - Respondent(s)
=========================================================
Appearance
:
MR
ANAND L SHARMA, AGP for Petitioner(s) : 1,
None for Respondent(s)
: 1,
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 05/04/2010
ORAL
ORDER
Heard learned AGP Mr. Sharma appearing on behalf of petitioner.
The petitioner State Authority through Principal, Adarsh Nivasi School has challenged award passed by Labour Court, Bhavnagar in Reference No.58 of 1994 Ex.34 dated 24th December 2009, wherein, Labour Court has set aside termination order and granted reinstatement with continuity of service with consequential benefits in favour of respondent workman with 20% back wages of interim period.
Learned AGP Mr. Sharma raised contentions that Adarsh Nivasi School has been controlled and maintained by Director of Scheduled Tribe Social Welfare Department, Gandhinagar. In the said Nivasi School, Scheduled Tribe and Scheduled Caste students of Standard 8th to 10th are taking education and they are residing there and for their maintaining lodging and boarding, free facilities have been given in residential school. This school has been managed only for education purpose and Industrial Disputes Act, 1947 is not applicable to the activities which have been carried out by petitioner establishment. The respondent workman was not appointed by following due process of rules and therefore, his service has been terminated on 5th September 1992. Therefore, question of complying provisions of Sec.25F, 25G and 25H of ID Act are not required to be followed by petitioner. He submitted that Labour Court has committed gross error not appreciating evidence of workman as well as evidence of Ramabhai Punjabhai Vankar Ex.32. He submitted that workman was appointed as a daily wager and he was paid by daily wage performing six hours duty in a day and payment was made on issuing bill in favour of respondent workman. Therefore, he submitted that petitioner establishment has not violated Sec.25F, 25G and 25H and establishment is not an 'industry' and respondent is not a workman under Section 2(S) of ID Act, 1947. Therefore, Labour Court has committed gross error in deciding Reference granting relief in favour of respondent workman.
I have considered submissions made by learned AGP Mr. Sharma and I have also perused award passed by Labour Court, Bhavnagar. The dispute has been referred for adjudication on 19th January 1994 and workman was appointed in the year 1991 and his service was terminated on 5th September 1992 and immediately, he raised dispute on 7th September 1992. Vide Ex.4, workman filed statement of claim and at the time when he was in job, he was receiving Rs.580/- per month salary from the petitioner. Ex.30, written statement filed by petitioner raising all contentions and workman was examined Ex.13, but, petitioner was not remained present when evidence of workman was taken, therefore, cross-examination was postponed. Thereafter, workman was remained absent, therefore, evidence of workman has been struck off by Labour Court. On behalf of petitioner, vide Ex.32, Ramabhai Punjabhai Vankar has examined who has produced the statement of details of daily wage paid to Rameshbhai Valjibhai Gohil.
The Labour Court has considered certain decisions of Apex Court as well as this Court and also considered submissions made by both learned advocates. The Labour Court has come to conclusion that on 15th February 2001, workman was examined on oath and for cross-examination to petitioner, reasonable opportunity was given, but, it was not cross-examined the workman. Thereafter, workman was remained absent, therefore, Ex.31, one application was given by petitioner to struck off the oral evidence of workman Ex.13 which has been allowed by Labour Court. Page 20 where details have been given by Labour Court along with reply Ex.30, the working days of workman has been taken on record from 13th June 1991 to August 1992 and looking to working days, it is proved by aforesaid documents produced by petitioner itself that workman has completed continue service of 240 days within a preceding 12 months from the date of termination. Therefore, Section 25F has been violated as burden upon employee has been proved 240 days continue service before Labour Court. The Labour Court has considered cross-examination of witness of petitioner at Ex.32 which has been admitted in his deposition that as and when work is available, petitioner establishment is calling other daily wagers for doing same kind of work which was performed by respondent workman. Therefore, work was available, even though, service of respondent workman was terminated and same was carried out by petitioner establishment engaging new daily wager in place of respondent workman. Therefore, Labour Court has come to conclusion that Sec. 25F, 25G and 25H have been violated by petitioner establishment. The Social Welfare Department is an 'industry' having various kind of activities carried out by Social Welfare Department with the help of employer and employee relationship and satisfied the requirement of mankind and human need, therefore, contentions raised by learned AGP Mr. Sharma cannot be accepted. The Labour Court has considered that work is available and daily wagers were appointed in place of respondent workman and looking to facts that written statement filed by petitioner Ex.30 and workman was examined before Labour Court on 15th February 2001, therefore, gainful employment is not proved by petitioner and workman was remained unemployed during this interim period, but, keeping in mind the interim period and also keeping in mind the fact that workman is daily wager, therefore, Labour Court has granted reinstatement with continuity of service with consequential benefits and 20% back wages of interim period. Therefore, contentions raised by learned AGP Mr. Sharma cannot be accepted, because, workman has proved 240 days continuous service as discussed at Page 20. The documents which are produced by petitioner establish to prove 240 days continue service of respondent workman as and when work available, new daily wagers were appointed, therefore, contentions raised by learned AGP Mr. Sharma cannot accepted, hence, rejected. [See : (i) Delhi Administration through Directorate of Social Welfare, Delhi v. Presiding Officer and Others 2004-I-LLJ 910 (Delhi) (ii) Ramesh Kumar v. State of Haryana 2010 (1) Scale 432 (iii) Director, Fisheries Terminal Division v. Bhikubhai Meghjibhai Chavda 2010 AIR SCW 542 (iv) Krishan Singh v. Executive Engineer, Haryana State Agriculture Marketting Board, Rohtak (Haryana) - 2010 (2) Scale 848].
This aspect has been examined in detail by Rajasthan High Court whether Social Welfare Department is an 'industry' or not ? in case of Kanhaiya Lal v. State of Rajasthan & Ors.
reported in 1993 I CLR 929.
The relevant paragraphs 7 to 10 are quoted as under :
7. It is clear from the pleadings of the parties that the Social Welfare Department had treated itself to be an 'industry' in pursuance of the direction given by the Court. In Devi Singh v. State of Rajasthan, 1989 (2) RLR 401, a Division Bench of this Court examined the question as to whether the Department of Women, Child and Nutrition is an 'industry' under section 2(j) of the Industrial Disputes Act, 1947. The Division Bench observed that the functions of the State today are not confined only to what are generally known as the sovereign or regal or governmental function such as enactment of laws, administration of laws and justice, maintaining of law and order etc. The functions of State today include not only the aforesaid activities but also welfare activities such as Irrigation, Education, Medical, Transport, etc. The Court placed reliance on the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa & Ors. (1978) 2 SCC 213. In that case their Lordships of the Supreme Court have considered the concept and scope of the term 'industry' as used in Section 2(j) of the 1947, Act.
Their Lordships observed as under :-
Sovereign functions strictly understood alone qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.
Even in department discharging sovereign functions if there are units which are industries and they are substantially severable then they can be considered to come within Section 2(j).
Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby.
Similar view has been expressed by their Lordships of the Supreme Court in Desh Raj v. State of Punjab, (1988) 2 SCC 537, wherein their Lordships of the Supreme Court have held that the Irrigation Department of the State of Punjab comes within the scope of the term 'industry' as defined under section 2(j) of the 1947 Act. On the basis of these decisions of the Supreme Court, the Division Bench held that the Department of Women, Child and Nutrition is an 'industry' although it is a government department. The Court held that the sovereign functions alone qualify for exemption from the comprehensive definition of 'industry' given in the Act of 1947. Only regal and sovereign activities are outside the scope of Section 2(j) of 1947 Act. In view of this pronouncement of the Division Bench, I am of the considered opinion that the Social Welfare Department of the Government of Rajasthan also falls within the scope of the term 'industry' under Sec.2(j) of the 1947 Act.
8. The next question which requires determination is as to whether the termination of the service of the petitioner vide order dated 6.9.90 is legal and justified. Admitted facts of the case reveal that the petitioner has been engaged in the service of Social Welfare Department on 1.10.86. Whatever may be the ultimate result of the controversy between the parties about the nature of employment or the status of the petitioner, it is clear that the petitioner has continuously worked in the service of the department from 1.10.86, when his service was terminated by order dated 6.9.90. He had rendered service for more than 240 days in a period of 12 months preceding the date of order of termination of his service. The termination of the service has not been brought about as a result of the disciplinary action taken against him. His service has not been terminated on account of voluntary retirement or on account of his retirement after attaining the age of superannuation or on account of the terms and conditions contained in the contract of employment or non-renewal of the contract of the employment between the petitioner and the department or on account of his continue ill health. Thus, the termination of the service of the petitioner clearly falls within the scope of the term 'retrenchment' as given in Sec.2(oo) of 1947 Act. The term 'retrenchment' has been considered by their Lordships of the Supreme Court in various decisions. The old notion that the termination of service by way of surplusages only can be termed as 'retrenchment' was not accepted by the Supreme Court in the State Bank of India v. N. Sundara Money AIR 1976 SC 1111. The views expressed by the Supreme Court in Sundara Money's case were followed in Delhi Cloth and General Mills Limited v. Shambhunath Mukharji (1977 (4) SCC 415), Santosh Gupta v. State Bank of Patiala (1980 (3) SCC 340), Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiya (1984 (1) SCC 244), Gammon India Ltd. v.
Niranjan Das (1984(1) SCC 509). Despite these decisions, the question was against raised before the Supreme Court and the matter was examined by a Constitution Bench. After making reference and after analysing the various decisions, the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Industrial Tribunal (1990 (3) SCC 622), their Lordships of the Supreme Court held that the wider literal meaning adopted by the Supreme Court in Sundara Money's case was correct. In view of this pronouncements of the Supreme Court, it must be held that the termination of the service of the petitioner falls within the scope of the term 'retrenchment' as defined in Sec.2(oo) of 1947 Act.
9. The next question which requires consideration is as to whether the petitioner can be treated as workman within the scope of the terms the workman as defined in Sec.2(s) of 1947 Act. This question in my opinion does not present difficult problem. A Division Bench of this Court in Yashwant Singh Yadav v. State of Rajasthan - 1989 (1) RLR 156, examined this very question at length and after considering the definition of the term workman, as given in Sec.2(s) of 1947 Act and after considering the various decisions of the different High Courts, the Division Bench held that a part time employee is a workman as defined in Sec.2(s) of the 1947 Act. I do not find any reason to take a different view than the one taken by the Division Bench. In my opinion, the law declared by the Division Bench is correct and in view of the decision, it must be held that petitioner falls within the definition of the term workman under the 1947 Act.
10. The provisions contained in Sec.25F of the ID Act, 1947 have been held to be mandatory by the Lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha AIR 1960 SC 610 and their Lordships held that termination of service of workman without following the provisions contained in Sec.25F has the effect of rendering the order of retrenchment as void and ineffective. In Udaipur Mineral Development Corporation Ltd. v. M.P. Dave 1975 RLW 131, a Division Bench of this Court has examined the scope of Sec.25F and after placing reliance on the decision of the Supreme Court in Hospital Mazdoor Sabha's case, the Division Bench held that the retirement of the service of a workman in violation of the provisions contained in Sec.25F of 1947 Act renders the termination of service as void and the workman is entitled to be reinstated in service with back wages. Similar view has been expressed by a learned Single Judge in Rajasthan State Road Transport Corporation v. Judge, Labour Court, Jaipur 1984 RLR 981. If the facts of the present case are looked into, it is quite clear that although the petitioner has rendered more than 240 days service during a period of 12 months preceding the date of termination of his service i.e. on 6.9.90, he was neither given any notice nor pay in lieu thereof. He was also not given or even offered the amount of retrenchment compensation as required by Sec.25F(b) of the 1947 Act. Therefore, both the clauses of Sec.25F have been breached by the respondents while ordering termination of the service of the petitioner on 6.9.90. This clear violation of the Sec.25F of the 1947 Act has the effect of rendering the termination of the petitioner as void and the petitioner is entitled to a declaration that order dated 6.9.90 is void ab initio.
There is no error committed by Labour Court which requires interference by this Court while exercising the powers under Article 227 of the Constitution of India.
Hence, there is no substance in present petition, accordingly, present petition is dismissed.
[H.K. RATHOD, J.] #Dave Top