Gujarat High Court
State vs Ashokbhai on 7 April, 2011
Author: H.K.Rathod
Bench: H.K.Rathod
SCA/190/2008 37/ 37 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 190 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE H.K.RATHOD ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 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 ? 5 Whether it is to be circulated to the civil judge ? ========================================================= STATE OF GUJARAT & 1 - Petitioner(s) Versus ASHOKBHAI LAKSHMANABBHAI PARMAR - Respondent(s) ========================================================= Appearance : MR AL SHARMA AGP for Petitioner(s) : 1 - 2. RULE SERVED for Respondent(s) : 1, MR TR MISHRA for Respondent(s) : 1, MR UT MISHRA for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE H.K.RATHOD Date : 07/04/2011 ORAL JUDGMENT
Heard learned AGP Mr. AL Sharma on behalf of petitioner State of Gujarat, learned advocate Mr. TR Mishra appearing for respondent workman.
In present petition, petitioner has challenged award passed by Labour Court, Amreli in reference no. 61/99 dated 23/7/2007. The Labour Court while partly allowing reference, has granted reinstatement with continuity of service with 25% back wages of interim period.
This Court has issued Rule on 9/5/2008 and granted interim relief in terms of para 7 (III) subject to compliance of section 17 B of I. D. Act, 1947.
Learned advocate Mr. Mishra submitted that respondent workman is receiving 17 B wages during pendency of this petition and even in present also, workman is receiving last drawn wages from petitioner. He also made statement before this Court that 25% back wages, which has been granted in favour of workman. The said direction may be set aside with consent of respondent workman and this Court may only examine question of reinstatement with continuity of service, whether Labour Court has rightly granted reinstatement or not?
Learned AGP Mr. Sharma raised contention that Labour Court has committed gross error in deciding question of an "Industry" and also deciding 240 days continuous service proved by workman. He submitted that Labour Court has not properly appreciated evidence of petitioner's witness and because of all the relevant musters are not produced by petitioner, wrongly adverse inference has been drawn, which is contrary to law and record.
He also raised contention that Labour Court has not properly understood and interpreted section 25 G and H of I. D. Act, where it has been held that 240 days continuous service is not necessary to be proved by workman. He also submitted that workman was not recruited after following due recruitment procedure. Therefore, Section 25 F of I. D. Act, is not made applicable. In short, his submission is that burden was upon employee to prove 240 days continuous service, but workman has not proved it by producing relevant record before Labour Court. The statement of presence of workman produced on record by petitioner where in none of the year, workman has completed continuous service of 240 days. The details of presence of workman produced vide exh 28 and if that detail is to be considered then 240 days is not proved. Even though, Labour Court has came to contrary conclusion from record. Therefore, present petition is preferred by petitioner.
Learned advocate Mr. Mishra appearing for workman submitted that Labour Court has rightly examined matter on the basis of record and workman was not received any documents from petitioner during course of employment. Therefore, it is very difficult for workman to produce any documents to prove 240 days continuous service before Labour Court.
He submitted that workman's evidence has been rightly accepted by Labour Court. No rebuttal evidence has been produced by petitioner. Though petitioner was having original muster roll for entire period, but said was not produced by petitioner before Labour Court. Therefore, adverse inference has been rightly drawn by Labour Court. He submitted that if workman was remained continued in service for a period of one year and in between if his service was not terminated then section 25 B subsection 1 has been satisfied by workman and in such circumstances, 240 days continuous service is not required to be established by workman under section 25 B (2) of I. D. Act. Therefore, he submitted that Labour Court has properly considered exh 28 as well as evidence of workman and evidence of witness of petitioner exh 30 was taken.
In facts of present case, workman was working in Bagasara Irrigation Section for a period of 27/11/96 to 18/6/99. The workman has produced certificate before Labour Court given by one Shri. C. K. Solanki, Work Assistant, which was produced on record vide exh 31 by petitioner. The document exh 34 list of documents produced by workman.
Therefore, learned advocate Mr. Mishra submitted that Labour Court has rightly decided question of an "Industry", where Irrigation department is covered by definition of section 2 J of I. D. Act, 1947. The Labour Court has also rightly examined evidence on record produced by petitioner and considering oral evidence from both side and relying upon decision of this Court in case of Rajkot District Panchayat Vs. Narsibhai Somabhai reported in 2006 GLH(12) 487 and in case of Bhavnagar District Sahakari Sangh Ltd Vs. Dhiren P. Parekh reported in 2006 GLR 2161 and in case of Taluka Development Officer Vs. Arvindbhai Chanabhai Suthar reported in 2006 GHJ 13 page 159 and in case of Rajkot District Panchayat Vs. Jayaben Mavjibhai reported in 2003 GLH (3) 435.
Learned advocate Mr. Mishra submitted that no error is committed by Labour Court, Amreli while adjudicating dispute referred for adjudication and no interference is required by this Court while exercising power under Art. 227 of Constitution of India.
I have considered submission made by both learned advocates appearing for respective parties. The Industrial dispute has been referred for adjudication on 1/12/1999. Before Labour Court, statement of claim was filed by workman exh 6 and according to him he was engaged as daily wager labourer on 27/11/1996. His service was terminated on 18/6/1999. He was remained continued in service for aforesaid period, even though, at the time of terminating his service section 25 F, G, H of I. D. Act, 1947 have been violated by petitioner. The statement of claim has been replied by petitioner vide exh 15. In denying averment made in statement of claim, one contention was raised that workman was appointed or engaged on contigency expenses and as and when work was required he was engaged. A moment work was over, his service was came to an end. The workman has not remained continued in service upto 240 days and he was not appointed by following due recruitment procedure. Therefore, reference is required to be dismissed. On behalf of petitioner vide exh 16, two documents are produced on record exh 16/1 - exh 28 a details of presence of workman for a period of 1996-97 to 1999-2000 and vide exh 16/2 - exh 29 is copy of muster roll of working days of workman respondent. Vide exh 17, workman was examined before Labour Court who was cross examined by advocate of petitioner. The petitioner Establishment has raised preliminary contention while exh 21 which was replied by workman exh 22. The Labour Court has decided that preliminary point is to be decided at the end of reference alongwith final adjudication. Vide exh 30, oral evidence of witness of petitioner was taken and vide exh 31, one certificate has been produced by petitioner given by one Shri C. K. Solanki, Work Assistant in favour of workman that he was remained continued in service from 30/6/1996 to 9/5/2000 in Bagasara Irrigation section. Vide exh 33, one Amendment Application was made by workman. Thereafter, one certificate was produced by workman vide exh 34 that his father was working as Conductor in S. T. Corporation.
Thereafter, issues have been framed by Labour Court. The Labour Court has considered section 2 J of I. D. Act, 1947. Considering various activities of irrigation department where petitioner establishment is receiving amount from Farmers while providing water from Canal to them. This water has been utilized by Farmers in agriculture work and from these activities, petitioner establishment received amount of expenses from Farmers and maintaining relationship of employer and employee being systematic activities carried out by petitioner establishment with help of employees. On that basis, triple test laid down by Apex Court in case of Bangalore Water Supply reported in AIR 1978 SC 548 is fully satisfied. The Labour Court has come to conclusion while appreciating evidence of witness of petitioner exh 30 that Farmers have been received water supplied by petitioner on token amount on corporative basis and whatever fixed amount is to be paid by Farmers and if that amount is not paid by Farmer then petitioner Establishment is recovered said amount from Farmers while initiating proceeding under provisions of Land Revenue Code. Therefore, decision of Apex Court in case of Himanshukumar Vs. State of Bihar reported in AIR 1997 SC 391 is not made applicable to facts of present case. The Labour Court has considered one decision of Full Bench of this Court in case of Forest Producer Gatherer & Forest Workers Union Vs. State of Gujarat reported in 2004 Lab IC 2589. The Labour Court has come to conclusion that triple test laid down by Apex Court in case of Bangalore Water Supply Board, has been satisfactorily proved against petitioner establishment. Therefore, Irrigation department is covered by definition of Industry under section 2 J of I. D. Act, 1947. Therefore, contention raised by petitioner that Irrigation department is not an "Industry" can not be accepted, which has been rightly decided by Labour Court.
The Labour Court has considered oral evidence of workman as well as exh 28 and 29 details, which have been produced by petitioner establishment in respect to working days of workman and considered evidence exh 28, 29 and 30. Thereafter, Labour Court has come to conclusion that original muster has not been seen by witness of petitioner and entire muster roll for aforesaid period from 1996 to 2000 has not been produced on record and witness of petitioner has not given any evidence on the basis of personal knowledge but it was given on the basis of record. Therefore, if workman has objected documents exh 28 and 29 produced by petitioner then that document must have been proved by petitioner establishment while producing original muster roll on record but no original muster produced on record by petitioner establishment. In absence of such original muster roll, Labour Court has rightly considered oral evidence of workman because I-card, Pay slip and muster card of workman have not been supplied by petitioner establishment. Therefore, it is very difficult for workman to prove 240 days continuous service while producing same document on record because no document has been supplied by petitioner establishment to workman.
Therefore, adverse inference has been rightly drawn by Labour Court relying upon decision of this Court in case of Taluka Development Officer VS. Arvindbhai Chanabhai Suthar reported in 2006 GHJ(13) 159, and in case of Rajkot District Panchayat Vs. Jayaben Mavjibhai reported in 2003 GLH (3) 435. The Labour Court has also considered one decision of this Court in case of Rajkot District Panchayat VS. Narshibhai Somabhai reported in 2006 GLH(12) 487 and also in case of Bhavnagar District Sahakari Sangh Ltd Vs. Dhiren P. Parekh reported in 2006 GLR 2161. The witness of petitioner was not having any personal knowledge of the matter and whatever statement of presence/working days produced vide exh 28 -29, by petitioner establishment in respect of workman, has been objected by workman, then it is a duty of petitioner establishment to produce original record, which has not been produced by petitioner establishment before Labour Court.
According to my opinion, Labour Court has not committed any error which would require interference by this Court. The Labour Court has also considered section 25 F, G and H of I. D. Act, 1947. According to Labour Court, in case if section 25 G and H of I. D. Act, 1947, both are violated which considered to be independent section. In such circumstances, it is not necessary by workman to prove 240 days continuous service. The Labour Court has also considered decision of Apex Court in case of R. M. Yellati vs. Assistant Executive Engineer reported in 2005 CLR III 1028, which has been held that even daily wager is also covered by section 25 F of I. D. Act, 1947. The seniority list is also not published and section 25 G of I. D. Act, 1947 is also violated as per reported decision of this Court in case of Niramaldan Nahridan Gadhavi Vs. Narmda Nigam Ltd reported in 2004 CLR (III) 720. The section 25 H of said Act, is made applicable in present case of workman. At that occasion, it is not necessary that section 25 B of I. D. Act, must have to be complied with. After considering entire case it is proved that section 25 F, G, and H has been violated by petitioner establishment and service of workman was orally terminated. At that occasion, no notice, notice pay and retrenchment compensation was paid to workman. After terminating service of workman by petitioner establishment, one Lakhubhai Bijalbhai Dineshbhai Solanki and Vaghadiabhai have been appointed and recruited being fresh employees in same post and categories. Therefore, section 25 H of I. D. Act, has been violated by petitioner establishment.
In light of this back ground, considering that mandatory provisions of section 25 G and H has been violated. In such circumstances also as decided by Apex Court in case of State of Haryana V. Dilbath reported in 2007 LLN (1) 120, Labour Court can grant reinstatement in favour of workman. The Labour Court has also considered evidence of workman in respect to unemployment period and keeping in mind fact that workman being unmarried person, studying upto 10th standard. Therefore, presumption was made that workman must have been earned something during interim period. Therefore, 25% back wages has been awarded in favour of workman.
Learned advocate Mr. TR Mishra relied upon one decision given by this Court in M.C.A. 67/2008 in SCA no. 28800/2007 decided on 18/1/2008, where para 6 to 14 and 17 are quoted as under:
"6. On the other hand, learned Advocate Mr. Mishra appearing for the respondent workman has submitted that no such contention was raised by the petitioner before the labour court that the daily wagers are not entitled for the protection of section 25F of the ID Act, 1947 and such contention was raised by the petitioner before this court for the first time. As per his submission, as such contention was not raised by petitioner before the labour court, labour court could not give finding on that contention and, therefore, such contention cannot be entertained by this court. As per his submission, daily wagers are covered by the definition of 'workman' under section 2(s) of the ID Act, 1947. He also submitted that if the daily wagers are satisfying the definition of workman and if the workman has worked for one year , then, such workman is entitled for benefit of section 25F of the ID Act, 1947. He submits that in statutory provision, there is no distinction made by the legislature and, therefore, respondent is entitled for the benefit of section 25F of the ID Act though he was engaged as daily wager de-hors the recruitment rules. He submits that 240 days continuous service of the respondent workman has been proved on the basis of the documents produced by the petitioner. He submits that preceding 12 months continuous service from the date of termination from February, 1995 to January, 1996, if it is calculated, it also proves 240 days continuous service within the meaning of section 25(B)(1) and (2) of the ID Act, 1947 and that was being satisfied by the workman section 25F of the ID Act, 1947 was not complied with by the employer and, therefore, labour court was right in granting relief in favour of the respondent workman and in doing so, labour court has not committed any error. He submits that the labour court has taken care while granting relief and no back wages has been granted by the labour court and, therefore, there is no financial burden upon the petitioner. He also submits that the juniors were continued in service while terminating service of the respondent and therefore,petitioner has also violated section 25G of the ID Act, 1947. He also submits that the service of the respondent was terminated in the year 1996. He was appointed on 7th February, 1994 and his services were terminated on 1st February, 1996 and, therefore, as per his submission, award made by the labour court is balanced award after considering all the legal aspects and, therefore, does not warrant any interference of this court in exercise of the extra ordinary powers of this court under Article 227 of the Constitution of India.
7. No doubt the contention has been raised by the petitioner before this Court for the first time that the workman was appointed de hors the recruitment rules as daily wager and, therefore, not entitled for benefit of sec. 25F of the ID Act, 1947. However, this court is entertaining the said contention just to clarify legal position. In Ratan Singh versus Union of India and another reported in (1997) 11 SCC 396, it has been observed by the apex court that section 25F and 25B of the ID Act, 1947 are applicable to termination of even a daily rated workmen who had continuously worked for requisite statutory minimum period in a year. Termination of services of such workman without compliance with the provisions of section 25F of the ID Act, 1947 has been held to be illegal by the apex court. Relevant discussion made by the apex court in para 3 of the said judgment is reproduced as under:
"3. We find merit in the said submission of Shri Ashri. From the dates mentioned in the judgment of the first appellate court dated 22.1.1985, it appears that the appellant had continuously worked for more than 240 days in a year. Since he was a workman, he was entitled to the protection of section 25F of the Act and the said protection could not be denied to him on the ground that he was a daily rated worker. It is not the case of the respondents that the provisions of section 25F of the Act were complied with while terminating the services of the appellants. In these circumstances, the termination of services of the appellant cannot be upheld and has to be set aside. The services of the appellant were terminated in the year 1976. Nearly 20 years have elapsed since then. In these circumstances, we are not inclined to direct reinstatement of the appellant. But having regard to the facts and circumstances of the case, we direct that a consolidated sum of Rs.25,000 be paid to the appellant in lieu of compensation for back wages as well as reinstatement. This amount is being paid in full and final settlement of all the claims of the appellant. The said amount shall be paid within two months. The appeal is disposed of accordingly. No costs."
8. Therefore, considering the aforesaid decision of this court in case of Ratan Singh, I have also considered the decision relied upon by Ms.Gadhvi in case of Himanshu (supra). Distinguishing feature between two decisions though on one and same subject is relevant and, therefore, this Court is examining it. In case of Himanshukumar Vidyarthi (supra), the apex court has observed every department of the Government cannot be treated to be industry, when the appellants are regulated by statutory rules. It was observed in that case by the Hon'ble Supreme Court that they were temporary employees working on daily wages and in those circumstances, their disengagement from service could not be construed to be a retrenchment under the Industrial Disputes Act and, therefore, concept of retrenchment cannot be stretched to such an extent as to cover the said employees. The workman in that case was appointed on daily wages as assistant driver and peon in Cooperative and Training Institute under the State Government wherein his service was terminated, therefore, it was considered by the apex court that every department of the Government cannot be considered to be an industry and in light of that back ground, as the Cooperative and Training Institute was under the State Government, said view has been taken by the apex court based on the particular facts of that case but in case of Ratan Singh versus Union of India and another reported in (1997) 11 SCC 396, he was employed as a workman in telephone department Sub Division Kurukshetra on daily wage basis. So, Telephone Department is covered by the definition of 'industry' as has been held by the apex court in Telecom Department case, therefore, facts of both the cases are altogether different and facts of Himanshu Vidyarthi are not applicable to the facts of the present case and in light of the facts of the present case, decision in case of Ratan Singh's case almost similar to the facts of the present case because telephone department is covered by the definition of industry under section 2(j) of the ID Act, 1947 and in case of Himanshu Vidyarathi, it was held that the department of the Government in that case cannot be considered to be industry within the meaning of section 2(j) of the ID Act, 1947 and, therefore, according to my opinion, decision in case of Himanshu Vidyarthi (supra) relied upon by Ms. Gadhvi is not helpful to the petitioner and in view of the peculiar facts of the present case and therefore, contention raised by learned Advocate Ms. Gadhvi is rejected.
9. Definition of workman given under section 2(s) of the ID Act, 1947 has not made any distinction whether it covers only full time and permanent employee and not covering daily wager. Full Bench of this Court has decided that the part time employees are also covered by the definition of workman under section 2(s) of the ID Act, 1947 as per the decision in Tourism Corporation of Gujarat Ltd. Versus Kalu Velji Jethwa reported in 2007 (3) GLH page 711. Similarly, daily wager is also covered in the definition as there is no distinction made in the section. In the matter of Himanshu Vidyarthi (supra), apex court has considered two aspects, one is the Government department and second is statutory rules under Article 309 of the Constitution of India which were there in case of Himanshu Vidyarthi. Both these things are not there in the case before hand because petitioner board is an industry within the meaning of section 2(j) of the ID Act, 1947. Petitioner Board is not a part of the State Government Department or considered to be a State Government Department. Petitioner Board is not having statutory regulations or service rules under Article 309 of the Constitution of India. Therefore, factually, case of Himanshu Vidyarthi is distinguished, looking to the facts of the present case and also the facts of the case of Ratan Singh (supra). In General Manager, Telecom versus S.Srinivasan Rao & Ors., reported in 1997 (2) GLH 990, full bench of the Hon'ble Supreme Court has held that the Telecom Department is an industry relying upon the apex court decision in Bangalore Water Supply & Sewerage Board v. A. Rajappa & Ors. (1978) 2 SCC 213. It was held in the said decision as under:
"Industrial Disputes Act, 1947 - S. 2(j) - "Industry" -
Telecom Department - Dominant nature test as laid down in Bangalore Water Supply case _ a binding precedent - In view of the tests laid down - Telecom Department is an "industry".
"
10. Badli Workmen are also covered by the definition of section 2(s) of the ID Act, 1947. View to that effect has been taken by MP High Court in reported decision 1998 (80) FLR page 54 in the matter of MP Text Book Corporation versus Krishna Kant Panchali; AP High Court in Dena Bank Employees Union versus Industrial Tribunal, AP Hyderabad, reported in 2004 LLR 1157; MCD and Praveen Kumar Jain & Others reported in 1998-II-LLJ 674; Rajiben Prabhatbhai versus Executive Engineer, Una Irrigtaion Project Division reported in 1998-II-GLH (UJ) 16; Samistha Dube v. City Board, Etawah and another 1999 AIR SCW 694 = 1999 Lab IC 1124; Kirloskar Clummins Ltd. v. Subhash Shripati Darekar & Ors. Reported in 1997 I CLR 868;in the matter of Executive Engineer Garhwal Jal Sansthan versus Chhotey Singh and another, reported in 2000 (85) FLR 909 Allahabad; in the matter of State of UP and Another versus Rajendra Singh Butola & Ors. Reported in 2000 (84) FLR 896 and Management of MCD v. Prem Chand Gupta and another reported in 2000 Lab IC 250. These are the decisions wherein it has been examined as to whether daily wagers/badli workmen including part timers are covered by the workmen or not and it has been held that the daily wagers/badli workmen including part timers are workmen as defined under section 2(s) of the ID Act, 1947. Therefore, contention raised by learned Advocate Ms.Gadhvi cannot be accepted and same is, therefore, rejected.
11. Recently, Andhra Pradesh High Court had an occasion to consider the decision of apex court in case of Himanshu Vidyarthi (supra) in case of termination of daily wager employee as NMR Sweeper and the decision of the apex court in the matter of Himanshu Vidyarthi (supra) has been distinguished by the Andhra Pradesh High Court in the matter of Venkateshwarlu K. And State of Andhra Pradesh, reported in 2008-I-LLJ AP page 187. It has been observed in para 3,4,5 as under:
"3. Before the Labour Court, on his behalf, petitioner examined himself as WW 1 and got marked Exhibits W1 and W2. On behalf of the Management, none was examined; however, Exhibits M1 and M2 were got marked. After a detailed consideration of both oral and documentary evidence, though the Labour Court gave a finding that the petitioner had put in more than 240 days continuous service in a calendar year preceding the date of his termination, in view of the judgment of the Supreme Court in Himanshu Kumar Vidyarthi v. State of Bihar, AIR 1997 SC 3657; 1998-II-LLJ-15, held that disengagement from service of a daily wage worker not appointed according to rules cannot be construed as retrenchment under the Act.
4. Thus, the only question that arises for consideration is whether the termination of services of the petitioner amounts to retrenchment and is entitled for the benefit of the provisions of Section 25-F of the Act or not?
5. Learned Counsel for the petitioner relied upon a Constitution Bench judgment of the Supreme Court reported in Punjab Land Development and Reclamation Corporation Ltd. v. Presiding Officer, Labour Court, Chandigarh (1990) 3 SCC 682 : 1990-II-LLJ-70, wherein, applying various tests, principles and precedents to the definition in section 2(oo) of the Act, held that the expression 'retrenchment' means termination by the employer of the services of a workman for any reason whatsoever except those expressly excluded in the Section and invited attention of the Court to paragraphs 80, 81 and 82, which read as under at p.95 of LLJ:
12. "80.
The definition in section 2 of the Act are to be taken 'unless there is anything repugnant in the subject or context'. The contexual interpretation has not been ruled out. In RBI v. Peerless General Finance AIR 1987 SC 1023, O. Chinnappa Reddy J. Said :
"Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture,context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read,first as a whole and then Section by Section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute maker, provided by such context, its scheme, the sections,clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each Section,each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place. It is by looking at the definition as a whole in the setting of the entire Act and the reasons for it that the Court construed the expression "Prize Chit-Win Srinivasa and we find no reason to depart from the Court's Construction."
81. As we have mentioned, industrial and labour legislation involves social and labour policy. Often they are passed inconformity with the resolutions of the International Labour Organization. In Duport Steels v. Sirs, (1980) 1 WLR 142, the House of Lords observed that there was a difference between applying the law and making it and that Judges ought to avoid becoming involved in the controversial social issues, since this might affect their reputation in impartiality. LORD DIPLOCK said:
"A statute passed to remedy what is perceived by Parliament to be a defect in the existing law may in actual operation turn out to have injurious consequences that Parliament did not anticipate at the time the statute was passed; if it had, it would have made some provision in the Act in order to prevent them..... But if this be the case it is for the Parliament, not for the Judiciary to decide whether any changes should be made to the law as stated in the Acts..."
82. Applying the above reasonings, principles and precedents, to the definition in section 2(oo) of the Act,we hold that 'retrenchment' means the termination by the employer of the service of a workman for any reason whatsoever except those expressly excluded in the section.' Further, learned counsel for the petitioner submitted that in the judgment reported in Himanshu Kumar Vidyarthi's case (supra) the question that arose for consideration of the Court was whether the termination of services of the petitioners therein cannot be said to have been retrenchment within the meaning of section 2(oo) of the Act. While examining the case, the Apex Court found that the petitioners therein were the employees of the Government department governed by statutory rules (made under Article 309 of the Constitution of India) threefore every department of the Government cannot be treated as an industry and the concept of industry to that extent stand excluded when the services of the employees of such department are governed by statutory rules. It was also noticed by the Apex Court that the petitioners therein were not appointed to the post in accordance with rules, but were engaged on the basis of need of the work and they were temporary employees working on daily wage basis. Under those circumstances, their disengagement from service was held to be 'not a retrenchment' within the meaning of section 25F of the Act. This judgment could not have been taken into consideration and applied by the Labour Court to the facts of this case. In the present case, there is no dispute that the Municipality of Paloncha,Khammam District is an industry within the meaning of the Act and the petitioner was not governed by any rules made under Article 309 of the Constitution. Therefore, the said judgment has no relevance to the facts of this case. "
13. Thereafter, in para 10 of the said judgment, it has further been observed as under:
"10. The Constitution Bench of the Apex Court in Punjab Land Development and Reclamation Corporation Limited's case (supra) has elaborately dealt with the scope and connotation of the expression 'retrenchment' and held that the expression 'retrenchment' and held that the expression 'retrenchment' means termination of the services of a workman for any reason whatsoever other than those expressly excluded in the definition in section 2(oo) of the Act and the expression retrenchment does not mean termination by the employer of the services of the surplus labour for any reason whatsoever. The expression retrenchment is not to be understood in its narrow, natural and contextual meaning, but is to be understood in its wider literal meaning to mean termination of service of workman for any reason whatsoever. Apart from that in so far as the case on hand is concerned, it is not the case of the respondent workman that the petitioner herein is governed by any statutory rules made under Article 309 of the Constitution of India. Admittedly, petitioner was appointed as NMR/daily wage employee and worked for more than 240 days continuously in the calendar year preceding the date of his termination and his services were [terminated/retrenched without following the mandatory provisions of section 25F of the Act. Therefore, it cannot be said that the services of the petitioner were not retrenched/terminated and as such, there is no violation of provisions of section 25-F of the Act by the Management. The decision in Punjab Land Development and Reclamation Corporation Limited's case (supra), is squarely applicable to the case on hand.The judgment relied upon by the respondent Management in Himanshu Kumar Vidyarthi's case (supra) has no application to the facts of this case. That was a case where a daily wage employee/temporary employee whose services are governed by statutory rules when his services were terminated, claimed that the department had violated the provisions of section 25F of the Act and the termination of his services amounted to retrenchment. This is not one such case. Admittedly petitioner herein was appointed as NMR/daily wage employee and the Municipality is an industry within the meaning of section 2(j) of the Act and the service condition of the petitioner were not governed by any statutory rules made under Article 309 of the Constitution of India. Further, it was not a department of the Government,may be a local body/instrumentality of the State/ Therefore, I am of the view that the Labour Court has grossly erred in dismissing the claim petition filed by the workman under Section 2-A (2) of the Act on a wrong premise. As such, the impugned Award is liable to be set aside and is accordingly set aside. ID NO. 153/1994 on the file of Industrial Tribunal cum Labour Court, Warangal shall stand allowed and the respondent Management is directed to reinstate the petitioner workman with continuity of service and full back wages from the date of filing of the claim petition till the date of reinstatement. Respondents shall reinstate the petitioner within a period of four weeks from the date of receipt of copy of this order."
14. If section 25F of the ID Act, 1947 has been violated, then, violation thereof would render termination as bad as recently decided by the Delhi High Court in the matter of Workmen - ITPO v/s. Management - ITPO, reported in 2008-I-LLJ 205. Therefore, contention raised by Ms. Gadhvi cannot be accepted and same is, therefore, rejected. In the case before hand, it is not the case of the petitioner that it has ever complied with section 25F of the ID Act, 1947 before effecting termination of the respondent herein but the petitioner before this Court is contending that the respondent workman is not entitled for protection of section 25F of the ID Act, 1947 as he is daily wager and, therefore, petitioner is not obliged to comply with section 25F of the ID Act, 1947. As the said contention of the petitioner has been rejected by this Court, the action would be rendered bad as violative of section 25F of the ID Act, 1947.
17. The Delhi High Court in case of Sushila Sharma v. Pawan Sharma reported in 2007 II LLJ 865 has considered the power of judicial review of the High Court. Relevant observations are made in Para.11 and 12 which are quoted as under :
"11.
The settled position of law in respect of interference by the writ courts under Article 226 of the Constitution of India in matters of this nature is that a writ court exercises its powers of judicial review well within certain parameters. A series of judgments have been rendered by the Supreme Court in this context, as mentioned below:
(i) Sadhu Ram Vs. Delhi Transport Corporation Learned AGP Mrs.Pathak requests for some time. Therefore, matter is adjourned to 3.12.2007. Ad-interim relief granted earlier to continue till then.
1984 Learned advocate Mr..... has filed leave note / sick note. Therefore, matter is adjourned to 24.7.2007. 1967.
(ii) Harbans Lal Vs. Jag Mohan, , (1985) 4 SCC 333.
(iii) Calcutta Port Shramik Union Vs. Calcutta River Transport Association and Ors. 1988 (supp.) SCC 768.
(iv) Ramniklal N.Butta and another Vs.State of Maharashtra and others, (1997) 1 SCC 134.
(v) Indian Overseas Bank Vs. I.O.B.Staff Canteen Workers' Union and Anr. Learned AGP Mrs.Pathak requests for some time. Therefore, matter is adjourned to 3.12.2007. Ad-interim relief granted earlier to continue till then.
2000 Learned advocate Mr..... has filed leave note / sick note. Therefore, matter is adjourned to 24.7.2007. 1508.
(vi) Master Marine Services (P) Ltd. Vs. Metcalfe and Hodgkinson (P) Ltd. and Anr. , (2005) 6 SCC 138.
All the above judgments, if read collectively, clearly indicate that the High Courts should not interfere with the awards of the Industrial Tribunal or the Labour Court on mere technicalities. Interference is permissible only if the order of the Subordinate Court suffers from an error of jurisdiction, breach of principles of natural justice or is vitiated by a manifest or apparent error of law. Reappraisal of evidence without sufficient reason in law to arrive at a finding of fact contrary to those arrived at by the Subordinate Court is not the intent of exercising judicial review. It is only in cases where overwhelming public interest requires interference and cases of the nature where there is an error of jurisdiction or law as referred to herein above, should the court interfere, particularly in view of the fact that the object of enacting Industrial Disputes Act and of making a provision therein to refer disputes to tribunals for settlement, is to bring about industrial peace and in all such cases, an attempt should be made by the courts in exercise of their powers of judicial review, to sustain as far as possible, the awards made by the Industrial Tribunals and Labour Courts, instead of picking holes in the awards on rival points and frustrating the entire adjudication process."
I have considered reasoning given by Labour Court, Amreli and I have also perused award passed by Labour Court. Considering discussion made by Labour Court while referring decision of Apex Court in case of R. M. Yellatti Vs. Asstt. Executive Engineer reported 2006 Lab and Service page 1. The relevant discussion made in para 17 to 19 are quoted as under:
"17. Analyzing the above decisions of this court, it is clear that the provisions of the Evidence Act in terms do not apply to the proceedings under section 10 of the Industrial Disputes Act. However, applying general principles and on reading the aforestated judgments, we find that this court has repeatedly taken the view that the burden of proof is on the claimant to show that he had worked for 240 days in a given year. This burden is discharged only upon the workman stepping in the witness box. This burden is discharged upon the workman adducing cogent evidence, both oral and documentary. In cases of termination of services of daily waged earner, there will be no letter of appointment or termination. There will also be no receipt or proof of payment. Thus in most cases, the workman (claimant) can only call upon the employer to produce before the court the nominal muster roll for the given period, the letter of appointment or termination, if any, the wage register, the attendance register etc. Drawing of adverse inference ultimately would depend thereafter on facts of each case. The above decisions however make it clear that mere affidavits or self-serving statements made by the claimant/workman will not suffice in the matter of discharge of the burden placed by law on the workman to prove that he had worked for 240 days in a given year. The above judgments further lay down that mere non-production of muster rolls per se without any plea of suppression by the claimant workman will not be the ground for the tribunal to draw an adverse inference against the management. Lastly, the above judgments lay down the basic principle, namely, that the High Court under Article 226 of the Constitution will not interfere with the concurrent findings of fact recorded by the labour court unless they are perverse. This exercise will depend upon facts of each case.
18. Now applying the above decision to the facts of the present case, we find that the workman herein had stepped in the witness box. He had called upon the management to produce the nominal muster rolls for the period commencing from 22.11.1988 to 20.6.1994. This period is the period borne out by the certificate (Ex.W1) issued by the former Asstt. Executive Engineer. The evidence in rebuttal from the side of the management needs to be noticed. The management produced five nominal muster rolls (NMRs), out of which 3 NMRs, Ex.M1, Ex.M2 and Ex.M3, did not even relate to the concerned period. The relevant NMRs produced by the management were Ex.M4 and Ex.M5, which indicated that the workmen had worked for 43 days during the period 21.1.1994 to 20.2.1994 and 21.3.1994 to 20.4.1994 respectively. There is no explanation from the side of the management as to why for the remaining period the nominal muster rolls were not produced. The labour court has rightly held that there is nothing to disbelieve the certificate (Ex.W1). The High Court in its impugned judgment has not given reasons for discarding the said certificate. In the circumstances, we are of the view that the division bench of the High Court ought not to have interfered with the concurrent findings of fact recorded by the labour court and confirmed by the learned single judge vide order dated 7.6.2000 in writ petition no.17636 of 2000. This is not, therefore, a case where the allegations of the workman are founded merely on an affidavit. He has produced cogent evidence in support of his case. The workman was working in SD-1, Athani and Ex.W1 was issued by the former Asstt. Executive Engineer, Hipparagi Dam Construction Division No.1, Athani-591304. In the present case, the defence of the management was that although Ex.W1 refers to the period 22.11.1988 to 20.6.1994, the workman had not worked as a daily wager on all days during that period. If so, the management was duty bound to produce before the labour court the nominal muster rolls for the relevant period, particularly when it was summoned to do so. We are not placing this judgment on the shifting of the burden. We are not placing this case on drawing of adverse inference. In the present case, we are of the view that the workman had stepped in the witness box and his case that he had worked for 240 days in a given year was supported by the certificate (Ex.W1). In the circumstances, the division bench of the High Court had erred in interfering with the concurrent findings of fact.
19. Before concluding, we would like to make an observation with regard to cases concerning retrenchment/termination of services of daily waged earners, particularly those who are appointed to work in Government departments. Daily waged earners are not regular employees. They are not given letters of appointments. They are not given letters of termination. They are not given any written document which they could produce as proof of receipt of wages. Their muster rolls are maintained in loose sheets. Even in cases, where registers are maintained by the Government departments, the officers/clerks making entries do not put their signatures. Even where signatures of clerks appear, the entries are not countersigned or certified by the appointing authorities. In such cases, we are of the view that the State Governments should take steps to maintain proper records of the services rendered by the daily wagers; that these records should be signed by the competent designated officers and that at the time of termination, the concerned designated officers should give certificates of the number of days which the labourer/daily wager has worked. This system will obviate litigations and pecuniary liability for the Government."
Similar aspect has been considered by Apex Court in case of Director, Fisheries Terminal Division Vs. Bhukubhai Meghajibhai Chavada reported in 2010 AIR SCW 542. The relevant para 13 to 16 are quoted as under:
"13) The next contention of the learned counsel for the appellant is that the respondent had not worked for 240 days during the preceding twelve months on daily wages and, therefore, the respondent cannot claim any protection under the provisions of Industrial Disputes Act, 1947. The case of the respondent before the labour court was that as he had completed working for more than 240 days in a year, the purported order of retrenchment is illegal, as conditions precedent as contained in Section 25F of the Industrial Disputes Act, 1947 were not complied with.
14) Section 25B of the Act defines "continuous service". In terms of Sub section (2) of Section 25B that if a workman during a period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer 240 days within a period of one year, he will be deemed to be in continuous service. The respondent claims he was employed in the year 1985 as a watchman and his services were retrenched in the year 1991 and during the period between 1985 to 1991, he had worked for a period of more than 240 days. The burden of proof is on the respondent to show that he had worked for 240 days in preceding twelve months prior to his alleged retrenchment. The law on this issue appears to be now well settled. This court in the case of R.M. Yellatty vs. Assistant Executive Engineer [(2006) 1 SCC 106], has observed :
"However, applying general principles and on reading the aforesaid judgments, we find that this Court, has repeatedly taken the view that the burden of proof is on the claimant to show that he had worked for 240 days in a given year. This burden is discharged only upon the workman stepping up in the witness box. This burden is discharged upon the workman adducing cogent evidence, both oral and documentary. In cases of termination of services of daily-waged earners, there will be no letter of appointment of termination. There will also be no receipt of proof of payment. Thus in most cases, the workman (the claimant) can only call upon the employer to produce before the Court the nominal muster roll for the given period, the letter of appointment of termination, if any, the wage register, the attendance register, etc. Drawing of adverse inference ultimately would depend thereafter on the facts of each case."
15) Applying the principles laid down in the above case by this court, the evidence produced by the appellants has not been consistent. The appellants claim that the respondent did not work for 240 days. The respondent was a workman hired on a daily wage basis. So it is obvious, as this court pointed out in the above case that he would have difficulty in having access to all the official documents, muster rolls etc. in connection with his service. He has come forward and deposed, so in our opinion the burden of proof shifts to the employer/appellants to prove that he did not complete 240 days of service in the requisite period to constitute continuous service. It is the contention of the appellant that the services of the respondent were terminated in 1988. The witness produced by the appellant stated that the respondent stopped coming to work from February, 1988. The documentary evidence produced by the appellant is contradictory to this fact as it shows that the respondent was working during February, 1989 also. It has also been observed by the High Court that the muster roll for 1986-87 was not completely produced. The appellants have inexplicably failed to produce the complete records and muster rolls from 1985 to 1991, inspite of the direction issued by the labour court to produce the same. In fact there has been practically no challenge to the deposition of the respondent during cross-examination. In this regard, it would be pertinent to mention the observation of three judge bench of this court in the case of Municipal Corporation, Faridabad Vs. Siri Niwas [(2004) 8 SCC 195], where it is observed:
"A Court of Law even in a case where provisions of the Indian Evidence Act apply, may presume or may not presume that if a party despite possession of the best evidence had not produced the same, it would have gone against this contentions. The matter, however, would be different where despite direction by a court the evidence is withheld."
16) It is not in dispute that the respondent's service was terminated without complying with the provisions of Section 25F of Industrial Disputes Act. Section 25G of the Act provides for the procedure for retrenchment. The section reads-
"25G.
Procedure for retrenchment.- Where any workman in an industrial establishment, who is a citizen of India, is to be retrenched and he belongs to a particular category of workmen in that establishment, in the absence of any agreement between the employer and the workman in this behalf, the employer shall ordinarily retrench the workman who was the last person to be employed in that category, unless for reasons to be recorded the employer retrenches any other workman."
The labour court based on the pleadings and evidence on record has come to the conclusion that the services of some of the employees junior to the respondent was continued after the respondent was discharged from its duties. The dates of joining of some of the fellow employees of the respondent like Mohanbhai, Kalubhai and Nanjibhai were not produced by the appellants. The appellants have clearly failed to prove that the services of no junior employee was continued when the services of the respondent was terminated. Thus, the procedure laid down in Section 25G has also not been followed. The findings on facts by the labour cannot be termed as perverse and need no interference.
Recently, Apex Court has considered breach of section 25 G in case of Harjinder Singh Vs. Punjab State Warehousing Corporation reported in 2010 (1) SCALE 613 in para 13 to 15 is quoted as under:
"13.
It is true that in the writ petition filed by it, the corporation did plead that the dispute raised by the appellant was not an industrial dispute because he had not worked continuously for a period of 240 days, the learned Single Judge rightly refused to entertain the same because no such argument was advanced before him and also because that plea is falsified by the averments contained in para 2 of the reply filed on behalf of the corporation to the statement of claim wherein it was admitted that the appellant was engaged as work charge Motor Mate for construction work on 5.3.1986 and he worked in that capacity and also as Work Munshi from 3.10.1986 and, as mentioned above, even after expiry of the period of three months' specified in order dated 5.2.1987, the appellant continued to work till 5.7.1988 when first notice of retrenchment was issued by the Managing Director of the corporation. Therefore, it was not open for the corporation to contend that the appellant had not completed 240 days service. Moreover, it is settled law that for attracting the applicability of Section 25-G of the Act, the workman is not required to prove that he had worked for a period of 240 days during twelve calendar months preceding the termination of his service and it is sufficient for him to plead and prove that while effecting retrenchment, the employer violated the rule of `last come first go' without any tangible reason. In Central Bank of India v. S. Satyam (1996) 5 SCC 419, this Court considered an analogous issue in the context of Section 25-H of the Act, which casts a duty upon the employer to give an opportunity to the retrenched workmen to offer themselves for re-employment on a preferential basis. It was argued on behalf of the bank that an offer of re-employment envisaged in Section 25-H should be confined only to that category of retrenched workmen who are covered by Section 25-F and a restricted meaning should be given to the term `retrenchment' as defined in Section 2(oo). While rejecting the argument, this Court analysed Section 25-F, 25-H, Rules 77 and 78 of the Industrial Disputes (Central) Rules, 1957, referred to Section 25-G and held:
"Section 25-H then provides for re-employment of retrenched workmen. It says that when the employer proposes to take into his employ any persons, he shall, in such manner as may be prescribed, give an opportunity to the retrenched workmen who are citizens of India to offer themselves for re-employment, and such retrenched workmen who offer themselves for re-employment shall have preference over other persons. Rules 77 and 78 of the Industrial Disputes (Central) Rules, 1957 prescribe the mode of re-employment. Rule 77 requires maintenance of seniority list of all workmen in a particular category from which retrenchment is contemplated arranged according to seniority of their service in that category and publication of that list. Rule 78 prescribes the mode of re-employment of retrenched workmen. The requirement in Rule 78 is of notice in the manner prescribed to every one of all the retrenched workmen eligible to be considered for re-employment. Shri Pai contends that Rules 77 and 78 are unworkable unless the application of Section 25-H is confined to the category of retrenched workmen to whom Section 25-F applies. We are unable to accept this contention.
Rule 77 requires the employer to maintain a seniority list of workmen in that particular category from which retrenchment is contemplated arranged according to the seniority of their service. The category of workmen to whom Section 25-F applies is distinct from those to whom it is inapplicable. There is no practical difficulty in maintenance of seniority list of workmen with reference to the particular category to which they belong. Rule 77, therefore, does not present any difficulty. Rule 78 speaks of retrenched workmen eligible to be considered for filling the vacancies and here also the distinction based on the category of workmen can be maintained because those falling in the category of Section 25-F are entitled to be placed higher than those who do not fall in that category. It is no doubt true that persons who have been retrenched after a longer period of service which places them higher in the seniority list are entitled to be considered for re-employment earlier than those placed lower because of a lesser period of service. In this manner a workman falling in the lower category because of not being covered by Section 25-F can claim consideration for re-employment only if an eligible workman above him in the seniority list is not available. Application of Section 25-H to the other retrenched workmen not covered by Section 25- F does not, in any manner, prejudice those covered by Section 25-F because the question of consideration of any retrenched workman not covered by Section 25-F would arise only, if and when, no retrenched workman covered by Section 25-F is available for re-employment. There is, thus, no reason to curtail the ordinary meaning of "retrenched workmen"
in Section 25-H because of Rules 77 and 78, even assuming the rules framed under the Act could have that effect.
The plain language of Section 25-H speaks only of re-employment of "retrenched workmen". The ordinary meaning of the expression "retrenched workmen" must relate to the wide meaning of `retrenchment' given in Section 2(oo). Section 25-F also uses the word `retrenchment' but qualifies it by use of the further words "workman ... who has been in continuous service for not less than one year". Thus, Section 25-F does not restrict the meaning of retrenchment but qualifies the category of retrenched workmen covered therein by use of the further words "workman ... who has been in continuous service for not less than one year". It is clear that Section 25-F applies to the retrenchment of a workman who has been in continuous service for not less than one year and not to any workman who has been in continuous service for less than one year; and it does not restrict or curtail the meaning of retrenchment merely because the provision therein is made only for the retrenchment of a workman who has been in continuous service for not less than one year. Chapter V-A deals with all retrenchments while Section 25-F is confined only to the mode of retrenchment of workmen in continuous service for not less than one year. Section 25-G prescribes the principle for retrenchment and applies ordinarily the principle of "last come first go" which is not confined only to workmen who have been in continuous service for not less than one year, covered by Section 25-F."
14. The ratio of the above noted judgment was reiterated in Samishta Dube v. City Board Etawah (1999) 3 SCC 14. In that case, the Court interpreted Section 6-P of the U.P. Industrial Disputes Act, 1947, which is pari materia to Section 25-G of the Act, and held:
Now this provision is not controlled by conditions as to length of service contained in Section 6-N (which corresponds to Section 25-F of the Industrial Disputes Act, 1947). Section 6-P does not require any particular period of continuous service as required by Section 6-N. In Kamlesh Singh v. Presiding Officer in a matter which arose under this very Section 6-P of the U.P. Act, it was so held. Hence the High Court was wrong in relying on the fact that the appellant had put in only three and a half months of service and in denying relief. See also in this connection Central Bank of India v. S. Satyam.
Nor was the High Court correct in stating that no rule of seniority was applicable to daily-wagers. There is no such restriction in Section 6-P of the U.P. Act read with Section 2(z) of the U.P. Act which defines "workman".
It is true that the rule of "first come, last go" in Section 6-P could be deviated from by an employer because the section uses the word "ordinarily". It is, therefore, permissible for the employer to deviate from the rule in cases of lack of efficiency or loss of confidence, etc., as held in Swadesamitran Ltd. v. Workmen. But the burden will then be on the employer to justify the deviation. No such attempt has been made in the present case. Hence, it is clear that there is clear violation of Section 6-P of the U.P. Act.
15. The distinction between Sections 25-F and 25-G of the Act was recently reiterated in Bhogpur Coop. Sugar Mills Ltd. v. Harmesh Kumar (2006) 13 SCC 28, in the following words:
"We are not oblivious of the distinction in regard to the legality of the order of termination in a case where Section 25-F of the Act applies on the one hand, and a situation where Section 25-G thereof applies on the other. Whereas in a case where Section 25-F of the Act applies the workman is bound to prove that he had been in continuous service of 240 days during twelve months preceding the order of termination; in a case where he invokes the provisions of Sections 25-G and 25-H thereof he may not have to establish the said fact. See: Central Bank of India v. S. Satyam, Samishta Dube v. City Board, Etawah, SBI v. Rakesh Kumar Tewari and Jaipur Development Authority v. Ram Sahai."
As it is held by High Court of Bombay in case of Executive Engineer, Yavatmal Medium Project Division & Anr Vs. Anant S/o Yado Murate & Anr reported in 1998 (ii) LLJ 77, that "Industrial Disputes Act, 1947 - Sec. 2(j) -
Meaning of "Industry" - Projects undertaken by Irrigation Department would fall within definition of Industry."
The view taken by this Court in case of State of Gujarat Vs. Maniben Viraji reported in 2003 (2) GLH 368, where following observations made by this Court in Head note B and para 42:
"Industrial Disputes Act, 1947 - S. 2(j) - Irrigation Department whether an "industry" - In view of the law laid down in Bangalore Water Supplys case in view of the decision in Des Raj's case Irrigation Department is an "industry" - The decision in case of Shankerji Chelaji Thakor Vs. State of Gujarat held per incuriam - The dominant nature test as evolved clearly go to show that Irrigation Department is an "industry".
42. I have considered the aforesaid decisions of the Hon'ble Apex Court that how to read and apply the decision to the facts of the case. In light of the observations made by the Hon'ble Apex Court, now, I am considering the decisions which have been relied upon by the learned G.P. Mr. A.D. Oza. In the said judgments relied on by Mr. Oza, there is no express decision on the subject matter as to whether the irrigation department is an industry or not within the meaning of section 2(j) of the I.D. Act, 1947. Said decisions are not accompanied by 'reason to real issue of industry'. It was not the conscious consideration of an issue of irrigation department, whether it is an industry or not. Said issue really escaped in each of the decisions. Therefore, particular point of law that whether irrigation department is industry or not was not consciously determined in any of the decisions which have been relied upon by the learned Government Pleader Mr. A.D. Oza. On the contrary, the decision of the Constitutional Bench of the Hon'ble Apex Court in Bengalore Water Supply and Sewerage Board (supra) and the decision in case of Des Raj (supra), in case of Jagannath Maruti Kondhare (supra) and the decision of the Division Bench of this High Court in case of PWD Employees Union (supra) was not considered which are on the real issue wherein irrigation department has been held to be the industry within the meaning of section 2(j) of the I.D. Act, 1947. In case of PWD Employees Union (supra), the Division bench of this Court has considered the decision of the Constitutional Bench of the Hon'ble Apex Court and has, following the ratio of the said judgment of the Hon'ble Apex Court, held that the irrigation department is an industry. However, that earlier decision of the Division Bench of this Court in case of PWD Employees' Union (supra) has not been considered by the Division Bench of this Court in case of Shankerji Chelaji Thakor versus State of Gujarat. Therefore, the decisions referred to and relied upon by the learned Government Pleader Mr.A.D. Oza are not helpful to him and are not applicable to the facts of the present case. Therefore, considering the decision of the Constitutional Bench of the Hon'ble Apex court in case of Bengalore Water Supply and Sewerage Board (supra), case of Des Raj (supra) as well as the earlier decision of the Division Bench of this Court in case of PWD Employees' Union (supra) wherein also the decision of the Hon'ble Apex Court in case of Bengalore Water Supply and Sewerage Board (supra) has been considered by the Division Bench of this Court, I am of the opinion that the irrigation department is an industry within the meaning of section 2(j) of the I.D. Act."
In view of above observation made by Apex Court and considering reasoning given by Labour Court, Amreli according to my opinion Labour Court has not committed any error while appreciating evidence on record and in coming to conclusion that termination is violated mandatory provisions of section 25 F, G, H of I. D. Act, 1947. Therefore, no interference is required by this Court while exercising power under Art. 227 of Constitution of India. Hence, there is no substance in present petition.
Considering consent given by learned advocate Mr. Mishra that workman is not insisting claim of 25% backwages of interim period. Therefore, direction issued by Labour Court granting 25% back wages in favour of workman may be set aside. Accordingly, direction issued by Labour Court granting 25% back wages in favour of workman is hereby quashed and set aside but relief of granting reinstatement with continuity of service in favour of respondent is remained in tact. Accordingly, petitioner established must have to reinstate workman with continuity of service. Therefore, award is modified by this Court to aforesaid extent. The present petition is partly allowed and Rule is made absolute to aforesaid extent. No order as to costs.
(H.K.RATHOD, J) asma