Gujarat High Court
Bhimani Khadi Gramodyog Sangh vs Jitendra Malshi Ninjar on 19 June, 2017
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/15171/2010 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 15171 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.M.THAKER Sd/-
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1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of NO
the judgment ?
4 Whether this case involves a substantial question of NO
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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BHIMANI KHADI GRAMODYOG SANGH....Petitioner(s)
Versus
JITENDRA MALSHI NINJAR....Respondent(s)
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Appearance:
MR BY MANKAD, ADVOCATE for the Petitioner(s) No. 1
MR MUKESH H RATHOD, ADVOCATE for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 19/06/2017
ORAL JUDGMENT
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1. Heard Mr.Mankad, learned advocate for the petitioner.
2. Mr.Rathod, learned advocate for the respondent whose name is reflected in the cause list as learned advocate representing the respondent, is present and he submitted that he had entered appearance for the respondent and he was representing the respondent, however, after the order dated 23.2.2011, he does not have any instructions from the respondent. He pleaded 'no instruction' despite the fact that the order dated 23.2.2011 came to be recalled vide order dated 10.9.2012 in Miscellaneous Civil Application No.2363 of 2012.
3. Having said thus, Mr.Rathod, learned advocate for the respondent did not make any submissions on merits. In this view of the matter, I have heard Mr.Mankad, learned advocate for the petitioner and considered his submissions.
4. At the outset, it is necessary to mention Page 2 of 14 HC-NIC Page 2 of 14 Created On Fri Aug 18 23:31:27 IST 2017 C/SCA/15171/2010 JUDGMENT that present petition has remained pending and has been rotating on Admission Board for almost 7 years. Today also the petition is listed in cause list for matters pending for admission.
5. This Court had passed order dated 23.2.2011 and disposed of the petition. However, the said order was passed when learned advocate for the petitioner was not present and that at the request by respondent the miscellaneous application came to be allowed vide order dated 10.9.2012. Even after the said order the petition has remained pending for 5 years on cause list for matters pending for admission.
6. So far as the factual background is concerned, it has emerged from the record that the respondent herein had raised industrial dispute with the allegation that the opponent employer, i.e. Bhimani Khadi Gramodyog Sangh illegally and arbitrarily terminated his service. With the said allegation the respondent claimed that he should be reinstated in service with all Page 3 of 14 HC-NIC Page 3 of 14 Created On Fri Aug 18 23:31:27 IST 2017 C/SCA/15171/2010 JUDGMENT benefits.
7. Appropriate Government referred the dispute for adjudication to the learned Labour Court at BhujKutch. The dispute, upon reference, came to be registered as Reference (LCG) No.12 of 2000.
8. In his statement of claim, the claimant alleged that he was working as a workman with the opponent since about 2 years at the salary of Rs.1,100/ and that he was discharging his duties regularly, diligently and honestly. He further alleged that without any fault on his part, the opponent employer illegally terminated his service by oral instructions on 31.3.1999. He alleged that while terminating his service the employer did not follow procedure prescribed by law and did not grant any opportunity of hearing. He also alleged breach of provisions under the Industrial Disputes Act. He also alleged violation of principles of natural justice and principle of seniority and breach of Sections 25F and 25G of the Industrial Disputes Act and Rule Page 4 of 14 HC-NIC Page 4 of 14 Created On Fri Aug 18 23:31:27 IST 2017 C/SCA/15171/2010 JUDGMENT 81 of the Rules. With such allegation he demanded that he should be reinstated in service. The claimant also alleged that after his service was terminated, the employer engaged another person and the work / activity by the opponent still continued. He also alleged that he had continuously worked for more than 240 days in every year and that though he made attempts to secure another employment, he could not secure other employment and he is unemployed.
9. From the record, more particularly from impugned award, it has emerged that after receiving reference the learned Labour Court had issued notice to the opponent which was received by the opponent, however, nobody cared to attend the proceedings before the learned Labour Court.
10. The opponent did not even care to file reply before the learned Labour Court.
11. Though the opponent had engaged service of learned advocate who had entered appearance, Page 5 of 14 HC-NIC Page 5 of 14 Created On Fri Aug 18 23:31:27 IST 2017 C/SCA/15171/2010 JUDGMENT neither reply was filed nor any witness was examined by the opponent nor the workman was subjected to crossexamination of the employer. Differently put, entire proceedings before the learned Labour Court remained unattended and the opponent employer neglected the proceedings even after service of notice by the learned Labour Court.
12. In this view of the matter, the learned Labour Court accepted affidavit in lieu of examinationinchief (Exh.10).
13. As mentioned above, the concerned workman was not subjected to crossexamination. Consequently, the evidence placed on record by the workman remained uncontroverted.
14. Having regard to the fact that neither the averments in the statement of claim were denied by the employer nor any reply opposing the demand by the workman was filed and also having regard to the fact that the affidavit / evidence by the Page 6 of 14 HC-NIC Page 6 of 14 Created On Fri Aug 18 23:31:27 IST 2017 C/SCA/15171/2010 JUDGMENT workman remained uncontroverted, the learned Labour Court after having waited for almost 9 years, i.e. from 2000 to 2009 was constrained to pass the award.
15. The learned Labour Court, therefore, passed award dated 30.9.2009 and directed the employer to reinstate the claimant with backwages.
16. Subsequently, the opponent, i.e. present petitioner filed miscellaneous application before the learned Labour Court with request to recall the award. The said application was registered as Miscellaneous Application No.7 of 2009. In the said application the opponent employer offered below mentioned explanation for not attending the proceedings before the learned Labour Court for almost 9 years. In its application, the employer mentioned that:
"2. That the Advocate of the Applicant has filed his appearance however thereafter the applicant Trust could not pursue the matter and the applicant could not file the Written Statement and the Right to file the Written Statement was ordered to be closed by the Hon'ble Court and the matter was tried ExParte. That the above said situation was arrived as there was disturbances and there were disputes over the functioning of the Board Page 7 of 14 HC-NIC Page 7 of 14 Created On Fri Aug 18 23:31:27 IST 2017 C/SCA/15171/2010 JUDGMENT of Trustees of the Applicant, however the same has been sorted out as such."
17. Thus, the opponent neglected the proceeding - for almost 9 years - only because of alleged internal dispute amongst the trustees.
18. The opponent further claimed that it had not received copy of the award and it was informed about the award when the workman approached with copy of the award on 6.12.2009.
19. What is pertinent to note is the fact that in miscellaneous application also the employer never claimed that when the proceedings commenced it had not received notice from the learned Labour Court. Actually, the employer admitted that it was aware about the proceedings and that it had also engaged service of learned advocate, however, on account of alleged internal dispute, it did not file written statement.
20. Interestingly, in its miscellaneous application seeking restoration of the proceedings of reference, the employer also Page 8 of 14 HC-NIC Page 8 of 14 Created On Fri Aug 18 23:31:27 IST 2017 C/SCA/15171/2010 JUDGMENT raised contention on merits with regard to the maintainability of the reference on the ground that it cannot be considered 'industry'. The employer also claimed, in its miscellaneous application, that the workman was not unemployed.
21. The learned Labour Court considered the miscellaneous application and also considered the submissions by learned advocate for the opponent employer. The learned Labour Court also took into account the fact that even after service of the intimation, the employer did not attend the proceedings for as many as 9 years and despite several opportunities, the opponent ignored the proceedings.
22. After considering the facts of the case and oral submissions, the learned Labour Court rejected the miscellaneous application.
23. In this background, the petitioner has taken out present petition.
24. The petition and challenge against the orders Page 9 of 14 HC-NIC Page 9 of 14 Created On Fri Aug 18 23:31:27 IST 2017 C/SCA/15171/2010 JUDGMENT are supported on below mentioned four grounds:
"A. That the impugned orders are bad, illegal, null and void ab initio and passed on total nonapplication of mind and deserve to be quashed and set aside.
B. That the impugned orders are passed on manifest misreading of the evidence on record and against the provisions of the Industrial Disputes Act.
C. That the petitioner establishment is duly registered as "Khadi and Village Industry" by the Khadi and Village Industries Commission constituted under the Act. The latest certificate to this effect is annexed herewith at AnnexureE to show the status of the petitioner. Therefore, it would be crystal clear that the petitioner does not come within the purview of section 2(j) which defines the term "Industry". That as per clause (5) of section 2(j), khadi or village industries would not be termed as industry. Therefore, the provisions of the Industrial Disputes Act would not be applicable to the petitioner establishment. Therefore, the Labour Court at Bhuj would not have any authority or jurisdiction to decide the alleged dispute between the petitioner and the respondent. Thus, the impugned orders passed by the Labour Court are null and void ab initio, and the same are required to be quashed and set aside.
D. That the impugned order at AnnexureB and D are otherwise illegal, arbitrary, unjust, discriminatory, and the same is required to be set right by this Hon'blke Court. The same is violative of Article 14 of Constitution."
25. Any other contention is not raised in the petition. Likewise, today, even at the time of hearing of the petition any other contention is not raised. So far as the contention that the petitioner is not an industry, is concerned, from the submission by learned advocate for the petitioner it has emerged that the petitioner Page 10 of 14 HC-NIC Page 10 of 14 Created On Fri Aug 18 23:31:27 IST 2017 C/SCA/15171/2010 JUDGMENT also undertakes activity of preparing / selling pickles. It has also emerged from the record that the petitioner is registered as Khadi and Village Industry with the Khadi and Village Industries Commission. It is undisputed fact that for the activity of manufacturing / selling pickles, etc. the petitioner employs workman to carry on its activities.
26. In this background, when the petitioner's contention that it is not an industry, is examined in light of the decision by Hon'ble Apex Court in case of Bangalore Water Supply & Sewerage Board v. A. Rajappa & Ors. [(1978) 2 SCC 213] it emerges that the contention is without merits. On this count, it would be profitable to also consider the observation by Hon'ble Apex Court in case of Gopal Vs. Administrative Officer, Madhya Pradesh Khadi and Village Industries Board and others [AIR 1986 SC 504]. From the observations in said decision - whereby Hon'ble Apex Court confirmed the decision by High Page 11 of 14 HC-NIC Page 11 of 14 Created On Fri Aug 18 23:31:27 IST 2017 C/SCA/15171/2010 JUDGMENT Court that Khadi Board is industry.
27. Having regard to the observations in said two decisions the contention raised by the petitioner on the ground that it is not an industry and therefore, the award may be set aside, cannot be accepted and sustained. The said contention deserves to be rejected and is accordingly rejected.
28. It is relevant to take into account that the claimant had raised specific contention before the learned Labour Court to the effect that his service was terminated without payment of compensation as contemplated under Section 25F and that before terminating his service, the principle of seniority as contemplated under Rule 81 and Section 25G was not followed and that after his service was terminated, another person was engaged by the employer and that the activities of the opponent employer are continued and that his service was not terminated on ground Page 12 of 14 HC-NIC Page 12 of 14 Created On Fri Aug 18 23:31:27 IST 2017 C/SCA/15171/2010 JUDGMENT of any misconduct and/or after conducting enquiry and granting opportunity of hearing.
29. The said contentions were reiterated and established by the workman in his affidavit.
30. The workman, as mentioned above, was not subjected to crossexamination and therefore, his evidence remained uncontroverted.
31. Even in present petition the petitioner has neither disputed said contentions, details and facts nor the petitioner has placed any material on record to even prima facie demonstrate that the procedure prescribed under law i.e. under Section 25F and/or Section 25G and/or Section 25H or Rule 81 were followed by the petitioner and it is not the case even of the petitioner that the claimant's service was not terminated with effect from 31.3.1999 and/or when the petitioner was terminated the procedure prescribed by law was followed. It is also not the case of the petitioner, even in the petition, that the Page 13 of 14 HC-NIC Page 13 of 14 Created On Fri Aug 18 23:31:27 IST 2017 C/SCA/15171/2010 JUDGMENT claimant did not work with the establishment for 2 years and/or that his claim that he had worked for more than 240 days in every year, is incorrect. Any other material to controvert such assertion by the workman is not placed on record. Even any contention on such ground is not found in the petition. The order passed by the learned Labour Court does not suffer from any infirmity, much less any error of law. The petitioner has failed to make out any ground against the award and he has also failed to show any material from record which could convince the Court to take view different from the view taken by the learned Labour Court and to disturb the award.
32. Therefore, the petition fails and deserves to be rejected and is accordingly rejected. Notice is discharged.
Sd/ (K.M.THAKER, J.) Bharat Page 14 of 14 HC-NIC Page 14 of 14 Created On Fri Aug 18 23:31:27 IST 2017