Gujarat High Court
Whether Reporters Of Local Papers May Be ... vs Satishkumar P Madalani on 22 March, 2001
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION No 5957 of 1995
For Approval and Signature:
Hon'ble MR.JUSTICE K.M.MEHTA
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1. Whether Reporters of Local Papers may be allowed : NO to see the judgements?
2. To be referred to the Reporter or not? : NO
3. Whether Their Lordships wish to see the fair copy : NO of the judgement?
4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder?
5. Whether it is to be circulated to the Civil Judge? : NO
-------------------------------------------------------------- TALUKA PANCHAYAT Versus SATISHKUMAR P MADALANI
-------------------------------------------------------------- Appearance:
MR PV HATHI for Petitioner MR JT TRIVEDI for Respondent No. 1
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CORAM : MR.JUSTICE K.M.MEHTA Date of decision: 22/03/2001 ORAL JUDGEMENT
1.Taluka Panchayat through its Taluka Development Officer, Porbandar, petitioner has filed this petition under Articles 226 and 227 of the Constitution of India challenging the judgment and award dated 12th January, 1995, passed by the Presiding Officer, Labour Court, Junagadh in Reference LCJ No.1760/90. The Labour Court by its impugned judgment and award pleased to allow the reference of Satishkumar Prabhudas Madlani of Junagadh respondent herein and held that the action of the petitioner relieving respondent from service from 31st March, 1990, is illegal and bad and ordered that he should be reinstated in service within 30 days of the publication of the award.
2.The facts giving rise to this petition are as under:
2.1The petitioner Panchayat is a body corporate by the name of Taluka Panchayat constituted under the provisions of the Gujarat Panchayat Act, 1961. The petitioner Panchayat is authorised to make recruitment of persons after following the prescribed procedure by the competent higher authority. In other words, it cannot make any recruitment otherwise than in the manner provided under the provisions of the Panchayats Act and the statutory rules framed thereunder.
2.2It has been further stated in the petition that the Taluka Panchayat for certain contigencies like famine, scarcity, flood relief etc. has to make appointments on daily wages of persons after calling for the names of persons from Employment Exchange.
Accordingly for the scarcity relief work, the Taluka Panchayat had therefore employed number of persons including respondent as Muster Clerk for a period of 29 days. It has been stated that every time fresh orders of appointments were passed and on a specific condition that the appointments were made only on temporary basis and on ad-hoc basis for the relief work and on expiry of the said period, the workmen will be deemed to have been relieved. A copy of appointment order dated 21-11-1987 has been produced in the petition at Annexure - A. 2.3It has been further stated that the Panchayat has thereafter issued necessary orders from time to time and necessary Muster Roll and pay bills were prepared showing the period during the respondent came to be retained on scarcity work. It has been further stated that after the relief work is over the respondent is no longer in the employment of the petitioner-panchayat for a very long time and was given one appointment after lapse of about one or two years as daily wage clerk in absence of a regular employee in the month of February, 1989, for which separate order was issued. It has been further stated that the respondent was not in continuous employment either from 1987 or from 1989 till 31.3.1990. It has been stated that the respondent came to be employed by Chhaya Gram Panchayat somewhere in the month of June 1990 and is in employment of the said Panchayat. Accordingly he had no reason to seek a reference either for reinstatement or for backwages in view of the fact that he was gainfully employed immediately after 31.3.90 as admitted by him in the said proceedings.
2.4In support of the aforesaid position, the respondent approached the Assistant Labour Commissioner, Porbandar, seeking a reference under Sec.10 of the Industrial Disputes Act, 1947 (hereinafter referred to as `the Act') against the petitioner panchayat. The Assistant Labour Commissioner, Porbandar, by his order dated 30.7.1990 made a reference to the Labour Court, Junagadh. The Labour Court, Junagadh, registered the said reference as Ref.LCJ No.1760/90 under sec.10(1)(c) of the Act as if the grievances of the respondent were required to be redressed.
2.5It may be stated that the respondent had already in service at that time. The Labour Court, Junagadh, registered the said reference and issued notice to the petitioner-panchayat. The respondent-workman filed his statement of claim at Exh.3 which has been annexed with the petition. In the claim he has stated that he was working as a Muster Clerk from 7.9.87 for payment of Rs.24.55 per day and was relieved on 31.3.90 without payment of notice pay or retrenchment compensation and in that application he has prayed for reinstatement in service with backwages from 31.3.90.
3.From the record, it appears that the respondent has filed reply before the Labour Court on 26th October, 1993, in which it has been stated that the appointment of respondent was temporary and only for relief work and as soon as that project is over the respondent cannot claim any continuous service. It has also been pointed out that the respondent workman was employed in Chhaya Gram Panchayat and he was gainfully employed immediately after 31.3.90 and, therefore, he cannot be employed in two places.
4.The petitioner has been orally examined before the Labour Court on 2.4.92, however, for the reasons stated by the petitioner in para 7 on page 8 that they had engaged advocate from Porbandar but ultimately he could not represent the panchayat and ultimately panchayat was not able to cross-examine the respondent-workman in this behalf and panchayat also did not produce any further documentary evidence before the Labour Court.
5.The Labour Court by his judgment and award dated 12th January, 1995, pleased to accept the reference of the respondent-workman partly and set aside the order of the respondent relieving him from 31.3.90 as illegal and bad and also ordered that the respondent-workman was required to be reinstated within 30 days from the date of publication of the award in this behalf.
6.Shri P.V.Hathi, learned advocate for the petitioner has submitted that when Government engages the work on account of relief, famine or scarcity work then those persons who are employed have been given purely temporary appointment and on ad-hoc basis and they are deemed to have been relieved on expiry of the contract period and they are not entitled to wages or compensation for the notice period. It was further submitted that this activities is in nature of casual and not systematic activities. It is a sovereign function of the State and therefore it was not an industry in this behalf.
6.1In support of the same he has relied upon Division Bench judgment of this Court in the case of J.J.Shrimali Vs. District Development Officer, Mehsana and others reported in 1989 (2) G.L.H. 12. In Para 8 the Court has observed as under:
"When a State Government during famine and drought undertakes relief works intended to provide the much needed relief to scarcity affected people living in affected areas, it is not embarking upon any industrial or commercial enterprise but is merely trying to fulfil its obligation towards its people who are hit by nature's wrath. There is no desire or intention to launch a durable industrial or commercial enterprise but the paramount idea or consideration is to provide relief to the scarcity affected people who have been deprived of livelihood because of the failure of the monsoon. Since our agricultural economy depends heavily on the vagaries of the monsoon, failure of the monsoon and that too in successive three years, is bound to adversely affect people dependent on the monsoon. In rural areas failure of the monsoon would result in stoppage of all agricultural activities and those dependent on work in the fields would suddenly find themselves deprived of their livelihood. In such a situation the State machinery must step in to provide relief and succour to the affected people. If, instead of distributing doles which may hurt the dignity, self-respect and sentiments of those receiving the same, the State Government introduces schemes which would provide temporary work to the affected people and pays for the same, can it be said that the State has embarked on a commercial or industrial activity so as to label relief works or project as `industry'? As pointed out earlier, the paramount idea is to provide relief for tiding over the difficult period and it matters not whether the work undertaken is completed or not; the relief work or project will be wound up once nature showers its bounties in the affected area. It seems clear to us that by starting relief works or projects, the State Government is merely fulfilling its governmental duty towards the scarcity affected people and is not operating in the field of commerce or industry for the production or distribution of goods or services."
6.2The judgment of Division Bench of this Court was again approved by the Full Bench of this Court in the case of H.K.Makwana Vs. State of Gujarat and Others reported in 1994(2) G.L.H. 213. On Page 230 & 231 the Full Bench of this Court has held as under:
"The employment offered to the persons on the scarcity relief works as undertaken by the State cannot be said to be employment in `industry' as defined by Section 2(j) of the Industrial Disputes Act, 1947 mainly because -
(a) it is the primary and inalienable function of the State to provide livelihood to the persons who are affected by the natural calamities such as famine, earthquake, epidemic, flood, scarcity, etc., and
(b) admittedly, the relief work is not a `business' or `trade' and with regard to the `undertaking', the activity is not analogous to trade or business or that it is not a systematic activity but is carried out casually at different places depending on the calamities in a particular area."
"The decision of the Division Bench of this Court in the case of J.J. Shrimali [1989 (2) GLH 12:
(1989)(1) GLR] that scarcity relief work undertaken by the State is not `industry' as defined by Section 2(j) of the Industrial Disputes Act, 1947, is well sustained."
6.3Shri Hathi, learned advocate for the petitioner has submitted that the Labour Court has no jurisdiction to order reinstatement of respondent-workman in service of the petitioner-panchayat once it was found that on the date on which the reference was solicited he was already in employment and was not in need of the reliefs prayed for by him through the Labour Court. It was further submitted that the Labour Court had no authority to adjudicate upon the issue as to which employment was necessary for the respondent workman and therefore the impugned award is illegal, improper and requires to be set aside.
6.4In support of the same he has relied upon the appointment order and also the reply filed by the petitioner-panchayat before the Labour Court in which the panchayat had already stated that the employment of the respondent-workman was absolutely temporary and on ad-hoc basis and he has already gainfully employed in another Gram Panchayat and to that extent the Labour Court has not properly exercised jurisdiction in this behalf. In my view, therefore, the Labour Court has not properly exercised the jurisdiction in this behalf. He has also stated that if, in any view of the matter, this Court comes to the conclusion that the panchayat failed to produce the evidence before the Labour Court then the matter requires to be remanded.
7.Mr.Trivedi, learned advocate for the respondent stated that in this case before the Labour Court, on behalf of Taluka Development Officer no evidence was led and they have not proved their case either in writing or oral and in view of the same the Tribunal decided that action of the TDO relieveing employee SatishKumar P. Madalani was illegal and bad. He stated that when tribunal decided the matter on the merits of the case after considering the fact that the employer has failed to prove evidence on record, this Court may not exercise jurisdiction under Article 226 and 227 of the Constitution of India. He has relied upon a Unreported Judgment of this Court in Special Civil Application No.1025 of 2000 decided by this Court (Coram: Y.B.Bhatt, J.) on 23.2.2000 in para 2 the Court has observed as under:
"Before discussing the merits of the present petition, it is desirable to bear in mind the principles laid down by the Supreme Court in the context of the scope and ambit, and the powerss and limitations of the High Court, while exercissing jurisdiction under Article 227 of the Constitution of India. The Supreme Court, in the case of Mohmmad Yunus Vs. Mohammad Mustaqim [AIR 1984 SC 38] and Khali Ahmed Basir Vs. Tufelhussein S. Sarangpurwala [AIR 1988 SC 184], has held that the High Court, while examining a petition under Article 227 of the Constitution of India, cannot reappreciate the evidene and ccannot disturb the findings of fact recovered by the courts below except where the same are perverse, and even errors of law cannot be corrected."
7.1He has also relied upon the judgment of the Hon'ble Apex Court in the case of Secretary, H.S.E.B Vs. Suresh and Others reported in (1999) 3 Supreme Court Cases 601 particularly in para 15 the Hon'ble Apex Court has observed as under:
"In the contextual facts, we also record our concurrence to the observations of the High Court that the finding of fact arrived at by the Labour Court cannot otherwise be interfered with while exercising powers under Article 226 of the Constitution, unless the same is otherwise perverse or there is existing an error aparrent on the face of the record."
7.2He has also relied upon the judgment in the case of reported in 2000(1) GLH UJ 24.
7.3He therefore submitted that this Court may not interfere with the findings of the Labour Court in this behalf when Labour Court has decided the matter on the merits of the case after going through the evidence on record.
8.As against that, Shri Hathi, learned advocate for the petitioner has reiterated the statement which he has made. He stated that it is no doubt true that at the time of evidence the petitioner did not lead evidence, however, he has stated that in the reply before the Labour Court it was specifically stated that the respondent was employed only for the relief work and also on casual basis. It was also stated that the respondent-workman was employed absolutely on temporary and on ad-hoc basis and the respondent-workman deemed to have been relieved on expiry of the contract period. He has further submitted that the respondent-workman has suppressed the facts before the Labour Court though he was gainfully employed in Chhaya Gram Panchayat he did not stated this fact before the Labour Court in this behalf and once he was gainfully employed in another Panchayat, the award of the Tribunal granting reinstatement with backwages are illegal and liable to be quashed and set aside. He stated that the Labour Court has not considered the reply filed by the authority and also not considered the fact that he was already gainfully employed in another Gram Panchayat.
8.1As regards merits of the matter, he stated that in view of the judgment of the Division Bench of this Court in the case of J.J.Shrimali Vs. District Development Officer, Mehsana and others reported in 1989 (2) GLH 12 and the Full Bench judgment of this Court in the case of H.K.Makwana Vs. State of Gujarat and Others reported in 1994(2) GLH 213, when the employees are employed in relief work they are not covered by the Industrial Disputes Act and it is a soverign function of the Government and therefore there is no useful purpose will be served in remanding the matter to the Labour Court.
9.In my view, looking to the facts and circumstances of the case, particularly, when the respondent-workman has already filed reply in which it has already been stated that he was employed under relief operation work and he was gainfully employed somewhere else. These two contentions were enough for the Labour Court to decide the matter on merits of the case. However, the Labour Court has not considered these two aspects in this behalf. Moreover, when the matter is covered by Full Bench judgment of this Court, when it has been held that the Industrial Disputes Act is not applicable, there is no useful purpose will be served by remanding the matter to the Labour Court in this behalf. There is no question of leading any further evidence before the Labour Court and, therefore, I am not remanding the matter because the main contention raised by the petitioner that the respondent-workman was employed on a temporary and on ad-hoc basis and on account of scarcity and in that connection the Government act as a soverign function and that cannot be said to be an industry which has been decided by the Full Bench of this Court.
10.In view of the discussion made hereinabove, this Special Civil Application is allowed. The award dated 12.1.1995 passed by the Presiding Officer, Labour Court, Junagadh, in Reference LCJ No.1760/90 is illegal and liable to be quashed and set aside. Rule is made absolute. No order as to costs.
(K.M. Mehta, J.) syed/