JUDGMENT : E.S. Da Silva, J. 1. By this order, I propose to dispose of this writ petition which challenges the award dated March 3, 1988, of the Industrial Tribunal in Reference No. IT/24/86, whereby it was held that the termination of services of respondent No. 2 (hereinafter called "the respondent") is void and inoperative and the same is not just and legal. Pursuant to the said award the learned Tribunal declared that the respondent should be deemed as continuing to be in the service of the petitioner with all consequent benefits, namely, back-wages in full and other benefits. 2. The reference was prompted on account of termination of service of the respondent by the petitioner with whom the respondent was working as a peon right from December 1, 1966. It appears that due to financial difficulties, the petitioner was unable to cope up with the burden of paying the respondent the salary according to the scales recommended by the Third Pay Commission which were made applicable to the village panchayat employees also and, therefore decided to terminate the respondent's services. He was accordingly informed of this decision by notice of one month dated December 23, 1983. The respondent approached the Government alleging that the termination of the services would amount to retrenchment and pressed for a reference to be made to the Tribunal. The Government of Goa by order, bearing No. 29/16/84-IID, dated September 5, 1986, referred the matter to the Tribunal u/s 10 of the Industrial Disputes Act, 1947 (hereinafter called "the Act"), and the terms of reference were as under: (I) Whether Shri Vasant Gopal Mapari, Peon, employed at Village Panchayat, Collem, Sanguem-Goa, is a "workman' as per Section 2(s) of the Industrial Disputes Act, 1947? (II) Whether the Village Panchayat Collem, Sanguem-Goa, is an "industry" as per Section 2(j) of the Industrial Disputes Act, 1947? (III) Whether the action of the Village Panchayat, Collem, Sanguem-Goa, in terminating the services of Shri Vasant Gopal Mapari, peon, with effect from December 23, 1983, is legal and justified? 3. The case of the petitioner is that when the reference came tor adjudication before respondent No. 1, one Subhash Verenkar was the sarpanch of the petitioner Village Panchayat and he did not care to engage any advocate to defend the interest of the petitioner. 3. The case of the petitioner is that when the reference came tor adjudication before respondent No. 1, one Subhash Verenkar was the sarpanch of the petitioner Village Panchayat and he did not care to engage any advocate to defend the interest of the petitioner. In the meantime the respondent had already filed proceedings u/s 33-C(2) of the Act to recover from the petitioner the benefits towards retrenchment, namely, gratuity, arrears of salary, etc., which were due to him. The proceedings were numbered as LCC/37/84 before the Labour Court. In these proceedings the court framed a preliminary issue as to whether the respondent applicant in those proceedings proved that he was a "workman" within the meaning of Section 2(s) of the Act. 4. By order dated September 11, 1985, the Labour Court held that the respondent was a workman within the meaning of the aforesaid section. However, by its award dated December 13, 1985, while deciding the application on merits, the Labour Court declined to entertain the respondent's application u/s 33-C(2) on the ground that since the respondent in his written arguments before it had admitted that he has been paid by the petitioner all his salary till the date of termination, the remaining amount claimed by him on various accounts would mostly depend on retrenchment of the applicant being declared illegal and not justified by the court. Therefore, the court held that for this purpose a reference from the Government to the Tribunal would be required under the Act. Thereupon the reference made by the Government was heard by the Tribunal which by the impugned award dated March 3, 1988, held the petitioner's action in terminating the respondent's services not proper and legal. It is further the case of the petitioner that in passing the said award the Tribunal heavily relied on an order dated September 11, 1985, passed by the Labour Court in the aforesaid case LCC/37/84, wherein it was held that the respondent was a workman within the meaning of Section 2(s) of the Act. In that case, the issue as to whether the petitioner was an "industry" in terms of Section 2(j) of the Act which was an issue going to the root of jurisdiction of the Tribunal had not been decided at all by the Labour Court. In that case, the issue as to whether the petitioner was an "industry" in terms of Section 2(j) of the Act which was an issue going to the root of jurisdiction of the Tribunal had not been decided at all by the Labour Court. In spite of that the Tribunal failed to adjudicate specifically this issue by simply relying on the order of the Labour Court which has not even dealt with this issue. 5. It was further stated by the petitioner that the earlier sarpanch, Subhash Verenkar, who had taken no interest in resisting the respondent's application did not also care to lead evidence before the Tribunal and, therefore, the matter was decided by default. However, after the passing of the award, the sarpanch addressed to the Tribunal a letter dated May 11, 1988, contending that the petitioner, village panchayat, was not an "industry" within the meaning of Section 2(j) of the Act and thus the Tribunal had no jurisdiction to adjudicate the issue. The Tribunal, however, by treating this letter as an application for review dismissed the same by order dated October 13, 1988. After the issuance of the award the respondent filed recovery proceedings against the petitioner and the panchayat has paid to him till today the amount of Rs. 29,000 as per the order contained in the award. It was also stated by the petitioner that the respondent is a licensee of a shop premises belonging to the petitioner and is carrying on business in the premises, being thus a person gainfully employed. Besides, the entire income of the petitioner is being used to satisfy the respondent's demand as per the impugned award. The rents which the petitioner panchayat, receives from the building owned by it are directly used for the payment of these demands. As such, the petitioner is financially crippled and is in no position to provide work for the respondent at the salary which he claims. In such situation, the petitioner is also unable to reserve any funds for the developmental activities which it is bound to carry on under (he statute and, therefore, the functioning of the panchayat is being seriously hampered. 6. Subhash Verenkar who as a sarpanch was voted out of power with effect from November 14, 1991, and a new sarpanch, Rajaram Kanekar, was elected. 6. Subhash Verenkar who as a sarpanch was voted out of power with effect from November 14, 1991, and a new sarpanch, Rajaram Kanekar, was elected. After he took charge the present committee passed a resolution to remedy the situation arising out of the industrial dispute raised by the respondent. The petitioner through its members personally requested the respondent to settle the issue amicably by agreeing to join duties and accepting the salary at the rates affordable to the petitioner panchayat. The respondent has refused all the said offers and is adamant in the matter. 7. Mr. Rebello, learned counsel for the petitioner, has submitted that the impugned award of the Tribunal was passed without jurisdiction inasmuch as the Tribunal had relied upon an order of the Labour Court dated September 11, 1985, made in Case LCC/37/84 to give a finding that the petitioner was an industry within the meaning of Section 2(j) of the Act when ostensibly the Labour Court while passing that order has not given any finding on this point and the only issue which was involved and required to be adjudicated by the court in the application filed by the respondent for the payment of wages was as to whether the respondent was a workman within the meaning of Section 2(s) of the Act. As such the Tribunal by failing to give a specific finding on this issue of as to whether the petitioner was an industry which was one of the points of reference, has displayed non-application of mind and the award suffers, therefore, from an error apparent on the face of the record. Learned counsel has also stated that the petitioner was required under the statute to carry on some Governmental functions and the functions of the panchayat in terms of the Goa, Daman and Diu Village Panchayat Regulation Act, 1962 (hereinafter called "the Panchayat Act"), amount to a mandatory duty which by no stretch of imagination can be compared with industrial or commercial activities. As such it is not possible to hold that the petitioner is an industry as per Section 2(j) of the Act and the Tribunal by over-looking this aspect has committed a serious error of jurisdiction which has vitiated the award. As such it is not possible to hold that the petitioner is an industry as per Section 2(j) of the Act and the Tribunal by over-looking this aspect has committed a serious error of jurisdiction which has vitiated the award. It was also urged by learned counsel that the burden of proving this jurisdictional issue of the petitioner being an industry would lie on the respondent and in this regard the respondent has not led any evidence to substantiate the point which was one of the grounds of the reference moved by the Government. In such circumstances, the Tribunal was expected to decide this point against the respondent on account of his failure to bring on record any material to establish that the petitioner's activities in the field of its developmental functions could be said to be an industry within the meaning of Section 2(j) of the Act. 8. It was further submitted by learned counsel that even the finding given by the Labour Court on the question as to whether the respondent was a workman within the meaning of Section 2(s) of the Act was incompetent and illegal because obviously the Labour Court had no jurisdiction to so hold in proceedings u/s 33-C(2) of the Act. According to learned counsel, the jurisdiction of the Labour Court would not bind the Tribunal because the court while exercising the power u/s 33-C(2) had limited jurisdiction and could not decide matters on the point whether a person was or was not a workman. Learned counsel insisted that proceedings u/s 33-C(2) could be instituted by a person only to claim wages due under a settle- ment, award or contract and the Labour Court was not expected to decide as to whether the person who was claiming such benefits was or was not a workman which issue had to be adjudicated by the Tribunal under the Act. Learned counsel urged that in terms of Section 33-C(2) only incidental issues could be decided by the Labour Court while entertaining the question of payment of wages u/s 33-C. 9. Reliance was placed by learned counsel on the case of Gram Panchayat, Katil Vs. Learned counsel urged that in terms of Section 33-C(2) only incidental issues could be decided by the Labour Court while entertaining the question of payment of wages u/s 33-C. 9. Reliance was placed by learned counsel on the case of Gram Panchayat, Katil Vs. Presiding Officer, First Labour Court, Nagpur and others, which is a decision of a Division Bench of this court in the matter of the Industrial Disputes Act, 1947, and its Sections 2(j) and 2(s) and the same question arose as to whether a village panchayat was or was not an industry. The court held that the village panchayat is statutorily required to undertake some of the Government functions and to that extent it would not be possible to hold that the activities in respect of those functions are activities amounting to an "industry" within the meaning of Section 2(j) of the Act. Thus, the claim of the pound keeper of the village panchayat was not tenable as he was only a marginal employee hired to attend certain nominal matters which would not destroy the non-employee character of the organisation. This finding was arrived at by the court on the basis that the material on record was justifying such conclusion that the pound keeper was only a marginal employee hired to attend certain nominal matters that will not destroy the non-employee character of the organisation in that case. Learned counsel contended that in the instant case also there was no material or evidence led by the respondent to hold that the panchayat was an industry despite the fact that the Tribunal has not even answered the point in issue in the reference in the order, relied on by him, of the Labour Court. The said issue had been specifically raised by the Government while making the reference and there was no evidence on record to substantiate or to enable the Tribunal to take the view that while carrying on any developmental activities the petitioner panchayat, was running an industry within the meaning of Section 2(j) of the Act. 10. Mr. Talaulikar, learned counsel on behalf of the respondent, has also raised several contentions, some of them in the nature of preliminary objections. He has submitted at the very outset that the petition was bound to be dismissed in limine on the ground of delay or laches. 10. Mr. Talaulikar, learned counsel on behalf of the respondent, has also raised several contentions, some of them in the nature of preliminary objections. He has submitted at the very outset that the petition was bound to be dismissed in limine on the ground of delay or laches. According to learned counsel, the award of the Tribunal was declared on March 3, 1988, and the petition filed in this court only on March 17, 1992, practically after more than four years and no sufficient ground has been shown by the petitioner to do so after such a long, time. Learned counsel has relied on this aspect in the case of Babu Singh and Others Vs. Union of India (UOI) and Others, and also in the case of Ashok Kumar Mishra and Others Vs. Collector, Raipur and Others,. 11. It was next urged by learned counsel that in this case the application of the principle of res judicata or principles analogous thereto would arise. Learned counsel contended that the issue of workman had been already decided by the Labour Court and the Tribunal by accepting the finding of the court has not gone wrong as according to him the Tribunal was bound by the said decision which had been passed in competent proceedings u/s 33-C(2) of the Act. Learned counsel also argued that while passing that decision the Labour Court has also looked into the written submissions of the petitioner/respondent in those proceedings and also relied on the authority of commentary of the learned author Malhotra in his book The Law of Industrial Disputes to come to the conclusion that the non-legal functions of the panchayat were covered by the provisions of the Act. 12. Further and with regard to the jurisdiction of the Labour Court to declare or to hold a person to be a workman, the learned counsel submitted that the court has jurisdiction because that was only an incidental question arising in the proceedings. Learned counsel said that normally when the workman approaches the Labour Court for relief which is within its jurisdiction to grant, the employer raises the dispute that dues are not payable to him because he is not a workman and in that circumstance the Tribunal is always required to decide this issue in order to enable to grant him relief. Learned counsel relied on this point in the case of Forward Construction Co. Learned counsel relied on this point in the case of Forward Construction Co. and Others Vs. Prabhat Mandal (Regd.), Andheri and Others, and also on another decision in the case of Bangalore Water Supply and Sewerage Board Vs. A. Rajappa and Others, on the question as to whether the panchayat was or was not an industry. 13. Learned counsel also made a strong grievance that the whole conduct of the petitioner would show that he has approached this court with unclean hands and without disclosing the true facts of the case. According to learned counsel, the petitioner in spite of pretending that the termination of services of the respondent was due to financial constraints and because it could not afford the payment of the respondent's salary the petitioner immediately after the termination of the respondent's services engaged the services of another peon by name Giridhar Girodkar whose services were continued till about January, 1984, or thereabout. The said Giridhar left the service in 1988, and immediately thereafter one Jacob Fernandes has been appointed and he is being paid now at the rate of Rs. 40 per day or thereabout. The said monthly wages are based on the day of work put in by him during each month of service and thus the monthly earnings of the said Jacob exceed Rs. 1,000 on an average. This fact has been concealed by the petitioner in his pleadings. Besides this court had already passed an order u/s 17(b) of the Act on August 27, 1993, for the payment of some reliefs which have not been fully honoured so far by the petitioner. Learned counsel argued that on this count alone the petitioner should not have been heard on merits unless the interim order of the court had been fully complied with. 14. In my view, although the submissions of learned counsel have been elaborately referred to for the sake of record, this petition can be disposed of on a limited point and this is regarding the Tribunal's failure to specifically answer one of the points which are the subject matter of the reference made by the Government which concerns the question as to whether the petitioner is or is not an industry within the meaning of Section 2(j) of the Act In this regard Mr. Rebello has rightly made a grievance that the Tribunal while disposing of the reference has entirely relied on an award of the Labour Court dated September 11, 1985, to adjudicate points Nos. I and II of the reference without recording any evidence in this regard or addressing itself to the material available on record. Indeed the Tribunal while deciding points Nos. I and II had simply said that his predecessor by his order dated September 11, 1985, had held that the panchayat peon was a workman within the meaning of Section 2(s) of the Act and this is how issues Nos. 1 and 2 were already disposed of. Admittedly the record shows that the said preliminary issue was adjudicated by the Labour Court in proceedings u/s 33-C(2) on an application filed by the respondent claiming his wages. In that application no issue as to whether the petitioner was an industry within the meaning of Section 2(j) arose and the only question which the court chose to consider was as to whether the respondent/petitioner in that application was or was not a workman within the meaning of Section 2(s) of the Act By placing reliance on the Commentary of Malhotra above mentioned and also on the ground that Section 33 of the Panchayat Act shows that the developmental works are done by the panchayat within its jurisdiction which works they do as any private individual and, therefore, cannot be exempted from the purview of the Act, the court answered that question in the affirmative. As such it is obvious that the Labour Court, while answering this question as to whether the respondent/petitioner was a workman, has not decided any issue as to whether the petitioner itself was or was not an industry within the meaning of Section 2(j) of the Act. The contention raised by Mr. Rebello that even that finding as to whether the respondent was or was not a workman could not have been given by the Labour Court as it was lacking jurisdiction to do so in proceedings under Sections 33-C(2) of the Act need not detain us at this stage as admittedly this finding was not challenged by the petitioner and is thus to be deemed as settled once for all in those proceedings. However, Mr. However, Mr. Talaulikar's attempt to impress upon me that while adjudicating the issue of the respondent being a workman the Labour Court has also impliedly decided the point as to whether the petitioner was or was not an industry because the petitioner in his written submissions had referred to this aspect and the court has looked into these submissions while arriving at the finding that the respondent was a workman of the petitioner within the meaning of Section 2(s) of the Act does not appear to de serve any acceptance. I say so because even as suing that the question was debated as contended by learned counsel, there is certainly no specific finding on the point given by the court and no pleadings were even raised by the respondent in this respect as a result whereof no issue was also framed and decided by the court on the basis of admissible evidence. 15. It thus follows that once the question as to whether the petitioner village panchayat being not an industry was not an issue before the Labour Court when the order dated September 11, 1985, was passed the reliance on the part of the Tribunal on such an order to decide the specific point of the reference made by the Government appears to be grossly misplaced, illegal and erroneous thus vitiating the entire award. Thus and without prejudice to Mr. Rebello's contention that even point No. I could not have been disposed of on the basis of that order for lack of jurisdiction on the part of the court to decide the issue of the respondent being a workman the Tribunal could not have disposed of point No. II which concerns the question as to whether the panchayat was or was not an industry on the basis of the order of the Labour Court which has not adjudicated anywhere the said issue. Hence the only conclusion is that the Tribunal has not at all answered point No. II of the reference and on this count alone the award is to be unsettled. Mr. Talaulikar has pleaded that in case the court is not inclined to agree with his other contentions and feels that a remand is to be ordered the petitioner should be made to fully comply with the order of the court dated September 6, 1983, prior to any further adjudication of the subject-matter in issue. Mr. Mr. Talaulikar has pleaded that in case the court is not inclined to agree with his other contentions and feels that a remand is to be ordered the petitioner should be made to fully comply with the order of the court dated September 6, 1983, prior to any further adjudication of the subject-matter in issue. Mr. Rebello has objected to the granting of such prayer on the ground that the order of September 6, 1983, has already been sought to be executed by the respondent and there is always remedy available for him to seek a lull compliance of the said order. According to Mr. Rebello the petitioner has already done his best to satisfy the demands of the respondent and he is trying to comply fully with the directions of this court to the possible extent of its capabilities. The petitioner has informed the respondent that it is willing to comply with the said order but pleaded its financial constraints. The petitioner has never refused to pay or denied its liability to effect that payment. Learned counsel has also urged that if the petitioner's conduct has sought to be faulted with, it is no lesstrue that the respondent's conduct in this case is also not above board. According to learned counsel, the entire approach of the respondent while trying to seek the enforcement of the award dated March 13, 1988, shows that he is not actually interested in the reinstatement and all he wants is the money to be paid to him. Learned counsel has stated that at no time the respondent approached the panchayat for the purpose of reinstatement. Mr. Talaulikar objected to these submissions of Mr. Rebello and contended that several letters were written to the petitioner in this regard which had not been considered by the petitioner who did not even care to take legal steps to get the award fully enforced. 16. After considering the rival submissions of learned counsel on this point it appears to me that irrespective of the merits of Mr. Talaulikar's grievances which otherwise have been disputed by Mr. Rebello the remand of this case should not be made subject to the compliance by the petitioner of the order of this court dated September 6, 1983. In my judgment, this amounts to a totally different situation involving an issue which the respondent can adequately deal with according to the law. Talaulikar's grievances which otherwise have been disputed by Mr. Rebello the remand of this case should not be made subject to the compliance by the petitioner of the order of this court dated September 6, 1983. In my judgment, this amounts to a totally different situation involving an issue which the respondent can adequately deal with according to the law. The petitioner has stated that the respondent has already taken action in this direction. Being so it is not necessary that in such circumstances any order to be passed in this petition should be linked with the compliance with the order dated September 6, 1983. 17. In the result, the petition is bound to succeed and the award dated March 3, 1988, is hereby quashed and set aside. The matter is remanded to the Tribunal to decide the reference afresh on all the three points raised by the Government in its order dated September 5, 1986, However, bearing in mind that this is a case which is lingering for the last many years since 1984, the Tribunal is directed to dispose of the same reference at the earliest, preferably within a period of six months. Rule accordingly made absolute in the above terms with, however, no order as to costs.