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2003 DIGILAW 153 (PNJ)

District Red Cross Society v. Krishna Kumari

2003-01-29

N.K.SODHI

body2003
Judgment Per N. K. SODHI, J. 1. This petition under Article 226 of the constitution is directed against the award dated august 29, 1986, passed by the Presiding officer, Labour Court, Rohtak, whereby the reference made to it under Sec.10 (l) (c) of the Industrial Disputes Act, 1947 (hereinafter referred to as "the Act"), was answered in favour of the workman and against the management holding that the former is entitled to be reinstated with continuity of service and full back wages. 2. According to the averments made by smt. Krishna Kumari respondent she had been employed as a lady social worker in the year 1961 and remained in the employment of the district Red Cross Society, Sirsa, upto february 28, 1983, when her services were terminated without any prior notice or payment of any retrenchment compensation as envisaged by Sec.25-F of the Act. Her termination gave rise to an industrial dispute which was referred to the Labour Court for adjudication under Sec.10 (l) (c) of the Act. There were two respondents before the Labour court. The Director, Health Services, haryana, was the first respondent and the secretary, District Red Cross Society, Sirsa, was the second respondent. They filed their replies and it was pleaded that since the director, Health Services had not passed any order terminating the services of the workman she was not entitled to claim any relief against the said respondent, The District Red Cross society took the stand that the workman had been employed on purely temporary basis and that her services had been terminated according to stipulation contained in the letter of appointment after giving her one months notice. It was further pleaded that the Family planning Centre, Dabwall, where the petitioner had been employed was, being run by the district Red Cross Society on the basis of grants sanctioned by the Haryana Government and since the State Government had stopped sanctioning the grant the Centre had to be closed necessitating the termination of the services of the workman. It was also pleaded that the District Red Cross Society was not an "industry" within the meaning of Clause (j) of sec. 2 of the Act. 3. From the pleadings of the parties, the following three issues were framed: " 1. Whether the respondent in this case by the appropriate authority which made reference of the dispute to this Court ? 2. 2 of the Act. 3. From the pleadings of the parties, the following three issues were framed: " 1. Whether the respondent in this case by the appropriate authority which made reference of the dispute to this Court ? 2. Whether the reference is bad in law? 3. As per terms of reference. " 4. Issue No.1 was not happily worded as has been noticed by the Labour Court. The plea taken by the Director, Health Services was that the reference was not maintainable against him as no order of termination had been passed by his office. The Labour Court accepted this contention and decided the issue in favour of that department. Issue No.2 had not been pressed as noticed by the Labour Court. As regards issue No.3, the Labour Court on a consideration of the oral and documentary, evidence led by the parties came to the conclusion that the services of the workman had been terminated after giving her one months prior notice but no retrenchment compensation had been paid. This, according to the Labour, court, was a contravention of the provisions of sec. 25-F of the Act and, therefore the workman was entitled to be reinstated with continuity of service and full back wages. Hence, this writ petition. 5. I have heard learned counsel for the parties and find no merit in the writ petition. The only ground on which the impugned award has now been challenged before me is that the activities of the District Red Cross Society do not fall within the definition of "industry" as contained in Clause (j) of Sec.2 of the Act and, therefore, the reference made to the labour Court was without jurisdiction. I am unable to accept this plea. No doubt, a plea to this effect has been taken by the petitioner in its written statement filed before the Labour 5 Court but the same was not pressed at the time when issues were framed. One omnibus issue had been framed, namely, "whether the reference is bad in law ?" This issue was not pressed before the Labour Court. The petitioner did not lead any evidence to show as to what were the nature of activities carried on by the District Red Cross Society. Since this issue was not raised before the Labour Court it did not give any decision thereon. The petitioner did not lead any evidence to show as to what were the nature of activities carried on by the District Red Cross Society. Since this issue was not raised before the Labour Court it did not give any decision thereon. Such an issue cannot Be raised for the first time before this I court in proceedings under Article 226 of the constitution. The question whether an activity falls within the ambit of "industry" is a mixed question of law and fact and involves investigation of facts and in the very nature of things it cannot be allowed to be raised for the first time in the proceedings. 6. Now, coming to the merits of the termination, the Labour Court has found as a fact that the workman had not been given retrenchment compensation even though she had been served with one months prior notice. This is clearly in violation of Sec.25-F of the Act and, therefore, the Labour Court was justified in setting aside order of termination and directing reinstatement of the workman with full back wages. In this view of the matter, no fault can be found with the findings recorded in the impugned award. 7. No other point has been raised. 8. In the result, the writ petition fails and the same stands dismissed with no order as to costs.