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2005 DIGILAW 156 (GUJ)

STATE OF GUJARAT v. ABDULBHAI IBRAHIM KURESHI

2005-03-09

SHARAD D.DAVE

body2005
SHARAD D. DAVE, J. ( 1 ) THIS petition is filed by the petitioner - State of Gujarat against the judgment and award dated 31. 05. 1999 passed by the Labour Court, Vadodara in Reference (LCB) No. 182 of 1992 whereby the reference was allowed and the petitioner was directed to reinstate the respondent workman to his original post considering his service as a continued service alongwith consequential benefits and 65% backwages and further directed to make payment of Rs. 2,000/- to the respondent - workman towards cost. ( 2 ) THE brief facts giving rise to this petition are such that the respondent workman was appointed as Watchman at Plantation of Village Anwada Taluka Dabhoi by the petitioner - Forest Department and he was initially paid Rs. 300/- p. m. for the first year and after that he was paid Rs. 150/- p. m. for the next two years and after that Rs. 250/- as paid as monthly salary. On 05. 10. 1991, when the respondent was on his duty, his services came to be terminated by the Range Forest Officer orally, against which he made representations to the petitioner to take him back in service, but they were all vain, ultimately, the respondent filed the above referred reference before the Labour Court, which was decided as stated above. It is against this judgment and award of the Labour Court, the present petition is filed by the State of Gujarat. ( 3 ) IT is submitted by the learned A. G. P. for the petitioner-State that the respondent - workman was called on duty on purely daily wages and that there was no termination by the office of the petitioner. On the contrary, the Range Forest Officer asked the respondent to come on duty but the respondent did not come to work. It is further submitted that the respondent was appointed on daily wages and he was never given appointment on daily wages and that there is Government resolution dated 22. 12. 1999 stating that the resolution dated 17. 10. 1988 of Road and Building Department is not applicable to the employee engaged by Forest Department. He,therefore, prayed for allowing this petition by quashing and setting aside the award of the Labour Court. ( 4 ) MS. PANDIT, learned A. G. P. for the State has relied on letter dated 13. 01. 1999 stating that the resolution dated 17. 10. 1988 of Road and Building Department is not applicable to the employee engaged by Forest Department. He,therefore, prayed for allowing this petition by quashing and setting aside the award of the Labour Court. ( 4 ) MS. PANDIT, learned A. G. P. for the State has relied on letter dated 13. 01. 1992 written by the Range Forest Officer, Dabhoi to the Assistant Labour Commissioner, Vadodara, simple copy of the order passed by this Court dated 18. 06. 1986 in Special Civil Application No. 1044 of 1986 passed by D. C. Gheewala, J (as he then was), resolution dated 22. 12. 1999 whereby the resolutions dated 17. 10. 1988 and subsequent resolutions were referred wherein there were directions not to change the terms and conditions of the daily wages. Relying on the said resolution dated 18. 08. 1999, the learned A. G. P. has further submitted that the work done by these respondents was of temporary nature and therefore the aforesaid resolutions would not help the respondents as it would not apply to the Forest Department. She relied on the decision in case of State of Gujarat and others V/s Pratamsingh Narsinh Parmar reported in (2001) 9 SCC 713 and submitted that the burden lies on the person claiming the establishment to be an industry to place before court positive facts in support of the claim, ordinarily a Government department cannot be regarded as an industry. In absence of any assertion that Forest Department of a State was an industry, merely on the basis of submission on behalf of respondent that termination of service of the respondent was vitiated for non-compliance with Section 25-F, held, High Court erred in allowing the writ petition filed by respondent by taking the view that Forest Department was an industry and as such termination of service without complying with Section 25-F cannot be sustained. ( 5 ) AGAINST the aforesaid submissions, Mr. Mansuri, learned advocate for the respondent - workman, relying on the decisions in case of Khalil Ahmed Vs. Tufail Hussain reported in AIR 1988 SC page 184, Mohammed Yunus Vs. Mohammed Mustaqueem reported in AIR 1984 SC page 38 and Ahmedabad New Textile Mills Vs. ( 5 ) AGAINST the aforesaid submissions, Mr. Mansuri, learned advocate for the respondent - workman, relying on the decisions in case of Khalil Ahmed Vs. Tufail Hussain reported in AIR 1988 SC page 184, Mohammed Yunus Vs. Mohammed Mustaqueem reported in AIR 1984 SC page 38 and Ahmedabad New Textile Mills Vs. Textile Labour Association reported in 29 (2) GLR 1324 (Division Bench), submitted that the under Article 227 of the Constitution of India, the jurisdiction of the High Court is limited and it cannot lightly interfere with the orders passed by competent authorities not overstepping their jurisdiction. It is further submitted that he was paid Rs. 600/- as wages and he worked from 01. 09. 1987 to 05. 10. 1991 continuously on the same post and that on 05. 10. 1991, the Forest Officer told him that his services were not necessary and he is relieved. It is submitted that all these facts are proved before the Labour Court and therefore this petition is not required to be entertained. He relied on the decision in the case of Roshan Deen V/s Preeti Lal reported in 2002 1 CLR 4. ( 6 ) HEARD the learned advocates for the parties and perused the authorities. ( 7 ) IN the case of Roshan Deen (supra), the petitioner made a claim of Rs. 7 lakhs on the factual averments that when he was operating a machine of the mill, but in a sudden tweak, he got himself snapped in the shaft of a column and was crushed by the fast rotating machine and was ruinously injured. His neck, hands, legs etc. suffered multiple injuries including fractures. He was rushed to a private hospital and from there, to the Post Graduate Institute, Chandigarh. An emergency tracheotomy was performed to save his life as the endoscope revealed that his right vocal cord has been paralysed, the trachea and other vessels of the neck were impaired. It was on the basis of these factual averments, the petitioner therein filed the petition for recovery of damages. However, this case would not help the respondent of this case as the facts are altogether different. It was on the basis of these factual averments, the petitioner therein filed the petition for recovery of damages. However, this case would not help the respondent of this case as the facts are altogether different. ( 8 ) IN the case of Pratamsingh Narsinh Parmar (supra), the Honble Apex Court has observed that "if a dispute arises as to whether a particular establishment or part of it wherein an appointment has been made is an industry or not, it would be for the person concerned who claims the same to be an industry, to give positive facts for coming to the conclusion that it constitutes "an industry". Ordinarily, a department of the Government cannot be held to be an industry and rather it is a part of the sovereign function. To find out whether the respondent in the writ petition had made any assertion that with regard to the duty which he was discharging and with regard to the activities of the organisation where he had been recruited. Moreover, when the respondent -workman was appointed as a daily wager for a fixed period and for a specific purpose, the said person has to go home on the expiry of the said period or the purpose or else he would have to work as per the direction of the petitioner. In this case the respondent - workman was purely called on daily wages and also paid to him on daily basis and when the Range Forest Officer asked the respondent - workman to come on the work, he did not turn up. Therefore, it cannot be said to be termination on the part of the petitioner. ( 9 ) I am conscious that under Article 227 of the Constitution of India, this Court has very limited power but if the award is based on wrong assumptions and facts, then this court is required to interfere with such orders. Therefore, it cannot be said to be termination on the part of the petitioner. ( 9 ) I am conscious that under Article 227 of the Constitution of India, this Court has very limited power but if the award is based on wrong assumptions and facts, then this court is required to interfere with such orders. A reference deserves to be made to the case of Bangalore Water Supply and Sewerage Board V/s A. Rajappa reported in AIR 1978 SC 548 wherein it is held that having regard to the subjects allotted to it under the Rules of Business, entire Forest Department cannot be termed as `industry, however, an activity or undertaking of the Department can be categorized as `industry if it satisfies the triple test formulated in the said case and does not fall within the exceptions culled out therein. ( 10 ) IN view of the aforesaid facts and circumstances of this case, this petition requires to be allowed and it is accordingly allowed. The judgment and order passed by the Labour Court, Vadodara in Reference (LCB) No. 182 of 1992 on 31. 05. 1999 is hereby quashed and set aside. Rule is made absolute to the aforesaid extent. .