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2011 DIGILAW 472 (GUJ)

State of Gujarat v. Pareshkumar Ramniklal Vyas

2011-06-20

G.B.SHAH, V.M.SAHAI

body2011
JUDGMENT : G.B. Shah, J. Being aggrieved by the order dated 26.12.2005 passed by the learned Single Judge in Special Civil Application No. 5441 of 2001, the appellant-State has preferred this Letters Patent Appeal under clause 15 of the Letters Patent on the grounds stated in the memo of the Appeal. 2. We have heard Mr N.J. Shah, learned AGP for the appellant and Mr S. C. Patel, learned counsel for the respondent. The brief facts of the case are that the respondent was working as part-time Typist with the appellant's office i.e. office of the Deputy Collector at Rajula, District Amreli since 16.5.1992. On completion of 240 days, the respondent had made a representation on 29.6.1999 for a post of full time Gujarati Typist through Union. On 3.7.1999 the respondent was discharged from service of the appellant without being served with any notice or notice pay. Being aggrieved by the said order of dismissal, the respondent raised an industrial dispute which was referred to Labour Court, Amreli for adjudication. The Labour Court, Amreli, after hearing the parties, passed the award dated 12.1.2001 in Reference (LCA) No.15 of 2000 and directed the appellant to reinstate the respondent on his original post with continuity of service and 75% back wages. The appellant has challenged the said award before the learned Single Judge by filing Special Civil Application No.5441 of 2001 and the learned Single Judge has partly allowed the writ petition and the award of the Labour Court insofar as the direction of reinstatement with continuity of service of the respondent was confirmed and granting of 75% back wages was quashed and set aside. This order is under challenge in this Appeal. 3. Learned AGP Mr N.J. Shah has mainly drawn our attention to the award dated 12.01.2001 passed by the Labour Court, Amreli and submitted that the Labour Court has failed to consider rather has not dealt with the important aspects/issues of the case that whether the appellant-original respondent i.e. the Collector's office can be said to be an industry' under the provisions of the Industrial Disputes Act, 1947 (for short, "the Act"). The learned AGP has also submitted that before the learned Single Judge, this issue was raised elaborately that the award dated 12.1.2001 passed by the Labour Court in Reference (LCA) 15 of 2000 deserves to be quashed and set aside only on the ground that the appellant-State authority is not an "Industry" under the provisions of the Act. Learned AGP has then submitted that by no stretch of imagination it can be said that the office of the Collector is an "industry" and looking to the functions of the department of the Collector's office, the functions performed by the department are of public importance and therefore, it cannot be said that the appellant is an "industry". He has, further submitted that against the claim statement filed by the respondent, the appellant has filed written statement on 14.9.2000 wherein it had been specifically contended in para 3 that the appellant is not an "industry" and before lodging any proceedings against the appellant, the respondent is required to issue notice under section 80 of the Civil Procedure Code, 1908. Lastly, learned APP has submitted that without entering into the merits of the case on he above referred submissions, this Letters Patent Appeal is required to be allowed as it is the fact that the appellant is not an "industry" and as such on this important issue, the Labour Court Judge has remained silent and not touched at all and decided the Reference leaving that issue aside and also ignoring the same and stretching the issue beyond its limitation. 3.1. In support of his arguments, the learned AGP has placed reliance on the decision in Himanshu Kumar Vidyarthi and Others v. State of Bihar and others AIR 1997 SC 3657 wherein in para 3 of the judgment, the Apex Court has observed as under: "...Every Department of the Government cannot be treated to be "industry". When the appointments are regulated by the statutory rules, the concept of "industry" to that extent stands excluded. Admittedly, they were not appointed to the posts in accordance with the rules but were engaged on the basis of need of the work. They are temporary employees working on daily wages. Under these circumstances, their disengagement from service cannot be stretched to be a retrenchment under the Industrial Disputes Act. The concept of "retrenchment", therefore, cannot be stretched to such an extent as to cover these employees. They are temporary employees working on daily wages. Under these circumstances, their disengagement from service cannot be stretched to be a retrenchment under the Industrial Disputes Act. The concept of "retrenchment", therefore, cannot be stretched to such an extent as to cover these employees. The learned counsel for the petitioners seeks to contend that in the High Court, the petitioners did not contend that it is a case of retrenchment but termination of their services is arbitrary. Since they are only daily-wage employees and have no right to the posts, their disengagement is not arbitrary...." 4. Mr. S.C. Patel, Learned counsel for the respondent has submitted that the above contention that the appellant is not an "industry"and whether the office of the Collector is an "industry" or not was not taken up by the appellant before the Labour Court at the initial stage and so now in appeal, he cannot again raise the same before this Court in appeal and this court should not entertain that issue now. On the above issue, in support of his argument, learned counsel for the respondent has placed reliance on a decision in Krishan Singh v. Executive Engineer, Haryana State Agricultural Marketing Board, Rohtak (Haryana) (2010) 3 SCC 637 . Learned counsel for the respondent has also drawn our attention to para 13 at pages 11, 12, and 13 of the award dated 12.1.2001 passed in (LCA) 15 of 2000 by the Labour Court, Amreli and contended that the Labour Court has dealt with all the aspects of the case and the learned Single Judge has also considered the same and after quashing the order directing to pay back wages, the learned Single Judge has confirmed the award of the reinstatement of the respondent on the original post with continuity of service and so now in this Letters Patent Appeal, scope before this Hon'ble Court becomes very narrow and so the present Appeal should be dismissed. Looking to the facts and circumstances of the case and on perusal of the records, we cannot accept the factual submissions of the learned counsel for the respondent and thus in our view, the case of Krishan Singh (supra) relied upon by the learned counsel for the respondent is not applicable to this case. 5. We have considered the above rival submissions made by the learned counsel for the parties. 5. We have considered the above rival submissions made by the learned counsel for the parties. We have carefully perused the Records & Proceedings of this appeal along with the impugned award dated 12.1.2001 passed in Reference (LCA) No.15/2000 by the Labour Court, Ahmedabad. Para 11 of the said award at page No.10 is the oral submissions made by learned Advocate Mr. N.N. Bhatt for the first party, Deputy Collector, office of the Deputy Collector, Rajula, District Amerli. As noted by the Labour Court Judge, the learned Advocate for the above referred first party had argued before him that there was no relationship of 'employer employee' between the applicant and the opponent Institution and this Institution does not fall under the definition of Industry. When the learned Advocate for the Deputy Collector had specifically raised the above referred point that the office in question does not fall within the definition of "industry", in our view, the Labour Court was bound to deal with the said point but as submitted by the learned AGP, though the Labour Court Judge had touched all the aspects in detail but had ignored and not touched the above issue at all and accordingly not considered the said very important and vital question while entertaining the case of the respondent. 6. In the petition being Special Civil Application No. 5441 of 2001 in paras 1 to 4, the above submissions made by the learned AGP categorically and at length narrated by the appellant which reads as under: "1.The petitioner at the outset submits that an award passed by the Court, Amreli in Reference (L.C.A.) no.15/2000, dated 12.1.2001 deserves to be quashed and set aside only on the ground that the petitioner state authority is not an industry under the provisions of Industrial Disputes Act . Annexed hereto and marked as Annexure -A is the copy of the award dated 12.1.2001. It is submitted that Hon'ble Supreme Court of India very recently in the matter of State of Gujarat v. P.N. Parmar reported in JT 2001 (3) SCC 326 held that ordinarily department of Government is not an Industry and it is for the workman to plead and establish before the Court below if the activities are in nature of Industry. It is submitted that under the circumstances an award of the Labour Court is without jurisdiction. 2. It is submitted that under the circumstances an award of the Labour Court is without jurisdiction. 2. The petitioners further submit that Division Bench of this Hon'ble Court also took this view in the judgment reported in 2000 Vol.I GLH page No.482 that irrigation department of the Government is not an Industry. 3. The petitioner further submits that admittedly by any stretch of imagination it cannot be stated that office of the Collector is an Industry. It is respectfully submitted that obviously looking to the functions of the department of the Collector's office, the function performed by the department are of public importance and functions are purely sovereign in nature and, therefore, the petitioner is not an industry. It is submitted that before the Labour Court the present respondent has filed claim statement dated in the month of July 2000. It is alleged by the present respondent that respondent was working as part time Gujarati Typist. It is also alleged by the respondent that w.e.f. 3.7.1999 services were orally terminated by the present petitioner. Annexed hereto and marked as Annexure-B is the copy of claim statement. 4. The petitioner submits that as against the claim statement filed by the respondent, the present petitioner has filed written statement on 14.9.2000 and it is specifically pleaded in the written statement in para 3 that petitioner is not an industry and before lodging any proceedings against the petitioner, respondent is required to issue notice under section 80 of the Civil Procedure Code. The petitioner further submits that in the written statement it is specifically denied by the petitioner that respondent was ever employed as part time typist as alleged by the respondent and as a matter of fact the respondent was given miscellaneous typing job on contract basis and for that Rs. 1/- was to be paid by the petitioner office per page as per the understanding. Annexed hereto and marked Annexure C is the copy of the written statement." 7. The learned Single Judge in his order dated 26.12.2005 passed in Special Civil Application No.5441 of 2001 has stated in para 4 of the order as under: "I have gone through the award of the Labour Court. The Labour Court has gone through the evidence on record in detail and has observed that after discharging the respondent from service, recruitments were made by the petitioner department for the same post. The Labour Court has gone through the evidence on record in detail and has observed that after discharging the respondent from service, recruitments were made by the petitioner department for the same post. I have gone through the facts of the case and the evidence available on record. I am in complete agreement with the reasoning adopted and the findings arrived at by the Labour Court qua reinstatement. Therefore, in my opinion, the order of reinstatement is not required to be interfered with." Thus, while passing the order, learned Single Judge has not taken into consideration the above referred points raised by the present appellant in paras 1 to 4 of the Special Civil Application. Thus, it is clear from the above discussion and on the basis of the evidence on record that in spite of the fact that the learned Advocate Mr. N.N. Bhatt appearing for the Deputy Collector, Amreli had argued and had raised objection to the effect that whether the appellant is an "industry" or not was required to be dealt with by the learned Labour Court Judge. The Labour Court Judge has also failed to consider the said aspects and leaving this important contention aside, he had dealt with the rest of the aspects at length and so likewise the learned Single Judge has also placed reliance on the award dated 12.1.2001 passed by the Labour Court Judge in Reference (LCA) 15/2000 in to and the above issue again was not taken care of by the learned Single Judge and thus, in our view, this is the vital issue which was required to be taken care of by the learned Single Judge and so without entering into the merits of the case we deem it fit to remand this matter with a direction to the Labour Court, Amreli to deal with the above issue whether office of the Deputy Collector can be said to be an "industry" or not. 8. In the result, this Appeal succeeds in part and is allowed accordingly. The order of the learned Single Judge dated 26.12.2005 passed in Special Civil Application No.5441 of 2001 is set aside. 8. In the result, this Appeal succeeds in part and is allowed accordingly. The order of the learned Single Judge dated 26.12.2005 passed in Special Civil Application No.5441 of 2001 is set aside. Without entering into the merits of the case, the matter is remanded to the Labour Court to decide the issue whether the Deputy Collector's office is an "industry" under the provisions of the Industrial Disputes Act, 1947 with a further direction to decide the issue on merits without being influenced by the observations made by this Court. 9. In view of the order passed in the Appeal, Civil Application No. 7724 of 2006 does not survive and is accordingly disposed of. Rule is discharged. The ad-interim relief, if any, stands vacated. Order accordingly.