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2011 DIGILAW 552 (GUJ)

State of Gujarat v. Vilkubha Jilubha Takmaliya

2011-07-20

G.B.SHAH, V.M.SAHAI

body2011
JUDGMENT : G.B. SHAH, J. 1. Heard learned Assistant Government Pleader Mr. N.J. Shah for the appellants and learned Counsel Mr. K.M. Paul for the respondent. Present Letters Patent Appeal has been filed under Clause 15 of the Letters Patent, against the judgment and order passed by learned Single Judge dated 19.2.2002, whereby Special Civil Application No. 360 of 2002 filed by the appellants was rejected. 2. Brief facts of the case are that respondent was working as Watchman with the appellants and his services came to be terminated with effect from 1.4.1989. Therefore, the respondent raised an industrial dispute, which came to be referred to the Labour Court, Rajkot and registered as Reference (LCR) No. 330 of 1990. Labour Court, Rajkot passed judgment and award dated 21.7.2001, quashing and setting aside the order of termination by holding the same to be illegal and directing the appellants to reinstate the respondent on his original post with effect from 1.4.1989 with continuity of service along with 25% back wages. 3. The appellant being aggrieved by the said award of the Labour Court, preferred Special Civil Application No. 360 of 2002. The learned Single Judge dismissed the said petition by judgment and order dated 19.2.2002. 4. The learned Counsel for the appellants urged that Deputy Director of Animal Husbandry, under whom the present appellant was working, does not fall within the definition of 'Industry'. Though this point was raised before the Labour Court, the Labour Court did not decide the said issue and passed the award. The appellants submitted written statement of defence before the Labour Court vide Exh.8, stating that Department of Animal Husbandry does not fall within the definition of 'Industry', that it is not falling within the definition of Trade' or 'Business', that it does agricultural work and since it is not an industry or trade, the Industrial Law could not be applied. Further, the appellants in the said written statement of defence submitted that u/s 80 of the Code of Civil Procedure, the appellant, being 'State', was required to be issued with a notice. However, since no notice was served, the reference application of the respondent was not maintainable. The learned Presiding Officer of the Labour Court did not consider the written statement of defence submitted by the appellants and decided the reference application though the Labour Court did not have jurisdiction to proceed with the said case. However, since no notice was served, the reference application of the respondent was not maintainable. The learned Presiding Officer of the Labour Court did not consider the written statement of defence submitted by the appellants and decided the reference application though the Labour Court did not have jurisdiction to proceed with the said case. 5. Learned Counsel Mr. Paul appearing for the respondent has drawn our attention on the order dated 19.2.2002 passed by the learned Single Judge in Special Civil Application No. 360 of 2002 and submitted that it has been specifically observed by the learned Single Judge that the State of Gujarat had not taken care which was required to be taken and inordinate delay caused in deciding the matter before the Labour Court solely due to non-co-operative attitude of the appellants and considering the said aspects, it has been observed by the learned Single Judge that if the State Government itself does not honour the forum of Labour Court, a serious view was required to be taken and accordingly, the petition filed by the appellants was rejected and this Court should also consider the said aspects in letter and spirit of the order passed by the learned Single Judge. 6. In support of his argument, the learned Assistant Government Pleader has placed reliance on a decision in Himanshu Kumar Vidyarthi and Others vs. State of Bihar and Others, (1997) 4 SCC 391 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. 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.... 7. 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.... 7. In view of the above discussion, we are of the considered opinion that when the specific contention was raised before the Labour Court, it was the duty of the Labour Court to deal with the said aspects. We are not agreeable with the findings of the learned Single Judge because at the initial stage, while filing the written statement of defence, this specific contention had been raised by the appellants but, the same was not dealt with by the Labour Court. Therefore, the matter is required to be remanded back to the Labour Court. 8. In the result, the Appeal is allowed. Order of the learned Single Judge dated 19.2.2002 passed in Special Civil Application No. 360 of 2002 is set aside. The matter is remanded back to the Labour Court, Rajkot to decide the issue whether the appellants, original opponents in Reference (LCR) No. 330 of 1990, 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.