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2013 DIGILAW 768 (GUJ)

Amreli District Panchyat v. Bharatkumar R. Pandya

2013-12-23

RAVI R.TRIPATHI

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Judgment Ravi R. Tripathi, J.—Amreli District Panchayat through its District Development Officer is before this Court being aggrieved by judgment and award dated 21.03.2006 passed by the learned Judge of Labour Court, Bhavnagar in Reference (LCB) No. 164 of 1990, a copy of which is produced at Annexure-D. 2. The facts of the case are that the respondent workman was employed pursuant to communication dated 09/11.05.1983, by which the authority (Jilla Panchayat Kacheri) directed the Deputy Executive Engineer to open a sub-division so as to take care of the damage caused by cyclone in the year 1982 to irrigation infrastructure. 3. Learned Advocate Mr. Munshaw for the petitioners invited attention of the Court to order dated 17.11.1984, Annexure-B, whereby the period was extended for two subdivisions to operate till 28.02.1985. It is the case of the petitioner that on expiry of that term and on completion of the work of carrying out necessary repairs of the irrigation infrastructure, the sub-divisions were closed and therefore, the respondent workman, who was appointed on daily wages, was asked not to continue in work. 3.1 The respondent workman approached the Labour Court after 5 years by filing Reference (LCB) No. 164 of 1990, which was pursuant to an order of Assistant Labour Commissioner, Bhavnagar dated 22.03.1990 bearing No. KH/SHMC/AJB/IDR/141/90/2372. The question referred to was whether the respondent workman – Shri Bharatkumar R. Gondaliya should be reinstated to his original post with wages of the intervening period. 3.2 Learned Advocate for the petitioners invited attention of the Court to the award passed by the learned Judge of Labour Court No. 1, Bhavnagar. Learned Advocate for the petitioners invited attention of the Court to the fact that the learned Judge has committed an error in not taking into consideration the most relevant aspects of the matter, viz. (1) the authority was not an ‘industry’ in light of the judgment of this Court in the matter of J.J. Shrimali vs. District Development Officer, reported in 1989 (1) GLR 396 = 1989 (2) GLH 12 , wherein the Court was pleased to hold that, “The employment offered to the person on the scarcity relief works undertaken by the State cannot be said to be employment in ‘Industry’ as defined by Section 2(j) of the Industrial Disputes Act, 1947". 3.3 Learned Advocate for the petitioners then invited attention of the Court to a decision of Full Bench of this Court in the matter of H.K. Makwana vs. State of Gujarat & Ors., reported in 1994 (2) GLR 1002 , who endorsed the view of the Division Bench in the matter of J.J. Shrimali (Supra). The Full Bench said like this:— “The Court entirely agree with the decision rendered by this Court in the case of J.J. Shrimali, ( 1989 (1) GLR 396 ) and it does not call for any reconsideration. The employment offered to the person on the scarcity relief works as undertaken by the State cannot be said to be employment in ‘Industry’ as defined by Section 2(j) of the Industrial Disputes Act, 1947 mainly because, (a) It is the primary and inalienable function of the State to provide livelihood to the persons who are affected by the natural calamities such as famine, earthquake, epidemic, flood, scarcity, etc. and (b) admittedly, the relief work is not a ‘business’ or ‘trade’ and with regard to the ‘undertaking’ the activity is not analogous to trade or business or that it is not a systematic activity but is carried out casually at different places depending on the calamities in a particular area.” 3.4 Learned Advocate for the petitioners submitted that on the aforesaid ruling of this Court, the respondent was not a workman and therefore, the learned Judge of the Labour Court was not right in passing order for reinstating him without back wages. Learned Advocate for the petitioners submitted that the learned Judge of the Labour Court has also erred in not appreciating the fact that once repairing work of the irrigation infrastructure was over there was no work, the services of the respondent workman could not have been continued. 3.5 Learned Advocate for the petitioners submitted that the respondent workman approached the Labour Court after a lapse of five years, to which attention and due weightage was not given while granting any relief to the respondent workman. 3.6 Last but not the least, learned Advocate for the petitioners submitted that the hard reality is that this matter is being considered in the year 2013 and the respondent was given work as a daily wager in the year 1983 and in 1985, his work came to an end. 3.6 Last but not the least, learned Advocate for the petitioners submitted that the hard reality is that this matter is being considered in the year 2013 and the respondent was given work as a daily wager in the year 1983 and in 1985, his work came to an end. Therefore, granting any relief will amount to granting relief after a lapse of three decades by that time, all the circumstances have changed. Therefore, no relief can be granted to the respondent workman. 4. Learned Advocate Mr. Paul for the respondent workman submitted that the learned Judge of the Labour Court has not committed any error in awarding reinstatement, that too without back wages. Learned Advocate for the respondent workman submitted that this will not cause any financial burden to the petitioner- District Panchayat and therefore, this Court need not interfere with the order passed by the learned Judge of the Labour Court. 4.1 Besides that, learned Advocate for the respondent workman also invited attention of the Court to the fact that the petitioner-District Panchayat did not produce necessary documents before the learned Judge of the Labour Court and therefore, the learned Judge of the Labour Court was compelled to draw adverse inference against the petitioner-District Panchayat. 5. Taking into consideration the rival submissions of the learned Advocate appearing for the parties, this Court is of the opinion that the judgment and award of the learned Judge of the Labour Court is not just and proper in the facts and circumstances of the case, more particularly in light of the fact that the Division Bench of this Court, which is later on confirmed by the Full Bench of this Court, has held that any work of such nature, which arises due to any natural calamity which is beyond the control of the authority cannot be said to be an ‘Industry’ and therefore, the respondent cannot be said to be ‘workman’ and therefore, no relief could have been granted to the respondent. 6. In view of the aforesaid discussion, the petition is allowed. The judgment and award dated 21.03.2006 passed by the learned Judge of Labour Court, Bhavnagar in Reference (LCB) No. 164 of 1990 is quashed and set aside. Rule is made absolute. No order as to costs.