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Gujarat High Court · body

2021 DIGILAW 647 (GUJ)

Sanjaykumar Kalubhai Chauhan v. Principal

2021-07-30

A.P.THAKER

body2021
JUDGMENT : 1. Being aggrieved and dissatisfied with the impugned award dated 11.08.2011 passed by the Labour Court, Godhra in Reference (L.C.G.) No. 89 of 2004, the petitioner has filed the present petition under Articles 226 and 227 of the Constitution of India for the following prayers :- A. YOUR LORDSHIPS be pleased to issue writ of mandamus or appropriate writ and/or certiorari by quashing and setting aside the order dt. 11/8/2011 passed by the Labour Court, Godhra in Reference (LCG) No.89/2004 is illegal, improper and arbitrary and contrary to the provisions of the Industrial Disputes Act, 1947 and be further pleased to direct the Respondent company to forthwith reinstate the Petitioner on his original post with continuity of service with full back wages alongwith all consequential benefits. B. YOUR LORDSHIPS be pleased to pass such other and further order as the nature and circumstances of the case may require. 2. Brief facts of the present case is that the petitioner was serving as Hamal in the respondent – School since last three years prior to the date of his termination and he was being paid a salary of Rs.750/- per month. According to the petitioner, on 16.12.2003, the respondent has illegally terminated his service. Therefore, the petitioner has raised industrial dispute which was referred to the Labour Court being Reference (L.C.G.) No.89 of 2004, wherein, the respondent has contended that the respondent has not covered under the definition of the “industry” and the petitioner was working on fixed salary and fixed time basis and because of the irregularities, the respondent has terminated the petitioner from the service. It is contended by the respondent that he was serving as Hamal on fixed time basis and being paid salary of Rs.750/- per month. 3. After considering the evidence on record and submissions of both the sides, ultimately, the Labour Court has rejected the claim of the petitioner on the ground that the respondent is not “Industry” and therefore, no provisions of the I.D. Act needs to be followed and on the ground that the workman was working on fixed time period. 4. Heard Mr. P.C. Chaudhari, learned advocate for the petitioner and Mr. Soham Joshi, learned Assistant Government Pleader for the respondents, through video conferencing. 5. Mr. 4. Heard Mr. P.C. Chaudhari, learned advocate for the petitioner and Mr. Soham Joshi, learned Assistant Government Pleader for the respondents, through video conferencing. 5. Mr. P.C. Chaudhari, learned advocate for the petitioner has submitted that though there is averments and recital that the petitioner was working as Hamal and this fact has been considered by the Labour Court, the entire award is based on assumption by the Labour Court that the respondent is not an “industry” and, therefore, there is no relationship between the petitioner and respondent – school as employee and employer within the meaning of the Industrial Disputes Act,1947 (hereinafter be referred to as the “I.D. Act”). He has submitted that though the respondent is educational institution as per the decision of the Apex Court in the case of Miss A. Sundarambal Vs. Government of Goa, Daman and Diu and Others, (1988) 4 SCC 42 , the educational institution is an “industry”. He has submitted that since, the work was being taken from the petitioner herein, as Hamal, he is a workman and, therefore, the I.D. Act would be applicable to the facts of the present case. According to him, the stand taken by the Labour Court that the I.D. Act is not applicable to the facts of the present case is erroneous and, therefore, only on this ground, the matter needs to be remanded back to the Labour Court to decide all the points which includes the status of the petitioner with the respondent. 5.1 Mr. Chaudhari, learned advocate for the petitioner has submitted that though the averment made by the respondent that the petitioner was working as Hamal in fixed time period, it appears from the record that he was working on monthly basis and, therefore, it should be considered as 30 days. He has submitted that if this fact is taken into account, then, the petitioner has almost worked for more than 240 days in preceding years. According to him, this fact has not been considered by the Labour Court while deciding the reference and erroneously rejected the claim of the petitioner. 5.2 Mr. Chaudhari, learned advocate for the petitioner has relied upon the following decisions :- (1) Miss A. Sundarambal Vs. Government of Goa, Daman and Diu and Others, (1988) 4 SCC 42 ; (2) General Manager, Telecom Vs. 5.2 Mr. Chaudhari, learned advocate for the petitioner has relied upon the following decisions :- (1) Miss A. Sundarambal Vs. Government of Goa, Daman and Diu and Others, (1988) 4 SCC 42 ; (2) General Manager, Telecom Vs. A. Srinivasa Rao and Others, (1997) 8 SCC 767 ; (3) The order dated 10.12.2007 passed by the Coordinate Bench (Coram: Hon'ble Mr. Justice H.K. Rathod) in Taluka Development Officer Vs. Kanubhai Ganeshbhai Parmar in Special Civil Application No.28944 of 2007; (4) The order dated 09.09.2010 passed by the Coordinate Bench (Coram : Hon'ble Mr. Justice M.R. Shah, the then, His Lordship) in Mahuva Kelavani Sahayak Samaj and other Vs. Ashok Ratilal Rajyaguru C/o. Vasantbhai Pamnani in Special Civil Application No.9437 of 2010 with Special Civil Application No.9438 of 2010; 6. Mr. Soham Joshi, learned Assistant Government Pleader for the respondents has submitted that the facts narrated in the affidavit-in-reply filed in this petition, especially para-8 may be considered, which reads as under : “8. I say and submit that the petitioner workman has also given undertaking in writing to the effect that he is working as a Hamal on temporary basis and in future he will not raise any claim for the concern post. A copy of undertaking given by the petitioner workman on 04/08/2003 is annexed herewith and marked as ANNEXURE – R – II to this affidavit.” 6.1 Mr. Joshi, learned Assistant Government Pleader has submitted that the Labour Court has not committed any serious error of facts and law in rejecting the reference. He has prayed to dismiss the present petition. 7. In the case of Miss. A Sundarambal (supra), the Apex Court has held that even an educational institution has to be treated as an ‘industry’, however, teachers in an educational institution cannot be considered as workmen. 7.1 In the aforesaid decision, the Apex Court has referred to it’s decision in the case of Bangalore Water Supply & Sewerage Board Vs. In the case of Miss. A Sundarambal (supra), the Apex Court has held that even an educational institution has to be treated as an ‘industry’, however, teachers in an educational institution cannot be considered as workmen. 7.1 In the aforesaid decision, the Apex Court has referred to it’s decision in the case of Bangalore Water Supply & Sewerage Board Vs. R. Rajappa, (1978) 2 SCC 213 wherein in para-143 has been quoted, which is as under :- “(a) Where a complex of activities, some of which qualify for exemption, others not, involves employees on the total undertaking, some of whom are not ‘workmen’ as in the University of Delhi case or some departments are not productive of goods and services if isolated, even then, the predominant nature of the services and the integrated nature of the departments as explained in the Corporation of Nagpur, AIR 1960 SC 675 , will be the true test. The whole undertaking will be ‘industry’ although those who are not ‘workmen’ by definition may not benefit by the status.” 8. In the case of General Manager, Telecom (supra), the decision of Bangalore Water Supply & Sewerage Board was followed. After relying upon the decision in the case of Bangalore Water Supply & Sewerage Board, the Apex Court has observed that Telecom Department of Union of India is an ‘industry’ within the definition because it is engaged in a commercial activity and the Department is not engaged in discharging any of the sovereign functions of the State. 9. In the case of Taluka Development Officer (supra), considering the factual matrix of that case, this Court has confirmed the order of the Labour Court granting reinstatement with continuity of service without back wages. 10. In the case of Mahuva Kelavani Sahayak Samaj (supra), the Labour Court has decided the preliminary issue of jurisdiction raised to the effect that the Labour Court has no jurisdiction. The Labour Court has held that it has jurisdiction to entertain the reference which was challenged by way of Special Civil Application which came to be dismissed by this Court upholding the order of the Labour Court. 11. The Labour Court has held that it has jurisdiction to entertain the reference which was challenged by way of Special Civil Application which came to be dismissed by this Court upholding the order of the Labour Court. 11. Now, on perusal of the impugned award of the Labour Court, it appears that the Labour Court has mainly rejected the reference on the ground that the educational institution i.e. respondent – school is not an “industry” within the meaning of the I.D. Act and, therefore, it need not to follow the provisions of the I.D. Act. Of course, by observing this fact, the Labour Court has considered the fact that the petitioner was working for fixed time period and he was being paid salary of Rs.750/- per month. According to the observations of the Labour Court that since this is a fixed time period of service, the provisions of the I.D. Act would not be applicable as the educational institution is not an ‘industry’. Thus, the basis of rejection of the reference is on the assumption that the respondent – school being an educational institution is not “Industry”. 12. Now, considering the aforesaid legal principles annunciated in both the decisions of the Apex Court referred to hereinabove, it clearly transpires that the Apex Court has held that the educational institution is an “industry” within the meaning of the I.D. Act. Of course, it is held that the teacher serving in such educational institution is not a workman. But, when the Apex Court has held that the educational institution is an “industry” then the person other than the teacher i.e. Hamal, Watchman, Waterman etc. may be a workman within the meaning of the I.D. Act. As such, there would be an employee and employer relationship between such person and educational institution. Now, considering the factual aspects of this case, it is crystal clear that the petitioner herein was working as Hamal and he was being paid monthly salary of Rs.750/-. If the Labour Court has considered the aspect that the respondent is an “industry” as per the decisions of the Apex Court, then, it has to consider other aspects as to whether there is a breach of the I.D. Act or not. If the Labour Court has considered the aspect that the respondent is an “industry” as per the decisions of the Apex Court, then, it has to consider other aspects as to whether there is a breach of the I.D. Act or not. Since, the Labour Court has mainly based its decision only on the assumption that the I.D. Act is not applicable to the respondent, it would meet the end of justice if the matter is remanded back to the Labour Court for fresh decision as there is already evidence adduced by both the sides. If such course is adopted, no prejudice is likely to be caused to be otherside as proper opportunity would be available to it before the Labour Court. 13. In view of the above, the petition is liable to be allowed and accordingly, it is allowed. The impugned award dated 11.08.2011 passed by the Labour Court, Godhra in Reference (L.C.G.) No.89 of 2004 is hereby quashed and set aside with the observation that the respondent – school is an “industry” within the meaning of the I.D. Act as laid down by the Apex Court in the case of Bangalore Water Supply & Sewerage Board (supra). The matter is remanded back to the Labour Court for fresh decision. The Labour Court shall decide the reference afresh, after giving opportunity of being heard to both the parties, as expeditiously as possible preferably within a period of three months from the date of receipt of the order of this Court. Both the parties are directed to cooperate with the Labour Court in deciding the reference within the aforesaid period. 14. Rule is made absolute accordingly. No order as to costs.