IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 1937 of 2002 For Approval and Signature: Hon'ble MR.JUSTICE H.K.RATHOD ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : YES of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO @ NAVSARI DISTRICT PANCHAYAT Versus SUMANBHAI MORARBHAI PATEL -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 1937 of 2002 M/S MG DOSHIT & CO for Petitioner No. 1-2 MR KALPESH M PANDIT for Respondent No. 1 MR HD DAVE ASSTT GOVT PLEADER for Respondent No. 2 -------------------------------------------------------------- CORAM : MR.JUSTICE H.K.RATHOD Date of decision: 12/04/2002 ORAL JUDGEMENT #. Heard Mr.M.G.Doshit, learned advocate appearing on behalf of the petitioner and Mr.K.M.Pandit, learned advocate for respondent No.1 - workman as well as Mr.H.D. Dave, learned AGP for respondent No.2. #. The petitioner has challenged the award dated 28th January, 2000 passed by the Labour Court, Navsari in Reference [LCN] No.28/ 1985 wherein, the labour court has set aside the termination order and granted reinstatement with continuity of service with 50 % backwages of interim period. Learned advocate Mr.Doshit on behalf of the petitioner has mainly raised two contentions before this Court. The first contention is the Panchayat is sovereign function of the State and therefore, Industrial Disputes Act is not applicable to the petitioner. The second contention is that the respondent workman has an alternative effective statutory remedy of an Appeal available under the provisions of Section 11 of the Gujarat Civil Services Tribunal Act, 1972 but the workman has not availed such remedy and therefore, the Reference is bad and the Labour Court has committed gross error in passing such award which is without jurisdiction. Mr.Doshit, learned advocate has also relied on the decision of the Apex Court, wherein the Forest Department has not been considered as an industry but the function of the Forest Department is considered to be sovereign of the State. #. Learned advocate Mr.Pandit on behalf of the respondent workman has submitted that initially the respondent workman was working in Health Department with the District Panchayat Valsad but later on when the Reference was raised, he was working with the Navsari District Panchayat. Mr.Pandit, learned advocate has relied on the decision of the Apex Court in case of Nagpur Corporation vs. Its Employees reported in AIR 1960 SC 675, wherein the Apex Court has held that Department of Panchayat is an industry and the provisions of the Industrial Dispute Act, 1947 are applicable to the Panchayat and therefore, Mr.Pandit submits that even for the Health Department of the District Panchayat, the provisions of the I.D.Act would be applicable and therefore, the award passed by the labour court, impugned in this petition is just and proper and there requires no interference by this Court while exercising the powers under Article 226 and 227 of the Constitution of India. #. I have considered submissions of the learned advocates for the parties. Before the Labour Court, the respondent workman has filed statement of claim, wherein it was mentioned that the respondent workman was working with the petitioner with effect from 2nd January, 1981 and performing his duties as Vaccinator in Family Planning and Malaria department. Thereafter, his services were terminated on 1st December, 1983 but at the time of terminating services of the respondent, the petitioner has not complied with the provisions of Section 25-F of the Industrial Disputes Act, 1947 and no notice as given and no pay was given and therefore, termination order is bad and illegal. The workman has stated that during the interim period, he remained unemployed and therefore, he made prayer before labour court that termination order is required to be set aside and he may be reinstated with full backwages. Thereafter, the petitioner has filed written statement vide Exh.5. The respondent workman has produced certain documents at Exh.8 and affidavit of respondent workman in support of the statement of claim also filed by the respondent workman. Initially, after affidavit of the respondent workman vide Exh.10, vide the labour court has passed order below Exh.11 which was challenged by the petitioner by preferring Special Civil Application No.3706 / 1986, wherein this Court has remanded the matter back to the labour court concerned. Thereafter, again the labour court has issued notices to the parties and the petitioner had appeared before the labour court. Thereafter, vide Exh.15 further reply has been filed by the petitioner and raised contention that post of Vaccinator is skilled worker and the workman is not covered under the definition of the workman under Section 2[s] of the Industrial Disputes Act, 1947. The respondent is not qualified to the post of Vaccinator and he was appointed in the post adhoc as per the instructions issued by the State Government for particular period and therefore, after completion of the said period, his services came to an end automatically. That the workman was appointed from 1st January, 1981 for period of two months only and thereafter, he was continued upto 30th April, 1982 and he was terminated on 30th April, 1982. Thereafter, again workman applied on 29th April, 1982 and he was appointed in July, 1982 for temporary period for one month. Thereafter, the petitioner has produced documents vide Exh.16 and raised preliminary issue in regard to jurisdiction of the labour Court. The petitioner has raised some other contentions before the labour court to the effect that the labour court is not having jurisdiction of the provisions made in Gujarat Civil Service Tribunal Act, 1972. Therefore, the labour court had sent the papers to the Service Tribunal. But the Service Tribunal has transferred the matter back to the labour court. Therefore, no order has been passed by the labour court on such application which was filed by the petitioner. Once the tribunal has sent the papers back to the labour court, this fact reflects that the Tribunal has no jurisdiction to try the matter in respect of the present mater. Thereafter, again the labour court had issued notice vide Exh.18 and 23 and on being served the notice, the petitioner vide Exh.25 filed purshis that they do not to lead any oral evidence before the labour court. Thereafter, the workman has also filed purshis that the workman does not want to lead any oral evidence before the labour court. Thereafter, the award passed by the labour court at Exh.28. Notice was thereafter issued by the labour court again to the parties and the respondent workman has produced certain documents vide Exh.34 and vide Exh.38 the petitioner has produced documentary evidence and vide Exh.39 again the respondent workman has produced certain documents. The respondent workman was examined thereafter vide Exh.42. The date of birth of the respondent workman was 15th July, 1957 and certificate given by the Valsad District Panchayat produced at Exh.8/3. The workman also produced certain documents relating resuming duties and relevant records and correspondence between the petitioner and respondent workman. The respondent workman has deposed before the labour court that he remained unemployed during interim period and at present also he is unemployed and further deposed that if the petitioner is prepared to reinstate the respondent workman, he is ready and willing to resume the duties. The workman has also deposed before the labour court that the work which was performed by the respondent was of permanent nature and at present said work is continue and establishment is also in existence. However, the workman disputed that he was Civil Servant while working with the Panchayat. The workman also admits that he was appointed on ad hoc basis and on that condition he was appointed. The respondent workman was appointed on 28th February, 1981 and he remained in service upto 31st April, 1982 and he was relieved on 1st May, 1982. The workman has also admitted that he was not selected employee by the Panchayat but he disputed that he was not qualified for the post in question. That he has not passed examination of Sanitary Inspector. The workman has produced appointment orders on record before the labour court and certificate of physical fitness before the Labour Court. The petitioner has examined one witness Suleman Chhibubhai Khalipha vide Exh.86. Said witness has deposed that he was working since last 31 years and he knows the respondent and the respondent workman was appointed on adhoc post for the period of two months and three months but he was not qualified for the post in question and he has not worked continuously on the post in question. It is also deposed that he has worked periodically with Panchayat and his services were terminated on 1st May, 1982 and he was not workman within meaning of Section 2[s] of the I.D.Act. That the workman has not passed examination of Sanitary Inspector nor he has undergone any training for work of Vaccinator. He also deposed that to appoint any person permanently, such powers are with the district Panchayat and the respondent workman was not selected by the District Panchayat. He also disputed the fact that the respondent workman has worked upto November, 1983. Thereafter, closure purshis was given by the parties and ultimately the matter was decided by the labour court on merits. The labour court had also framed important issues that whether the workman has completed 240 days continues service with the petitioner or not and the second issue whether the provisions of the Industrial Disputes Act, 1947 have been complied with in case of the petitioner or not ? #. The Labour Court has considered that the respondent workman was working with the petitioner for period from 1st January, 1981 to 30th April, 1982 as per certificate Exh.57. This fact has been proved by the respondent by producing certificate Exh.57. Thereafter, Exh.85 the respondent workman was appointed in July, 1982 for period of one month and copy of the said letter has been quoted in the award and considered by the labour court. Considering the said letter dated 20th December, 1997 written by the Gujarat Panchayat Selection Committee addressed to the Selection Committee, Panchayat Officer, Mehsana, the labour court has come to the conclusion that the respondent workman was qualified for the post of Vaccinator and therefore, the labour court has come to the conclusion that the petitioner has appointed respondent workman on the basis of the qualification possessed by the respondent workman. The labour court has further discussed that considering the documents at Exh.42, the workman remained continued upto August, 1983 but no submissions made by the either side in respect of document Exh.49 before the labour court. Therefore, the labour court on the basis of the documents produced before the labour court has considered that the workman had worked for period from 1st January, 1982 to 30th April, 1982. Considering the document produced at Exh.57, the labour court has come to the conclusion that the respondent workman had completed 240 continuous service from 1st January, 1982 to 30th April, 1982 and therefore, before terminating services of the respondent workman, provisions of Section 25-F were requires to be followed by the petitioner. The labour court has also quoted the order of termination which is at Exh.83 issued against the respondent workman letter dated 30th April, 1982. This letter has also quoted in award which shows that the District Panchayat Health Officer addressed a letter to the respondent workman that the respondent workman was appointed as Vaccinator at Siyoda Primary Health Center, Khadsupa but his services now need not require and therefore same is terminated by the District Health Officer. On the basis of this fact, the labour court has come to the conclusion that the respondent workman has completed 240 days continues service and considering the deposition of Suleman Chhibubhai Khalifa vide Exh.86, wherein the witness has admitted that in Primary Health Centre, in all forty workmen were working and before terminating services of the respondent workman, Section 25-F has not been complied with by the petitioner. The labour court has also come to the conclusion that no doubt service of the respondent workman was terminated on 30th April, 1982 but looking to the memo issued to the respondent workman vide Exh.49, there was some presumption must have to be drawn against the petitioner and the respondent workman has worked upto 1983. The labour court has also considered the correspondence between the petitioner and the respondent which was produced before the labour court at Exh.50 and 54. However, against said correspondence, the petitioner has not given any reply to the respondent workman. The witness of the petitioner has also admitted that at the time of terminating services of the respondent, no salary nor any retrenchment compensation was paid to the respondent workman and even no notice was given or no notice was given to the respondent workman. Therefore, the labour court has come to the conclusion that the petitioner has violated provisions of Section 25-F of the Industrial Disputes Act, 1947. Thereafter, the labour court has considered the question of backwages and considering the fact that the petitioner is depend upon the Government grant and the present Reference is pending before the labour court since long time and one more fact that the petitioner has asked for number of adjournments in present Reference. Thus, considering all these aspects on the issue of grant of backwages, the labour court has thought it fit to grant 50 % backwages of the interim period. #. So far the challenge against the award impugned in this petition before this Court, Mr.Doshit, learned advocate for the petitioner has mainly raised two contentions only. So far the first contention is the Panchayat is sovereign function of the State and therefore, Industrial Disputes Act is not applicable to the petitioner. It is also contended that the Panchayat service is not covered by the definition of an industry as provided under Section 2[j] of the I.D.Act, 1947. To examine this contention, the averments made by the petitioner in the written statement filed before the labour Court requires to be considered. Before the labour court, written statement was filed by the petitioner at Exh.15. However, it is pertinent to note that in written statement, no such contention was raised by the petitioner before the labour court that Panchayat Service is not covered under definition of an industry under Section 2[j] of the Act. Not only this, but this contention was not raised in the submissions before the labour court by the petitioner. Therefore, obviously the labour court has not decided this question which was admittedly not raised before the labour court. However, only one contention was raised before the labour court that the respondent workman was not the workman within the meaning of Section 2[s] of the I.D.Act. On the contrary, in reply the petitioner admitted that the post of Vaccinator is post of skilled workman. But considering the provisions of the law itself, the the post in question which is meant for skilled workman itself suggests that the post of Vaccinator was covered under the definition of the workman. Moreover, the witness of the petitioner who was examined before the labour court, has in his deposition has deposed that the workman was not having any managerial powers or supervisory capacity while working as Vaccinator. However, no such statement was made on oath by the witness of the petitioner before the labour court. Merely raising the contention in written statement cannot be considered as an evidence but such contention ought to have been substantiated by the record or documentary evidence. Therefore, when the witness of the petitioner has not deposed before the labour court to the effect that the respondent workman was having some managerial power and supervisory capacity or because of the salary ceiling, he was out side the scope of Section 2[s] of the Act. Thus, no such evidence was led and produced before the labour court by the petitioner. Therefore, the labour court has rightly considered that the respondent was workman within the meaning of Section 2[s] of the I.D.Act. However, this aspect has been examined by the Apex Court in case of NAGPUR CORPORATION V. ITS EMPLOYEES reported in AIR 1960 SC 675. Relevant observations wherein the Health Department has been considered as an Industry of the Panchayat Service, made in para-9 of this judgment, are reproduced as follows : "[9] Let us scrutinize the definition of "industry" to ascertain whether all or some of the conditions are implicit in the definition and whether the said conditions constitute the necessary basis for it. The true meaning of the section must be gathered from the expressed intention of the Legislature. Maxwell in his book "on the Interpretation of Statutes," 10th Edn., rightly points out at p.2 that "if the word of the statute are in themselves precise and unambiguous no more is necessary than to expound those words in their natural and ordinary sense, the words themselves in such case best declaring the intention of the legislature.". The words used in the section are clear and unambiguous and they prima facie are of the widest import. We have pointed out that the section is in two parts : Cl [a] defines "industry " with reference to employers and Cl.[b] defines it with reference to employees. Clause [c] extends the definition to any branchy of an industry or a group of industries, i.e. industries coming within the definition of cls [a] and [b]. It is said that in construing the definition we must adopt the rule of construction noscuntur a sociis. Maxwell explains this doctrine at pg.332 thus : "When two or more words which are susceptible of analogous meaning are coupled together noscuntur a sociis. They are understood to be used in thier cognate sense. They take, as it were, their colour from each other, that is, the more general is restricted to a sense analogous to the less general." On the basis of this doctrine, it is argued that the words following the words any business, trade, manufacturing or mining undertaking" shall partake the characteristics of any business, trade, manufacturing or mining undertaking and the words "any calling, service, employment, handicraft or industrial occupation or avocation of employees" shall share the qualities of an industrial occupation or avocation. In other words, the general word "calling service etc." in Cl.[b] are restricted by the succeeding words "industrial occupation or avocation. This doctrine was dealt with by this Court in AIR 1960 SC 610. Therein this Court has considered the scope of this doctrine and has observed thus : "It must be borne in mind that noscuntur a sociis is merely a rule of construction and it cannot prevail in cases where it is clear that the wider words have been deliberately used in order to make the scope of the defined word correspondingly wider. It is only where the intention of the Legislature in associating wider words with words of narrower significance is doubtful that the present rule of construction can be usefully applied. It can also be applied where the meaning of the words of wider import is doubtful; but where the object of the Legislature in using wider words is clear and free of ambiguity; the rule of construction in question cannot be pressed into service." The said doctrine, therefore, cannot be invoked in cases where the intention of the legislature is clear and free of ambiguity. The phraseology used in the section is very clear and it is not susceptible of any ambiguity. The words used in the first part of Cl.[b] are unqualified; and the qualification is introduced only in the later part. If the words "calling, service, employment, handicraft" are really intended to be qualified by the adjective "industrial", one should expect the Legislature to affix the adjective to the first word "calling" rather than to the last word "occupation". The inclusive definition is a well recognized device to enlarge the meaning of the word "industry" must be construed as comprehending not only such things as it signifies according to its natural import but also those things the definition declares that it should include; see Stroud's Judicial Dictionary, Vol.2 p. 1416. So construed, every calling, serving, employment of an employee or any business, trade or calling of an employer will be an industry. But such a wide meaning appears to be overreach the objects for which the Act was passed. It is therefore necessary to limit its scope on permissible grounds, having regard to the aim, scope and the object of the whole Act. To arrive at the real meaning of the words, Lord Coke in Heydon's case [1584] 7 Co Rep 7a says that the following matters are to be considered. [1] What was the law before the Act was passed; [2] What was the mischief or derect for which the law had not provided [3] What remedy Parliament has appointed and [4] The reason of the remedy. The word "employers" kin cl.[a] and the word "employees" in Cl.[b] indicate that the fundamental basis for the application of the definition is the existence of that relationship. The cognate definitions of "industrial dispute", "employer," "employee" also support it. The long title of the Act as well as its preamble show that the Act was passed to make provisions for the promotion of industries and peaceful and amicable settlement of disputes between employers and employees in an organized activity by conciliation and arbitration and for certain other purposes. If the preamble is read with the historical background for the passing of the Act, it is manifest that the Act was introduced as an important step in achieving social justice. The Act seeks to ameliorate the service conditions of the workers, to provide a machinery for resolving their conflicts and to encourage cooperative effort in the service of the community. The history of labour legislation both in England and India also shows that it was aimed more to ameliorate the conditions of service of the labour in organized activities than to anything else. The Act was not intended to reach the personal services which do not depend upon the employment of a labour force." In a very decision, the Apex Court has considered each of the departments of the Corporation held by the State Industrial Court to be governed by the Act including "Health Department" in para 20[ix]. The relevant observations are quoted as under :- "[ix] Health Department : This department looks after scavenging, sanitation, control of epidemics, control of food adulteration and running of public dispensaries. Private institutions can also render these serves. It is said that the control of food adulteration and the control of epidemics cannot be done by private individuals and institutions. We do not see why. There can be private medical units to help in the control of food adulteration and in the control of epidemics for remuneration. Individuals may get the food articles purchased by them examined by the medial unit and take necessary action against guilty merchants. So too, they can take advantage of such a unit to prevent epidemics by having necessary inocultations and advice. This department also satisfies the other test laid down by us, and is an industry within the meaning of definition of "industry" in the Act." #. The view expressed by the Apex Court in case of THE CORPORATION OF CITY OF NAGPUR as referred has been taken into account subsequently by a seven Judge Bench of the Apex Court in case of BANGALORE WATER SUPPLY AND SEWERAGE BOARD ETC. VS. A. RAJAPPA AND OTHER ETC. reported in 1978 [1] LLJ pg.349. The relevant observations made by the Apex Court are reproduced as under : "The main judgment laid down the following