SCA/2620/2008 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 2620 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE K.M.THAKER ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= NIRANJANBHAI JAYASHANKAR ACHARYA - Petitioner(s) Versus SHETH SHRI H J MAHAGUJARAT HOSPITAL & 1 - Respondent(s) ========================================================= Appearance : MR BHARAT SHAH for Petitioner(s) : 1, NOTICE SERVED for Respondent(s) : 1 - 2. MR DG CHAUHAN for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE K.M.THAKER Date : 08/08/2008 ORAL JUDGMENT The petitioner has challenged award dated 28.2.2007 passed by the labour court, Nadiad in reference No.7 of 1993 whereby, the labour court has rejected the reference and declined to grant the relief prayed for by the present petitioner. SCA/2620/2008 2/9 JUDGMENT Aggrieved by the said award dated 28.2.2007, the petitioner is before this court. The facts leading to present petition are that, the petitioner herein raised an industrial dispute upon being aggrieved by his termination from service w.e.f. 1.9.92. The petitioner claimed that he was recruited and employed by the respondent as Sanitary Inspector, and to support his said claim he placed reliance on the order dated 4.2.84 offering him employment. He also relied on letter dated 17.2.84, which happens to be his joining report. In both the said communications, the designation mentioned is “Sanitary Inspector.” On that premise, he claimed that he was a workman in the respondent's training institute. He claimed that his service was terminated without following the procedure prescribed by law. The dispute raised by the petitioner could not be settled and the appropriate government made order of reference dated 7.1.93, which culminated into reference No.7 of 1993. The petitioner herein filed his statement of claims on the aforesaid lines and prayed for reinstatement with back wages and other SCA/2620/2008 3/9 JUDGMENT benefits. The respondent herein filed written statement and disputed the allegations and contentions of the petitioner and claimed that the petitioner was actually engaged as a Tutor and he was giving training for sanitary work in the institute of the respondent. It was also claimed by the respondent that the said course was actually commenced under a special programme known as “Multipurpose Works Training Programme” which was started at the behest of the Central Government for which, 100% grant was provided by the Central Government. The respondent also claimed that in August, 1992, the Central Government conveyed a decision of discontinuing the said programme from the respondent training institute and that therefore, the petitioner was discontinued w.e.f. 1.9.92. The respondent also claimed before the labour court that the respondent had offered to accommodate the petitioner in alternative work in one of its activities, however, the petitioner did not accept it for the reason that the salary and other benefits were to be paid as per the rules, regulations and pay scales of the respondent whereas the petitioner insisted that he should be paid the SCA/2620/2008 4/9 JUDGMENT benefits and salary at the same rate at which he was being paid while he was discharging his duties earlier under the said programme. The respondent took up the contention before the labour court that the nature of duties performed by the petitioner were in the nature of tutor / instructor and therefore, the petitioner would not fall within the definition of the term “workman” as defined under section 2(S) of the ID Act, thus, the reference was not maintainable. After considering the rival contentions and material available on record, the labour court arrived at the conclusion that the petitioner was discharging duties in the nature of Instructor / Tutor, therefore, he cannot be said to be a “workman”. The labour court has also recorded that the course / programme in which the petitioner was instructing was discontinued and consequently the institute in which the petitioner was engaged was closed. Heard Mr. Shah, learned advocate for the petitioner and Mr. Chauhan, learned advocate for the SCA/2620/2008 5/9 JUDGMENT respondent. Mr. Shah, learned advocate for the petitioner, submitted that the respondent did not examine any witness and no oral evidence was led and that therefore, the pleadings of the respondent have not been duly established. He submitted that the petitioner was actually engaged as Sanitary Inspector and that therefore, the labour court has committed error in holding that the nature of duties performed by him were of Instructor / Tutor. He also submitted that the labour court has erred in holding that the petitioner would not be covered within the meaning and definition of term “workman.” He referred to the letters dated 4.2.84 and 27.2.84. Mr. Shah also relied upon two letters dated 18.10.92 and 9.3.98 whereby the petitioner had made request to employ him and on that basis, Mr. Shah attempted to controvert the submissions of the respondent made on the basis of pursis dated 19.2.98. Mr. Chauhan, learned advocate, during his submissions, more or less reiterated the facts and SCA/2620/2008 6/9 JUDGMENT contentions of the written statement. Mr. Chauhan invited attention of this court to the pursis dated 19.2.98 given on behalf of the respondent making an offer of engaging the petitioner in its establishment wherever the work was available and to pay him wages and benefits as per its rules, regulations and pay scales. On perusal of the award, it becomes clear that after considering all the relevant aspects and submissions of both the sides as well as material on record, the labour court has recorded finding of fact that the petitioner was performing duties which were in the nature of Instructor / Tutor. The respondent has admitted in his cross examination that he was examining the answer papers of the students and that he was also performing duties as a Instructor / Tutor. The petitioner has also stated in his deposition that he was giving practical training and lectures and was teaching the subject of Sanitary in the nursing course. The respondent has vaguely stated that he was also performing “whatever duties” a Sanitary Inspector has to perform, however, he has SCA/2620/2008 7/9 JUDGMENT not specified the details and nature of any of the duties which, according to him, he was performing as a Sanitary Inspector whereas, the duties which he has specifically mentioned as the duties performed by him are in the nature of or akin to the duties of an Instructor / Tutor. On the basis of the evidence of the petitioner and other material obtaining on record, the labour court recorded finding of fact holding that the petitioner was performing duties in the nature of Instructor / Tutor and that therefore, he cannot be said to be a “workman” within the meaning of the term as defined under section 2(S) of the ID Act. In light of the evidence obtaining on the record, the said finding of fact does not appear erroneous or incorrect and there is no material or evidence on record in light of which it can be said that the finding is incorrect and contrary to evidence on record and perverse. Mr. Shah has not been able to point out any evidence from the record of the petition, which would persuade this court to upset the finding of fact recorded by the labour court and/or to arrive at any SCA/2620/2008 8/9 JUDGMENT other conclusion different from the conclusion of the labour court. Even otherwise, in the proceedings under Articles 226 and 227 of the Constitution of India, this court would not undertake the exercise of reappreciating the evidence. Further, it also transpires that the petitioner was offered alternative employment by the respondent, though on the payment of salary and benefits as per the rules, regulations and pay scales paid by the respondent to its other employees, however, the petitioner appears to have declined to accept the same on the ground that the salary payable by the respondent as per its rules, regulations and pay scales was on lower scale than what he was being paid under the aforesaid programme. On taking into account the deposition of the respondent where he admitted that he was examining answer papers and was also performing teaching duties / functions, coupled with complete absence of any details of his other duties and any other evidence to prove his claims and allegations it is not possible to hold that the findings of labour court are incorrect or perverse. Further, in view of the pursis given by the petitioner during the SCA/2620/2008 9/9 JUDGMENT proceedings the letters written by the respondent lose its sheen or utility because the petitioner seems to have insisted, at all stages, that he would accept the offer only if he was granted the same wages and scale which he was paid earlier. Thus, the labour court's conclusion on this count also cannot be faulted. Hence, on the overall view of the matter, there does not appear to be any reason or justification to interfere with the award passed by the labour court and/or to arrive at a conclusion different from what is recorded by the labour court. Hence, present petition is not entertained and is accordingly dismissed. Notice discharged. No order as to costs. [K.M.Thaker, J.] kdc