IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 3875 of 2003 to SPECIAL CIVIL APPLICATIONNo 4399 of 2003 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 concerned : YES Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? Labour Courts and IndustrialTribunals -------------------------------------------------------------- STATE OF GUJARAT Versus MANIBEN VIRAJI -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 3875 of 2003 to SPECIAL CIVIL APPLICATIONNo 4399 of 2003 : Mr. A.D. Oza, GP and Mr. H.D. Dave, AGP for Petitioner No. 1 .......... for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE H.K.RATHOD Date of decision: 09/04/2003 ORAL JUDGEMENT These petitions have been filed by the petitioner State of Gujarat challenging two common awards passed by the Labour Court, Surat under Article 227 of the Constitution of India. Heard Mr. A.D.Oza for the petitioners in this group of petitions. The Labour Court, Surat has passed two common award dated 13th June, 2002 one in Reference (LCS) No. 47 of 1999 to 51 of 1999, 15 of 1999 to 84 of 1999, 146 of 1999 to 151 of 1999, 186 of 1999 to 361 of 1999. The Labour Court, Surat has also passed second common award of the same date in Reference No. 205 of 1995 to 622 of 1995. In both the common awards, the labour court, Surat has granted the same and similar benefits as well as issued some similar directions in favour of the respondent workmen. The labour court, Surat has directed the second party respondent workmen to submit detailed residential address, ration card and the election card or any other Government documents along with the certificate of birth date to the Executive Engineer (4) Division-1 at Ukai, Taluka : Songadh, District Surat. The labour Court, Surat has also directed the first party State to prepare the seniority list of the part of the workmen covered by these two common awards who have not yet crossed the upper age limit and there is no bar of age as per their birth date, for reinstating them a fresh in service on their original post. The labour court, Surat has also directed the first party establishment to give work to the workmen covered by these two common awards (whose name and number have been mentioned in the Schedule-A forming part and parcel of the said common awards) as per the said seniority list on the posts which have been sanctioned but are vacant at present wherein the Government has granted approval for filling up such posts. Under the said two common awards, it has also been clarified by the labour court that the workmen covered by the said two common awards have not to be given any benefit of back wages for the intervening period or continuity of service. The labour court has also directed to complete the procedure within 120 days from the date of publication of the award by publishing such seniority list of the workmen covered by these two common awards and to provide them work in accordance with the aforesaid directions. The schedule A to the said common awards has been ordered to be treated as a part and parcel of the awards. Considering these two common awards, according to the petitioner, it comes to total 525 respondent workmen. In respect of reference No. 205 of 1995, there are total 244 male workmen and 110 female workmen, total of which would come to 354 workmen. In respect of reference No.47 of 1995, there are 99 male workmen and 72 female workmen, total of which would come to 171 and the total of these two references would, thus, come to 525 [354 workmen plus 171 workmen] whose list has been annexed by the labour court along with the said two common award as Schedule-A and which has been treated to be the part and parcel of the said two common awards. Before dealing with the matters on merits, it would be just and proper to refer to the observations made by the apex court in case of M.S. Garewal versus Deep Chand Sood and others reported in 2001 (8) SCC page 151. In para 27 and 28 of the said decision, the apex court has observed as under: "27. The decision of this Court in D.K.Basu versus State of W.B. comes next. This decision has opened up a new vista in the jurisprudence of the country. The old doctrine of only relegating the aggrieved to the remedies available in civil law limits stands extended since Anand,J. (as His Lordship then was) in no uncertain terms observed; (SCC p. 439 para 45) 'The Courts have the obligations to satisfy the social aspirations of the citizens because the Courts and the law are for the people and expected to respond to their aspirations. A Court of law cannot close its consciousness and aliveness to stark realities. Mere punishment of the offender cannot give much solace to the family of the victim civil action for damages is a long drawn and a cumbersome judicial process. Monetary compensation for redressal by the court finding the infringement of the indefeasible right to the life of the citizen is, therefore, useful and at times perhaps the only effective remedy to apply balm to the wounds of the family members of the deceased victim,who may have been the breadwinner of the family.' 28. Currently, judicial attitude has taken a shift from the old draconian concept and the traditional jurisprudential system - affection of the people has been taken note of rather seriously and the judicial concern thus stands on a footing to provide expeditious relief to an individual when needed rather than taking recourse to the old conservative doctrine of the civil court's obligation to award damages. As a matter of fact, the decision in D.K. Basu has not only dealt with the issue in a manner apposite to the social need of the country but the learned Judge with his usual felicity of expression firmly established the current trend of justice oriented approach. Law courts will lose their efficacy if they cannot possibly respond to the need of the society technicalities there might be many but the justice oriented approach ought not to be thwarted on the basis of such technicality since technicality cannot and ought not to outweigh the course of justice." It was submitted by the learned G.P. Mr.Oza that the respondents workmen were given work by the petitioner on construction of Ukai Dam between 1972 to 1979. In all, about 10000 workmen were given work as a daily wager. Work of Ukai Dam was over and completed in the year 1980 but the canal work had continued upto 1986 and, thereafter, it also came to an end. According to the learned Government Pleader Mr. Oza, the services of the respondent workmen were terminated in the year 1980 and out of this group, some of them have already left the job in the year 1977-78. He, therefore, submitted that the termination of the respondent workman of the year 1977 or 1978 or 1980 has been challenged by the concerned workmen after the period of about fifteen to sixteen years under the machinery of the Industrial Disputes Act, 1947 by raising the industrial disputes which were referred to for adjudication by the concerned Assistant Commissioner of Labour by order dated 19th July,1996 and in another group, such disputes were referred to for adjudication on 13th February, 1999. Thus, it was his submission that the disputes raised by the respondent workmen under the machinery of the I.D. Act, 1947 were belated, suffering from the vice of delay, laches and delay on their face itself and, therefore, it was submitted by him that the awards made by the labour court after adjudication on merits are illegal, erroneous and the same are required to be quashed and set aside. The next contention raised by Mr. Oza, learned G.P. is that the petitioner herein is not an industry within the meaning of section 2(j) of the Industrial Disputes Act, 1947. It was specifically submitted by him that the petitioner, irrigation department of the State of Gujarat is not an industry within the meaning of the said section. It was his submission before this Court that such contention raised by the petitioner before the labour court has not been considered by the labour court and the references have been adjudicated without deciding it and the awards have been passed and, therefore, there is an apparent error on the part of the labour court in making the awards in question. The third contention raised by Mr.Oza is to the effect that looking to the direction No.3 issued by the labour court, the labour court has directed to appoint the respondent workmen against the cadre which posts have been created by the petitioner according to the seniority of the respondent workmen. It was his submission that the labour court has no jurisdiction to direct the petitioner to appoint the respondent on any permanent post or cadre and the labour court has no jurisdiction to grant better position while deciding the order of termination. He submitted that at the most, the labour court can restore the original situation while setting aside the order of termination but cannot grant better benefit in a reference wherein the order of termination is under challenge. Therefore, it was his submission that the directions issued by the labour court are contrary to law and settled position of law and, therefore, the awards in question are required to be quashed and set aside by this court. He also submitted that in all, there were more than 10,000 workmen engaged by the petitioner at the relevant time and the petitioner being an authority of the State, is required to consider the claim of all such other employees who are similarly situated irrespective of the fact whether they have approached the labour court or not. He also submitted that all the respondent workmen were engaged by the petitioner as a daily wager for a particular project and when the project work would come to an end, then, their services would automatically come to an end and in such a situation, the labour court has no jurisdiction to grant the reinstatement to such respondents workmen. In support of his submissions, learned Government Pleader Mr. Oza has placed reliance on the decision in Shankarji Chelaji Thakor versus State of Gujarat, 2000 (1) GLH page 482 and has submitted that in the said decision, the Division Bench of this Court has, after considering three decisions of the Apex Court, one in the case of Executive Engineer (State of Karnataka) versus K. Somasetty reported in 1997 AIR SCW 2627 and the other in the case of Union of India versus Jai Naraayan Singh, 1995 Supp. (4) SCC 672 and the third in the case of State of H.P. versus Suresh Kumar Verma reported in (1996) 2 JT SC 455, held the function of public welfare of State is a sovereign function and under the circumstances, State is not an industry. He further submitted that it has been held in the said decision by the Division Bench of this Court that it is the constitutional mandate under the Directive Principles that the Government should bring about welfare State by all executives and legislative actions, under the circumstances, the State is not an industry under the I.D. Act; even otherwise, since the project has been closed, the respondent has no right to the post since he had been appointed on daily wages. He has also placed reliance on the decision in the matter of Madhyamik Shiksha Parishad, UP versus Anil Kumar Mishra and others reported in AIR 1994 SC 1638 and has submitted that in the said matter, casual workmen were working temporarily under the State Government and the posts were not sanctioned and it has been observed by the apex court in the said decision that the completion of 240 days of work by such workmen cannot attribute status of casual workmen to them. He has also submitted that in the matter of in the case of Executive Engineer (State of Karnataka) versus K. Somasetty reported in 1997 AIR SCW 2627, the apex court has observed that the function of public welfare of State is a sovereign function and under the circumstances, State is not an industry; that it is the constitutional mandate under the Directive Principles that the Government should bring about welfare State by all executives and legislative actions, under the circumstances, the State is not an industry under the I.D. Act; even otherwise, since the project has been closed, the respondent has no right to the post since he had been appointed on daily wages. He also submitted that the apex court has considered two decision one in case of Union of India versus Jay Narayansinh reported in 1995 (Supp) 4 SCC 672 and the State of HP versus Suresh Kumar Verma (1996) 2 JT SC 455 wherein it has been held that the irrigation department and the tele communication department are not an industry within the meaning of the definition under the I.D. Act. Mr.Oza has also submitted that in case of State of Himachal Pradesh versus Suresh Kumar Verma and another, reported in AIR 1996 SC 1565, the apex court has observed that the appointment on daily wage basis is not an appointment to the post according to the rules and the directions to reengage them in any other work or appoint them against existing vacancies cannot be given by the Court in view of the termination of daily wage employees due to coming to end of the project employing them. Learned GP Mr. Oza has also relied upon some unreported decisions of this court. One decision is in case of State of Gujarat versus Babu Balu in Special Civil Application No. 9351 of 2001 to 9360 of 2001 dated 10th December, 2001 and has submitted that in the said decision, this Court (Coram : M.S.Shah, J.) has after considering the decision of the apex court in the case of State of Gujarat v. Pratamsingh Narsinh Parmar, JT (2001) 3 SC 326, held that the forest department of the State of Gujarat is not an industry within the meaning of section 2(j) of the I.D. Act. Relying upon the aforesaid decision, he submitted that in this case also, considering the function of public welfare carried out by the irrigation department, the labour court ought to have decided that issue and ought to have held that the irrigation department of the State Government is not an industry within the meaning of Sec.. 2(j) of the I.D. Act, 1947. He has also relied upon the decision in case of Rabari Hathiya Veja versus State of Gujarat in Misc. Civil Application No. 625 of 2002 in Special Civil Application No. 9338 of 2001 to Misc. Civil Application No. 643 of 2002 dated 1st August, 2002 and has submitted that in the said decision, this Court (Coram : M.S.Shah,J.) has examined the same question and ultimately, has held that the forest department of the State of Gujarat is not an industry within the meaning of sec.2(j) of the I.D.Act is a settled law. He also submitted that the same question has also been examined by the Division Bench of this Court in Letters Patent Appeal No. 1557 of 2001 dated 23.12.2002 and it has been held by the Division Bench of this Court that the point whether the forest department is an industry or not is concluded in view of the decision of the apex court that the forest department is not an industry and ultimately, the appeal filed by the workman was dismissed by the division bench of this Court. Relying upon the aforesaid decisions, learned GP Mr. Oza has submitted that similarly, irrigation department is also not an industry and such contention raised by the petitioner before the labour court has not been considered and examined by the labour court and, therefore, award without examining that aspect of the matter is required to be quashed and set aside. Except the aforesaid contentions, no other contentions have been raised by the learned Government Pleader Mr. Oza on behalf of the petitioner in this group of petitions. I have considered the submissions made by the learned GP Mr. Oza. I have also considered the decisions cited by the learned GP Mr. Oza. Before dealing with the submissions made by the learned GP Mr. Oza, I am of the opinion that the facts of the case before the labour court are required to be examined and taken into account. Before the labour Court, on behalf of the respondents workmen, statement of claim were filed wherein it was narrated by the respondents workmen that they were engaged in the construction of canal and dam and they were required to work digging, excavation, repairing and construction of Nala and other allied work which is related to canal and dam and they were required to work eight hours in a day and they were in continuous service and the Industrial Disputes Act, 1947 is applicable to the petitioner. It has also been asserted that the other persons were recruited on muster and the petitioner was maintaining attendance register but they were not being paid the minimum wages by the petitioner and ultimately, their services were terminated by the petitioner without following the mandatory provisions of the Industrial Disputes Act,1947. The labour court after filing of the statement of claim by the respondents workman, issued notices to the petitioner first party. The Labour court was also having the record of the conciliation officer. Before referring the dispute, there were conciliation proceedings before the conciliation officer between the parties. Before the conciliation officer in the conciliation proceedings, the respondent workmen had filed separate applications with a prayer to condone the delay in raising the industrial dispute along with an application for condonation of delay in raising the industrial dispute. On the basis of the submissions made by both the parties before the conciliation officer and considering the affidavit and application of the respondents workmen, the conciliation officer has come to the conclusion that whatever delay has been occurred in raising the industrial dispute has been condoned and the conciliation proceedings have been initiated under the provisions of the I.D.Act,1947. Before the labour court, separate statement of claim were filed by the respondent workmen in each reference having similar facts. Thereafter, references were consolidated before the labour court on the basis of the application submitted by the respondent workman in view of the no objection from the petitioner side. Common replies were filed by the petitioner in the references before the labour court wherein it has been contended that the reference is bad, the labour court is having no jurisdiction, it is contrary to the principles of natural justice, the reference is barred by the misjoinder of parties. The petitioner has also disputed the date of engagement and termination of the respondent workman as alleged. They also disputed that there is any cause of action as alleged. However, it was submitted by them that there was construction of Ukai Dam and canal to provide water to the farmers. This water was being provided to the farmers by charging necessary amount from each farmer meaning thereby, they were providing the water and other facilities by charging the amount to the farmers and other industries or any other persons. In short, in its common written statements filed before the labour Court, the petitioner has disputed all the statements made by the workmen in their statements of claim. In their written statement, they admitted certain facts that the workmen were recruited or engaged in construction work and dam canal in the year 1977 and thereafter, some of the workmen left job at their own and services of some workmen were terminated by the petitioner. It has also been contended that there was delay in raising the dispute and the work of canal and dam of Ukai has already become over long ago and, therefore, references made at the instance of the workmen are required to be rejected. Thus, from perusal of the whole written statement, the petitioner has nowhere contended that the irrigation department is not an industry and, therefore, provisions of the Industrial Disputes Act, 1947 are not applicable. Thus, in its written statements, save and except the denial of factual aspects and bar of limitation in raising disputes, no other contention has been raised by the petitioner. Before the labour court, it was decided between the parties to file affidavits of each workmen and the petitioner advocate agreed to that and ultimately, the labour court granted said request to file separate affidavit of each workman and thereafter, on behalf of the respondents workmen, details were given on affidavit about the name of the workman, date of his/her engagement, total years of service put in, department, designation, daily wage, date of termination. Those affidavits were at Exh. 30 to 201. Out of that, some of the workmen were examined by the petitioner. Looking to the award in Reference no. 47 of 1999, affidavit of each workmen were on record produced by the respondent vide at Exh.30 to 201. The petitioner's advocate before the labour court had examined the workman Maniben V. Gamit at Exh.30, Mamta Gamit at Exh. 53, Rangji at Exh. 63 and Vajesinh M.Gamit at Exh. 107. Similarly in reference No.205 of 1995, one workman Sureshbhai was examined and cross examined vide Exh. 25. In both the reference, on behalf of the petitioner, certain documents were produced. After closure of the oral evidence of the workmen in respect of reference no. 205 of 1995, on behalf of the petitioner, one witness Rasiklal B. Shah was examined at Exh.95, one Kishanbhai M. Dalal was examined at Exh. 99 and one Lallu R. Chaudhary was examined vide Exh. 100;one witness Ambalal H. Patel was examined vide Exh. 107. The workmen produced their affidavit as directed by the labour court and out of all the workmen, some of them were cross examined as a sample by the petitioner as agreed between the parties. Witness for the petitioner were cross examined by the representative of the respondents workmen. In Reference No. 47 of 1999, one witness Naresh Naginbhai was examined at Exh. 553 on behalf of the petitioner and his evidence was cross examined by the representative for the respondents and, thereafter, parties filed their purshis closing the evidence and thereafter submissions were made before the labour court on the merits of the matter. Before considering the merits of the matter, it is necessary to be noted that while leading the evidence before the labour court in both the group of references, none of the witness for the petitioner has raised the contention that the petitioner being the irrigation department of the State, is not an industry within the meaning of section 2(j) of the Industrial Disputes Act, 1947. No details were given as to what type of work is required to be carried out by the irrigation department. No such contention has positively been raised by the petitioner in its written statement also. Therefore, in absence of such contention raised during the course of oral evidence or in the written statement, the only contention for consideration of the labour court was that the references referred for adjudication by the concerned conciliation officer are delayed and stale. Therefore, ultimately, the labour court, after considering the submissions made by the learned advocates for the parties, framed issue as to whether the delay in raising