LPA/1488/2001 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 1488 of 2001 In SPECIAL CIVIL APPLICATION No. 9607 of 2000 For Approval and Signature: HONOURABLE MS. JUSTICE R.M.DOSHIT & 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 civil judge ? ========================================================= STATE OF GUJARAT - Appellant(s) Versus BHATHIBHAI MAGANBHAI - Respondent(s) ========================================================= Appearance : MS TANUJA KACHCHHI AGP for Appellant MR KALPESH N SHASTRI for Mr DA SURANI for Respondent ========================================================= CORAM : HONOURABLE MS. JUSTICE R.M.DOSHIT and HONOURABLE MR.JUSTICE K.M.THAKER 12th March, 2008 ORAL JUDGMENT (Per : HONOURABLE MS. JUSTICE R.M.DOSHIT) This Appeal, preferred by the State Government LPA/1488/2001 2/7 JUDGMENT under clause 15 of the Letters Patent, arises from the judgment and order dated 22nd September, 2000 passed by the learned Single Judge in above Special Civil Application No. 9607 of 2000. The respondent [hereinafter referred to as, “the workman”] was engaged as a labourer in the service of the State Government under the Range Forest Officer, Dhrangadhra. In the year 1990, the workman raised industrial dispute in connection with discontinuance of his service by the concerned Range Forest Officer. The said dispute came to be referred to the Labour Court, Surendranagar and registered as Reference [LCS] No. 234 of 1991. Before the Labour Court, the workman filed statement of claim. According to the workman, he was employed by the Range Forest Officer, Dhrangadhra as a labourer on daily wages for 14 years. On 16th November, 1990 his service was terminated by an oral instruction given to him. The termination of his service was contrary to the statutory provisions contained in the Industrial Disputes Act, 1947. The claim of the workman was contested by the employer-Range Forest Officer, Dhrangadhra. He challenged the jurisdiction of the Labour Court in entertaining the dispute raised by LPA/1488/2001 3/7 JUDGMENT the workman. According to him, the activities of the Forest Department are part of the sovereign functions of the State, and therefore, it was not an “industry” within the meaning of the Industrial Disputes Act, 1947 [hereinafter referred to as, “the Act”]. The workman was engaged on a specified project. On completion of project and grant being discontinued, his employment came to an end. The workman was not entitled to protection under the Act as he had not worked for 240 days in a year. Neither his service was terminated nor any other person was engaged in his place. Alongwith the said reply, the Range Forest Officer produced statement of the service rendered by the workman. He also gave evidence before the Labour Court. The Labour Court, by its judgment and award passed on 18th April, 2000 held that the workman had served under the Range Forest Officer since 1982; after 1988, in each year he had served for more than 240 days. He was, therefore, entitled to protection under the Act. The termination of service of the workman was held to be contrary to Sections 25-F,25-G and 25-H of the Act. The Labour Court decided the Reference in favour of the workman to the extent that LPA/1488/2001 4/7 JUDGMENT the workman was ordered to be reinstated in service and paid 35% of the backwages. Feeling aggrieved, the State Government preferred above Special Civil Application No. 9607 of 2000 which has been dismissed by the learned Single Judge. The learned Single Judge has held that the Forest Department of the State Government is an “industry” within the meaning of Section 2 [j] of the Act. The workman was, therefore, entitled to protection as prayed for. Therefore, the present Appeal. We have perused the pleadings and evidence on record. The statement of the attendance of the workman produced before the Labour Court indicates that the workman was occasionally engaged in the nursery as a daily wage labourer since the year 1978. In the years 1978 & 1981 the workman had worked for 30 and 60 days respectively. In the years 1983 to 1986, the workman had served for more than 240 days in a year. Thereafter, he had worked for 183 days in the year 1989 and 188 days in the year 1990. It has come on evidence that the workman was engaged seasonally i.e., for preparing plants for planting LPA/1488/2001 5/7 JUDGMENT during the monsoon season; to repair fencing, etc. Further, since the year 1988 in none of the years he had served for 240 days or more. Hence, it is apparent that the workman was not engaged continuously throughout the year. In our opinion, as the workman had not worked for 240 days or more since the year 1987, he was not entitled to protection under Section 25-F or Section 25-G of the Act. The finding of the Labour Court that the workman had worked for 240 days or more is factually wrong, contrary to evidence on record. Further, it has been brought on record that the workman was engaged on specified projects and was continued till the grant was made available. As the workman was employed under a specific project, on completion of the period of the said project, he was liable to be discharged from service. The alleged termination of the service, therefore, would not amount to “retrenchment” within the meaning of Section 2 [oo] of the Act. Therefore also, the workman was not entitled to protection under Section 25-F or Section 25-G of the Act. In our opinion, the labour Court as well as learned Single Judge has erred in not considering the above referred facts on record. We are of the opinion that the workman as not entitled to reliefs of reinstatement LPA/1488/2001 6/7 JUDGMENT in service or the backwages claimed by him. It is brought on the record of this Appeal, since the award of the Labour Court made in the month of April, 2000, the workman did not turn up to resume duty until 11th July, 2000. On 11th July, 2000, on his reporting for duty, he was assigned certain work on piece rate. The workman though did agree to accept the said assignment, did not report for duty or was not regular in attending the work. The workman also claimed that the place of work assigned to him was far off from his village and he was unable to attend to it. The correspondence placed on record suggests that the workman was not regular in attending the duty. For whatever work he performed, he was paid wages as agreed. After the order was made pending this Appeal also, the workman, after reporting for duty abstained from completing his assignment. From this, it is apparent that pending the writ petition before the learned Single Judge and pending the Appeal before this Court, barring a few months, the workman has not attended to the duty assigned to him. For the reasons aforestated, we allow this Appeal. The impugned judgment and order dated 22nd LPA/1488/2001 7/7 JUDGMENT September, 2000 passed by the learned Single Judge in above Special Civil Application No. 9607 of 2000 is quashed and set-aside. The judgment and award dated 18th April, 2000 passed by the labour Court, Surendranagar in Reference [LCS] No. 232 of 1991 is quashed and set-aside. Reference [LCS] No.232 of 1991 is rejected. The parties will bear their own cost. {Ms. R.M Doshit, J.} {K.M Thaker, J.} Prakash*