BHIKHABHAI TAPUBHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Heard learned advocate Ms. D.T. Shah for the applicant original respondent - workman and Mr. A.D.Oza, learned G.P. for the opponent original petitioner.

(2.) Present application has been filed by the applicant-original respondent workman for directing the original petitioner to pay the wages under section 17-B of the Industrial Disputes Act, 1947. In the main petition, the original petitioner has challenged the award made by the labour court, Surendranagar in Reference (LCS) No.326 of 1992 dated 4/08/2000 wherein the labour court concerned has set aside the order of termination dated 1/06/1984 and has granted 20 per cent of the back wages with effect from 1/07/1992. In the main petition, this Court has, by order dated 11.6.2001, admitted the petition by issuing rule thereon and has granted ad.interim relief in terms of para 5(C) and, thereby, has stayed the execution of the award in question. The ad.interim relief granted initially has operated till this date.

(3.) The respondent workman has, therefore, filed the present civil application with a prayer for directing the petitioner to pay the wages under section 17-B of the Industrial Disputes Act, 1947 since the award in question has been stayed and he has remained unemployed from the date of the award. Copy of the present civil application has been served upon the petitioner on 18/09/2001. Reply to the present civil application has been filed by the petitioner wherein the petitioner has contended that the present application is not maintainable because it has been held by the apex court in the decision reported in 2001(3) JT page 327 that ordinarily, the Department of the Government of Gujarat is not an 'industry' and it is for the workman to plead and prove before the Court below. The petitioner has submitted that as per the said decision, the Forest Department is not an industry. The petitioner has also raised the contention that this Court has relied upon the decision of the apex court reported in November 2001 GLH page 440 wherein it has been held that the forest department is not an industry and that the award of the labour court is without jurisdiction because the Industrial Disputes Act, 1947 is not applicable. It has also been contended by the petitioner in the affidavit in reply to the present civil application filed by the respondent workman that since the provisions of the Industrial Disputes Act, 1947 are not applicable, there is no question of paying wages under section 17-B of the Industrial Disputes Act for want of jurisdiction. There is no affidavit filed by the petitioner to the effect that the respondent workman has been gainfully employed. Therefore, the fact remains that the applicant respondent has made clear affidavit to the effect that he has not been gainfully employed elsewhere from the date of the award in question and such averments have not been controverted by the deponent in the affidavit in reply filed on behalf of the petitioner.