EXECUTIVE ENGINEER Vs. MAKWANA DHIRAJLAL DAHYALAL

JUDGEMENT

(1.) Heard learned advocate Mr.R.C.Jani for the petitioner and Mr.C.B. Dastoor for the respondent workman. By way of this petition, the petitioner has challenged the award made by the labour court, Junagadh in Reference (LCJ) No. 241 of 1993 dated 22nd October, 1999 wherein the labour court has granted reinstatement in favour of the workman concerned while setting aside the order of termination and has granted full back wages for the intervening period with effect from 1st January, 1993. This petition was admitted by this court by issuing rule thereon on 2 6/07/2000 and interim relief has been granted against the implementation of the award in question.

(2.) During the course of hearing, learned advocate Mr.Jani has raised a contention that the petitioner is not an 'industry' as defined under section 2(j) of the Industrial Disputes Act, 1947. He has also submitted that the respondent has not completed 240 days continuous service within 12 months preceding the date of alleged termination as required under section 25-B of the Industrial Disputes Act,1947 and, therefore, the respondent workman was not entitled for the benefits under section 25F of the Act. He has submitted that the petitioner is a public body and the reference has remained pending before the labour court for about seven years or so and therefore, the back wages ought not to have been granted for such a long period. According to the respondent, the date of termination is of December, 1988. Therefore, according to Mr. Jani, since the dispute was raised after about five years and as such, there was delay in raising the industrial dispute and, therefore, on that ground, the labour court ought to have rejected the reference. Learned advocate Mr.Jani has also submitted that the services of the respondent were not terminated by the petitioner and he had abandoned the service and has not reported at the place of transfer, at Veraval because he was not willing to join at Veraval and that is how, he abandoned the job at his own, however, this aspect has not been considered by the labour court while passing the award in question. He has also submitted that the respondent was appointed temporarily and was not appointed on permanent basis. In support of his submissions, he has relied upon the following decisions; (1) Negungadi Bank Ltd. v. K.P. Madhavankutty and others, reported in 2000 Lab. I.C. page 703 (2) Ambalal S. Kumbhare and Anr. v. Gujarat Coop. Marketing Federation Ltd., reported in 2000(1) GLH 69 (3) GSRTC v. MS Patel and Anr., reported in 1998 (1) GLH page 369 (4) Premibhai L. Gamit v. Executive Engineer, reported in 1998 (3) GLR page 2550. (5) Shankerji Chelaji Thakore versus State of Gujarat reported in 2000(1) GLH page 482. (6) Executive Engineer Una Irrigation Project versus Rajiben Parbatbhai reported in 1997 (1) GLH 750

(3.) On the other hand, learned advocate Mr. Dastoor has submitted that the dispute was belatedly raised and there was some delay in raising the dispute and the labour court has, while granting relief of reinstatement as well as back wages, taken into consideration this aspect of delay and has granted relief of backwages from the date of reference and not from the date of termination. He has further submitted that the petitioner has filed the written statement before the labour court and, thereafter, no oral evidence has been led by the petitioner before the labour court. According to him, the petitioner has produced list of documents at Exh.10 which documents were exhibited as Exh. 11 to 14 and oral evidence of the petitioner has been closed by the labour court and, thereafter, written arguments were made by the learned advocates before the labour court. He has further submitted that mere raising of contention in the written statement is not sufficient but it is necessary to press such contention into service before the labour court and to led proper evidence for substantiate such contention and if no evidence has been led in support of such contention and if such contention has not been proved before the labour court, then, the labour court is not duty bound to consider such averments raised in the written statement. He has submitted that the averments made in the written statement cannot be considered to be evidence of the petitioner and, therefore, if the petitioner has raised such contention that it is not an industry as defined under the Industrial Disputes Act, 1947, then, the petitioner is required to prove such contention by leading evidence to that effect for substantiating such contention. Mr. Dastoor has relied upon the decision in case of Bangalore Water Supply Sewerage Board versus A. Rajappa and others reported in AIR 1978 SC 548. Said decision was referred to by Hon'ble Ms. Justice Sujata Manohar and thereafter the matter was placed before the Chief Justice of India and ultimately the apex court has taken view in case reported in 2000 (1) SCC 224 between Coir Board Ernakulam Kerala State and others versus Indiradevi P.S. and others that the case does not require reconsideration on reference made by Two Judge Bench of the court in 1998 (3) SCC 259. It is necessary and important to be noted that here also, the petitioner is Gujarat Water Supply and Sewerage Board and before the apex court also, Sewerage Board was the party wherein the decision has been given by the apex court and it has been held that the Board is an industry within the meaning of section 2(j) of the Act and, therefore, in view of that, there is no necessity to go any further into this aspect. and the activities of the petitioner must be held as an industry as has been held by the apex court. Mr. Dastoor has further submitted that the respondents have completed 240 days and in absence of evidence, the view taken by the labour court is quite just, proper and valid and the same does not require any interference by this court.