The State of Gujarat and 1 vs Bhagubhai Jivrambhai Patel since Deceased through Heirs

Akil Kureshi, J.—These three petitions involve similar facts. We may therefore notice facts as arising from Special Civil Application No. 1660 of 2006. The petition is filed by the State Government challenging the judgment of the Labour Court dated 13.6.2005 in Reference (LCK) No. 442 of 1990. Respondent workman was engaged as a daily-wager by the Irrigation Department for Dharohi Canal work as a watchman with effect from 21.6.1987. The case of the workman was that without following any procedure, without complying with the mandatory statutory requirements his services were terminated with effect from 31.5.1990 by an oral order. The workman therefore raised the said industrial dispute and sought reinstatement with back wages. By the impugned judgment the Labour Court held that the termination of the workman was illegal, same was set aside. Directions were issued for reinstatement with 50% back wages. It is this award that is challenged before the High Court. Facts are similar in other petitions also. I am informed that this Court while admitting the petition had stayed the direction of back wages and not for reinstatement. The workman have been reinstated since then.

Having heard learned advocates for the parties and having perused the materials on record it clearly emerges that the workman was engaged with effect from 21.6.1987 and his services were terminated with effect from 31.5.1990. This was borne out from the certificate dated 7.8.1990 issued by the employer itself. In such certificate there was no reference that the workman did not work continuously or that during any period of one year he did not actually worked for at least 240 days. The evidence of the workman that he did complete 240 days, during the relevant period was not met with by any rebuttal evidence by the employer side. In that view of the matter the Labour Court held that the workman was entitled to protection u/s 25F of the Industrial Disputes Act. In my view, such finding of fact call for no reopening under the writ jurisdiction. If this be the conclusion, the employer was required to follow the procedure laid down u/s 25F of the Industrial Disputes Act before affecting valid termination of the service of the workman. Admittedly in the present case no such procedure was followed. Neither one month notice was issued nor pay in lieu thereof was paid. The retrenchment compensation was also not paid. The conclusion of the Labour Court therefore that the statutory requirements before terminating the service of the workman were not followed was thus perfectly justified.

It was contended before the Labour Court that the Irrigation Department cannot be treated as industry, it is rather late in the day to so contend in view of series of judicial pronouncements and in particular of the Supreme Court in case of Bangalore Water Supply and Sewerage Board Vs. A. Rajappa and Others, and of the Full Bench of this Court in case of Gujarat Forest Producers, Gatherers and Forest Workers Union Vs. State of Gujarat, . In the case of G.F.P.G.F.W. Union (Supra) the issue was if a unit of the Forest Department would be an industry or not. The Court applied the triple test formula in Bangalore Water Supply and Sewerage Board (Supra) and held that the activities of the department which were only administrative in nature and had nothing to do with any production and/or distribution of goods and services were not under consideration and the holding that the irrigation department is an industry has an obvious reference to the undertaking of the irrigation and canals works by the department that fell under consideration and not all the sections or units of the department which may be "non-industry". The Court referred to the decision of Supreme Court in case of Des Raj, reported in AIR 1998 SC 1182 it was observed that the decision in case of Des Raj holds the field and the undertaking of irrigation work would be an industry u/s 2J of the Industrial Disputes Act. Coming to the question of back wages, in my opinion the Court even though found that the termination was illegal and was affected without following the provisions contained u/s 25F of the Industrial Disputes Act, in the facts of the case granted 50% back wages. Such discretionary exercise of power also call for no interference. It is by now well settled that, while the termination of the workman may be held to be illegal and therefore set aside, direction for payment of back wages would depend on several factors. When it is not pointed out that the workman was not gainfully employed during the intervening period and when it is not pointed out to me that the discretionary exercise by the learned Judge was in any manner improper, it would not be appropriate on my part to temper with the same in exercise of writ jurisdiction. In the result the petitions are dismissed. Rule is discharged. Interim relief vacated.