By way of this petition under Article 227 of the Constitution of India, the petitioner, a private charitable trust, seeks to challenge award dated 19.1.2001 passed by the Presiding Officer, Labour Court, Ahmedabad in Reference (LCA) No.2153 of 1993 and thereby the Labour Court, Ahmedabad allowed the reference of the respondent-workman directing the petitioner to reinstate the respondent in service with full backwages from the date of the reference. 2. The facts shortly stated are as under :-
The petitioner is a trust registered under the Bombay Public Trusts Act, 1950. The trust is engaged in the activity of imparting education. It appears that the petitioner appointed the respondent as a part-time clerk of the Mandal on 25.6.1991. One of the terms of the appointment is that the same is temporary. It appears that on 26.6.1992, the petitioner informed the respondent that she has completed one year's service on 13.6.1992 and during the period of her appointment and completion of one year, the work was found to be satisfactory. The Executive Body, therefore, decided to appoint the respondent on permanent basis as a part-time clerk. The respondent was also informed that her pay from 1.7.1992 would be Rs.450/- per month. It appears that all of a sudden vide Resolution No.10 of the Governing Body meeting of the petitioner-trust dated 14.3.1993, the post of part-time clerk of the Mandal came to be abolished w.e.f. 16.8.1993. The trust resolved that the services of the respondent as part-time clerk are, therefore, not required and her services were ordered to be terminated w.e.f. 16.8.1993. A cheque for the amount of Rs.450/- dated 14.8.1993 towards one month's notice pay was also issued in favour of the respondent. A cheque dated 14.8.1993 for the amount of Rs.450/- towards the salary for the month of July, 1993 and a cheque dated 14.8.1993 for Rs.225/- towards half month's salary of the current period i.e. August 1993 was also issued in favour of the respondent. At this stage, the respondent approached the Labour Court challenging retrenchment from service. The Labour Court, Ahmedabad vide award dated 19.1.2001 ordered the petitioner-trust to reinstate the respondent with full backwages.
The trust being aggrieved of the aforesaid award of the Labour Court preferred Special Civil Application No.1456 of 2003 challenging the legality and validity of the award passed by the Labour Court.
3. On 24.2.2003, the petition came to be admitted and ad- interim relief in terms of para 7(C) was granted. It appears that an application under Section 17B of the ID Act was also preferred and order has been passed to pay the last drawn salary to the respondent.
4. Learned advocate Mr NV Gandhi appearing for the petitioner raised a preliminary contention or rather a principal contention as to whether the petitioner-trust i.e. Maharashtra Shikshan Mandal would fall within the ambit of the term “industry” as defined under Section 2(j) of the ID Act, 1947. According to Mr Gandhi, by no stretch of imagination, the petitioner-trust would fall within the ambit of the term “industry”, more particularly, having regard to the activities of the trust and the definition as provided under the Act.
5. Learned advocate Mr VM Dhotre vociferously opposed this particular contention of the petitioner on the ground that at no stage this plea has been taken up. According to Mr Dhotre, this was never the contention before the Labour Court and even in the writ petition this is not the ground which has been raised by the petitioner.
6. Mr Gandhi, during the course of his submissions, fairly pointed out a Full Bench decision of this Court in the case of Gujarat Forest Producers, Gatherers and Forest Workers Union vs. State of Gujarat reported in 2004 (2) GLH 302 wherein the Full Bench has taken a view that the question whether the Department of Government is “industry” within the meaning of Section 2(j) of the Act is a mixed question of law and facts and cannot be allowed to be raised for the first time before the High Court if it is not raised before the industrial forum from which such proceedings before this Court arise. It is also a settled position of law that when a point which is ostensibly a point of law is required to be substantiated by fact, the party raising the point, if he is a writ petitioner, must plead and prove such facts be evidence which must appear from the writ petition. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition, the Court will not entertain the point. It is also a settled law that in a writ petition or in the counter affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it unlike pleadings under the Code of Civil Procedure wherein in a plaint or written statement, the facts are to be pleaded and not evidence.
7. It would be profitable to quote the Full Bench decision of this Court in the case of Gujarat Forest Producers, Gatherers and Forest Workers Union vs. State of Gujarat reported in 2004 (2) GLH 302 :-
“29.1 The question whether the Department of Government is industry within the meaning of Section 2(j) of the Act is, therefore, in our opinion, a mixed question of law and facts and it cannot be allowed to be raised for the first time before this Court, if it is not raised before the industrial forum, from which, such proceedings before this Court arise. The question No.3 referred in Special Civil Application No.4715 of 2003 and 4435 of 2001 is answered accordingly.”
8. I could have proceeded to hear the petition on other points which may be available to the petitioner rejecting this contention at the very threshold. However, taking into consideration the importance of the issue, more particularly, in the background of the facts and circumstances of this case, I deem it fit and proper to remand the matter to the Labour Court so as to enable the Labour Court to decide this issue after giving an opportunity of hearing and leading of evidence to both the sides i.e. the trust as well as the workman. The award passed by the Labour Court, Ahmedabad dated 19.1.2001 in Reference (LCA) No.2153 of 1993 is hereby quashed and set aside.
9. In the above view of the matter, the case is remanded to the Labour Court concerned with a direction to decide only one issue and that is as to whether petitioner- Maharashtra Shikshan Mandal, a charitable trust, registered under the Bombay Public Trusts Act, 1950 falls within the ambit of the term “industry” as defined under Section 2(j) of the ID Act, 1947 and whether the respondent is a “workman” as defined under Section 2(s) of the ID Act, 1947. To enable the Labour Court to decide this issue, it will be open for both the sides to lead necessary oral as well as documentary evidence and the Labour Court after taking into consideration the evidence which shall be led by the parties, will decide the same in accordance with law.
It is further clarified that the parties concerned shall lead evidence only on these two issues referred to in para 9 and on no other issue the parties are permitted to lead further evidence on remand. While deciding the matter afresh, the Labour Court shall take into consideration the evidence which is already on record.
10. In the above view of the matter, the case is remanded to the Labour Court, Ahmedabad with a direction to issue notice to both the parties for their appearance before the Labour Court on a specified date or any other date which is fixed by the Labour Court thereafter. On that date, both the parties shall lead evidence oral as well as documentary. The entire exercise shall be completed by the Labour Court within a period of three months from the date of receipt of this order and pass a fresh award in accordance with law. It is clarified that if any of the party is aggrieved by the award passed by the Labour Court afresh then it shall be open for such party to challenge the same in accordance with law.
11. The petition is allowed to the aforesaid extent. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
(J.B. PARDIWALA, J.) zgs/-