Gujarat High Court
District Development Officer vs Govindbhai Mangalbhai Valand on 21 April, 2025
NEUTRAL CITATION
C/SCA/17663/2021 JUDGMENT DATED: 21/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 17663 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 13299 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 13149 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 17664 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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Approved for Reporting Yes No
Yes
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DISTRICT DEVELOPMENT OFFICER & ANR.
Versus
GOVINDBHAI MANGALBHAI VALAND
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Appearance:
MR HS MUNSHAW(495) for the Petitioner(s) No. 1,2
MR MUKESH H RATHOD(2432) for the Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 21/04/2025
ORAL JUDGMENT
1. This petition is filed under Article 226 and 227 of the Constitution of India challenging the award passed by the learned labour court, Nadiad directing the present petitioner-District Development Officer, Kheda District Page 1 of 14 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri May 02 2025 Downloaded on : Sat May 03 10:42:50 IST 2025 NEUTRAL CITATION C/SCA/17663/2021 JUDGMENT DATED: 21/04/2025 undefined Panchayat to pay the compensation of Rs.1,25,000/- to the respondent in lieu of the reinstatement and back wages.
2. As in all the petitions identical question are involved, the same is decided by this common judgment. The Special Civil Application No.17663 of 2021 where, the petition is filed by the employer challenging the lump sum compensation awarded by the learned reference court and the employee has filed the petition being Special Civil Application No.13149 of 2022 claiming the reinstatement to his original post with continuity of service and back wages. Special Civil Application No.17664 of 2021 is filed by the employer against the said award granting the lump sum compensation of Rs.1,25,000/- and Special Civil Application No.13299 of 2022 is filed by the employee claiming the relief of reinstatement with back wages.
2.1. Facts involved in the present petitions are that the years 1985, 1986 and 1987 were consecutive years for scarcity and femine in the state of Gujarat, therefore, after notifying the scarcity, various relief works were undertaken in the interest of the public at large and Page 2 of 14 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri May 02 2025 Downloaded on : Sat May 03 10:42:50 IST 2025 NEUTRAL CITATION C/SCA/17663/2021 JUDGMENT DATED: 21/04/2025 undefined accordingly the respondents were appointed on scarcity relief work for the period of 29 days on temporary and ad-hoc basis, on the condition that they are posted as a Work Charge employee by the Taluka Development Officer, Mehmadavad vide order dated 20.10.1987. On closing down of the scarcity relief work, the respondent was relieved vide order dated 18.06.1988 and challenging the disengagement of the service, the reference was filed after the period of four years before the learned lavourt court. The said reference was allowed by the learned labour court on 29.03.2006 against which the petitions came to be filed being Special Civil Application No.24251 of 2006 alongwith other petitions which came to be allowed by this Court on 08.02.2007 remanding the matter back to the learned labour court for deciding a fresh.
2.2. Learned labour court, after considering the submissions and the evidence adduced has allowed the reference in favour of the workman partly by granting the lump sum compensation of Rs.1,25,000/- in lieu of the reinstatement with back wages which is subject matter of challenge before this Court.
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NEUTRAL CITATION C/SCA/17663/2021 JUDGMENT DATED: 21/04/2025 undefined
3. Heard learned advocate Mr.Munshaw for the employer and learned advocate Mr.Rathod for the employee.
4. Learned advocate Mr.Munshaw submits that appointment was made for 29 days on purely temporary and for ad-hoc work to meet with the requirement of scarcity relief work on several terms and conditions and as the said relief work was discontinued, the respondents were relieved from the service. Learned advocate Mr.Munshaw submits that as per the decision rendered by full Bench of this Court in the case of H.K.Makwana Versus State of Gujarat & Others reported in 1989 (1) GLR 396, the employment offered to the persons on the scarcity relief work as undertaken by the State cannot be said to be employment in Industry as defined under section 2(J) of the Industrial Disputes Act, 1947 (hereinafter referred to as the "ID Act"). Learned advocate Mr.Munshaw submits that though specific contentions were raised before the learned labour court, with regard to the jurisdictional aspect, without assigning any reasons dealing with the said contention the lump sum compensation was awarded in favour of the respondent.
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NEUTRAL CITATION C/SCA/17663/2021 JUDGMENT DATED: 21/04/2025 undefined 4.1. Learned advocate Mr.Munshaw submits that the workmen in his statement of claim has categorically admitted that his appointment was made for the scarcity relief work, therefore, there was no further evidence required to be adduced before the learned reference court. However, by overlooking the judgment rendered by the full Bench of this Court, the impugned award is passed and therefore, same is required to be interfered with and the petition filed by the employer is required to be allowed and the petition filed by the employee is required to be dismissed
5. As against the same learned advocate Mr.Rathod appearing for the employee submits that initially the appointment was made in the month of March, 1987 and in the month of August, 1987 the workman was relieved from the work. Learned advocate Mr.Rathod submits that again in the month of October, 1987, the appointment was made and thereafter, without following the procedure prescribed under the act the termination order was passed. Learned advocate Mr.Rathod submits that though appointment was made on 22.09.1987 for 29 days till 11.06.1988, the respondent has worked Page 5 of 14 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri May 02 2025 Downloaded on : Sat May 03 10:42:50 IST 2025 NEUTRAL CITATION C/SCA/17663/2021 JUDGMENT DATED: 21/04/2025 undefined continuously with the employer. Learned advocate Mr.Rathod submits that for this period of nine months the respondent has worked for 243 days and considering the same, learned labour court has held that termination is illegal and lump sum compensation is awarded.
6. Learned advocate Mr.Rathod submits that when the learned labour court has held the termination illegal, instead of awarding lump sum compensation the relief of reinstatement ought to have been granted, however, without granting the same, error has been committed by the learned labour court and therefore, petition filed by the employee claiming the relief of reinstatement along with other consequential relief is required to be allowed and the employer's petition is required to be dismissed.
7. Having considered the arguments advanced by the learned advocates for the respective parties and considering the evidence adduced along with the memo of the petition, it is undisputed fact that as per the statement of claim filed by the workman it is admitted by the workman that their appointment was made for the scarcity relief work. It is further stated in the statement of claim that after calling the names from the Page 6 of 14 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri May 02 2025 Downloaded on : Sat May 03 10:42:50 IST 2025 NEUTRAL CITATION C/SCA/17663/2021 JUDGMENT DATED: 21/04/2025 undefined employment exchange and following the procedure of the interview, the appointment was made on 22.09.1987 which continued up to 18.06.1988. On referring the appointment order it emerges that the appointment was made for the period of 29 days and for the work of scarcity relief.
8. Learned advocate Mr.Rathod submits that though initial appointment when made in the month of September, 1987, there was no reference with regard to the scarcity relief work, however, again the appointment was made in the month of October, 1987. If arguments made by the learned advocate Mr.Rathod is tested with the appointment order made in the month of October, 1987, then it is undisputed that even if he was relieved after the appointment made in the month of September, 1987, but when he was appointed in the month of October, 1987, the work was specified, i.e. of scarcity relief work. In that background the said contention is not required to be taken into consideration.
9. At this stage the decision rendered by the full Bench in Special Civil Application No.5056 of 1987 is required to be referred to wherein, the full Bench has held that the Page 7 of 14 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri May 02 2025 Downloaded on : Sat May 03 10:42:50 IST 2025 NEUTRAL CITATION C/SCA/17663/2021 JUDGMENT DATED: 21/04/2025 undefined employment offered to the persons on the scarcity relief work cannot be said to be an employment in a Industry as defined under section 2(J) of the ID Act. The following observations are made by the full Bench while deciding the above questions which are reproduced herein below:-
"12. Whether judgment in the case of J. J. Shrimali requires reconsi- deration because of the decisions in the case of Sanjit Roy (AIR 1983 SC 328) and in the case of Des Raj (AIR 1988 SC 1182):
Before considering this contention it would be appropriate to quote observations from the decision of the Supreme Court in the case of C.I.T. v. Sun Engineering Works (P) Ltd., 1992 (4) SCC 363, wherein the Court has held that the judgment of the Supreme Court must be read as a whole and the observations from the judgment have to be considered in the light of the questions which were before the Court and that it is not proper to regard a word, a clause or a sentence occuring in a judgment as containing a full exposition of the law on a question when question did not even fall to be answered in that judgment. The relevant observations are as under:
"It is neither desirable nor permissible to pick out a word or a sentence from the judgment of this Court, divorced fiom the context of the question under consideration and treat it to be the complete 'law' declared by this Court. The judgment must be read a whole and the observations from the judgment have to be considered in the light of the questions which were before this Court. A decision of this Court takes its colour fiom the questions Page 8 of 14 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri May 02 2025 Downloaded on : Sat May 03 10:42:50 IST 2025 NEUTRAL CITATION C/SCA/17663/2021 JUDGMENT DATED: 21/04/2025 undefined involved in the case in which it is rendered and while applying the decision to a later case. the Courts must carefully try to ascertain the true principle laid down by the decision of this Court and not to pick out words sentences from the judgment, divorced from the context of the questions under consideration by this Court, to support their reason-ings. In Madhav Rao Scindia v. Union of India, [1971 (1) SCC 85], this Court cautioned: It is not proper to regard a word, a clause or a sentence occurring in a judgment of the Supreme Court, divorced from its context, as containing a full exposition of the law on question when the question did not even fall to be answered in that judgment."
Keeping this aforesaid principle in mind, we would consider the decision rendered by the Supreme Court in the case of Sanjit Roy (AIR 1983 SC 328). In that case, the Court considered whether the Minimum Wages Act, 1948 is applicable to the workmen employed in the famine relief works. For deciding the said question, the Court mainly relied upon Art. 23 of the Constitution of India and held that where a person provides labour or service to another for remuneration which is less than the minimum wage, the labour or service provided by him clearly falls within the meaning of the words 'forced labour' and attracts the condemnation of Art. 23. Every person who provides labour or service to another is entitled at least to the minimum wages and if anything less than the minimum wage is paid to him he can complain of violation of his fundamental right under Art. 23. No doubt, in that case, the Court has observed that the relief work undertaken by the State by way of famine relief is useful to the society and productive in terms of creation of some asset or wealth and when the State exacts labour or service from the affected persons for carrying out such work, for example, a bridge Page 9 of 14 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri May 02 2025 Downloaded on : Sat May 03 10:42:50 IST 2025 NEUTRAL CITATION C/SCA/17663/2021 JUDGMENT DATED: 21/04/2025 undefined or a road which has utility for the society and which is going to augment the wealth of the State, there can be no justification for the State not to pay the minimum wage to the affected persons. As stated earlier, in the aforesaid case, the Court has not at all considered the provisions of Sec. 2(j) of the Industrial Disputes Act or the definition of the word 'industry'. Therefore, in our view, the aforesaid decision would not have any bearing in deciding the question as to whether the relief work undertaken by the State Government would be 'industry' or not.
At this stage, we should not lose sight of the subsequent judgment rendered by the Supreme Court in the case of Delhi Development Horticulture Employees' Union (1992 (4) SCC 99). In that case, the Court has specifically observed that in the context of such schemes, it is wrong to approach the problems of those employed under such schemes with a view to providing them with full employment and guaranteeing equal pay for equal work, and if such interpretation is given, it would benefit a few at the cost of the many starving poor for whom the schemes are meant. It may force the State to wind up the existing schemes and forbid them from introducing the new ones, for want of sources. In our view, these observations would aptly apply to such type of relief undertakings during such calamities. Even if the State intends to give full-fledged benefits to a few at the cost of the many starving poor the probable result may be devastating and/or riotous. Similarly, in the case of Des Raj (supra), in one appeal the appellant before the Supreme Court was working as a foreman in the Mechanical Construction Division under the Irrigation Department and in another appeal, the appellant was working as T. Mate in the P.W.D. Drainage Division. Before the Court, the question was whether the Irrigation Department of the Page 10 of 14 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri May 02 2025 Downloaded on : Sat May 03 10:42:50 IST 2025 NEUTRAL CITATION C/SCA/17663/2021 JUDGMENT DATED: 21/04/2025 undefined Government is 'industry' or not. The Court observed that, as the amended statutory definition is not yet in force, the parent definition and judicial pronouncements have to be referred to for finding the law. The Court thereafter referred to various decisions including the decision in the case of Bangalore Water Supply (supra) and observed that the main functions of the Irrigation Department when subjected to the Dominant Nature test clearly come within the ambit of industry. In our view, in this judgment, the Court was not required to consider the question which is posed in this matter. The question was altogether different and was based upon the projects carried out by the Irrigation Department of the concerned State and the said judgment would have no bearing on the question which is required to be dealt with in this matter.
Similarly, in our view, the decision of the Patna High Court in the case of Bihar Relief Committee (54 FJR 385), would not require much consideration because in that case the petitioner, Bihar Relief Committee. was established as a society under the Societies Registration Act with the sole object rendering relief to the suffering caused by natural calamities like flood, drought, epidemic etc. to humanity. After considering various facts, the Court observed:
"The petitioner has undertaken minor irrigation schemes in the State for which it opened various centres for constructing open bore wells, tanks and tube wells after obtaining the advice of technical experts. It stores articles for such works and maintains plants and machineries for which depreciation, wear and tear and running charges are charged. In supplying pipes to the farmers it charges them the costs incurred in transportation and storage. All these establish that the activities of the petitioner are systematic."Page 11 of 14 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri May 02 2025 Downloaded on : Sat May 03 10:42:50 IST 2025
NEUTRAL CITATION C/SCA/17663/2021 JUDGMENT DATED: 21/04/2025 undefined The Court has finally held that the Bihar Relief Committee is an industry within the meaning of Industrial Disputes Act, In the present case, in our view, the work is not organised by a society but it is organised by the State in discharge of its inalienable duty. Further, the relief undertakings, as stated above, are casual and not continuing one.
Lastly, in the case of Umayammal v. State of Kerala, 1983 (1) LLJ 267, the Kerala High Court considered the question whether the provisional or temporary employees working in Government Departments, Government Companies, Statutory Corporations and Local Bodies were governed by the provisions of the Industrial Disputes Act. There also, the Court relied upon the decision of the Supreme Court in the case of Bangalore Water Supply (supra) and it is made clear that the sovereign functions of the State cannot be included in industry, but if there are industrial units severable from the essential functions and possess an entity of their own, it may be plausible to hold that the employees of those units are workmen and those undertakings are industries. In our view, the aforesaid decision of the Kerala High Court would not advance the contentions raised by the learned Advocates for the petitioners. Conclusions :
In the result, we entirely agree with the decision rendered by this Court in the case of J. J. Shrimali [1989 (2) GLH 12 (1989 (1) GLR 396)] and it does not call for any reconsideration. For the reasons recorded above, we answer the questions referred to us, as under:Re: Question No. 1
The employment offered to the persons on the scarcity relief works as undertaken by the State cannot be said to be Page 12 of 14 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri May 02 2025 Downloaded on : Sat May 03 10:42:50 IST 2025 NEUTRAL CITATION C/SCA/17663/2021 JUDGMENT DATED: 21/04/2025 undefined employment in 'industry' as defined by Sec. 2(j) of the Industrial Disputes Act, 1947 mainly because,
(a) it is the primary and inalienable function of the State to provide livelihood to the persons who are affected by the natural calamities such as famine, earthquake, epidemic, flood, scarcity, etc., and
(b) admittedly, the relief work is not a 'business' or 'trade' and with regard to the 'undertaking', the activity is not analogous to trade or business or that it is not a systematic activity but is carried out casually at different places depending on the calamities in a particular area.Re: Question No. 2
The decision of the Division Bench of this Court in the case of J. J. Shrimali [1989 (2) GLH 12: (1989 (1) GLR 396)] that scarcity relief work undertaken by the State is not 'industry' as defined by Sec. 2(j) of the Industrial Disputes Act, 1947, is well sustained."
10. It is required to be noted here that though specific contentions were raised before the learned reference court with regard to the jurisdictional aspect and disputed by the employer as not satisfying the ingredients of 2(J) of the ID Act, no reasons assigned by the learned reference court to disbelieve the case of the employer as the issue with regard to the scarcity relief work is not an Industry is no more res integra, wherein, this Court has held that relief work undertaken by the State during drought, femine etc. for providing Page 13 of 14 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri May 02 2025 Downloaded on : Sat May 03 10:42:50 IST 2025 NEUTRAL CITATION C/SCA/17663/2021 JUDGMENT DATED: 21/04/2025 undefined employment to the needy is not industry, but is the performance of duty in exercise of sovereign functions. Hence, this Court does not deem it fit to discuss further and go into the questions raised by the learned advocate for the employee. The petition filed by the employer is required to be allowed in view of the decision rendered by the full bench in the case of H.K.Makwana Versus State of Gujarat & Others (supra).
11. Resultantly, the petition filed by the employer being Special Civil Application No.17663 of 2021 and 17664 of 2021 is hereby allowed and award passed by the learned labour court, Nadiad in Reference (LCN) No.250 of 1992 dated 04.10.2019 is hereby set aside and petition filed by the employee being Special Civil Application No.13299 of 2022 and 13149 of 2022 is hereby dismissed.
(M. K. THAKKER,J) NIVYA A. NAIR Page 14 of 14 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri May 02 2025 Downloaded on : Sat May 03 10:42:50 IST 2025