Gujarat High Court
Shree Somnath Trust vs Kamlesh Manishankar Pathak on 10 September, 2025
NEUTRAL CITATION
C/SCA/2073/2020 JUDGMENT DATED: 10/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 2073 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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Approved for Reporting Yes No
✔
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SHREE SOMNATH TRUST
Versus
KAMLESH MANISHANKAR PATHAK
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Appearance:
MR DG SHUKLA(1998) assisted by Ms.Meshwa Bhatt for the Petitioner(s)
No. 1
MR HARSHEEL D SHUKLA(6158) for the Petitioner(s) No. 1
MR SP MAJMUDAR(3456) for the Respondent(s) No. 1
RUSHABH H MUNSHAW(8958) for the Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 10/09/2025
ORAL JUDGMENT
1. Rule returnable forthwith. Learned advocate Mr.S.P.Majmudar waives service of notice of Rule on behalf of respondent.
2. The present petition has been filed challenging the award passed by the learned Labour Court, Junagadh, in Reference (T) No. 08 of 2018, whereby the Labour Court Page 1 of 18 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Thu Sep 18 2025 Downloaded on : Sat Sep 20 02:52:07 IST 2025 NEUTRAL CITATION C/SCA/2073/2020 JUDGMENT DATED: 10/09/2025 undefined directed the present petitioner-Trust to reinstate the respondent to his original post with continuity of service, 50% back wages, and all consequential benefits, along with costs of ₹1,000/-.
3. petitioner-Trust is engaged in religious activities and is responsible for the management and upkeep of the Somnath Temple, along with other associated temples, guest houses, and facilities for pilgrims visiting for darshan. The Trust is primarily funded through public donations and employs both part-time and full-time staff to carry out its activities. The respondent was initially appointed as a Poojari at the Aghoreshwar Temple vide appointment letter dated 31.08.1990. His services were confirmed by office order dated 06.02.1991, with effect from 01.01.1991. During the course of his employment, the petitioner issued communications dated 30.10.1990, 05.03.1991, and 23.09.1992 to the respondent, citing negligence and irregularity in the performance of his duties. Subsequently, a show-cause notice cum charge sheet dated 18.05.1993 was issued, alleging that the respondent was not performing Pooja regularly at the Aghoreshwar Temple and was engaged in personal Page 2 of 18 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Thu Sep 18 2025 Downloaded on : Sat Sep 20 02:52:07 IST 2025 NEUTRAL CITATION C/SCA/2073/2020 JUDGMENT DATED: 10/09/2025 undefined business during working hours. Despite repeated warnings, the respondent continued to remain irregular, including not performing the Aarti on 05.03.1991 and being absent again on 15.05.1993. In view of the above, the respondent was placed under suspension pending a departmental inquiry. He submitted his written explanation on 20.05.1993. Thereafter, he challenged the suspension order by filing Regular Civil Suit No. 107 of 1993 before the learned Joint Civil Judge, Junior Division, Veraval. In response, the petitioner filed an application under Order VII Rule 10 of the Code of Civil Procedure. By judgment and order dated 21.12.2004, the plaint was ordered to be returned for presentation before the court having appropriate jurisdiction. The respondent preferred Regular Civil Appeal No. 41 of 2005 against the said order, which was subsequently withdrawn by him on 20.02.2009. Meanwhile, the inquiry proceedings were conducted by various inquiry officers appointed by the petitioner-Trust. Initially, Shri Acharya was appointed, and upon his inability to proceed, Shri Girishbhai Vaidya was appointed. Eventually, Shri V.D.Zinzuvadia was appointed to Page 3 of 18 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Thu Sep 18 2025 Downloaded on : Sat Sep 20 02:52:07 IST 2025 NEUTRAL CITATION C/SCA/2073/2020 JUDGMENT DATED: 10/09/2025 undefined conduct the inquiry. On conclusion of the domestic inquiry, the final report dated 30.03.2006 was submitted, wherein the charges leveled against the respondent were found to be proved. Accordingly, the respondent was terminated from service vide order dated 31.08.2017. Aggrieved by the said termination, the respondent raised an industrial dispute, which was referred to the learned Labour Court, Junagadh, and registered as Reference (T) No. 08 of 2018. Upon appreciation of the evidence on record, the learned Labour Court passed the impugned award, directing reinstatement of the respondent with continuity of service, 50% back wages, consequential benefits, and costs of ₹1,000/-, which is under challenge in the present petition.
4. Heard learned advocate Mr.Shukla for the petitioner and learned advocate Mr.Majmudar for the respondent.
5. Learned advocate Mr. Shukla, at the outset, fairly concedes that with regard to the industry, as per settled law, the petitioner trust satisfies the triple test mentioned in the judgment of Bangalore Water Supply. It is submitted by the learned advocate Page 4 of 18 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Thu Sep 18 2025 Downloaded on : Sat Sep 20 02:52:07 IST 2025 NEUTRAL CITATION C/SCA/2073/2020 JUDGMENT DATED: 10/09/2025 undefined Mr.Shukla that the respondent was discharging duties as a Poojari, and therefore, he cannot be considered a "workman" as defined under Section 2(s) of the Industrial Disputes Act, 1947(herein after referred to as the "ID Act"). In the absence of a master-servant relationship, the learned Labour Court has committed an error in adjudicating the dispute by defining it as an industrial dispute under Section 2(k) of the ID Act. Learned advocate Mr.Shukla submits that although the pursis came to be filed by the respondent accepting the legality and validity of the domestic inquiry, the learned court nonetheless proceeded to examine its legality and validity. Learned advocate Mr.Shukla submits that the respondent was negligent in discharging his duties as a Poojari, and was irregular in performing the Aarti at Shri Aghoreshwar Temple. Despite receiving written memos and multiple opportunities, there was no improvement in his conduct. Therefore, his services were terminated after following the due procedure under the Act. Learned advocate Mr.Shukla submits that during the pendency of the petition, the respondent attained the age of superannuation in the year 2022. Hence, the Page 5 of 18 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Thu Sep 18 2025 Downloaded on : Sat Sep 20 02:52:07 IST 2025 NEUTRAL CITATION C/SCA/2073/2020 JUDGMENT DATED: 10/09/2025 undefined impugned award deserves to be set aside and the petition is required to be allowed. Learned advocate Mr.Shukla submits that the dispute was referred to the learned court with specific terms of reference, namely whether the respondent is entitled to reinstatement and other consequential benefits from the date of termination. However, the learned court went beyond the terms of reference and granted relief from the date of suspension, i.e. 31.08.2017. Learned advocate Mr.Shukla relies on decisions rendered by this Court in Special Civil Application No. 21883 of 2016, Writ Petition No. 3731 of 2004, as well as the decisions of the Delhi High Court in Writ Petition No. 3426 of 2011, and Special Writ Application No. 171 of 2020 rendered by the Division Bench of the Rajasthan High Court. He submits that the learned court erred in accepting the respondent's case and in holding that the respondent falls under the definition of "workman" under Section 2(s) of the ID Act. Learned advocate Mr.Shukla also relies on the admission made by the respondent during cross-examination, wherein the respondent admitted to earning Rs. 5,000/- to Rs. 7,000/-, and therefore submits Page 6 of 18 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Thu Sep 18 2025 Downloaded on : Sat Sep 20 02:52:07 IST 2025 NEUTRAL CITATION C/SCA/2073/2020 JUDGMENT DATED: 10/09/2025 undefined that the learned court erred in granting the relief of back wages. On the above grounds, learned advocate Mr. Shukla prays that the petition be allowed and the impugned award be set aside.
6. Per contra, learned advocate Mr. Majmudar, appearing for the respondent, submits that a contention was raised before the learned civil court that the respondent is a workman and that the dispute is between an employee and employer; therefore, the jurisdiction lies with the industrial court. Accordingly, the learned civil court passed a judgment and order dated 21.12.2004, returning the plaint with liberty to file before the appropriate forum. Learned advocate Mr.Majmudar submits that the said order was challenged by filing an appeal being Regular Civil Appeal No. 41 of 2005, and during the pendency of the said appeal, the order of termination was passed on 31.08.2017. Learned advocate Mr.Majmudar submits that the respondent was kept under suspension in an absolutely unlawful manner for a period of 24 years, and therefore, the learned court was justified in granting relief from the date of suspension, i.e., 18.05.1993. Learned advocate Page 7 of 18 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Thu Sep 18 2025 Downloaded on : Sat Sep 20 02:52:07 IST 2025 NEUTRAL CITATION C/SCA/2073/2020 JUDGMENT DATED: 10/09/2025 undefined Mr.Majmudar submits that the findings arrived at by the inquiry officer were unsupported by any documentary evidence, and according to the testimony of Mr. B.P. Goswami, it was admitted that the workman was regularly performing Aarti. Learned advocate Mr.Majmudar submits that the learned court, after assigning cogent and convincing reasons, has rightly concluded the reference in favour of the respondent. Therefore, no interference is warranted, and the petition deserves to be dismissed. Learned advocate Mr.Majmudar has relied on the decisions rendered by the Apex Court in the cases of M.V.Bijlani Versus Union of India and others reported in (2006) 5 SCC 88; Shri Cutchi Visa Oswal Derawasi Jain Mahajan Versus Industrial Tribunal, Bombay (By B.D. Bprude, Presiding Officer) and Others reported in 1986 SCC Online (Bombay) 188; Kuldeep Singh Versus Commissioner of Police and Others reported in (1999) 2 SCC 10; and Neelima Srivastava Versus State of Uttar Pradesh reported in 2021 (0) AIJEL- SC 67606, and submits that the learned court was justified in granting the relief of reinstatement as well as Page 8 of 18 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Thu Sep 18 2025 Downloaded on : Sat Sep 20 02:52:07 IST 2025 NEUTRAL CITATION C/SCA/2073/2020 JUDGMENT DATED: 10/09/2025 undefined back wages. Hence, no interference is required, and the petition is liable to be dismissed.
7. Having considered the arguments advanced by the learned advocates for the respective parties and upon referring to the reasons, it emerges from the record that, as per the case of the respondent before the learned reference court, the respondent was serving as a Poojari of Shri Aghoreshwar Temple since 01.09.1990 and was confirmed on the said post with effect from 01.01.1991. A show-cause notice came to be issued on 18.05.1993, alleging that the respondent had failed to perform the Pooja on 30.10.1990 and was irregular in performing the Aarti on 05.03.1991. It was further alleged that the respondent refused to accept the said notices, which were consequently sent via Registered Post A.D. Based on these allegations of misconduct, the respondent was suspended with effect from 19.05.1993, vide order dated 18.05.1993. The respondent replied to the said show-cause notice, contending that he had been made permanent vide communication dated 06.02.1991. Therefore, the allegation regarding irregular Aarti on 30.10.1990 was vague and baseless, as irregular Page 9 of 18 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Thu Sep 18 2025 Downloaded on : Sat Sep 20 02:52:07 IST 2025 NEUTRAL CITATION C/SCA/2073/2020 JUDGMENT DATED: 10/09/2025 undefined performance prior to confirmation would have precluded regularization of service. It further emerges that, challenging the suspension order, a civil suit came to be filed being Regular Civil Suit No. 107 of 1993--which was decided in favour of the petitioner on 21.12.2004. The court passed a decree to return the plaint with liberty to file the same before the appropriate forum having jurisdiction to adjudicate the case. This order was challenged by filing Regular Civil Appeal No. 41 of 2005. During the pendency of the said appeal, the departmental inquiry was concluded, holding the charge as proved, and an order was passed terminating the services of the respondent on 31.08.2017. It is an admitted position that, by filing the pursis below Exh.62, the legality and validity of the inquiry were accepted, and the adjudication before the learned court was limited to the perversity of the findings or the proportionality of the punishment. To examine whether the findings were just and proper, the learned court referred to the evidence recorded during the inquiry, including the depositions of witnesses such as Madhubhai Kalamkar-Trustee of the Somnath Trust and Page 10 of 18 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Thu Sep 18 2025 Downloaded on : Sat Sep 20 02:52:07 IST 2025 NEUTRAL CITATION C/SCA/2073/2020 JUDGMENT DATED: 10/09/2025 undefined Mr. B.P. Goswami-General Manager of the Trust--both of whom did not disclose any irregularities on the part of the respondent in performing the Aarti. Referring to the respondent's own evidence, it emerges that the Trust had acquired land from the respondent's family, and in return, it was agreed that one family member would be given employment. Initially, the respondent's father was employed, and upon his retirement, the respondent was appointed on 01.09.1990 and confirmed on 01.01.1991. The legal question raised before this Court regarding whether the respondent qualifies as a "workman" as defined under Section 2(s) of the ID Act is required to be adjudicated in light of the evidence placed on record. Referring to the decision rendered by the civil court, it transpires that an application under Order VII Rule 10 CPC was filed by the petitioner, contending that the civil court lacked jurisdiction as the petitioner was an "industry" and the respondent a "workman," making the matter an "industrial dispute" under Section 2(k) of the ID Act. Consequently, the civil court passed a judgment and decree in favour of the petitioner, returning the plaint with liberty to file before the appropriate forum. Page 11 of 18 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Thu Sep 18 2025 Downloaded on : Sat Sep 20 02:52:07 IST 2025
NEUTRAL CITATION C/SCA/2073/2020 JUDGMENT DATED: 10/09/2025 undefined Subsequently, taking a contrary stand before the learned reference court that the respondent is not a workman and, therefore, the Industrial Court lacks jurisdiction to adjudicate the dispute, is nothing but a misuse of the process of law. Such contradictory conduct is clearly barred by the principle of estoppel.
8. At this stage reference of the decision rendered by the Apex Court in the case of Haryana State Coop. Land Development Bank Versus Neelam reported in 2005 5 SCC 91 is required to be made which is reproduced herein below:-
"18. It is trite that the courts and tribunals having plenary jurisdiction have discretionary power to grant an appropriate relief to the parties. The aim and object of the Industrial Disputes Act may be to impart social justice to the workman but the same by itself would not mean that irrespective of his conduct a workman would automatically be entitled to relief. The procedural laws like estoppel, waiver and acquiescence are equally applicable to the industrial proceedings. A person in certain situation may even be held to be bound by the doctrine of acceptance sub silentio. The respondent herein did not raise any industrial dispute questioning the termination of her services within a reasonable time. She even accepted an alternative employment and has been continuing therein from 10-8-1988. In her replication filed before the Presiding Officer of the Labour Court while traversing the plea raised by the appellant herein that she is gainfully employed in Page 12 of 18 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Thu Sep 18 2025 Downloaded on : Sat Sep 20 02:52:07 IST 2025 NEUTRAL CITATION C/SCA/2073/2020 JUDGMENT DATED: 10/09/2025 undefined HUDA with effect from 10-8-1988 and her services had been regularised therein, it was averred:
"6. The applicant workman had already given replication to the ALC-cum-Conciliation Officer, stating therein that she was engaged by HUDA from 10-8-1988 as clerk-cum- typist on daily-wage basis. The applicant workman has the right to come to the service of the management and she is interested to join them.""
9. Further reference of the decision rendered by the Apex Court in the case of Steel Authority of India Limited Versus Union of india and others reported in 2006 12 SCC 233 is made which. The relevant paragraph is reproduced herein below:-
"28. The workmen whether before the Labour Court or in writ proceedings were represented by the same union. A trade union registered under the Trade Unions Act is entitled to espouse the cause of the workmen. A definite stand was taken by the employees that they had been working under the contractors. It would, thus, in our opinion, not lie in their mouth to take a contradictory and inconsistent plea that they were also the workmen of the principal employer. To raise such a mutually destructive plea is impermissible in law. Such mutually destructive plea, in our opinion, should not be allowed to be raised even in an industrial adjudication. Common law principles of estoppel, waiver and acquiescence are applicable in an industrial adjudication."
10. Considering the admission made by the petitioner herein before the learned civil court, in the opinion of this Page 13 of 18 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Thu Sep 18 2025 Downloaded on : Sat Sep 20 02:52:07 IST 2025 NEUTRAL CITATION C/SCA/2073/2020 JUDGMENT DATED: 10/09/2025 undefined Court, no error has been committed by the learned Industrial Court in holding that the respondent falls within the definition under Section 2(s) of the ID Act and is, therefore, a "workman.". Having held that the respondent is a workman, the learned court proceeded to examine whether the findings arrived at by the Inquiry Officer were just and proper, and whether the termination order passed was proportionate to the charges leveled. It emerges from the record that the petitioner did not examine any witnesses but did produce documentary evidence, in the nature of appointment of inquiry officer, appointment order of the respondent, inquiry report, show cause notice, memo which are issued against the respondent for remaining absent during the Aarti of the Aghoreshwar temple etc. From the evidence adduced, it appears that the inquiry proceedings were prolonged for a period of 24 years, and based on the depositions of eight witnesses, the Inquiry Officer concluded that the charges against the respondent were proved. It is undisputed fact that the legality and validity of the inquiry remained intact. 10.1. The issue before the learned Labour Court, therefore, Page 14 of 18 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Thu Sep 18 2025 Downloaded on : Sat Sep 20 02:52:07 IST 2025 NEUTRAL CITATION C/SCA/2073/2020 JUDGMENT DATED: 10/09/2025 undefined was to examine whether the findings recorded during the departmental inquiry were justified based on the charges and whether the punishment imposed was proportionate to the misconduct. The power of the Labour Court or the Tribunal to interfere with the punishment does not cease merely upon a finding that the inquiry was properly conducted and that a valid charge sheet was served. The court retains the authority to interfere with the quantum of punishment where it finds that the management was actuated by unfair labour practice or victimization. Even if the domestic inquiry is held to be legal and proper, the court can still conclude that the findings are perverse. These are two distinct questions(i) the justifiability of the findings and
(ii) the proportionality of the punishment and both are within the scope of examination by the Labour Court based on the facts and circumstances of the case. If one were to peruse the charge sheet issued to the respondent, it refers to acts of alleged misconduct on three specific dates: 15.05.1993, 30.10.1990, and 05.03.1991. However, if one examines the findings of the Inquiry Officer which are said to be based on the Page 15 of 18 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Thu Sep 18 2025 Downloaded on : Sat Sep 20 02:52:07 IST 2025 NEUTRAL CITATION C/SCA/2073/2020 JUDGMENT DATED: 10/09/2025 undefined evidence of eight witnesses it emerges that the first witness, Mr. Madhubhai Kalamkar, referred to entirely different dates: 07.01.1992, 09.01.1992, 10.01.1992, and 14.09.1992. This witness deposed that the respondent was not present on those dates and that Rojkam was prepared accordingly. Similar depositions were given by other witnesses.
10.2. Since the departmental inquiry was concluded based on these new dates, and the charge sheet does not refer to misconduct on those dates, this Court is of the considered opinion that the learned court was justified in holding that the findings of the Inquiry Officer were perverse and, consequently, the punishment imposed required interference. One relevant fact to be noted is that although the show-cause notice refers to alleged misconduct on 30.10.1990, the respondent was still made permanent on 06.02.1991. If the respondent had, in fact, been found to be irregular in discharging his duties, the management, instead of confirming his appointment, ought to have terminated his services or initiated appropriate disciplinary action for such alleged misconduct. This context further supports the view that Page 16 of 18 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Thu Sep 18 2025 Downloaded on : Sat Sep 20 02:52:07 IST 2025 NEUTRAL CITATION C/SCA/2073/2020 JUDGMENT DATED: 10/09/2025 undefined the findings arrived at by the Inquiry Officer were inconsistent with the record. Accordingly, in the considered opinion of this Court, the learned Reference Court was justified in holding that the conclusion arrived at by the Inquiry Officer based on the evidence of witnesses was invalid and contrary to the evidence on record. The remaining question for consideration before this Court is whether, while granting the relief of reinstatement, the learned court was justified in awarding 50% back wages from the date of suspension, i.e., 08.05.1993. A perusal of the statement of claim reveals that the respondent's demand was to declare the termination order dated 31.08.2017 as illegal and to grant the relief of reinstatement along with all consequential benefits from that date. 10.3. It is true that the inquiry process continued for an inordinate period of 24 years. However, during the pendency of the inquiry, subsistence allowance was paid to the respondent. The respondent contends that the amount paid was less than his lawful entitlement. However, separate proceedings in this regard have already been initiated. Therefore, this Court refrains Page 17 of 18 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Thu Sep 18 2025 Downloaded on : Sat Sep 20 02:52:07 IST 2025 NEUTRAL CITATION C/SCA/2073/2020 JUDGMENT DATED: 10/09/2025 undefined from rendering any findings on the adequacy or legality of the subsistence allowance paid. Issuing such a finding here would amount to deciding matters beyond the terms of reference.
11. Learned advocate submits that, during the pendency of this petition, the respondent attained the age of superannuation on 19.05.2022. Therefore, in the opinion of this Court instead of confirming the relief of reinstatement with 50% back wages from the date of suspension, the ends of justice would be met by awarding a lump sum compensation of Rs. 8,00,000/- to the respondent towards full and final settlement, in lieu of reinstatement and back wages.
12. Resultantly, this petition is partly allowed.
13. Rule made absolute to the above extent.
(M. K. THAKKER,J) NIVYA A. NAIR Page 18 of 18 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Thu Sep 18 2025 Downloaded on : Sat Sep 20 02:52:07 IST 2025