Child Guidance Centre vs Govt. Of Nct Of Delhi
2010 Latest Caselaw 1333 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI


+                       W.P.(C) No. 3910/2007

%                            Judgment delivered on: 10th March, 2010

Child Guidance Centre                                ............. Petitioner.
                             Through: Mr. Mr. Amit Seth, Adv.

                        versus

Govt. of NCT of Delhi                               ........... Respondent.

Through: C.B.Singh, Adv.

CORAM:

HON'BLE MR. JUSTICE KAILASH GAMBHIR

1.     Whether the Reporters of local papers may
       be allowed to see the judgment?                                Yes

2.     To be referred to Reporter or not?                             Yes

3.     Whether the judgment should be reported
       in the Digest?                                                 Yes

KAILASH GAMBHIR, J. (Oral):

1. By this petition filed under Article 226/227 of the

Constitution of India, the petitioner seeks to challenge the

impugned award dated 5.5.2005, whereby the Ld. Labour Court

has given directions to the petitioner to reinstate the respondent

workman along with grant of 50% back wages.

2. Brief facts relevant for deciding the present petition

are as that the respondent no. 2 workman was engaged on daily

wages by the petitioner organization on 1.9.1986 and vide order

dated 1.4.1991 , his services were terminated. Thereafter, the

respondent workman raised an industrial dispute bearing ID No.

49/95 whereby vide order dated 5.5.2005, the Labour Court held

that the services of the respondent workman were terminated

illegally without complying with the provisions under section 25 F

of the I.D. Act and hence was granted reinstatement with 50%

back wages. Feeling aggrieved with the same, the petitioner has

preferred the present petition.

3. Counsel for the petitioner submits that the petitioner is

not an "industry" in terms of Section 2A and 2(s) of the Industrial

Disputes Act, 1947 and therefore, the Labour Court had no

jurisdiction to try and entertain the reference sent by the

Government. Counsel for the petitioner further states that in the

written statement filed by the petitioner, the petitioner society

took a preliminary objection to the maintainability of the said

reference on the ground that the petitioner society is a voluntary

organization and is depending primarily on the grants received

from the Government of India on yearly basis. It was also

submitted by the petitioner in the said written statement that the

petitioner is not conducting any business activity for earning

profits and that it was established under Dr. Zakir Hussain

Memorial Welfare Society (Regd.) with the objective to give help

to the children belonging to poor families and also to disabled

children. Counsel further submits that Ms. Fozia Alam, Director

of the petitioner society in his evidence clearly deposed about the

nature of the said activity being run by the petitioner society.

The contention of the counsel for the petitioner is that neither

the respondent rebutted the deposition of the said witness and

nor was there any rebuttal by the respondent in his rejoinder filed

to the written statement and therefore the Ld. Labour Court

ought to have believed the stand of the petitioner. In support of

his arguments, counsel for the petitioner placed reliance on the

judgment of this court in Shakuntla Vs. M/s Tamanna Special

School, 2006 V AD (DELHI) 396. Another contention raised

by the counsel for the petitioner is that the respondent was

simply discharged from his services although there was enough

material against him showing his misbehavior, misconduct and

insubordination, and therefore, in a case like this the Ld. Labour

Court instead of directing reinstatement should have awarded

some compensation. The contention of the counsel for the

petitioner is that keeping in view the conduct of the respondent, it

would not be in the interest of the petitioner society to take the

respondent back in employment and that too now when there is

a gap of about 19 years.

4. Refuting the said submissions of the counsel for the

petitioner, counsel for the respondent submits that the petitioner

has failed to place on record any documentary evidence to prove

the fact that the petitioner is not an "industry". Counsel placed

reliance on the judgment of the Apex Court in Bangalore

Water Supply & Sewerage Board Vs. A. Rajappa & Ors.

(1978) 2 SCC 213. Counsel further submits that the nature of

activity being carried on by the petitioner is a systematic activity,

and therefore, the same is squarely covered by the law laid down

in the said judgment although the petitioner may not be a profit

making body. Counsel for the respondent further submits that

the respondent is still out of employment and simply because of

the delay in the legal process he should not be deprived of the

fruits of the award passed in his favour.

5. I have heard counsel for the parties at considerable

length and gone through the records.

6. Vide impugned award dated 5.5.2005 the Ld. Labour

Court gave directions for the reinstatement of the respondent

workman along with grant of 50% back wages. The Labour

Court based on the material on record found the respondent in

employment of the petitioner society since 1988 and that his

services were terminated w.e.f. 9.4.1991. It is not in dispute

between the parties that the services of the respondent workman

were terminated without complying with the provisions of

Section 25-F of the I.D. Act. It is further not in dispute that

taking the period from the date of his employment, he has

completed 240 days of continuous service prior to the date of the

said termination letter placed on record. It is also quite manifest

that no retrenchment compensation was given to the respondent

and also no compensation in lieu of notice was given in

compliance with Section 25 F of the I.D. Act. It is also a matter of

fact that no domestic enquiry was set up by the petitioner against

the respondent for his alleged acts of misconduct and

insubordination, and therefore, no fault can be found with the

order of the Ld. Labour Court holding the termination of the

respondent as illegal and unjustified. Once the Labour Court has

come to the conclusion that the termination of the workman is

illegal and unjustified then the normal consequence is to reinstate

the workman, although depending on the facts of each case, the

Tribunal can also award compensation. It is also a settled legal

position that under the I.D. Act prime duty is casted upon the

Tribunal to exercise its judicial discretion to give appropriate

relief keeping in view the facts of each case and so far the facts of

this case are concerned, I do not find any illegality or perversity

in the order of the Ld. Labour Court giving directions for the

reinstatement of respondent workman with grant of 50% back

wages. So far the plea of the petitioner stating that the petitioner

in fact is not interested to take the workman back in service

after a gap of 19 years, I find the argument of the counsel for

the petitioner is devoid of any force.

7. It cannot be lost sight of the fact that the petitioner did

not place on record any documentary evidence to prove the fact

of grant of 90% aid from the Government or that it was

dependent on the donations. In the judgment of, Shakuntla Vs.

M/s Tamanna (Supra) cited by the Ld. Counsel for the

petitioner sufficient evidence was placed and proved on record

by the management to show that the funding was primarily

through the donations and contributions from people from all

walks of life for running the organization. It is a settled legal

position that the burden was on the petitioner to prove that it was

not an "industry" to claim exemption from the applicability of I.D.

Act. It would be pertinent to reproduce the relevant para of the

judgment of this court in Off-in-charge (CZARI) vs. Pre.Officer

& Anr. (W.P. (C) 5016/1997) where it was held that:

"Whether the petitioner/management is an 'industry' or not, is not a purely legal issue, but a mixed question of fact and law. It was for the petitioner/management to establish as to whether it is an 'industry' or not before the Tribunal and for the said purpose, it was required to make not only averments to the said effect in its written statement, but also to support the same with relevant facts pertaining to the nature of the petitioner organization, nature of work being carried out by it etc. so as to claim exemption from being covered under the Act."

Hence keeping the aforesaid view in mind, in the present case

there is no proof placed on record by the management that the

money collected from the contributions was not sufficient to run

their project so far the facts of the present case are concerned

although the petitioner has pleaded in its written statement that

the petitioner is an NGO and is not an "industry" and is also

getting 90% of the aid from the Government but no documentary

evidence has been placed on record to substantiate the said plea.

In the absence of any documentary evidence placed on record no

fault can be found in the order of the Ld. Labour Court in

accepting the said plea of the petitioner.

8. In reaching its decision, the Ld. Labour Court has

placed reliance on the judgment of the Apex Court in Bangalore

Water supply & Sewerage Board (Supra). The landmark

judgment lays down the triple test for determining whether a

society is an industry or not. It was held that that section 2(j) has

a wide import and laid down the triple test as industry is one

where there is systematic activity organised by co-operation

between employer and employee for production and distribution

of goods and services calculated to satisfy human wants and

wishes, where absence of motive or gainful employment is

irrelevant. The true focus is functional and decisive test is nature

of the activity with special emphasis on employer-employee

relationship and an organisation does not cease to be trade and

business merely because it is engaged in philanthropic activities.

After seeing the material on record, the Labour court came to the

conclusion that there is a systematic activity of work being done

in the petitioner organization and such an organization would

come within the definition of "industry" as envisaged under

section 25-F of the I.D. Act.

9. In the light of the aforesaid, I do not find any

perversity or illegality in the award.

10. There is no merit in the petition and the same is

hereby dismissed.

March 10, 2010                     KAILASH GAMBHIR,J
pkv