Gujarat High Court
Aarsuri Ambaji Mata Devasthan ... vs Motiji Meghaji Rabari on 12 January, 2021
Bench: A. P. Thaker
C/SCA/1100/2009 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1100 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE A. P. THAKER Sd/-
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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AARSURI AMBAJI MATA DEVASTHAN TRUST
Versus
MOTIJI MEGHAJI RABARI
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Appearance:
MR PREMAL R JOSHI(1327) for the Petitioner(s) No. 1
MR AJAY D ACHARYA(5637) for the Respondent(s) No. 1
RULE SERVED(64) for the Respondent(s) No. 1
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CORAM: HONOURABLE DR. JUSTICE A. P. THAKER
Date : 12/01/2021
ORAL JUDGMENT
1. The present petition has been filed by the petitioner
for quashing and setting aside the award dated
30.07.2008 passed by the Labour Court at Palanpur in
Reference No.671/1996 (old Reference No.1824/1995).
C/SCA/1100/2009 JUDGMENT
2. The main contention of the petitioner - original
employer is that it is a charitable trust. It is also contended
by the petitioner that the respondent - workman had filed
the aforesaid reference for his reinstatement, wherein
after hearing both sides, the Labour Court has partly
allowed the reference by directing the Trust to reinstate
the workman to his original post with 25% back wages. It
is contended by the petitioner that after alleged
termination of his service, the workman approached the
Labour Court after a period of two years. It is further
contended by the petitioner that the workman himself has
abandoned the work. That the workman was working on
daily basis and the petitioner herein has also informed the
workman to resume the work. However, he did not resume
the work. It is contended that the workman was working
only on temporary basis and he himself has abandoned
the work. According to him, the workman has failed to
prove that he has worked for 240 days. It is further
contended that the provisions of Section 25(F) of the
Industrial Disputes Act, 1947 (hereinafter be referred to as
the "I.D. Act") would not be attracted to the facts of the
present case. It is further contended by the petitioner that
the Labour Court has not considered the factual aspects
as well as legal aspects and has committed serious error
of facts and law in passing the impugned award. It is
contended that the petitioner is a charitable trust and
does not fall within the meaning of the "Industry".
C/SCA/1100/2009 JUDGMENT
3. Heard Mr.Premal Joshi, learned advocate for the
petitioner - employer at length through video
conferencing. Though served, nobody has appeared on
behalf of the respondent - workman.
4. Mr.Premal Joshi, learned advocate for the petitioner
has vehemently submitted the same facts which are
narrated in the memo of petition. He has invited the
attention of this Court regarding the award passed by the
Labour Court as well as earlier litigation between the
parties where reference came to be withdrawn by the
workman. Mr.Joshi, learned advocate for the petitioner
has relied upon the decision of the Division Bench of this
Court in the case of Manager, Panchasara Jani
Derasar, Patna District Vs. Mahmadkha Gajikha
Baloch, reported in 1992 (0) GLHEL-Hc 214719
wherein it has been observed by the Division Bench of this
Court that Jain Temple is trust and activities which are
done in the temple are "dharm" and "dhyan" and,
therefore, this was treated not an industry.
5. At this juncture, it is worthwhile to refer to Section 2
(j) (with amendment) of the I.D. Act, which reads as
under:-
"Clause (j) shall stand substituted as below when sec. 2(c) of
Act 46 of 1982 will come into force:
(j) "industry" means any systematic activity carried out on by
co-operation between an employer and his workmen
C/SCA/1100/2009 JUDGMENT
(whether such workmen are employed by such employer
directly or by or through any agency, including a contractor)
for the production, supply or distribution of goods or services
with a view to satisfy human wants or wishes (not being
wants or wishes which are merely spiritual or religious in
nature), whether or not.-
(i) any capital has been invested for the purpose of
carrying on such activity; or
(ii) such activity is carried on with a motive to make any
gain or profit, and includes -
(a) any activity of the Dock Labour Board established
under section 5A of the Dock Workers (Regulation of
Employment) Act, 1948 (9 of 1948);
(b) any activity relating to the promotion of sales or
business or both carried on by an establishment,
but does not include -
(1) xxx xxx xxx
(2) xxx xxx xxx
(3) xxx xxx xxx
(4) institutions owned or managed by organisations wholly
or substantially engaged in any charitable, social or
philanthropic service or
(5) xxx xxx xxx
(6) xxx xxx xxx
(3) xxx xxx xxx
(7) xxx xxx xxx
(8) xxx xxx xxx
(9) xxx xxx xxx"
6. Now, on perusal of the impugned award, it appears
that the stand taken by the petitioner herein is that
though the workman was informed to resume his duty, he
C/SCA/1100/2009 JUDGMENT
did not resume his duty and he was informed by letter
dated 29.05.1997. Since he was not reporting on service
since long, he cannot be retained in service. It also
appears that the workman was working in "Ambika
Bhojanalaya". It also appears from the oral evidence of
both the sides that the specific stand of the present
petitioner is that the workman was working as "Pirsaniya"
on daily wages and the workman was irregular in
attending the same and he himself has abandoned the
service. The Labour Court has held that though the
workman was working on daily basis and he was irregular
in his attendance, no notice or departmental inquiry has
been initiated against the workman by the petitioner -
employer. This view of the Labour Court is not proper in
the eyes of law as the workman was working on daily
basis. It was for the workman to produce on record the
necessary evidence as to his regular attendance and
having worked for 240 days in preceding calender year. It
also appears that the workman has not given any notice
for production of documentary evidence by the employer
before the Labour Court. Now, it is well settled by catena
of decisions of the Apex Court that mere stand of the
workman is that he has worked for 240 days without any
documentary evidence cannot be accepted as it is. It is
also well settled that in case, the employer do not submit
the documentary evidence, which is lying with them, the
workman may file an application before the Labour Court
for production of such documents and in case of failure on
C/SCA/1100/2009 JUDGMENT
the part of the employer, then, necessary adverse
inference could be drawn against the employer. However,
in this case, except bare word of the workman, which has
been denied by the witness of the employer in his
evidence, such version of the workman cannot be
accepted.
7. Now, it is an admitted fact that the present petitioner
is a Trust and the activity of providing lunch and dinner on
concessional basis to the pilgrim cannot be treated as an
industrial work. Such activity of providing lunch and dinner
on charitable basis is not an activity which may fall within
the meaning of the industrial activity.
8. In view of the above, it appears that the Labour Court
has committed serious error of facts and law in passing
the impugned award against the employer.
9. For the foregoing reasons, the present petition is
allowed. The impugned award dated 30.07.2008 passed
by the Labour Court at Palanpur in Reference No.671/1996
(old Reference No.1824/1995) is hereby quashed and set
aside. Rule is made absolute to the aforesaid extent.
Sd/-
(DR. A. P. THAKER, J)
V.R. PANCHAL
