Gujarat High Court
State Of Gujarat vs Galabhai Fatabhai Damor on 18 March, 2021
Bench: A.G.Uraizee
C/SCA/12171/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12171 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 12092 of 2020
With
CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2020
In R/SPECIAL CIVIL APPLICATION NO. 12092 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 12095 of 2020
With
CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2020
In R/SPECIAL CIVIL APPLICATION NO. 12095 of 2020
==========================================================
STATE OF GUJARAT
Versus
GALABHAI FATABHAI DAMOR
==========================================================
Appearance:
MR AKASH CHHAYA AGP (1) for the Petitioner(s) No. 1
MR DIPAK R DAVE(1232) for the Respondent(s) No. 1
NOTICE SERVED(4) for the Respondent(s) No. 2
==========================================================
CORAM: HONOURABLE MR. JUSTICE A.G.URAIZEE
Date : 18/03/2021
COMMON ORAL ORDER
1. Since these petitions raise identical issue, the same are
being disposed of by this common order.
2. In Special Civil Application No.12171 of 2020, the State of
Gujarat has assailed the judgment and award dated 20.9.2019
passed in Reference T No.332/1999 passed by the Labour Court,
Godhra whereby the action of the petitioner terminating the
respondent workman herein is held as illegal and it has ordered
to reinstate the respondent workman to his original post with
continuity of service and without backwages. The Labour Court
C/SCA/12171/2020 ORDER
has also awarded Rs.5000/- towards costs.
3. As per the statement of claim, the respondent was working
continuously under the petitioner Department from 1992 as a
daily wage labourer cum Chowkidar and was paid Rs.800 per
month and had completed 240 days in a year. He further
claimed that his services were terminated in the year 1997
without giving any notice, notice pay or retrenchment
compensation. In response to the statement of claim, the
Department filed a written statement before the Labour Court
whereby the allegations were denied. It was mainly contended
that the respondent workman had worked only on seasonal
basis and had not completed 240 days in a year. However, the
Labour Court had allowed the reference. Hence, the petition.
4. In Special Civil Application No.12092 of 2020, the State of
Gujarat has assailed the judgment and award dated 20.9.2019
passed in Reference T No.331/1999 passed by the Labour Court,
Godhra whereby the action of the petitioner terminating
respondent workman herein is held as illegal and it has ordered
to reinstate the respondent workman to his original post with
continuity of service and without backwages. The Labour Court
has also awarded Rs.5000/- towards costs.
5. As per the statement of claim, the respondent of SCA
No.12092/2020 was working continuously under the petitioner
Department from 1987 as a daily wage labourer cum Chowkidar
and was paid Rs.800 per month and had completed 240 days in
a year. He further claimed that his services were terminated in
the year 1998 without giving any notice, notice pay or
C/SCA/12171/2020 ORDER
retrenchment compensation. In response to the statement of
claim, the Department filed a written statement before the
Labour Court whereby the allegations were denied. It was
contended that the respondent workman had worked only on
seasonal basis and had not completed 240 days in a year.
However, the Labour Court had allowed the reference. Hence, the
petition.
6. In Special Civil Application No.12095 of 2020, the State of
Gujarat has assailed the judgment and award dated 20.9.2019
passed in Reference T No.330/1999 passed by the Labour Court,
Godhra whereby the action of the petitioner terminating the
respondent workman herein is held as illegal and it has ordered
to reinstate the respondent workman to his original post with
continuity of service and without backwages. The Labour Court
has also awarded Rs.5000/- towards costs.
7. As per the statement of claim, the respondent was working
continuously under the petitioner Department from 1987 as a
daily wage labourer cum Chowkidar and was paid Rs.800 per
month and had completed 240 days in a year. He further
claimed that his services were terminated in the year 1998
without giving any notice, notice pay or retrenchment
compensation. In response to the statement of claim, the
Department filed a written statement before the Labour Court
whereby the allegations were denied. It was mainly contended
that the respondent workman had worked only on seasonal
basis and had not completed 240 days in a year. However, the
Labour Court had allowed the reference. Hence, the petition.
C/SCA/12171/2020 ORDER
8. I have heard Mr. Akash Chhaya, learned AGP for the
petitioner and Mr. Dipak Dave, learned advocate for the
respondent.
9. Mr. Chhaya, submits that the respondent in these petitions
were not engaged by the Department as workmen on regular
basis but they worked on seasonal basis for few days. He
submits that the respondents had worked without completing
240 days in the preceding year and, therefore, the provisions of
section 25F of the Industrial Disputes Act were not applicable.
He would also submit that since the respondents were employed
for seasonal work, the provisions of sections 25F and 25G were
not applicable. He, therefore, submits that the impugned
judgment and award of the Labour Court deserves to be set
aside.
10. On the other hand, Mr. Dipak Dave, learned advocate for
the respondent has supported the impugned judgment and
award. According to his submission, the issue raised in these
petitions is no longer res integra and is put to rest by the
decision of this court dated 20.1.2020 rendered in the case of
Saburbhai Zavrabhai Baria v. Deputy Executive Engineer in
Special Civil Application No.22362 of 2019 and allied
petitions which is confirmed by the Division Bench of this court
in appeal.
11. The judgment of the learned Single Judge is based on an
earlier judgment dated 22.10.2019 rendered in Special Civil
Application No.14096 of 2018 and allied petitions.
C/SCA/12171/2020 ORDER
12. He, therefore, urges that the petitions deserve to be
dismissed.
13. Mr. Chhaya, learned AGP could not controvert submissions
of Mr. Dave.
14. This court in Saburbhai Zavrabhai Baria v. Deputy
Executive Engineer (supra) has held as under:-
"9. So far as the petitions of the State are concerned, this
Court notices that in Special Civil Application No. 14096 of
2018 and allied matters, on 22.10.2019, this Court
considered in detail the rival stand of the parties and held
against the Government. Profitably, the details are
reproduced with reasons herein under:-
"6.1. Learned AGP has fervently argued before this
Court that the petitioner is not an industry as pointed
out earlier also and moreover, the labour Court has
disregarded the fact that none of the respondents has
completed 240 days. Overlooking that vital aspect, the
Court has passed the judgment and award. He
further has urged that it was firstly the onus upon the
respondent to prove the claim of completion of 240
days and thereafter of proving other factual details
which they have been pleading. He has urged the
Court that these are the matters which deserve to be
allowed as completely wrong, erroneous and
unsustainable approach as has been adopted by the
labour Court. Learned AGP has submitted that the
earlier references had been rejected for want of
prosecution of course and not on merits.
6.2. Per contra, learned advocate Mr. Dave appearing
for respondent no.1 has fervently and strenuously
argued before this Court that not only this Court in
Special Civil Application No. 12521 of 2018 and allied
matters has decided the very issue which has been
raised in the present petitions, but, the Apex Court has
also concluded the aspect of government being the
industry under Section 2(j) of the ID Act in case of Des
Raj vs. State of Punjab. He has further submitted that
C/SCA/12171/2020 ORDER
it is not only the completion of 240 days, but, the
breach of Section 25 (G) and (H) shall need to be
regarded by the Court. He heavily relied on the
decision of this Court in the case of Zonal Manager
State Bank of India vs. Modi Rajeshkumar Shantilal.
7. Having thus heard both the sides and also
considering the various decisions which have been
pressed into service, firstly the issue raised before this
Court is that the petitioner is an industry as per the
provisions of Section 2(j) of the ID Act. The Apex Court
way-back in the year 1988 in the case of Des Raj vs.
State of Punjab, reported in 1988 (2) SCC 537, has
considered that the Irrigation Department of the
Government is an Industry as its main function when
subjected to the dominant nature test, clearly came
within the ambit of industry. The Court has further
held that it had been indicated that the position should
be clarified by an appropriate amendment, keeping in
view the Supreme Court's opinion. The appellant was
T.Mate in P.W.D. Drainage Division. When his services
came to be terminated, he challenged the termination
before the labour Court and in remaining appeal the
appellant was the operator in the Mechanical Division
under the Irrigation Department of State of Haryana,
whose services came to be terminated disputing the
validity of such order. In each of the cases the
challenge advanced by the governmental authority
was the maintainability of the application, on the
ground that the employer was not an industry and the
Act did not apply. This objection was upheld by the
Labour Court and it declined relief to the employees.
When challenged before the Apex Court, the Court held
thus:-
" 4. The definition of 'industry' occurring in
Section 2 of the Act has now to be seen. The Act
defines 'industry' in Section 2(J) to mean:
"any business, trade undertaking, manufacturer
or calling of employers and includes any calling
service, employment, handicraft, or industrial
occupation or avocation of workmen. "
By Section 2(c) of the Amending Act (46 of 1982),
this definition has been amended but the
amendment has not yet been brought into force.
C/SCA/12171/2020 ORDER
The amended definition of "industry" is as
follows:
"Industry means any systematic activity carried
on by co operation between an employer and his
workmen (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;
(b) any activity relating to the promotion of sales
or business or both carried on by an
establishment, but does not include-
(1) any agricultural operation except where such
agricultural operation is carried on in an
integrated manner with any other activity (being
any such activity as is referred to in the
foregoing provisions of this clause) and such
other activity is the predominant one,
Explanation:- For the purposes of this sub-
clause, 'agricultural operation' does not include
any activity carried on in a 621 plantation as
defined in clause (f) of Section 2 of the
Plantations Labour Act, 1951; or
(2) hospitals or dispensaries; or
(3) educational, scientific, research or training
institutions; or
(4) institutions owned or managed by
organisation wholly or substantially engaged in
any charitable, social or philanthropic service; or
(5) khadi or village industries; or
(6) any activity of the Government relatable to
the sovereign functions of the Government
C/SCA/12171/2020 ORDER
including all the activities carried on by the
departments of the Central Government dealing
with defence research, atomic energy and space;
or
(7) any domestic service; or
(8) any activity, being a profession practised by
an individual or body of individuals, if the
number of persons employed by the individual or
body of individuals in relation to such profession
is less than ten; or
(9) any activity, being an activity carried on by a
cooperative society or a club or any other like
body of individuals, if the number of persons
employed by the cooperative society, club or
other like body of individuals in relation to such
activity is less than ten;"
Since 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 field is covered by pronouncements
of this Court and it is not necessary to go beyond
these precedents. In case the Irrigation
Department is accepted to be "industry", there is
no dispute that each of the appellants would be
a "workman" and each of the claims would
constitute an "industrial dispute" as defined in
Section 2(s) and (k) respectively.
5. A five-Judge Bench in D.N. Banerji v. P.R.
Mukherjee & Ors., 622 [1953] SCR 302
considered the scope of the definition of industry.
Chandrashekhara Aiyer, J. speaking for the
Court stated:
"It is therefore incumbent on us to ascertain
what the statute means by industry and
industrial dispute, leaving aside the original
meaning attributed to the words in a simpler
state of society, when we had only one employer
perhaps, doing a particular trade or carrying on
a particular business with the help of his own
tools, material and skill and employing a few
workmen in the process of production or
manufacture, and when such disputes that
C/SCA/12171/2020 ORDER
occurred did not go behind individual levels into
acute fights between rival organisations of
workmen and employers; and when large scale
strikes and lock- outs throwing society into chaos
and confusion were practically unknown.
Legislation had to keep pace with the march of
times and to provide for new situations. Social
evolution is a process of constant growth, and
the State cannot afford to stand still without
taking adequate measures by means of
legislation to solve large and momentous
problems that arise in the industrial field from
day to day almost .. When our Act came to be
passed, labour disputes had already assumed
big proportions, and there were clashes between
workmen and employers in several instances.
We can assume therefore that it was to meet
such a situation that the Act was enacted, and it
is consequently necessary to give the terms
employed in the Act referring to such disputes as
wide an import as reasonably possible. Do the
definitions of industry, industrial dispute and
workman take in the extended significance or
exclude it? Though the word undertaking in the
definition of industry is wedged in between
business and trade on the one hand and
manufacture on the other, and though therefore
it might mean only a business or trade
undertaking, still it must be remembered that if
that were so, there was no need to use the word
separately from business or trade. The wider
import is attracted even more clearly when we
look at the latter part of the definition which
refers to calling, service, employment or
industrial occupation or avocation of workmen.
Undertaking in the first part of the definition and
industrial occupation or avocation in the second
part obviously mean much more than what is
ordinarily understood by trade or business. The
definition was apparently intended to 623
include within its scope what might not strictly
be called a trade or business venture."
The ratio in Mukherjee's case was relied upon by
a three- Judge Bench in State of Bombay & Ors.
C/SCA/12171/2020 ORDER
v. The Hospital Mazdoor Sabha & Ors., [1960] 2
SCR 866 and Gajendragadkar, J. who spoke for
the Bench observed:
"There is another point which cannot be ignored.
Section 2(j) does not define industry in the usual
manner by prescribing what it means: the first
clause of the definition gives the statutory
meaning of industry and the second clause
deliberately refers to several other items of
industry and brings them in the definition in an
inclusive way. It is obvious that the words used
in an inclusive definition denote extension and
cannot be treated as restricted in any sense.
Where we are dealing with an inclusive
definition it would be inappropriate to put a
restrictive interpretation upon terms of wider
denotation."
"Besides, it would be relevant to point out that
too much reliance cannot be placed on what are
described as the essential attributes or features
of trade or business as conventionally
understood. The conventional meaning attributed
to the words trade and business has lost some
of its validity for the purpose of industrial
adjudication. Industrial adjudication has
necessarily to be aware of the current of socio-
economic thought around; it must recognise that
in the modern welfare State healthy industrial
relations are a matter of paramount importance
and its essential function is to assist the State by
helping a solution of industrial disputes which
constitute a distinct and persistent phenomenon
of modern industrialised States in attempting to
solve industrial disputes, industrial adjudication
does not and should not adopt a doctrinaire
approach. lt must evolve some working principles
and should generally avoid formulating or
adopting abstract generalisations. Nevertheless
it can't harp back to old age notions about the
relations between employer and the employee or
to the doctrine of laissez faire which then
governed the regulation of the said relations.
That is why, we think, in construing the wide
C/SCA/12171/2020 ORDER
words used in section 2(j) it would be erroneous
to attach undue importance to the attributes 624
associated with business or trade in the popular
mind in days gone by."
The Bench thereafter adverted to the negative
side and stated:
"It would be possible to exclude some activities
from section 2(j) without any difficulty.
Negatively stated the activities of the
Government which can be properly described as
regal or sovereign activities are outside the scope
of section 2(j). These are functions which a
constitutional government can and must
undertake for governance and which no private
citizen can undertake. This position is not in
dispute. An attempt is, however, made by the
appellant to suggest that in view of the Directive
Principles enunciated in Part IV of the
Constitution and in view of the ideal of a welfare
state which has been placed before the country,
Governments, both at the level of States as well
as at the Centre undertake several welfare
activities; and the argument is that the field of
governmental or regal activities which are
excluded from the operation of section 2(j) should
be extended to cover other activities undertaken
by the Governments in pursuit of their welfare
policies. In our opinion, this contention cannot be
accepted. The activities which do not fall within
section 2(j) and which are described as
governmental or regal or sovereign have been
pithily described by Lord Watson as 'the primary
and inalienable functions of a constitutional
Government'; and it is only these activities that
are outside the scope of section 2(j). It sounds
incongruous and self-contradictory to suggest
that activities undertaken by the Government in
the interests of socio-economic progress of the
country as beneficial measures should be
exempted from the operation of the Act which in
substance is a very important beneficial measure
itself." Applying the stated principles, this Court
in that case held that the J.J. Group of Hospitals
C/SCA/12171/2020 ORDER
came within the definition of industry.
6. Within a couple of weeks from the Hospital
Mazdoor Sabha's case (supra), the same Bench
in the case of Corporation of the City of Nagpur v.
Its Employees, [1960] 2 SCR 942, this time
Subba Rao, J., as he then was, speaking for the
Court examined the self-same question. Before
the Court were available two precedents
-Mukherjee's case 625 (supra) and Hospital
Mazdoor Sabha's case (supra) and it was stated:
"Before considering the positive aspects of the
definition, what is not an industry may be
considered. However wide the definition of
industry may be, it cannot include the regal or
soveriegn functions of State. This is the agreed
basis of the arguments at the Bar though the
learned counsel differed on the ambit of such
functions. While the learned counsel for the
Corporation would like to enlarge the scope of
these functions so as to comprehend all the
welfare activities of a modern State, the learned
counsel for the respondents would seek to
confine them to what are aptly termed the
primary and inalienable functions of a
constitutional Government "
The Court analysed the activities of the various
departments of the Corporation and observed:
"We can also visualize different situations. A
particular activity of a municipality may be
covered by the definition of industry. If the
financial and administrative departments are
slowly in charge of that activity, there can be no
difficulty in treating those two departments also
as part of the industry. But there may be cases
where the said two departments may not only be
in charge of a particular activity or service
covered by the definition of industry but also in
charge of other activity or activities falling
outside the definition of industry. In such cases
a working rule may be evolved to advance social
justice consistent with the principles of equity. In
C/SCA/12171/2020 ORDER
such cases the solution to the problem depends
upon the answer to the question whether such a
department is primarily and predominantly
concerned with industrial activity or incidentally
connected therewith. "
"The result of the discussion may be
summarised thus: (1) the definition of industry in
the Act is very comprehensive. It is in two parts
one part defines it from the stand point of the
employer and the other from the stand point of
the employee. If an activity falls under either
part of the definition it will be an industry within
the meaning of the Act. (2) The history of
industrial disputes and the legislation recognises
the basic concept that the activity shall be an
organised one and not that which pertains to
private or personal A employment. (3) The regal
functions prescribed as primary and inalienable
functions of State though statutorily delegated to
a corporation or necessarily excluded from the
purview of the definition. Such regal functions
shall be confined to legislative power,
administration of law and judicial power. (4) If a
service rendered by an individual or a private
person would be an industry, it would equally be
an industry in the hands of a corporation. (5) If a
service rendered by a corporation is an industry,
the employees in the department connected with
that service, whether financial, administrative or
executive, would be entitled to the benefits of the
Act. (6) If a department of a municipality
discharges many functions some pertaining to
industry as defined in the Act and the other non-
industrial activities, the predominant functions of
the department shall be the criterion for the
purposes of the Act."
Applying these tests, this Court examined as to
whether the various departments of the
Corporation came within the definition or not.
Then came the decision of a Constitution Bench
in the case of Management of Safdarjung
Hospital v. Kuldip Singh Sethi, [1971] 1 SCR 177
where Chief Justice Hidayatullah spoke for the
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Court. Referring to the definition of industry. the
learned Chief Justice observed:
"This definition is in two parts. The first part
says that it means any business, trade,
undertaking, manufacture or calling of employers
and then goes on to say that includes any
calling, service, employment, handicraft or
industrial occupation or avocation of workmen ..
".
"Therefore, an industry is to be found when
the employers are carrying on any business,
trade, undertaking, manufacture or calling of
employers. If they are not, there is no industry
as such. What is meant by these expressions
was discussed in a large number of cases which
have been considered elaborately in the
Gymkhana Club case [1968] 1 SCR 742. The
conclusions in that case may be stated:
'Primarily, therefore, industrial disputes occur
when operation undertaken rests upon
cooperation between employer and employees
with a view to production and distribution of
material goods, in other 627 words, wealth, but
they may arise also in cases where the
cooperation is to produce material services. The
normal cases are those in which the production
or distribution is of material goods or wealth and
they will fall within the expressions trade,
business or manufacture.' "
In Safdarjung Hospital's case the decision in
Hospital Mazdoor Sabha case was analysed and
the Court came to the following conclusion:
"In our judgment, the Hospital Mazdoor
Sabha's case took the extreme view of the matter
which was not justified. "
Then came the case of Bangalore Water Supply
and Sewerage Board v. A. Rajappa & Ors [1978]
2 SCC 213. This time the same point was before
a seven-Judge Bench of this Court. This
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judgment undertood a review of the entire law.
Krishna Iyer, J. spoke for himself, Bhagwati and
Desai, JJ. In paragraph 139 of the judgment it
was stated:
"Banerjee (supra) amplified by Corporation of
Nagpur (supra), in effect met with its waterloo in
Safdarjung (supra). But in this latter case two
voices could be herard and subsequent rulings
zigzagged and conflicted precisely because of
this built-in ambivalence. It behoves us,
therefore, hopefully to abolish blurred edges,
illumine penumbral areas and overrule what we
regard as wrong. Hesistency, half-tones and
hunting with the hounds and running with the
hare can claim heavy penalty in the shape of
industrial confusion, adjudicatory quandary and
administrative perplexity at a time when the
nation is striving to promote employment through
diverse strategies which need, for their smooth
fulfilment, less stress and distress, more mutual
understanding and trust based on a dynamic
rule of law which speaks clearly, firmly and
humanely. If the salt of law lose its savour of
progressive certainty where with small it be
stalled? So we proceed to formulate the
principles, deducible from our discussion which
are decisive, positively and negatively, of the
identity of industry under the Act. We speak, not
exhaustively, but to the extent covered by the
debate at the bar and, to that extent,
authoritatively, until overruled by a larger bench
or superseded by the legislative branch."
"Industry as defined in section 2(j) and
explained in Banerjee (supra) has a wide import.
(a) Where (i) systematic activity, (ii) organised
by cooperation between employer and employee
(the direct and substantial element is chimerical)
(iii) for the production and/or distribution of
goods and services calculated to satisfy human
wants and wishes (not spiritual or religious but
inclusive of material things or services geared to
celestial bliss e.g. making, on a large scale
C/SCA/12171/2020 ORDER
prasad or food), prima facie, there is an industry
in that enterprise.
(b) Absence of profit motive or gainful objective
is irrelevant, be the venture in the public, joint,
private or other sector
(c) The true focus is functional and the decisive
test is the nature of the activity with special
emphasis on the employer-employee relations.
(d) If the organisation is a trade or business it
does not cease to be one because of philanthropy
animating the undertaking.
Although section 2(j) uses words of the widest
amplitude in its two limbs, their meaning cannot
be magnified to over-reach itself.
Undertaking must suffer a contextual and
associational shrinkage as explained in Banerjee
and in this judgment; so also, service, calling
and the like. This yields the inference that all
organized activities possessing the triple
elements in I, although not trade or business,
may still be industry provided the nature of the
activity, viz. the employer-employee basis, bears
resemblance to what we find in trade or
business. This takes into the fold of industry
undertakings, callings and services, adventures
'analogous to the carrying on of the trade or
business'. All features, other than the
methodology of carrying on the activity viz. in
organizing the cooperation between employer
and employee, may be dissimilar. It does not
matter, if on the employment terms there is
analogy.
Application of these guidelines should not stop
short of their logical reach by invocation of
creeds, cults or inner sense of incongruity or
outer sense of motivation for or resultant of the
economic operations. The ideology of the Act
being industrial peace, regulation and resolution
of industrial disputes between employer and
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workmen, the range of this statutory ideology
must inform the reach of the statutory definition.
Nothing less, nothing more.
(a) The consequences are (i) professions, (ii)
clubs, (iii) educational institutions, (h)
cooperatives, (v) research institutes, (vi)
charitable projects and (vii) other kindred
adventures, if they fulfil the triple tests listed in I
cannot be exempted from the scope of section
2(j).
(b) A restricted category of professions, clubs,
cooperatives and even gurukulas and little
research labs, may qualify for exemption if, in
simple ventures, substantial and, going by the
dominant nature criterion, substantively, no
employees are entertained but in minimal
matters, marginal employees are hired without
destroying the non-employee character of the
unit.
(c) If, in a pious or altruistic mission many
employ themselves, free or for small honoraria or
like return, mainly drawn by sharing in the
purpose or case, such as lawyers volunteering to
run a free legal services clinic or doctors serving
in their spare hours in a free medical centre or
ashramites working at the bidding of the
holiness, divinity or like central personality, and
the services are supplied free or at nominal cost
and those who serve are not engaged for
remuneration or on the basis of master and
servant relationship, then, the institution is not
an industry even if stray servants, manual or
technical, are hired. Such eleemosynary or like
undertakings alone are exempt-not other
generosity, compassion, developmental passion
or project.
The dominant nature test:
(a) Where a complex of activities, some of which
qualify for exemption others not, involves
employees on the total undertaking, some of
whom are not workmen as in 630 the University
of Delhi v.Ram Nath, [1964] 2 SCR 703 or A
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some departments are not productive of goods
and services if isolated, even then, the
predominant nature of the services and the
integrated nature of the departments as
explained in the Corporation of Nagpur, will be
the true test. The whole undertaking will be
industry although those who are not workmen
by definition may not benefit by the status.
(b) Notwithstanding the previous clauses,
sovereign functions, strictly understood, (alone)
qualify for exemption, not the welfare activities
or economic adventures undertaken by
government or statutory bodies.
(c) Even in departments discharging sovereign
functions, if there are units which are industries
and they are substantially severable, then they
can be considered to come within section 2(j).
(d) Constitutional and competently enacted
legislative provisions may well remove from the
scope of the Act categories which otherwise may
be covered thereby."
7. Beg, CJ., wrote a separate judgment and
prefaced it by saying:
"I am in general agreement with the line of
thinking adopted and the conclusions reached by
my learned brother Krishna Iyer."
In paragraph 149 of the judgment, the learned
Chief Justice observed:
"In his heroic efforts, my learned brother
Krishna Iyer, if I may say so with great respect,
has not discarded the tests of industry
formulated in the past. Indeed, he has actually
restored the tests laid down by this Court in D.N.
Banerjee's case, and, after that, in Corporation of
the City of Nagpur v. Its Employees, and State of
Bombay v. The Hospital Mazdoor Sabha to their
pristine glory."
C/SCA/12171/2020 ORDER
The learned Chief Justice again stated:
"Each of us is likely to have a subjective notion
about industry. For objectivity, we have to look
first to the words 631 used in the statutory
provision defining industry in an attempt to find
the meaning. If that meaning is clear, we need
proceed no further. But, the trouble here is that
the words found there do not yield a meaning so
readily. They refer to what employers or workers
may do as parts of their ordinary avocation or
business in life .. "
"Thus, in order to draw the circle of industry, to
use the expression of my learned brother Iyer,
we do not find even the term workman
illuminating. The definition only enables us to
see that certain classes of persons employed in
the service of the State are excluded from the
purview of industrial dispute which the Act
seeks to provide for in the interests of industrial
peace and harmony between the employers and
employees so that the welfare of the nation is
secured. The result is that we have then to turn
to the preamble to find the object of the Act itself,
to the legislative history of the Act, and to the
socio-economic ethos and aspirations and needs
of the times in which the Act was passed."
After quoting the definition of industry, the
learned Chief Justice proceeded to say in
paragraph 158 of the judgment:
"It seems to me that the definition was not
meant to provide more than a guide. It raises
doubts as to what could be meant by the calling
of employers even if business, trade,
undertaking or manufacture could be found
capable of being more clearly delineated. It is
clear that there is no mention here of any profit
motive. Obviously, the work manufacture of
employers could not be interpreted literally. It
merely means a process of manufacture in which
the employers may be engaged. It is, however,
evident that the term employer necessarily
C/SCA/12171/2020 ORDER
postulates employees without whom there can
be no employers ...... "
In paragraph 165 of the judgment, the learned
Chief Justice added: G "I have contended myself
with a very brief and hurried outline of my line of
thinking partly because I am in agreement with
the conclusions of my learned brother Krishna
Iyer and I also endorse his reasoning almost
wholly, but even more because the opinion I have
dictated 632 just now must be given today if I
have to deliver it at all. From tomorrow I cease to
have any authority as a Judge to deliver it.
Therefore, I have really no time to discuss the
large number of cases cited before us, including
those what are known as sovereign functions."
Chandrachud, J., as he then was, on behalf of
himself Jaswant Singh and Tulzapurkar, JJ.
added a note by saying:
"We are in respectful agreement with the view
expressed by Krishna Iyer, J. that the appeal
should be dismissed. We will give our reasons
later indicating the area of concurrence and
divergence, (underlining is ours) if any, on the
various points in controversy on which our
learned Brother has dwelt."
On 7th of April, the reasonings were delivered by
Chief Justice Chandrachud for himself as by
then Jaswant Singh, J. delivered a separate set
of reasonings for himself and Tulzapurkar, J.
The learned Chief Justice (because by then he
had assumed that office) referred to several
authorities and tests and in paragraph 181 of
the judgment stated:
"........ These refinements are, with respect, are
not warranted by the words of the definition,
apart from the consideration that in practice they
make the application of the definition to concrete
cases dependent upon a factual assessment so
highly subjective as to lead to confusion and
uncertainty in the understanding of the true legal
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position. Granting that the language of the
definition is so wide that some limitation ought to
be read into it, one must step at a point beyond
which the definition will skid into a domain too
rarefied to be realistic. Whether the cooperation
between the employer and the employee is the
proximate cause of the ultimate product and
bears direct nexus with it is a test which is
almost impossible of application with any degree
of assurance or certitude. It will be as much true
to say that the solicitor's assistant, managing
clerk, librarian and the typist do not directly
contribute to the intellectual end product which is
a creation of his personal professional skill as
that, without their active assistance and
cooperation it will be impossible for him to
function effectively. The unhappy state of affairs
in which the law is marooned will 633 continue
to baffle the skilled professional and his A
employees alike as also the Judge who has to
perform the unenviable task of sitting in
judgment over the directness of the cooperation
between the employer and the employee, until
such time as the legislature decides to manifest
its intention by the use of clear and indubious
language. Besides the fact that this Court has so
held in National Union of Commercial Employees
v. M.R. Meher, lndustrial Tribunal, Bombay,
[1962] Supp. 3 SCR 157 the legislature will find
a plausible case for exempting the learned and
liberal professions of lawyers, solicitors, doctors,
engineers, chartered accountants and the like
from the operation of industrial laws. But until
that happens, I consider that in the present state
of the law it is difficult by judicial interpretation
to create exemptions in favour of any particular
class."
The remaining two learned Judges added their
separate opinion and in the concluding part
stated:
"In view of the difficulty experienced by all of
us in defining the true denotation of the term
industry and divergence of opinion in regard
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thereto-as has been the case with this Bench
also- we think, it is high time that the Legislature
steps in with a comprehensive bill to clear up the
fog and remove the doubts and set at rest once
for all the controversy which crops up from time
to time in relation to the meaning of the aforesaid
term rendering it necessary for larger Benches of
this Court to be constituted which are driven to
the necessity of evolving a working formula to
cover particular cases."
The ultimate position available from the seven-
Judge Bench decision, therefore, is that while
three learned Judges delivered their view
through Krishna Iyer, J., Beg CJ spoke
somewhat differently, yet agreed with the
conclusion reached by Krishna Iyer J.
Chandrachud, CJ. also agreed with the majority
while the remaining two learned Judges looked
for legislative clarification to meet the situation."
7.1. The Court while concluding that the Irrigation
Department was an industry held that the said legal
position has been in earlier decisions also. On
examining the dominant nature test, it held that the
main function when scrutinized clearly, the same
came within the ambit of industry.
8. This had been thereafter referred to by the Full
Bench in the case of Gujarat Forest Producers,
Gatherers and Forest Workers Union vs. State of
Gujarat, reported in 2004 (2) GLH 302. The question
whether the department of the government is an
industry was the question before this Court, which
had held that the inquiry into the nature of work
undertaken by the department in a particular venture,
the type of agency through which the work is done,
the duties of the employee and matters connected
therewith would all be the question of facts. The
question whether the department of government is an
'Industry' within the ambit of Section 2(j) of the Act,
according to the Full Bench is a mixed question of law
and facts, which cannot be allowed to be raised first
time before the Court. The Court after due
consideration of the question whether the Forest
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Department and Irrigation Department are industry as
defined under the Act or not, is required to be
examined on the basis of nature of work done by such
department and on satisfying the test propounded by
the Supreme Court in Bangalore Water Supply case,
the department can be brought under the definition of
industry and the Government Resolution dated
17.10.1988 is applicable to daily wagers and various
departments working for maintenance and repairs for
construction and the activity of irrigation and canal
works is an 'Industry' withing the meaning of Section
2(j) of the ID Act.
9. It is given to understand to this Court that a
circular had also been issued by the State particularly
mentioning therein that issue whether the
departments are industry or not under Section 2(j) of
the ID Act is not to be raised before the Court,
however, this is disputed by the learned AGP. Be that
as it may, the decisions of the Courts are extensively
clear, unambiguous and bringing to the State.
10. This Court in Special Civil Application No. 12521
of 2018 and allied matters, considering the challenge
to the awards passed by the Labour Court made by
the State under Article 226 of the Constitution of India,
while dealing with the case of Bhadar Canal Project
and after examining various authorities, did not
interfere with the order. This has a reference of a
decision namely R.M.Yellatti vs. Assistant Executive
Engineer, reported in 2006 SCC (L&S) 1.
11. Thus, on the first issue, it is quite clear from the
decision of the Apex Court in the case of Des Raj
(supra) that the Irrigation Department of the
government after dominant nature test has been held
to be an industry. This has been also reiterated in the
decision of the Full Bench in the case of Gujarat Forest
Producers (supra). There does not appear to be any
change in the definition of industry under Section 2(j)
of the ID Act. Categorically laid down in both the
decisions, once again, the Court noticed that as late as
in the year 2018-19 such plea has been raised by the
Irrigation Department, this approach needs to be very
sternly and categorically disapproved. The attention is
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to be drawn of the department that once a particular
aspect has been decided by the Full Bench of this
Court and also by the Apex Court, the very ground
cannot be raised reiteratively to waste the valuable
time of the Court. In future, if this will be raised as one
of the grounds, it will be viewed seriously as it may
also lead to impose a heavy cost. The State is a
litigant and can raise all available legal contentions,
however, it is precluded to continue any litigation
which is either vexatious or when the very issue is
finally determined by the highest Court and there is
no subsequent change in the law.
12. This brings this Court to the Second issue of the
respondent not having proved the completion of 240
days in a particular year. According to the petitioner,
this ought to have been regarded by the Labour Court
at the time of deciding the reference. This Court
notices that the respondent has stepped into the
witness box. He had shown his inability to produce
appointment letter, Identification Card and Pay Slip.
He also was unable to produce any other vindicating
document in support of the statement of claim.
According to him, he has never been issued any of
these documents. Also admitting in the cross
examination that none of these documents had been
given, and therefore, it was not feasible for the
respondent to prove 240 days of employment, as
requirement. The Court therefore held that this onus
would shift to the present petitioner which was
opponent before the Labour Court.
13. In some of the references, by way of
documentary evidence, muster roll has been produced
but, it was not a continuous muster roll, the truncated
version of the same was shown to the Court. This
being a vital document, the Court was quite
dissatisfied and unhappy as to why such vital
documents were not produced, despite a specific
direction. It is well laid down law on such aspect in
the case of R.M.Yellatti (supra) against the employer
for non-production of muster roll and other vital
documentary evidence and without any discharge of
burden of proof an attempt is made by the workman
and he has not been able to produce the documentary
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evidence, even after issuance of the notice and calling
upon the employer.
14. The Devision Bench of this Court in the case of
Zonal Manager, State Bank of India vs. Modi
Rajeshkumar Shantilal, reported in 2018 (3) GLR
2326, was required to consider satisfaction of the
continuation of service with 240 days and the Court
held thus:-
"6. Having considered the submissions of the
learned advocates for the respective parties, the
following issues arise for our consideration:
(A) Whether the learned Single Judge was right
in his perception in relying on the certificate Exh.
25 and holding that the respondent workman
has satisfied requirement of Section 25B(1) and
therefore has completed continuous service
preceding the date of retrenchment, and
therefore there was non-compliance under
Section 25-F of the Act. (B) Whether the
Industrial Tribunal and in turn the learned
Single Judge while confirming the award was
right in drawing an adverse inference against
the appellant-employer for the purposes of
holding that the respondent had completed 240
days, as the employer had failed to produce
vouchers as ordered below Exh.16.
For our benefit, we reproduce hereunder
Sections 25B and 25F of the Industrial Disputes
Act, 1947:
"Sec.25-B. Definition of continuous service.-
For the purposes of this Chapter -
i. a workman shall be said to be in continuous
service for a period if he is, for that period, in
uninterrupted service, including service which
may be interrupted on account of sickness or
authorised leave or an accident or a strike which
is not illegal, or a lock-out or a cessation of work
which is not due to any fault on the part of the
workman; ii.Where a workman is not in
C/SCA/12171/2020 ORDER
continuous service within the meaning of clause
(1) for a period of one year or six months, he
shall be deemed to be in continuous service
under an employer-
(a) for a period of one year, if the workman,
during a period of twelve calender months
preceding the date with reference to which
calculation is to be made, has actually worked
under the employer for not less than-
i. one hundred and ninety days in the case of a
workman employed below ground in a mine;
and ii.two hundred and forty days, in any other
case;
(b) for a period of six months, if the workman,
during a period of six calender months preceding
the date with reference to which calculation is to
be made, has actually worked under the
employer for not less than-
(i) ninety-five days, in the case of workman
employed below ground in a mine; and
(ii) one hundred and twenty days, in any
other case.
Explanation :- For the purpose of clause (2),
the number of days on which a workman has
actually worked under an employer shall
include the days on which-
(i) he has been laid-off under an agreement or
as permitted by standing orders made under the
Industrial Employment (Standing Orders) Act,
1946 (20 of 1946), or under the Act or under any
other law applicable to the industrial
establishment;
(ii) he has been on leave with full wages,
earned in the previous years;
(iii) he has been absent due to temporary
disablement caused by accident arising out of
C/SCA/12171/2020 ORDER
and in the course of his employment; and
(iv) in the case of a female, she has been on
maternity leave; so, however, that the total
period of such maternity leave does not exceed
twelve weeks.
Section 25C xxx xxx xxx
Section 25D xxx xxx xxx
Section 25E xxx xxx xxx
Section 25F. Conditions precedent to
retrenchment of workmen.- No workman
employed in any industry who has been in
continuous service for not less than one year
under an employer shall be retrenched by that
employer until-
(a) the workman has been given one month's
notice in writing indicating the reasons for
retrenchment and the period of notice has
expired, or the workman has been paid in lieu of
such notice, wages for the period of the notice,
(b) the workman has been paid, at the time of
retrenchment, compensation which shall be
equivalent to fifteen days' average pay [for every
completed year of continuous service] or any
part thereof in excess of six months; and
(c) notice in the prescribed manner is served on
the appropriate Government [or such authority
as may be specified by the appropriate
Government by notification in the Official
Gazette.] "
7. While deciding the issue (A), what needs to
be considered is that the respondent workman
had specifically made out a case in the
Statement of Claim that he had worked from
03.01.1989 to 31.12.1995. For the period from
01.04.1994 to 31.12.1995, he had clearly stated
C/SCA/12171/2020 ORDER
that he had worked for more than 240 days. In
addition thereto it was his specific case that he
was in continuous service for over a year of
service and therefore there was no reason for
applying the deeming fiction of 240 days of
working days in a period of less than a year.
7.1 Section 25-F of the Industrial Disputes
Act,1947 requires the employer to follow the
procedure thereunder when a workman is
employed in an industry and who has been in
continuous service for not less than one year.
"Continuous service" is defined under Section
25-B of the Act. Section 25- B(1) suggests that
the workman shall be said to be in continuous
service for a period if he is for that period in
uninterrupted service including service which
may be interrupted on account of sickness,
authorized leave etc. Section 25-B(2) suggests
that, when he is not in continuous service for a
year then a deeming fiction of 240 days is
considered. Mr. Desai, contends that the learned
Judge could not have considered the Certificate
showing the number of working days as 319, as
"that period was not a period preceding 12
months prior to retrenchment". In our opinion,
this submission of Shri Desai, is without merit.
Continuous service as defined under Section 25-
B suggests the entire tenure of service
continuously for a period for which the workman
has worked prior to the relationship between the
workman and the employer coming to an end. If
for a certain period the employer is in no position
to provide work, cessation of such work without
the fault of the employee would not be an
interruption in service and the employee would
be deemed to be in service for such period. It
was the case of the respondent workman here,
by a positive assertion in the Statement of Claim
that not only did he work for more than 240
days preceding his retrenchment from
01.04.1994 to 31.12.1995, but that from April
1992 to June 1993 he was in service except for
the cessation without his fault, and therefore the
case squarely fell within the domain of Section
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25-B(1) of the Act. The employer having failed to
discharge its burden by producing vouchers
though so ordered under Exh.18, cannot now be
heard to say that the fiction of the employee
having worked for a period of 240 days as
envisaged under Section 25-B(2) of the Act
would apply. Having failed to do so,
interruptions need to be ignored and the
respondent workman, as observed by the
learned Single Judge needs to be treated to be in
continuous service without interruption as
defined under Section 25-B(1) of the Act.
It is relevant to note one important aspect that
Section 25B(1) had been discussed by Apex
Court in case of Surendranagar District
Panchayat Vs. Dahyabhai Amarsinh reported in
2005 (8) SCC page 750. Relevant para 8 of this
decision is quoted as under:
"S8. To attract the provisions of Section 25-F,
one of the conditions required is that the
workman is employed in any industry for a
continuous period which would not be less than
one year. Sec. 25B of the Act defines continuous
service for the purpose of Chapter V-A .SLay -off
and Retrenchment. The purport of this section is
that if a workman has put in uninterrupted
service of the establishment, including the
service which may be interrupted on account of
sickness, authorized leave, an accident, a strike
which is not illegal, a lockout or cessation of
work, that is not due to any fault on the part of
the workman, shall be said to be continuous
service for that period. Thus the workman shall
be said to be in continuous service for one year
i.e. 12 months irrespective of the number of days
he has actually worked with interrupted service,
permissible under Section 25-B. However, the
workman must have been in service during the
period i.e. not only on the date when he actually
worked but also on the days he could not work
under the circumstances set out in sub-section
(1). The workman must be in the employment of
the employer concerned not only on the days he
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has actually worked but also on the days on
which he has not worked. The import of sub-
section (1) of Section 25B is that the workman
should be in the employment of the employer for
the continuous, uninterrupted period of one year
except the period the absence is permissible as
mentioned hereinabove. Sub-section (2) of the
Section 25B introduced the fiction to the effect
that even if the workman is not in continuous
service within the meaning of clause (i) of
Section 25B for the period of one year or six
months he shall be deemed to be in continuous
service for that period under an employer if he
has actually worked for the days specified in
clauses (a) and
(b) of Sub-section (2). By the legal fiction of sub-
section (2)(a)(i), the workman shall be deemed to
be in continuous service for one year if he is
employed underground in a mine for 190 days
or 240 days in any other case. Provisions of the
section postulate that if the workman has put in
at least 240 days with his employer,
immediately, prior to the date of retrenchment,
he shall be deemed to have served with the
employer for a period of one year to get the
benefit of Section 25F."
7.2 What is meant by continuous service for
the purpose of Chapter VA has been defined
under Section 25B.The requisites for treating a
person to be in continuous service for the
requisite period,in case of Section 25F is that
either he should be in uninterrupted service
including service which may be interrupted on
account of sickness or authorized leave etc
which is not due to fault of workman or
cessation of work for no fault of the workman. If
a workman completes continuous service of
employment of more than one year as is so
established in the present case, on the failure of
the employer to discharge the burden adverse
inference needs to be drawn. These facts must
be reflected clearly in reference to the date of
retrenchment with any block of twelve months
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with reference to continuous service. In the
present case the respondent workman has
established continuous service on the test of
25(B) and therefore the deeming fiction of
completion of 240 days would not set off the fact
of the workman being in continuous service for
one year including interruptions beyond his
control.
7.3 As far as issue (B) is concerned, Shri
Desai's contention by relying on decision in the
case of Surendranagar (supra) would be of no
avail. An application Exh.11 was moved by the
respondent workman for production of vouchers
from the employer. An order at Exh. 16 was
passed. The employer failed to produce such
vouchers and therefore did not discharge the
burden of proving otherwise. The learned Single
Judge as well as the Industrial Tribunal, in our
opinion therefore, even on the second ground
were right in holding that once the employer had
failed to negate the assertion of the employee,
by failing to discharge the burden, recourse to
the deeming fiction of completion of 240 days
would not arise. Adverse inference was rightly
drawn by the Industrial Tribunal, on the
employer's failure to produce relevant record
though directed to do so."
15. In the instant case also, as can be noticed from
the decision of the Court, it is not only the issue of
completion of 240 days as required under Section
25(E) of the Act, the Court has specifically specified
breach of Section 25(G) and (H) of the ID Act. It is trite
law that once there is a breach of Section 25(G) and
(H), non-completion of 240 days will pale into
insignificance.
16. It is also to be noted that this Court does not sit
in appeal over the decision of the Labour Court, with
no illegality having been found and no reason for
interference, the scope under Article 226 of the
Constitution will be limited, as held in the decision of
Apex Court rendered in the case of Surya Devi Rai
vs. Ram Chander Rai and Others in SLP (c) No.
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12492 of 2002. Apt would be to reproduce the
relevant paragraph hereinafter:-
"Such like matters frequently arise before the
High Courts. We sum up our conclusions in a
nutshell, even at the risk of repetition and state
the same as hereunder:-
(1) Amendment by Act No.46 of 1999 with effect
from 01.07.2002 in Section 115 of Code of Civil
Procedure cannot and does not affect in any
manner the jurisdiction of the High Court under
Articles 226 and 227 of the Constitution.
(2) Interlocutory orders, passed by the courts
subordinate to the High Court, against which
remedy of revision has been excluded by the
CPC Amendment Act No. 46 of 1999 are
nevertheless open to challenge in, and continue
to be subject to, certiorari and supervisory
jurisdiction of the High Court.
(3) Certiorari, under Article 226 of the
Constitution, is issued for correcting gross errors
of jurisdiction, i.e., when a subordinate court is
found to have acted (i) without jurisdiction - by
assuming jurisdiction where there exists none,
or (ii) in excess of its jurisdiction - by
overstepping or crossing the limits of jurisdiction,
or (iii) acting in flagrant disregard of law or the
rules of procedure or acting in violation of
principles of natural justice where there is no
procedure specified, and thereby occasioning
failure of justice.
(4) Supervisory jurisdiction under Article 227 of
the Constitution is exercised for keeping the
subordinate courts within the bounds of their
jurisdiction. When the subordinate Court has
assumed a jurisdiction which it does not have or
has failed to exercise a jurisdiction which it does
have or the jurisdiction though available is being
exercised by the Court in a manner not permitted
by law and failure of justice or grave injustice
has occasioned thereby, the High Court may
C/SCA/12171/2020 ORDER
step in to exercise its supervisory jurisdiction.
(5) Be it a writ of certiorari or the exercise of
supervisory jurisdiction, none is available to
correct mere errors of fact or of law unless the
following requirements are satisfied : (i) the error
is manifest and apparent on the face of the
proceedings such as when it is based on clear
ignorance or utter disregard of the provisions of
law, and (iii) a grave injustice or gross failure of
justice has occasioned thereby.
(6) A patent error is an error which is self-
evident, i.e., which can be perceived or
demonstrated without involving into any lengthy
or complicated argument or a long-drawn
process of reasoning. Where two inferences are
reasonably possible and the subordinate court
has chosen to take one view the error cannot be
called gross or patent.
(7) The power to issue a writ of certiorari and the
supervisory jurisdiction are to be exercised
sparingly and only in appropriate cases where
the judicial conscience of the High Court dictates
it to act lest a gross failure of justice or grave
injustice should occasion. Care, caution and
circumspection need to be exercised, when any
of the abovesaid two jurisdictions is sought to be
invoked during the pendency of any suit or
proceedings in a subordinate court and the error
though calling for correction is yet capable of
being corrected at the conclusion of the
proceedings in an appeal or revision preferred
there against and entertaining a petition
invoking certiorari or supervisory jurisdiction of
High Court would obstruct the smooth flow
and/or early disposal of the suit or proceedings.
The High Court may feel inclined to intervene
where the error is such, as, if not corrected at
that very moment, may become incapable of
correction at a later stage and refusal to
intervene would result in travesty of justice or
where such refusal itself would result in
prolonging of the lis.
C/SCA/12171/2020 ORDER
(8) The High Court in exercise of certiorari or
supervisory jurisdiction will not covert itself into
a Court of Appeal and indulge in re-appreciation
or evaluation of evidence or correct errors in
drawing inferences or correct errors of mere
formal or technical character.
(9) In practice, the parameters for exercising
jurisdiction to issue a writ of certiorari and those
calling for exercise of supervisory jurisdiction are
almost similar and the width of jurisdiction
exercised by the High Courts in India unlike
English courts has almost obliterated the
distinction between the two jurisdictions. While
exercising jurisdiction to issue a writ of certiorari
the High Court may annul or set aside the act,
order or proceedings of the subordinate courts
but cannot substitute its own decision in place
thereof. In exercise of supervisory jurisdiction the
High Court may not only give suitable directions
so as to guide the subordinate court as to the
manner in which it would act or proceed
thereafter or afresh, the High Court may in
appropriate cases itself make an order in
supersession or substitution of the order of the
subordinate court as the court should have made
in the facts and circumstances of the case.
Though we have tried to lay down broad
principles and working rules, the fact remains
that the parameters for exercise of jurisdiction
under Articles 226 or 227 of the Constitution
cannot be tied down in a straitjacket formula or
rigid rules. Not less than often the High Court
would be faced with dilemma. If it intervenes in
pending proceedings there is bound to be delay
in termination of proceedings. If it does not
intervene, the error of the moment may earn
immunity from correction. The facts and
circumstances of a given case may make it more
appropriate for the High Court to exercise self-
restraint and not to intervene because the error
of jurisdiction though committed is yet capable of
being taken care of and corrected at a later
C/SCA/12171/2020 ORDER
stage and the wrong done, if any, would be set
right and rights and equities adjusted in appeal
or revision preferred at the conclusion of the
proceedings. But there may be cases where 'a
stitch in time would save nine'. At the end, we
may sum up by saying that the power is there
but the exercise is discretionary which will be
governed solely by the dictates of judicial
conscience enriched by judicial experience and
practical wisdom of the Judge."
17. Hence, all Special Civil Applications are
dismissed.
18. It is to be noted that Special Civil Application No.
18765 of 2019 also is part of the very group, which is
at the stage of admission, also stands dismissed in
limine."
15. In view of the above, the submissions made by Mr. Chhaya,
learned AGP cannot be countenanced as they are put to rest by
the decision of this court in Saburbhai Zavrabhai Baria v.
Deputy Executive Engineer (supra) and, therefore, the petitions,
in my considered view, lack merit and are hereby dismissed.
Notice is discharged. Interim relief stands vacated.
16. In view of the order passed in the main petitions, the civil
applications do not survive and the same are accordingly
disposed of.
(A.G.URAIZEE, J)
Z.G. SHAIKH
