Gujarat High Court
Shree Somnath Trust vs Kamlesh Manishankar Pathak on 10 September, 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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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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
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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
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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,
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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
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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
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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
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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
