1. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned Single Judge in Special Civil Application No.12368/2013 by which the learned Single Judge has dismissed the said petition preferred by the appellant herein and has confirmed the judgment and award declared by the learned Labour Court by which the learned Labour Court has passed an order of reinstatement of the respondent - workman, who was working as Clerk, however denied the total back wages, appellant herein - original petitioner has preferred the present Letters Patent Appeal.
2. The facts leading to the present Appeal in nutshell are as under;
2.1 Respondent was working with the appellant - Trust
as a Clerk. His services came to be terminated on 01/02/2006.
At the instance of the respondent - workman, the dispute was
referred to the learned Labour Court, Ahmedabad challenging
the order of termination. It was the case on behalf of the
appellant herein - original petitioner that the appellant - Trust
cannot be said to be an "industry" within the definition of
Section 2(j) of the Industrial Disputes Act, and therefore, the
Reference was liable to be rejected. It appears that the
learned Labour Court specifically raised the issue whether the
appellant - Trust - employer can be said to be an "industry"
within the definition of Section 2(j) of the Industrial Disputes
Act or not? The appellant - Trust neither led any oral evidence
before the learned Labour Court nor placed any documentary
evidence, except the report of the inquiry proceedings. On
appreciation of evidence and in absence of any further
evidence led by the appellant - Trust with respect to their
activities, learned Labour Court held against the appellant -
Trust by specifically giving the finding and observing that the
appellant - Trust has failed to lead any evidence to prove that
the appellant - Trust is not an "industry" within the meaning of
Section 2(j) of the Industrial Disputes Act. On appreciation of
evidence, learned Labour Court held the order of dismissal
disproportionate to the misconduct and charge and in exercise
of powers under Section 11A of the Industrial Disputes Act set
aside the order of termination and directed the appellant -
original petitioner to reinstate him in service, however denied
total back wages. The said judgment and award was passed
by the learned Labour Court on dated 09/05/2013.
Feeling aggrieved and dissatisfied with the
impugned judgment and award passed by the learned Labour
Court, the appellant herein - original petitioner - employer
preferred the aforesaid Special Civil Application before this
Court, being Special Civil Application No.12368/2013. By the
impugned judgment and order dated 16/03/2016 the learned
Single Judge has dismissed the said petition and has confirmed
the judgment and award passed by the learned Labour Court.
Feeling aggrieved and dissatisfied with the
impugned judgment and order passed by the learned Single
Judge, appellant herein - original petitioner - Trust has
preferred the present Letters Patent Appeal under Clause 15 of
the Letters Patent.
3. Shri R.V. Desai, learned advocate has appeared on
behalf of the appellant - original petitioner.
3.1 Having realized that as no evidence was led by the
appellant - Trust with respect to the activities carried out by
the appellant - Trust and in support of their claim that the
appellant - Trust is not an "industry", Shri R.V. Desai, learned
advocate appearing on behalf of the appellant has requested
to remand the matter to the learned Labour Court so as to
enable the appellant to adduce the evidence on the aforesaid
aspect. In support of his above submissions, Shri R.V. Desai,
learned advocate appearing on behalf of the appellant has
heavily relied upon the decision of the learned Single Judge in
the case of Administrator, Jain Derasar Vs. Amrutlal
Ambala Mistry rendered in Special Civil Application
No.1193/2002. It is submitted that in the aforesaid case no
issue was framed by the learned Labour Court and the learned
Single Judge remanded the matter to the learned Labour Court
with a liberty in favour of the parties to raise all the issue
afresh including the issue with regard to the Temple whether it
is an "industry" or not within the meaning of Section 2(j) of the
Industrial Disputes Act and permitting the parties to produce
necessary evidence in support of their contentions.
3.2 Shri R.V. Desai, learned advocate appearing on
behalf of the appellant - original petitioner has submitted that
as such it was orally submitted before the learned Single Judge
to remand the matter to the learned Labour Court, however,
the learned Single Judge has not dealt with the same.
3.3 Shri R.V. Desai, learned advocate has relied upon
the decision of the Division Bench of this Court in the case of
Managershri, Panchasara Jain Derasar Vs.
Mahamadkhan Gazikhan Baloch reported in 1993 (1) GLH
(U.J.) 9 in support of his submissions that the appellant cannot
be said to be an "industry" within the meaning of Section 2(j)
of the Industrial Disputes Act. He has also relied upon the
order passed by the Division Bench of this Court in Letters
Patent Appeal No.2386/2010 by which the Division Bench has
confirmed the order passed by holding that the Temple Trust
cannot be said to be an "industry" withing the definition of
Section 2(j) of the Industrial Disputes Act.
Making the above submissions, it is requested to
remand the matter to the learned Labour Court permitting the
appellant - original petitioner to lead the evidence with respect
to the activities carried out /undertaken by the appellant -
Trust.
4. We have heard Shri R.V. Desai, learned advocate
appearing on behalf of the appellant - original petitioner at
length. We have perused the impugned judgment and order
passed by the learned Single Judge as well as the judgment
and award passed by the learned Labour Court. At the outset
it is required to be noted that despite the fact that the learned
Labour Court framed the issue to consider whether the
appellant - Trust can be said to an "industry" within the
definition of Section 2(j) of the Industrial Disputes Act or not,
and though it was the case on behalf of the appellant - original
petitioner that it being a Temple /Temple Trust, it cannot be
said to be an "industry" within the definition of Section 2(j) of
the Industrial Disputes Act, no evidence whatsoever either oral
or documentary was led before the learned Labour Court in
support of their above claim. No evidence was led with respect
to the activities carried out by the appellant - Trust, and
therefore, in absence of any evidence led by the appellant -
Trust with respect to the activities carried out by them and in
support of their claim that the appellant - Trust is not an
"industry", the learned Labour Court did not accept the case
on behalf of the appellant - Trust that it is not an "industry"
within the definition of Section 2(j) of the Industrial Disputes
Act. From the petition memo before this Court before the
learned Single Judge it appears that no such request was
made. Even from the impugned judgment and order passed
by the learned Single Judge it does not appear that any such
submissions were made and /or any such request was made.
It is the case on behalf of the appellant - original petitioner
that oral submission was made and orally it was requested.
However, from the impugned judgment and order it does not
appear that any such oral request was made. If the appellant -
original petitioner is of the opinion that oral submission was
made and the same was not dealt with, in that case, remedy
available to the appellant - original petitioner would be to file a
review application pointing out and drawing the submission
that though oral submission has been made the same has not
been dealt with. The aforesaid procedure has not been
followed. It is the learned Single Judge only who can opine that
whether any such oral submissions were made or not.
4.1 Now so far as the request made on behalf of the
appellant - original petitioner to remand the matter to the
learned Labour Court so as to enable the appellant - Trust to
lead the evidence is concerned, the same cannot be accepted.
The same cannot be exceeded to. It is not the case on behalf
of the appellant - Trust that no sufficient opportunity was
given to the appellant - Trust to lead the evidence. On the
contrary specific issue was framed and despite the above the
appellant failed to lead any evidence. The matter cannot be
remanded at the appellate stage so as to enable the appellant
to fill in the lacuna. Unless it is found that either sufficient
opportunity was not given to lead the evidence or the
appellant - original petitioner was prevented from leading the
evidence, the submission on behalf of the appellant - original
petitioner to remand the matter to the learned Labour Court so
as to enable the appellant - original petitioner to lead the
evidence afresh cannot be accepted. Now so far as the
reliance placed upon the decision of the learned Single Judge is
concerned, in the said case it was Derasar / Temple before the
Court. On facts, the learned Single Judge thought it fit to
remand the matter. However, for the reasons stated
hereinabove, more particularly, to fill in the lacuna, the
appellant - original petitioner cannot be permitted to lead the
evidence afresh, which the appellant - original petitioner
failed to lead.
4.2 Now so far as the reliance placed upon the decision
of the Division Bench of this Court in the case of
Managershri, Panchasara Jain Derasar (Supra) is
concerned, in that case before the learned Labour Court the
evidence was in fact led and thereafter the learned Labour
Court held against the Temple Trust and on appreciation of
evidence on record and the activities carried out by the
Temple - Trust it was found that the Temple - Trust cannot be
said to be an "industry". In the present case, as observed
hereinabove, no evidence whatsoever has been led with
respect to the activities carried out by the appellant - Trust.
Under the circumstances, the said decision shall not be
applicable to the facts of the case on hand.
5. In view of the above and for the reasons stated
hereinabove, we see no reason to interfere with the impugned
judgment and order passed by the learned Single Judge in
exercise of intra court appellate jurisdiction. Under the
circumstances, the present Appeal deserves to be dismissed
and is accordingly dismissed.
CIVIL APPLICATION No.11177/2016
On dismissal of the Letters Patent Appeal, Civil
Application stands dismissed.
