{"id":68074,"date":"2011-03-17T00:00:00","date_gmt":"2011-03-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sunni-vs-abdulgani-on-17-march-2011"},"modified":"2017-11-25T07:31:43","modified_gmt":"2017-11-25T02:01:43","slug":"sunni-vs-abdulgani-on-17-march-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sunni-vs-abdulgani-on-17-march-2011","title":{"rendered":"Sunni vs Abdulgani on 17 March, 2011"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Sunni vs Abdulgani on 17 March, 2011<\/div>\n
Author: H.K.Rathod,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nSCA\/4389\/2008\t 29\/ 29\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 4389 of 2008\n \n\nWith\n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 1106 of 2008\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE H.K.RATHOD        \nSd\/- \n \n=========================================================\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?    \n\t\t\t                YES\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo be\n\t\t\treferred to the Reporter or not ?  YES\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?       \n\t\t\t                 YES\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?                              NO\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?                       \n\t\t\t                 NO\n\t\t\n\t\n\n \n\n \n=========================================================\n\n \n\nSUNNI\nMUSLIM WAKF COMMITTEE - Petitioner(s)\n \n\nVersus\n \n\nABDULGANI\nISHABHAI KACHHOT - Respondent(s)\n \n\n=========================================================\n \nAppearance\n: \nMR\nPRABHAKAR UPADYAY for\nPetitioner(s) : 1, \nMR HARSHAL M SHAH for Respondent(s) :\n1, \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE H.K.RATHOD\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 17\/03\/2011 \n\n \n\nORAL\nJUDGMENT<\/pre>\n
1.\tHeard
\nlearned advocates appearing on behalf of respective parties.\n<\/p>\n
2.\tBy
\nway of filing above petitions, both parties have challenged very
\naward passed by Labour Court, Ahmedabad in Reference (LCA) No.841 of
\n1987 dated 22nd June, 2007, where, Labour Court has partly
\nallowed reference and awarded lump-sum amount of compensation
\nRs.40,000\/- with cost of Rs.1,000\/- in favour of workman in lieu of
\nrelief of back wages of interim period and relief of reinstatement.\n<\/p>\n
3.\tIn
\nboth Special Civil Applications, following order is passed by this
\nCourt (Coram : Justice K.M. Thaker) on 28th August, 2008 :\n<\/p>\n
\t“Mr.\n<\/p>\n
Sonagra, learned advocate, appears for Mr. Upadyay, learned advocate
\nfor the respondent. In the present petitions, the award dated
\n22.6.2007 is under challenge. The impugned award is challenged by
\nboth the sides. The workman has preferred petition being special
\ncivil application No.1106 of 2008 and the employer has preferred
\npetition being special civil application No.4389 of 2008. As per the
\ncase of the workman, he was illegally terminated since 1987 and
\nhence, since more than 22 years, the respondent workman is out of
\nemployment. For the reasons recorded in the petition, the labour
\ncourt has not granted the relief of reinstatement and instead has
\nconsidered it appropriate to grant compensation in lieu of the
\nreinstatement which is quantified at Rs.40,000\/- by the labour court.
\nThe employer has raised the
\ncontention that his establishment could not fall within the purview
\nof section 2(J) of the Industrial Disputes Act, 1947. Since the
\nemployer and the workman have challenged the same award, it is
\nappropriate to admit the petitions for further consideration hence,
\nRULE
\nin both the petitions. As the order passed by the labour court is
\nclearly in the nature of money decree, the employer committee is
\ndirected to deposit the decreed amount in this court on or before 5th
\nSeptember, 2008.  If the amount is not deposited on or before 5th
\nSeptember, 2008, then, the same shall carry interest at the rate of
\n10% from the date of award till the actual date of deposit. Office is
\ndirected to list these petitions for final hearing in the week
\nbeginning from 29th
\nSeptember, 2008. A copy of this order to be kept in special civil
\napplication No.4389 of 2008.”\n<\/p>\n
4.\tThereafter,
\nanother order was passed by this Court (Coram : Justice S.R.
\nBrahmbhatt) on 24th September, 2008, which is quoted as
\nunder :\n<\/p>\n
\t“Shri
\nUpadhyay, learned counsel for the petitioner in Special Civil
\nApplication No. 4389 of 2008 states that, as ordered an amount of
\nRs.40,000\/- (Rs. Fourty thousand only) has already been deposited
\nwith the Registry of this Court, and he has no objection if the said
\namount is permitted to be withdrawn by concerned
\nworkman,  who has also filed petition challenging the award being
\nSpecial Civil Application No. 1106 of 2008 on an appropriate
\nundertaking that may be obtained that this withdrawal will be subject
\nto out come that may be passed in these matters. Accordingly, office
\nis directed to permit withdrawal of Rs.40,000\/- to the workman,
\nnamely Abdulgani Ishabhai Kachhot, petitioner in Special Civil
\nApplication no. 1106 of 2008 by account payee cheque, on proper
\nidentification and on furnishing an appropriate undertaking with a
\ncopy to the other side, that withdrawal of this amount would be
\nsubject to outcome that may be passed in these matters.”\n<\/p>\n
5.\tIt
\nis necessary to note that this Court has permitted to withdraw of
\nRs.40,000\/- to workman, but, till date, Rs.40,000\/- is not withdrawn
\nby respondent workman as per submission made by learned advocate
\nMr.Shah, because, workman is not having any bank account. He is in
\nvery poor condition and aged 71 years. His son is also not having any
\nbank account, however,his daughter-in-law viz., Asrafunneesa
\nYusufbhai Shaikh is having bank account with State Bank of India,
\nVasna Branch, Ahmedabad.Therefore, learned advocate Mr. Shah
\nsubmitted that it is very difficult for respondent workman to
\nwithdraw amount as per direction issued by this Court, because,
\nworkman and his son both are not having account in any
\nbank.But,learned advocate Mr. Shah submitted that <\/p>\n
daughter-in-law
\nby account payee cheque, then, he is prepared to produce receipt from
\nworkman that aforesaid amount is received by workman through his
\ndaughter-in-law. Therefore, request is made by learned advocate Mr.
\nShah to direct registry to issue account payee cheque in name of
\ndaughter-in-law –  Asrafunneesa Yusufbhai Shaikh who will be
\nidentified by learned advocate Mr. Shah and on condition that learned
\nadvocate Mr. Shah placed on record receipt of workman of aforesaid
\namount paid to daughter-in-law. This submission made by Learned
\nAdvocate  Mr Shah has not been seriously objected by Learned Advocate
\nMr. Upadhyay.\n<\/p>\n
6.\tTherefore,
\nit is directed to registry to pay Rs.40,000\/-, which is deposited by
\nemployer, by account payee cheque in name of Asrafunneesa Yusufbhai
\nShaikh – daughter-in-law. The said cheque shall be handed over
\nto learned advocate Mr. Shah who is representing workman, so, at
\nleast, amount can be utilised by workman at the end of life for
\nhaving treatment for disease of cancer at the age of 71 years.\n<\/p>\n
7.\tLearned
\nadvocate Mr. Prabhakar Upadhyay appearing on behalf of Sunni Muslim
\nWakf Committee – Employer raised two contentions before this
\nCourt challenging award in question passed by Labour Court. He raised
\ncontention that petitioner Committee is not covered by definition of
\n‘Industry’ under Section 2(j) of Industrial Disputes Act, 1947. He
\nreferred evidence of workman, Page 40 and submitted that even workman
\nhas admitted in his evidence that petitioner Committee being a Public
\nTrust is maintained on the basis of receiving donation from Muslim
\ncommunity. He submitted that no production activities or
\nmanufacturing process is carried out by petitioner Committee. He also
\nsubmitted that petitioner Committee is not selling any article or any
\nitem and therefore, petitioner Committee is not an ‘Industry’ within
\na meaning under Section 2(j) of Industrial Disputes Act, 1947. He
\nalso pointed out Para 10 of written statement, Page 32, that in case,
\nif Labour Court has come to conclusion that workman’s service has
\nbeen terminated without holding any departmental inquiry, then,
\nopportunity may be given to petitioner Committee to prove misconduct
\nbefore Labour Court by leading proper evidence. He submitted that
\nthis specific averments were made in Para 10 of written statement
\nwhich is annexed to present petition of employer – Page 29 to 32,
\neven though, this opportunity has not been given by Labour Court
\nwhile adjudicating dispute raised by workman. Therefore, according to
\nhim, Labour Court has committed gross error in granting relief in
\nfavour of respondent workman. He also referred cross examination of
\nworkman from Page 47 to 50 and pointed out that petitioner committee
\nbeing a religious Trust, not carried out any activities on profit or
\nloss basis, therefore, this aspect of cross-examination of workman is
\nnot properly appreciated by Labour Court. In short, his submission is
\nthat Labour Court has committed gross error in granting lump-sum
\namount of Rs.40,000\/- in favour of workman when petitioner
\nCommittee\/Trust is not an ‘Industry’, therefore, Labour Court has no
\njurisdiction to grant any relief in favour of workman.\n<\/p>\n
8.\tIn
\npetition preferred by petitioner Committee, petitioner has annexed
\naward passed by Labour Court, copy of statement of claim, written
\nstatement, evidence of workman Ex.20 with cross examination Exh.51
\nand evidence of Mustaqali Kadari, who was witness of petitioner
\nCommittee Ex.26 are annexed at Page 37 to 39 and at Page 40 – an
\nevidence of workman Ex.51. Except that, no other documents are
\nproduced on record by petitioner Committee.\n<\/p>\n
9.\tSimilarly,
\nin petition filed by workman, original copy of award passed by Labour
\nCourt along with xerox copy of award has also produced on record by
\nworkman. The workman has also produced judgment of Small Causes Court
\nNo.9 passed in H.R.P. No.1479 of 1987 which has been decided on 5th
\nApril, 1999 where suit filed by petitioner Committee has been
\ndismissed.\n<\/p>\n
10.\t\tThe
\npetitioner Committee being a public registered Trust also filed a
\nsuit before City Civil Court, Ahmedabad, Page 35. A copy of judgment
\nis produced on record, where, suit filed by plaintiff Committee has
\nbeen dismissed against present workman. The aforesaid both suits in
\nshort filed for a purpose of receiving possession of property which
\nhas been occupied by respondent workman. The property which is in
\noccupation of respondent workman known as ‘Pir Kamal Kabrastan’ which
\nis situated opposite Nagari Hospital, bearing Survey No.137\/A and
\n137\/B which has been described in Para 2 of plaint. Therefore,
\npetitioner Committee has made sincere efforts for vacating premises
\noccupied by workman.\n<\/p>\n
11.\t\tOne
\ncriminal complaint was also filed by Salalkhan against present
\nrespondent workman in Summary Case No.5 of 1987 under Section 447 of
\nIndian Penal Code, wherein also, workman has been declared acquittal
\nwhile giving benefit of doubt and judgment is delivered on 22nd
\nJanuary, 1990.\n<\/p>\n
12.\t\tAgainst
\nwhich, criminal appeal was preferred by Ahemad Patel against
\nrespondent workman before this Court being No.54 of 1991, which has
\nbeen dismissed on 25.2.2000 by this Court (Coram : Justice H.H.
\nMehta).\n<\/p>\n
13.\t\tIt
\nis necessary to note that Labour Court has passed an award in
\nReference (LCA) No.841 of 1987 dated 11th April, 2001
\nwhich has been challenged by respondent workman before this Court
\nbeing Special Civil Application No.6671 of 2003 along with Civil
\nApplication No.10311 of 2006, wherein, this Court has passed
\nfollowing order in Civil Application No.10311 of 2006 in Special
\nCivil Application No.6671 of 2003 on 5th September, 2006 :\n<\/p>\n
\t“Heard
\nthe learned advocate Mrs.Krishna Rawal on behalf of petitioner and
\nlearned advocate G.M.Joshi appearing on behalf of respondent.\n<\/p>\n
\tToday,
\nCivil Application No.10311\/2006 in main petition filed by original
\npetitioner-workman with a prayer to fix the matter for final hearing.
\nConsidering the submissions made by both the learned advocates and
\nafter perusing the award passed by Labour Court, Ahmedabad with
\nconsent of both the learned advocates, matter has been taken up for
\nfinal hearing, today.\n<\/p>\n
\tIn
\nthe main petition, petitioner has challenged the award passed by
\nLabour Court, Ahmedabad in Ref.No.841\/87, dated 11th
\nApril, 2001. On behalf of respondent before the Labour Court
\ncontention was raised that the respondent is not covered by
\ndefinition of Industry under Section 2J of I.D.Act, 1947. Both the
\nrespective parties, produced documentary evidence as well as oral
\nevidence before the Labour Court. But, Labour Court has examined the
\nquestion of industry in light of the definition, which is not in
\nstatue book  and on that basis Labour Court has come to conclusion in
\nParagraph No.9 that respondent-Trust is not covered by definition of
\nSection 2J of I.A.Act, 1947.\n<\/p>\n
\tLabour
\nCourt has committed a gross error in considering the definition of
\nindustry under Section 2J,  which is not in statue book being
\namended definition, which being a basic
\nerror committed by Labour Court require interference
\nby this Court, under Article 227 of the Constitution of India.\n<\/p>\n
\tTherefore,
\nonly on this short ground, award passed by Labour Court in
\nRef.No.841\/87 dated 11th
\nApril, 2001 is set aside without expressing any opinion on merits. It
\nis directed to Labour Court, Ahmedabad to decide the Ref.No.841\/87
\nafresh including the question of industry within a period of 6 months
\nfrom the date of receiving the copy of the said order. It is open for
\nboth the parties to produce all the relevant documents and to lead
\nfurther evidence before the Labour Court and it is directed to Labour
\nCourt, Ahmedabad to give reasonable opportunity to both the
\nrespective parties and to decided the reference within a period of 6
\nmonths.\n<\/p>\n
\tAccordingly,
\npresent petition, is allowed. Rule made absolute. No order as to
\ncosts.\n<\/p>\n
\tIn
\nview of facts that main matter is allowed by this Court, today,
\ntherefore no order is required to pass in Civil Application.”\n<\/p>\n
14.\t\tIn
\naforesaid order, this Court has set aside award and remanded matter
\nback to Labour Court concerned for deciding entire reference on
\nmerits. This petition was preferred by workman and on his petition,
\naward was set aside by this Court. So, aforesaid papers have been
\nannexed by workman in Special Civil Application No.1106 of 2008.\n<\/p>\n
15.\t\tThe
\ncontention raised by learned advocate Mr. Upadhyay is that averments
\nmade in Para 10 of written statement Ex.6, no opportunity has been
\ngiven by Labour Court to petitioner Committee\/Trust for conducting
\ninquiry before Labour Court. This contention cannot be accepted by
\nthis Court simply on the ground that before Labour Court, no such
\nsubmission has been made by advocate of petitioner Trust to permit
\npetitioner Trust to conduct departmental inquiry before Labour Court.
\nMerely, raising such plea in written statement is not enough, but, it
\nshould have to be pressed in service before Labour Court at the
\nrelevant time when matter was remanded back to Labour Court by this
\nCourt. In entire award, no such submission was made by petitioner
\nTrust and therefore, first time, such contention has been raised
\nbefore this Court that opportunity was not given to conduct
\ndepartmental inquiry against workman cannot be accepted. Apart from
\nthat, even otherwise also, looking to facts which are on record,
\nworkman who reached age of superannuation
\nin year of 2000, then, question of conducting departmental inquiry
\nagainst workman does not arise and having no purpose to permit
\nemployer to hold inquiry after retirement of concerned workman. It is
\nnecessary to note that after remanding matter back to labour court by
\nthis court, only workman was examined vide Exh. 51, at that occasion,
\nthough opportunity was available to petitioner Committee to lead
\nevidence and prove misconduct of workman but no evidence was led and
\nno request was made to labour court to permit lead evidence for
\nproving misconduct against workman then though opportunity was
\navailable to committee, even though, such opportunity was not availed
\nby committee then such contention cannot be accepted. The request not
\nmade to labour court by committee for permitting to lead evidence for
\nproving misconduct against workman then to raise contention before
\nthis court first time that no opportunity was given by labour court
\ncannot be accepted being an after thought.\n<\/p>\n
16.\t\tI
\nhave considered submissions made by both learned advocates appearing
\non behalf of respective parties. I have scanned all the papers
\nannexed to these petitions by respective parties. I have also scanned
\naward passed by Labour Court, Ahmedabad.\n<\/p>\n
17.\t\tThe
\nindustrial dispute raised by workman against termination was referred
\nfor adjudication on 23rd April, 1987. In support of
\nindustrial dispute, statement of claim was filed by workman Ex.5 and
\naccording to workman, initially, he was working in post of Peon.
\nThereafter, he was working as Recovery Clerk and he was joined
\npetitioner Committee on 3rd May, 1961 as Peon and
\nthereafter, on 1st April, 1972 appointed as Recovery
\nClerk. His salary was Rs.652=50 ps., and his service was terminated
\non 7th November, 1986. But, at that occasion, no legal
\nprocedure has been followed and Section 25F is also not followed, no
\ndepartmental inquiry was conducted against respondent workman and
\naccording to workman, he was remained in service from 3rd
\nMay, 1961 to 7th November, 1986 continuously, in between,
\nhis service was not terminated by petitioner Committee.\n<\/p>\n
18.\t\tAgainst
\nstatement of claim, written statement was filed by petitioner
\nCommittee vide Ex.6 denying averments made in statement of claim and
\nraising contention that workman is not covered by definition of
\n‘Workman’ under Section 2(s) of Industrial Disputes Act, 1947 and
\npetitioner Committee has not covered by definition of ‘Industry’
\nunder Section 2(j) of Industrial Disputes Act, 1947 and therefore,
\nLabour Court has no jurisdiction, because, Industrial Disputes Act is
\nnot applicable to petitioner Committee. The reason for termination
\nwas given by petitioner Committee that workman was unauthorisedly
\nmade encroachment upon property of petitioner Committee at ‘Pir Kamal
\nKabrastan’ and unauthorisedly made construction which creates hurdle
\nfor Muslim Community those who are coming at Kabrastan, which also
\nadversely feels bad to Muslim Community and considering these
\nactivities of unauthorised encroachment and construction in the
\nproperty of ‘Pir Kamal Kabrastan’ which has been considered to be an
\nactivity against interest of petitioner Committee, therefore, it was
\nunanimously decided by petitioner Committee to terminate services of
\nworkman and accordingly, services of workman were terminated.\n<\/p>\n
19.\t\tInitially,
\nreference was dismissed, but, this Court has set aside award in
\nSpecial Civil Application No.6671 of 2003 and remanded matter back to
\nLabour Court concerned. Thereafter, intimation has been issued by
\nLabour Court to both respective parties vide Ex.51, affidavit was
\nfiled by workman and vide Ex.52 and 53, documentary evidence were
\nproduced on record by petitioner Committee and no oral evidence has
\nbeen led by petitioner Committee before Labour Court after remanding
\nmatter by this Court. However, it is necessary to note that workman
\nwas initially examined vide Ex.20 on 3rd October, 1994, at
\nthat occasion, he was aged about 50 years and was unemployed.
\nThereafter, Ex.26, one legal adviser viz., Mustakali Kadari was
\nexamined on 17th January, 1996. These both evidence were
\ntaken at the time of first award passed by Labour Court, but, after
\nmatter remanding back to Labour Court, only workman was examined vide
\nEx.51, but, thereafter, on behalf of petitioner Committee, , no oral
\nevidence was led before Labour Court. Therefore, in award, Labour
\nCourt has made clear that after remand, no oral evidence was led by
\npetitioner Committee except to produce two documentary evidence Ex.52
\nand Ex.53.\n<\/p>\n
20.\t\tAfter
\naforesaid evidence, which are on record and considering direction
\nissued by this Court, Labour Court has considered evidence of workman
\nand documents which have been produced by petitioner Committee and
\nconsidering decision of Apex Court in case of Bangalore Water
\nSupply & Sewerage Board v. A. Rajappa and Others<\/a>
\nreported in AIR 1978 SC 548 and come to
\nconclusion that various kind of activities have been carried out by
\npetitioner Committee as per evidence of workman. The respondent
\nworkman was working initially as a Peon and thereafter, as Recovery
\nClerk. The respondent workman was not working in Masjid, but, he was
\nworking in office of petitioner Committee situated opposite GPO
\nOffice Salapas Road and income of rent is to be recovered from
\nKabrastan, Masjid, Classes which has been maintained by petitioner
\nCommittee and religious work has been maintained from income of rent
\nas well as having the income of share and interest and amount is
\ninvested by petitioner Committee and whatever rent has been recovered
\nby respondent workman is required to be deposited by workman in
\noffice of petitioner Committee. The workman has made it clear in his
\nevidence that land which is occupied by him has not been vacated
\nthough it was directed by petitioner Committee, but, he has not
\nvacated it, therefore, his service was only on that ground terminated
\nby petitioner Committee. The workman remained unemployed and he has
\nstudied up to seven standard and he was not gainfully employed.\n<\/p>\n
21.\t\tAccording
\nto evidence of Mustaqali Kadari, Ex.26, a witness of petitioner
\ncommittee also admitted facts that main activities are carried out by
\npetitioner Committee to maintain Dargah, Masjid and Kabrastan from
\nincome of rent, received from various properties belonging to
\npetitioner Committee. The petitioner Committee is also running
\ntechnical school and other institutions. From that, rent has been
\nrecovered and no notice has been given before terminating service of
\nworkman and no departmental inquiry conducted by petitioner Committee
\nagainst respondent workman. The premises which has been occupied by
\nworkman is belonging to petitioner Committee and rent of Rs.5\/- has
\nbeen deposited by workman in Court. Further evidence was given by
\nworkman vide Ex.51 after remanding matter back to Labour Court by
\nthis Court. According to evidence of workman, he has to recover rent
\nfrom various premises belonging to petitioner Committee and more than
\n25 to 30 employees are working with petitioner Committee those who
\nare maintaining various properties belonging to petitioner Committee.
\nIn petitioner Committee, eight to ten Watchmen are there and various
\nkind of Classes are running and also engaging Instructor in various
\nFaculties including technical staff and Provident Fund also deducted
\nfrom salaries of employees and gratuity amount is also made available
\nto employees those who are working with petitioner Committee. The
\npetitioner is a Public Trust registered under provisions of Bombay
\nPublic Trust Act. The petitioner Trust is receiving various kind of
\ndonation from various persons.\n<\/p>\n
22.\t\tThe
\npetitioner Committee is having properties at Gandhi Road, Jama Masjid
\nand all shops which are surrounding to Jama Masjid near Manek Chowk
\nbelonging to petitioner Trust. Not only that but various shops which
\nare situated in Rajano Hajiro and Ranino Hajiro are also belonging to
\npetitioner Committee and property of shops in Manek Chowk, Vasan
\nBazar, Karanj Khas Bajar, Near Masjid and also having main office at
\nSalapas  Road and various buildings and shops are also at Shahibaug
\nhaving large Kabrastan at Ishanpur and new flats near Kabrastan at
\nIshanpur and also having large Kabrastan at Gomtipur and lands, shops
\nand buildings surrounding to Kabrastan at Gomtipur. The petitioner
\nCommittee runs computer classes, mobile repairing classes, ITI
\nclasses, etc., and collects high fees and hostels for boys and
\ncollects fees from students. The petitioner Committee is having these
\nall sources of income, which suggest that petitioner Committee is
\ndoing commercial activities.\n<\/p>\n
23.\t\tIt
\nis not a case of petitioner Committee that except spiritual work, no
\nother activities are carried out by petitioner Committee. It is
\nnecessary to note that Ex.51, evidence of workman giving aforesaid
\nall details not challenged in cross-examination by petitioner
\nCommittee and subsequent to evidence after remand, no oral evidence
\nwas led by petitioner Committee except to produce two documents Ex.52
\nand Ex.53. Therefore, considering evidence of workman not challenged
\nby other side, Labour Court has come to conclusion that various
\nactivities are carried out by petitioner Committee means systematic
\nactivities have been carried out with help of relationship as
\n’employer – employee’ and service rendered to mankind for
\nsatisfying human needs and requirement of public at large satisfied
\nthe ingredients of triple tests laid down by Apex Court in case of
\nBangalore Water Supply (supra). Therefore, this being a finding of
\nfact examined and decided by Labour Court after remanding matter to
\nLabour Court, therefore, contentions raised by learned advocate Mr.
\nUpadhyay cannot be accepted, because, there was no positive evidence
\nproduced by petitioner Committee to the effect that these activities
\nare not carried out by petitioner Committee means there is no denial
\nto evidence of workman Ex.51.\n<\/p>\n
24.\t\tThe
\nservice of workman was terminated on 7th November, 1986
\nand he was terminated by President Jabbarhusain Kadari for misconduct
\ncommitted by him, even no written order was served to workman. No
\nnotice or notice pay as well as compensation was given to workman and
\nhis service was terminated on 7th November, 1986. On 8th
\nNovember, 1986, it was a Saturday, even though, workman had collected
\nand recovered rent and deposited in office of petitioner Committee.
\nOn 9th November, 1986, it was a Sunday and on 10th
\nNovember, 1986, total amount has been given by workman to petitioner
\nCommittee. At that time, Secretary was Abdulkhan Chauhan and on that
\nday, Mr. Chauhan made it clear orally to workman that his service was
\nterminated w.e.f. 7th November, 1986 and accordingly,
\npublic notice was issued in daily newspaper that now, it is not
\nrequired to report for duty by workman. During pendency of reference,
\nworkman was taken back in service, but, with ulterior motive and
\nvictimise him, again, his service was terminated by petitioner
\nCommittee while giving written order on 30th August, 1997.
\nThe date of birth of workman is 8th December, 1940,
\ntherefore, his date of superannuation was 8th December,
\n2000. No doubt, in petitioner Committee, retirement age is not fixed,
\nhowever, considering termination and unemployment of workman and
\nhaving cancer of lungs and his wife was doing household work and
\ninspite of number of efforts made by workman, he was not able to get
\nany employment and he was totally remained unemployed.\n<\/p>\n
25.\t\tIn
\ncross-examination also, workman has given evidence that inspite of
\nsincere efforts made by him, he was not able to get any employment
\nand he remained unemployed and his monthly last salary was Rs.652=50
\nps. The evidence of witness of petitioner Committee Mr. Kadari, in
\nterms, before Labour Court stated that due to unauthorised
\nencroachment made in premises and construction was made by respondent
\nworkman in Kabrastan, opposite Nagari Hospital, services of workman
\nwas terminated by petitioner Committee. Undisputedly, no departmental
\ninquiry was conducted before terminating service of workman and this
\nevidence has been considered by Labour Court and come to conclusion
\nthat service of workman was illegally terminated by petitioner
\nCommittee while giving conclusion that petitioner Committee is
\ncovered by definition of Section 2(j) of Industrial Disputes Act,
\n1947. The Labour Court has appreciated oral evidence led before him
\nas well as also considered documentary evidence and also considered
\nundisputed facts that before terminating service of workman, no
\nshow-cause notice was served to him. No departmental inquiry was
\nconducted and come to conclusion that prima facie, order of
\ntermination is based on allegation\/misconduct as alleged by
\npetitioner Committee\/Establishment and it was a punishment imposed by
\npetitioner Committee upon workman. Before that, no opportunity was at
\nall given by petitioner Committee. Therefore, in absence of
\nconducting departmental inquiry, no punishment can be imposed against
\nworkman which violates basic principles of natural justice. The
\npetitioner Committee also admitted in Para 10 of written statement at
\nEx.6 that no departmental inquiry was conducted against workman.\n<\/p>\n
26.\t\tThe
\nLabour Court has considered that more than 20 years have been passed
\nfor adjudication of industrial dispute which was referred in year of
\n1987 and looking to date of birth of workman 8th
\nDecember, 1940, who was reached age of 60 years in year of 2000,
\ntherefore, considering bitterness \/ not having a good terms between
\nemployer and employee, therefore, not granted relief of reinstatement
\nand considering age of retirement reached by workman, a lump-sum
\namount has been awarded. The Labour Court has committed gross error
\nin coming to conclusion only on the presumption that evidence of
\nworkman cannot be believed that he was totally unemployed and his son
\nwas earning and maintaining family. On what basis, evidence of
\nworkman has not been believed. For that, no evidence has been
\nproduced by petitioner Committee before Labour Court. Such
\npresumption is contrary to record drawn by Labour Court. The Labour
\nCourt has also committed gross error drawing adverse inference
\nagainst workman which is contrary to evidence of workman that during
\ninterim period, workman must have earned something and maintained
\nfamily. The Labour Court has considered that provident fund amount is
\nnot available to workman, but, amount of gratuity and retrenchment
\ncompensation are available to workman according to law and
\nconsidering back wages of interim period, in all, only Rs.40,000\/-
\nhas been awarded by Labour Court being a lump-sum compensation in
\nfavour of workman.\n<\/p>\n
27.\t\tI
\nhave considered evidence of workman Ex.51, against which, no oral
\nevidence was led by petitioner Committee\/Trust disproving facts
\nstated by workman in his evidence. The evidence of workman suggests
\nvarious properties belonging to petitioner Committee situated in
\nvarious areas of Ahmedabad City and outside City Areas receiving rent
\namount, maintaining different kind of Classes, giving training to
\nsuch students and engaging more than 35 employees including
\nInstructor, Secretary, Clerks, Peons, Watchmen, etc., and maintaining
\nTrust after receiving aforesaid income from various sources which
\nincludes commercial transactions and activities carried out by
\npetitioner Trust as per deposition given by workman. The petitioner
\nCommittee\/Trust is also investing amount in Share, FDR and receiving
\ninterest and also receiving fees from different technical classes run
\nand maintain by petitioner from students. These are the income
\nreceived by petitioner and it was not a only function of spiritual
\nactivities, but, on the contrary, main activities of petitioner
\nCommittee is commercial activities carried out with help of
\nrelationship between employer and employee which is considered to be
\na systematic joint efforts of employer and employees made to satisfy
\nhuman wants. This aspect has been recently considered by Division
\nBench of Madras High Court in case of Thilagavathi S. v.
\nPresiding Officer, Labour Court, Madurai and Another report
\nin 2010-I-LLJ 101 (Mad.).\n<\/p>\n
The relevant discussion is made in Para 8 to 12 which are quoted as
\nunder :\n<\/p>\n
“8.\tThe
\nevidence placed on record before the Labour Court discloses that the
\nsecond respondent society is being used as an observation home for
\nchildren and that the Government is providing aid to this institution
\nand that apart the expenses are met out by getting donations. The
\nsociety is giving vocational training to the children for self-help
\njobs and also in gardening and as per the bye-laws of the Management,
\nproperly allocated works are being carried out as per the rules and
\nregulations in accordance with the duty hours and further its
\naccounts are being audited every year. It is evident from the above
\nthat there are systematic activities in the second respondent Society
\nand there are joint efforts by the employer and employees and
\nfurther, it is being carried out for human necessities.\n<\/p>\n
9.\tIn
\nBangalore Water Supply and Sewerage Board v. A. Rajappa and Others<\/a>
\n(supra) case, the Hon’ble Supreme Court held that Bombay Pinjrapoles
\nin the said case was an ‘industry’,
\njustifying the conclusion with a different process of reasoning, that
\nPinjrapoles are ‘industry’, not because they have commercial motives,
\nbut, because despite their companssionate objectives, they share
\nbusiness like orientation and operation.\n<\/p>\n
10.\tThe
\nHon’ble Supreme Court further held that two categories of charitable
\ninstitutions would fall within the definition of ‘industry’ and they
\nare :\n<\/p>\n
\t(1)\twhere
\nthe enterprises, like any other, yields profits but they are siphoned
\noff for altruistic objects.\n<\/p>\n
\t(2)\twhere
\nthe institution makes no profit but hires the services of employees
\nas in other like businesses but the goods and services, which are the
\noutput, are made available, at low or no cost to the indigent needy
\nwho are priced out of the market.\n<\/p>\n
11.\tThe
\nsecond one, as stated supra,
\ncould be applied to the present case, for the reason, the manner in
\nwhich the activity in question is organized or even arranged in the
\nsecond Respondent society is with the cooperation between the
\nemployer and the employee for its success and the object is to render
\nmaterial service to the community, and they are the tests
\nwhich identifies the second respondent as
\nan industry.\n<\/p>\n
12.\tIt
\nis pertinent to point that merely because the society is run with the
\naid of the Government, it will not be exempted from the definition of
\nindustry and the said view gains credence from the decision Workmen
\nof Indian Standards Institution v. Management of Indian Standards
\nInstitution, AIR<\/a> 1976 SC 145 : (1975) 2 SCC 847 : 1960-I-LLJ-33. In
\nthe said case, the majority of the Three udges Bench relied more upon
\nthe State of Bombay v. Hospital Mazdoor Sabha<\/a> (supra) case, than on
\nthe Safdarijung Hospital v. Kuldip Singh Sethi<\/a> (supra) case and
\nultimately held that the Indian Standards Institution which was run
\nby the Government of India is an industry. This was also pointed out
\nin Bangalore Water Supply & Sewerage Board v. A. Rajappa and
\nOthers<\/a> (supra) case by the Hon’ble Supreme Court. By applying the
\nsaid principles stated supra, we have no difficulty to hold that the
\nsecond respondent society is an ‘industry’ within the meaning of
\nIndustrial Disputes Act.”\n<\/p>\n
28.\t\tIn
\nview of aforesaid discussion and observations made by Division Bench
\nof Madras High Court and considering evidence which are on record,
\ncontentions raised by learned advocate Mr. Prabhakar Upadhyay
\ncannot be accepted, hence, rejected. Therefore,
\npetition preferred by petitioner Committee being Special Civil
\nApplication No.4389 of 2008 is required to be dismissed, because,
\nthere is no substance in petition, hence, dismissed.\n<\/p>\n
29.\t\tNow,
\nI am considering petition filed by workman being Special Civil
\nApplication No.1106 of 2008. The question is whether amount of
\ncompensation which has been awarded by Labour Court can be considered
\nto be a reasonable, adequate and proper or not ?\n<\/p>\n
30.\t\tThe
\ntotal service rendered by workman from date of joining 3rd
\nMay, 1961 and his service was terminated on 7th
\nNovember, 1986 more than 26 years. Considering age of retirement 60
\nyears, then, workman must have to be remained in service upto period
\nof 2000, therefore, Labour Court has not property applied its mind
\nwhile fixing compensation in lieu of reinstatement and back wages of
\ninterim period. Once order of termination found to be illegal,
\ncontrary to principles of natural justice and violates provisions of
\nSection 25F of Industrial Disputes Act, 1947, then, such order of
\ntermination is ab initio void and workman is deemed to be in service
\nfor all purposes as decided by Apex Court in case of Mohan
\nLal v. Management of M\/s. Bharat Electronics Ltd.<\/a>
\nreported in AIR 1981 SC 1253.\n<\/p>\n
The gainful employment has not been proved by petitioner Trust and
\nunemployment has been proved by workman, therefore, workman is
\nentitled a relief of back wages of interim period from date of
\ntermination to date of reaching age of superannuation. Therefore,
\nconsidering date of termination 7th
\nNovember, 1986 to 2000, workman is entitled back wages of 14 years
\nperiod. The workman is also entitled benefit of gratuity,
\nretrenchment compensation considering 14 years interim period, in
\nall, amount of Rs.40,000\/- is considered to be a very meager amount
\nawarded by Labour Court which requires to be enhanced by this Court,
\nbecause, Rs.40,000\/- is awarded without application of mind and
\nignoring relevant factors for determining such compensation in light
\nof background that workman who was remained out of job for more than
\n14 years and his service was illegally terminated and gainful
\nemployment is not proved by petitioner Committee\/Trust, therefore,
\naccording to my opinion, considering legal retrenchment, then,
\nworkman is entitled 15 days salary for retrenchment compensation and
\n15 days wages for gratuity amount. In all, it comes to one month
\nsalary for one year period and for date of joining 3rd
\nMay, 1961 to 2000, total period comes to 39 years and therefore,
\nworkman is entitled a salary of  39 months considering his salary
\nRs.652=50 ps., then, it comes to Rs.25448\/-. The workman is also
\nentitled amount of back wages for interim period from date of
\ntermination to date of reaching age of superannuation about 14 years.
\nAccording to my opinion, considering from both sides and workman
\nremained unemployed throughout and gainful employment is not proved
\nby employer, therefore, workman is entitled 75% back wages of interim
\nperiod for 14 years who was remained out of job, considering last
\ndrawn monthly salary of, it comes to Rs.82,152\/-, therefore, total
\namount comes to Rs.1,07,600\/-. Out of that amount, Rs.40,000\/- which
\nhas been awarded by Labour Court being a lump-sum amount is required
\nto be deducted, then, net amount comes to Rs.67,600\/-. Therefore,
\naccording to my opinion, on the basis of aforesaid calculation which
\nis worked out by this Court to determine a reasonable compensation
\nfor workman who is suffering from serious ailment i.e. cancer of
\nlungs at last stage, aged about more than 71
\nyears and not having any sufficient means or adequate facility even
\nto have medical treatment for such a serious disease, <\/p>\n
31.\t\tTherefore,
\nconsidering entire matter as it is as discussed above by this Court,
\nworkman – Abdulgani Ishabhai Kachhot is entitled additional
\namount of compensation Rs.67,600\/- after deducting Rs.40,000\/- as
\nawarded by Labour Court, Ahmedabad. Accordingly, petitioner –
\nSunni Muslim Wakf Committee has to pay further additional amount of
\ncompensation Rs.67,600\/-,  over and above Rs.40,000\/- awarded by
\nLabour Court, to respondent workman – Abdulgani Ishabhai Kachhot.\n<\/p>\n
32.\t\tAccordingly,
\naward passed by Labour Court in Reference (LCA) NO.841 of 1987, Ex.72
\ndated 22nd
\nJune, 2007 is hereby modified to the effect that workman is entitled
\nto get total compensation of Rs.1,07,600\/- and after deducting
\nRs.40,000\/- as awarded by Labour Court,
\nrest of amount comes to Rs.67,600\/-, which is required
\nto be paid by petitioner Committee to respondent workman with cost of
\nRs.10,000\/- imposed upon petitioner Committee.\n<\/p>\n
33.\t\tAccordingly,
\npetition preferred by workman being Special Civil Application No.1106
\nof 2008 is partly allowed and rule is made absolute to aforesaid
\nextent.\n<\/p>\n
34.\t\tIn
\nresult, it is directed to petitioner – Sunni Muslim Wakf
\nCommittee to deposit Rs.67,600\/- along with cost Rs.10,000\/- before
\nregistry of this Court within a period of one month from today,
\nwithout fail.\n<\/p>\n
35.\t\tAfter
\nrealising said amount which deposited by petitioner Committee,
\nregistry is directed to issue an account payee cheque of said amount
\nin name of daughter-in-law – Asrafunneesa Yusufbhai Shaikh on behalf
\nof respondent workman and hand over said cheque to learned advocate
\nMr. Shah who is representing respondent workman in these matters
\nimmediately. Learned advocate Mr. Shah will acknowledge same on
\nbehalf of respondent workman and thereafter, he will produce receipt
\nof respondent workman that respondent workman has received said
\namount through his daughter-in-law.\n<\/p>\n
36.\t\tAccordingly,
\npetition preferred by petitioner – Committee is hereby
\ndismissed and petition
\npreferred by respondent workman is hereby partly
\nallowed to the aforesaid extent with cost of Rs.10,000\/-.\n<\/p>\n
\t\t\t\t\t\t\t\t\tSd\/-\n<\/p>\n
[H.K.\n<\/p>\n
RATHOD, J.]<\/p>\n
#Dave<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Sunni vs Abdulgani on 17 March, 2011 Author: H.K.Rathod,&Nbsp; Gujarat High Court Case Information System Print SCA\/4389\/2008 29\/ 29 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 4389 of 2008 With SPECIAL CIVIL APPLICATION No. 1106 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE H.K.RATHOD Sd\/- ========================================================= […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-68074","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nSunni vs Abdulgani on 17 March, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/sunni-vs-abdulgani-on-17-march-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sunni vs Abdulgani on 17 March, 2011 - 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