MADAN, J. - (1.) BY this writ petition, the petitioners who are Dy. District Education Officer (Boys) Nawalgarh and District Education Officer (Elem.) Jhunjhunu, have challenged an Award dated 27. 2. 1999 (Annex. 4) of the Labour Court, Jaipur.
(2.) UPON failure report of the Conciliation Officer on an industrial dispute raised by Gopalram Saini, respondent workman, the State Govt. by its Notification dt. 13. 9. 94 referred the dispute as to whether termination of the workman was just and proper, if not, then to what relief he is entitled? Thereupon in his statement of claim (Annex. 1) the workman claimed to have been appointed as Class IV employee on daily wages basis in July, 1983 at Loharda School of district Jhunjhunu and continued till 1. 7. 1985 but on 2. 7. 1985 he was not taken on duty on the pretext of his services having been terminated orally. He further claimed that after his termination various persons were newly appointed besides his juniors have been continued in service, inasmuch as his representations one after the other have not been considered and, therefore, he contended that his termination was an outcome being violative of provisions of the Industrial Disputes Act, 1947 (for short the Act ). In reply (Annex. 2 & 3) to the claim of the workman, the petitioners raised objections that the industrial dispute was raised belatedly with no explanation of the delay of nine years; that since the school where the workman claimed to have been in service on daily wages basis did not come within the definition of `industry' as the schools of the petitioners are imparting education to the students. It was further contended in the reply that as per their record, the workman was appointed in October, 1984 on daily wages and not from July, 1983, inasmuch as since he did not work upto 1. 7. 1985 but worked only for 181 days only and that apart, the work having been taken was not of permanent nature, there were no violation of provisions of the Act as alleged in the claim so also in the representations of the workmen which were denied. Only affidavits are said to have been filed by both the parties to substantiate their averments made in claim and reply thereto. After hearing both the parties, the learned Labour Court by its award referred to above (Annx. 4) held the termination of the respondent workman from 2. 7. 1985 as illegal and therefore ordered him to reinstate in service with continuity for further benefits, but with half back wages. Hence, this writ petition. In this case, vide order dated 5. 11. 1999 this court on an application u/sec. 17b of the Act directed the petitioners- employer to pay last pay drawn to workman (respondent) with arrears within two months besides monthly salary payable within ten days of each month. Thereafter on 1. 12. 2000 the petitioner was called to resolve the matter but all in vain and ultimately on 19. 12. 2000 both the parties prayed to decide finally this matter at admission stage itself. Shri Mahesh Chand Gupta, learned counsel for the petitioners contended that the school is not an industry within the meaning of Sec. 2 (j) of the Act thereby the respondent No. 1 is not a workman u/sec. 2 (s) of the Act because the school is not a place of any business, trade, undertaking, manufacture or calling of employers inasmuch as it does not include any calling, service employment, handicraft or industrial occupation or a vocation of workman and therefore, the learned Labour Court erred in law in holding the respondent No. 1 as a workman in an industry. Shri Gupta further contended that since the respondent No. 1 did not work for 240 days in a calendar year, his disengagement from service cannot be construed as a retrenchment and, therefore, the learned Labour Court erred in law in holding the alleged termination of the respondent No. 1 in violation of Sec. 25f of the Act, especially when he worked only for 181 days. In reply to the writ petition, it is the case of the workman respondent that after his termination from 2. 7. 1985, he was reinstated back in service on 3. 2. 1987 but removed after three days on 7. 2. 1987 and thereafter he continuously submitted written applications on 18. 1. 1988, 3. 8. 1990 and 2. 7. 1991, thereafter he filed an application to the Conciliation Officer on 12. 3. 1992 and therefore, there was satisfactory explanation to the alleged delay. During the course of arguments, Shri Lokesh Sharma, learned counsel for the workman (respondent) contended that on a careful perusal of the impugned Award, it will be crystal clear that it has been passed by the Labour Court on admission made by petitioner's witness Shri Abdul Gafar Senior Deputy District Education Officer in his affidavit and on whose affidavit, (certified copy whereof has been produced as Annex. R1 by the respondent) during cross examination on 16. 1. 1999 the deponent witness admitted emphatically that claimant workman was class IV servant from 1. 10. 84 for eighty days; that second appointment was by order Ex. A2 and third one was by order Ex. M. 3 that too for eighty days and these orders were continuously passed; that before removing him from service no notice was given with no wages; that after his removal new appointments have also been made; that he did not remain absent at his own but he was removed and that he had completed 240 days. Having considered the rival contentions, perused the impugned Award and the documents produced alongwith the writ petition and the reply thereto, I am firmly of the view that once out of the admissions wrung out from the cross-examination of the petitioner's witness Shri abdul Gafar it stood proved that the respondent workman was firstly appointed on 1. 10. 1984 as daily wages class IV employee for eighty days and he continued by second ad third appointment order (Ex. 2 & Ex. M4) which were too for eighty days and eighty one days respectively and before removing him from service neither any notice nor wages in lieu of notice were given inasmuch as after his termination new appointments were too made as Class IV employees therefore, the learned Labour Court has committed no error of law in holding the termination of the workman as void-ab-initio and illegal, entitling reinstatement in service with half of back wages.
(3.) AS regards the question as to whether the educational institute like school or college of the State Govt. is an industry or not, the conclusions drawn by the learned Labour Court are based on the dictum of law laid down by this Court in Principal Doongar College vs. Om Prakash (1) and A. Sunderambal vs. Goa. Daman & Diu State (2), wherein it has been held that the college is an industry. Upon careful reading of the decision of this Court as well as the Apex Court, I find that similar arguments as are being canvassed before me have been urged that the college cannot be construed as an industry by any stretch of imagination inasmuch as a college is not place of any business, trade, undertaking, manufacture or calling of employers and it does not include any calling, service, employment, handicraft or industrial occupation or avocation of workmen. Such an argument was negatived relying upon a decision of the Apex Court in A. Sunderambal's case (supra ). Thus, once it is settled that the school is an industry in the present case then there would be no difficulty in holding that the respondent No. 1 is a workman being daily wages class IV employee of a Government school run and maintained by the State Govt. AS regards decision cited on behalf of the petitioners viz. Himanshu Kumar Vidyarthi vs. State of Bihar (3), the Labour Court observed that this decision stands overruled by another decision of the Apex Court renown as All India Television's case. Even otherwise also, though it was a case where the controversy was not as to whether educational institute or college or school is an industry or not, but was as to whether the petitioners workmen could be said to have been retrenched u/sec. 25f of the Act. However, it was also made explicit by saying that when the appointments are regulated by the statutory rules, the concept of `industry' to that extent stood excluded and further it was a case the petitioners workmen admittedly were engaged on the basis of need of the work. On the contrary in the instant case, the facts are totally distinct and distinguished, this is evident from aforesaid analysis of the conclusions of the labour court based on evidence and admission of the department itself. Hence, the decision of Himanshu Vidyarthi's case does not help in any manner to the petitioner department. It is settled law that this Court can interfere with a finding fact only if it is found that it has been arrived at either by Courts or by Tribunals on no evidence or it is found to be perverse or it is found that while recording such a finding of fact a Court or Tribunal has ignored a material evidence on record which if taken into account, the finding of fact would have been otherwise. In the instant case, the conclusions drawn by the labour court that the school is an industry under Sec. 2 (j) and respondent No. 1 is a workman under Sec. 2 (s) of the Act are based on evidence and such conclusions cannot be held to be perverse. Hence, I decline to interfere with the award under challenge. Similarly, the finding of fact arrived at by the labour court that respondent has worked for 240 days in a calendar year as is evident from not only admission made by petitioner's witness Abdul Gafar in his affidavit with cross examination (Ann. R. 1 herein) but also his appointment orders (Ex. 1,2,3) and he has been retrenched from his service without following just, reasonable and fair procedure established by law u/sec. 25f of the Act, is eminently just and proper and therefore does not require interference by issuing any prerogative writ, order or direction under Article 226 of the Constitution and making the impugned award ineffective. Consequently, this writ petition lacks merit and held not maintainable. As regards the alleged delay of nine years to raise dispute, from the material on record, it stands established as has rightly been taken note of by the labour court that the respondent workman has moved representations one after the other right from 22. 3. 86, 18. 1. 88, 3. 8. 90, 2. 7. 91 & 19. 5. 92 which have been got exhibited as Exhibits 4,5,6,8 & 11, against which the petitioners have merely denied in vague term that they did not find place on their official record. It goes without saying that if a litigant employer while opposing a legitimate claim of workman gives an evasive reply then it shall be treated to be an admission on his part. Hence, I find no merit in any of the contentions urged on behalf of the petitioners department. ;