- (1.) By this special appeal, challenge is made to the order dated 21.7.2009 passed by the learned Single Judge, whereby, writ petition preferred by the petitioner-appellant against the award passed by the Industrial Tribunal, Jaipur dated 21.4.1995 was allowed in part.
(2.) Learned counsel for the appellant submits that vital issue whether appellant falls in the definition of 'industry' and the respondent No.2 falls in the definition of 'workman' has not been decided by the learned Single Judge and the Industrial Tribunal. The individual Doctor, running a clinic, does not fall in the definition of 'industry' and as a consequence thereof, respondent cannot be considered to be a 'workman'. The issue aforesaid goes in the roots of the case. If it is decided by holding that petitioner appellant does not fall in the definition of 'industry', the Tribunal was not having jurisdiction to adjudicate the issue. The aforesaid being a legal issue, can be raised at any time. It is more so when the evidence was led by the parties in respect of the said issue.
(3.) A perusal of the award of the Tribunal makes a reference of the evidence and discussion thereupon. Learned Single Judge committed illegality in not discussing the issue as to whether an individual Doctor running a clinic fall in the definition of 'industry' and the respondent in the definition of 'workman', as given under section 2(s) of the Industrial Disputes Act, 1947 (for short 'the Act of 1947'). It is being a legal issue thus raised before the learned Single Judge. It was also raised before the Tribunal. The learned Single Judge refused to decide the issue after holding it to have been raised for the first time. In the light of the aforesaid, judgment of the learned Single Judge may be interfered. The issue may be adjudicated by the Division Bench or the case be remanded back to the learned Single Judge for adjudication.;