MOHAMMAD RAFIQ, J. - (1.) THIS writ petition has been filed by petitoner Dr. Ram Gopal Gupta against the award dated 21/4/1995 by which Industrial Tribunal, Jaipur (for short the Tribunal) while answering reference on the question of removal of respondent-workman Ramlal vide order dated 12/3/1976 held that his removal by petitioner was illegal and that he would be entitled to reinstatement with continuity and full back wages.
(2.) SHRI Vinendra Agarwal, learned counsel for the petitioner has argued that petitioner was individually running Gupta Clinic where the respondent-workman was engaged as Compounder and that an individual doctor running a clinic cannot be said to be fall within the purview of industry as defined in Section 2 (J) of Industrial Disputes Act, 1947. Learned counsel argued that despite specific objection was raised in reply to statement of claim that respondent was not a workman. The Tribunal erred in law in holding that there was violation of Section 25-F of the Act. Learned counsel has submitted that Tribunal has failed to correctly appreciated the evidence adduced before it inasmuch as it was clearly pleaded that said clinic was being run as partner-ship firm of Dr. Ram Gopal i.e. petitioner herein and Dr. Mohan Lal and that partner-ship firm was no more in existence after December, 1974. If respondent-workman as per his assertion was removed from service on 12.3.1976 on that date, obviously petitioner was running the clinic as an individual doctor. Learned counsel however submitted that evidence by way of Ex.M/1 and M/2 photographs of the clinic, where the respondent-workman after his removal was working, was wrongly disbelieved by Industrial Tribunal. Learned counsel submitted that those photographs were proved by petitioner and that in the face of it the Tribunal ought not to have directed payment of full back wages. Besides that learned counsel submitted that statement attributed to workman that he in his affidavit has stated that he has continuously been unemployed after his removal is not factually correct. Learned counsel sought to substantiate this argument by producing certified copy of statement of respondent-workman. Learned counsel submitted that in fact when the petitioner was away from the Clinic due to certain marriage in his relation, the respondent had on his own injected a medicine to one Munni Bai, who died for that reason. Respondent-workman was prosecuted for offence under Section 304-A IPC and after his acquittal he raised the industrial dispute. The dispute was belatedly raised, therefore, it was referred to Industrial Tribunal by notification dated 9.12.1982. Delay occasioned was made because initially the Government declined to make reference and thereafter respondent-workman approached this Court in a writ petition for making reference. Subsequently, the award was passed by Tribunal on 11.1.1984 rejecting the claim of petitioner. He then filed a writ petition before this Court (SBCWP No.1558/1987) challenging award, which was allowed by this Court vide judgment dated 23.7.1993 and the matter was remanded to Industrial Tribunal again for fresh adjudication. The impugned award was passed by Tribunal belatedly on 21.4.1995. Removal of respondent was made as far as back on 12.3.1976 and counting from that date, already 19 years have gone by when the impugned award was passed and now when this matter is being decided by this Court, more than 33 years have gone by. In those facts, there was no justification for the Tribunal to either direct for payment of full back wages or reinstatement of respondent-workman. Learned counsel in support of his arguments relied on the judgments in Bangalore Water Supply & Sewerage Board Vs. Rajappa : 1978 (2) SCC, 213 Laxmi Devi Sugar Mills Ltd. Vs. State of U. P. : 1955 (2) LLJ 1 Allahabad, Dr. Devendra M. Surti Vs. State of Gujarat : 1969 Lab. IC 245 (Bombay), Dr. Nirupama Rath Vs. State of Orissa : 1996 Lab. IC 1585 (Orissa). Although no one has been appearing for the respondent-workman, but Shri S. D. Khaspuria, learned Additional Government Counsel, who is present in the Court, because State Government is impleaded respondent No.3, has assisted the Court. Shri S. D. Khaspuira, learned Additional Government Counsel submitted that question whether petitioner Dr. Ram Gopal Gupta, who is running Gupta Clinic, would be an industry or not that is the question of fact. Petitioner in reply to statement of claim has very faintly pleaded that respondent-workman was not a workman, but this was not specifically raised as a fact that Gupta Clinic for that reason would not be an industry. Neither at the time when the earlier award was passed by the Tribunal nor during the pendency of proceeding of impugned award subsequently passed by Tribunal on 21.4.1995 was this question seriously agitated on behalf of petitioner. On the contrary, learned counsel has submitted that in para No.4 of impugned award the Tribunal has categorically noted that arguments with regard to preliminary objections in reply to statement of claim was not seriously pressed. Learned counsel citing from the judgment of Punjab and Haryana High Court in District Red Cross Society Vs. Krishna Kumar & Ors. : 2003 (98) FLR, 919, argued that whether an activity falls within the ambit of industry is a mixed question of law and fact and therefore, cannot be for the first time raised in proceeding under Article 226 of the Constitution of India. Having heard learned counsel for the parties and perused the material on record, I find that in the present case question that was referred for adjudication of industrial dispute to the Tribunal was whether removal of respondent by petitioner on 12.3.1976 was legal and valid and if not, what relief he was entitled to ? Reference on this question was originally answered by the Tribunal in the terms that there being no violation of any other provision of Industrial Disputes Act, the respondent-workman was not entitled to any relief. That award was passed on 11.1.1984. The respondent challenged the said award by filing the writ petition, which was allowed by this Court vide judgment dated 23.7.1993. This Court held that award was passed by Tribunal ignoring material evidence inasmuch as without recording evidence whereas finding of question ought to have been recorded therefore it was a material irregularity. Subsequently, when the matter was remanded to the Tribunal for fresh adjudication, no doubt petitioner has contested the matter before the Tribunal at the time when it was again adjudicated by the Tribunal after remand. The argument that Gupta Clinic, since it was being runned by Dr. Ram Gopal as an individual would not be fall within the purview of 'industry' as defined in Section 2 (J) of the Act was not specifically raised as an objection either in pleadings or even during the arguments. What was raised as an objection was that the respondent workman was not a workman. Learned counsel on that basis sought to argue that workman as defined in Section 2 (J) is the one who engaged with industry and, therefore, by necessary implication, the objection was to the effect that petitioner was not an industry. Even if that half hearted plea is accepted, then also the fact remains that Industrial Tribunal has clearly in para No.4 of the award noted that even that plea was also not seriously raised by petitioner and no evidence on such a plea was adduced. Although, learned counsel sought to argue that whatever evidence was required was already available on record that the clinic was run by an individual doctor and such a clinic would not fall within the industry and therefore this being a question of law, can be raised at any stage of the proceedings before this Court and, therefore, learned counsel submitted that award be set aside having been rendered without jurisdiction. I am not persuaded to countenance this argument because such an argument was never raised before the Tribunal, not only in the proceedings when the impugned award was passed on 21.4.1995, but also at the time, when the earlier award was passed by Tribunal. Adverting now to the second submission of learned counsel for the petitioner, what is to be seen is whether the direction of Industrial Tribunal for reinstatement of workman with full back wages and continuity in service could in the circumstances of the case be justified ? The facts having important bearing on this aspect of the matter are that respondent-workman was removed on 12.3.1976. Originally when he requested the appropriate Government for making reference of Industrial Tribunal, the Government declined to make reference petitioner approached this Court by filing writ petition. This Court allowed the writ petition and directed the Government for making reference. It was thereafter reference was made by notification of Government dated 9.12.1982. Subsequently when the reference was answered by the award of Industrial Tribunal dated 11.1.1984, in the terms that there was no violation of Industrial Disputes Act and the respondent-workman was not entitled to any relief, the respondents challenged the said award in a writ petition, which was allowed by judgment of this Court dated 23.7.1993 and the matter was remanded. It was thereafter that impugned award was passed after fresh adjudication on 21.4.1995. It is thus clear that by the time when the impugned award was passed already a long period of 19 years had gone by from the date removal of respondent-workman and, therefor, at that stage direction for payment of full back wages would not be justified especially when for this delay petitioner could not be blamed. Moreover, reinstatement after such a long period of time would also not be justified because when the award was passed, 19 years had passed and when this matter is being decided now, at it is, more than 33 years have gone by. In my considered view, ends of justice would be met if the first part of award declaring removal of respondent-workman as having been made in violation of Section 25-F on facts is upheld, but subsequent part of the award directing reinstatement with continuity and full back wages is set aside and is substituted by directing on that a sum of Rs.50,000/- as lump sum compensation shall be paid to respondent-workman in lieu thereof within a period of four months.
(3.) THIS writ petition is partly allowed accordingly. Copy of this judgment be endorsed to respondent-workman for information.;