Point of Law: Labour Court has decided the preliminary issue of jurisdiction raised to the effect that the Labour Court has no jurisdiction. The Labour Court has held that it has jurisdiction to entertain the reference which was challenged by way of Special Civil Application which came to be dismissed by this Court upholding the order of the Labour Court.

JUDGMENT :

1. Being aggrieved and dissatisfied with the impugned award dated 11.08.2011 passed by the Labour Court, Godhra in Reference (L.C.G.) No. 89 of 2004, the petitioner has filed the present petition under Articles 226 and 227 of the Constitution of India for the following prayers :-

A. YOUR LORDSHIPS be pleased to issue writ of mandamus or appropriate writ and/or certiorari by quashing and setting aside the order dt. 11/8/2011 passed by the Labour Court, Godhra in Reference (LCG) No.89/2004 is illegal, improper and arbitrary and contrary to the provisions of the Industrial Disputes Act, 1947 and be further pleased to direct the Respondent company to forthwith reinstate the Petitioner on his original post with continuity of service with full back wages alongwith all consequential benefits.

B. YOUR LORDSHIPS be pleased to pass such other and further order as the nature and circumstances of the case may require.

2. Brief facts of the present case is that the petitioner was serving as Hamal in the respondent – School since last three years prior to the date of his termination and he was being paid a salary of Rs.750/- per month. According to the petitioner, on 16.12.2003, the respondent has illegally terminated his service. Therefore, the petitioner has raised industrial dispute which was referred to the Labour Court being Reference (L.C.G.) No.89 of 2004, wherein, the respondent has contended that the respondent has not covered under the definition of the “industry” and the petitioner was working on fixed salary and fixed time basis and because of the irregularities, the respondent has terminated the petitioner from the service. It is contended by the respondent that he was serving as Hamal on fixed time basis and being paid salary of Rs.750/- per month.

3. After considering the evidence on record and submissions of both the sides, ultimately, the Labour Court has rejected the claim of the petitioner on the ground that the respondent is not “Industry” and therefore, no provisions of the I.D. Act needs to be followed and on the ground that the workman was working on fixed time period.

4. Heard Mr. P.C. Chaudhari, learned advocate for the petitioner and Mr. Soham Joshi, learned Assistant Government Pleader for the respondents, through video conferencing.

5. Mr. P.C. Chaudhari, learned advocate for the petitioner has submitted that though there is averments and recital that the petitioner was working as Hamal and this fact has been considered by the Labour Court, the entire award is based on assumption by the Labour Court that the respondent is not an “industry” and, therefore, there is no relationship between the petitioner and respondent – school as employee and employer within the meaning of the Industrial Disputes Act,1947 (hereinafter be referred to as the “I.D. Act”). He has submitted that though the respondent is educational institution as per the decision of the Apex Court in the case of Miss A. Sundarambal Vs. Government of Goa, Daman and Diu and Others, (1988) 4 SCC 42, the educational institution is an “industry”. He has submitted that since, the work was being taken from the petitioner herein, as Hamal, he is a workman and, therefore, the I.D. Act would be applicable to the facts of the present case. According to him, the stand taken by the Labour Court that the I.D. Act is not applicable to the facts of the present case is erroneous and, therefore, only on this ground, the matter needs to be remanded back to the Labour Court to decide all the points which includes the status of the petitioner with the respondent.

5.1 Mr. Chaudhari, learned advocate for the petitioner has submitted that though the averment made by the respondent that the petitioner was working as Hamal in fixed time period, it appears from the record that he was working on monthly basis and, therefore, it should be considered as 30 days. He has submitted that if this fact is taken into account, then, the petitioner has almost worked for more than 240 day