IMPORTANT POINT
The Labour Court erred in not adjudicating on the employee's status as a workman, leading to an incorrect ruling on the legality of the resignation and entitlement to reinstatement.

JUDGMENT :

M. K. THAKKER, J.

1. Rule returnable forthwith. Learned advocate for respondent waives service of Rule.

2. The present petition being SCA No.11070/2023 is filed by the workman under Article 226 and 227 of the Constitution of India challenging the judgment and award dated 18.03.2023 passed by the learned Labour Court, Junagadh in Reference (T) No.199 of 2019 qua non granting of back wages and the Special Civil Application No.9611 of 2023 is filed by the employer challenging the same award by which learned Labour Court has directed to reinstate the employee without back wages by holding the termination dated 20.09.2019 being illegal.

3. It was the case before the learned Labour Court that the employee was made permanent on the post of Estate Supervisor from 01.01.1991 and was getting the monthly salary of Rs.38,351/-. Written resignation was given through WhatsApp by the employee on 11.07.2019 without being signed informing his desireness to retire from September, 2019. Thereafter, the said resignation was accepted on 16.07.2019 and he was permitted to retire from 20.09.2019 and it was informed to the employees to collect the amount which is due as per the rules.

3.1. Thereafter, on 20.07.2019 it was informed by the employee to employer that under the force of filing a police complaint, he sent the draft of resignation and thereafter, on inquiring he came into the knowledge that the complaint which was given under money lending dated 01.07.2019 was subsequently withdrawn by the said complaint on 07.07.2019. The said communication was sent through the registered post ad which was received by the employee however, thereafter it was informed to the employee to hand over the charge to the other person and he was paid his leave encashment as well as gratuity amount by way of cheque on 20.09.2019 and amount was transferred in his account. Being aggrieved by the aforesaid action of the employer demand notice was issued by the employee and the dispute was referred on filing the failure report by the appropriate government to the learned Presiding Officer, Junagadh. Learned Labour Court after considering the evidence has framed 3 points for consideration which are as follows:

(I) Whether the employer is falling under the definition of section 2(j) i.e ‘Industry’?

(II) Whether the action of the respondent accepting the resignation with effect from 20.09.2019 is illegal?

(III) Whether the workman is entitled for reinstatement along with other consequential benefits?

4. At the end learned Labour Court came to the conclusion that the employer-Trust is falling under the definition of ‘industries’ and resignation which was accepted with affect from 20.09.2019 is illegal and therefore, the workman is entitled for reinstatement without back wages. The learned Labour Court allowed the reference partly vide judgement dated 18.03.2023 which has been challenged by the employee and employer by separate petitions and the same is subject matter for consideration before this Court.

5. Heard learned advocate Mr.Vimal Purohit for the petitioner-employer and Mr.Jeet Rajyaguru for the respondent-workman.

5.1. Learned advocate Mr.Vimal Purohit submits that though specific contention was raised with regard to the jurisdictional aspect by the learned Labour Court as the respondent does not fall under the definition of section 2(s) of the Act i.e workman, however, learned Labour Court did not frame any point for consideration and determine the said issue. Learned advocate Mr.Vimal Purohit submits that the employee was appointed as a supervisor and undisputedly, as per his own pleading he was drawing a salary of Rs.38,351/- per month which exceeds the amount of Rs.10,000/-, therefore, does not fall under the definition of workman under section 2(s) of the Act, 1947. Learned advocate Mr.Vimal Purohit submits that learned Labour Court would not have jurisdiction to entertain such reference however, learned Labour Court without adjudicating on the said issued