Vikas Adhikari, Panchayat Samiti and anr. Vs. Hira Lal - Court Judgment

Excerpt:

.....high court not going into said question before supreme court under article 136 held, maintainable, though it raised a mixed question of law and fact. -- code of civil procedure, 1908. order 7, rule 11(d): rejection of plaint held, where defence has been set up in the written statement that suit was barred by limitation, and though no issue was framed in that regard, however, the trial court had in terms of the mandate of section 3(1) of the limitation act, 1963 came to a finding that the suit was barred by limitation and the first appellate court and also of the high court did not go into the said question and decide the same before reversing the judgment of the limitation not having been taken before the appellate forums, the same could not be taken before supreme court in proceedings under article 136 of the constitution on the ground that the question of limitation was a mixed question of law and fact, because the suit continued to remain barred by limitation after the decisions of the appellate courts since such finding of the trial court had not been set aside either in the first appeal or by the high court in second appeal. in such a case, apart from section 3(1).....order1. shri aruneshwar gupta, learned counsel for the appellants attacked the order under appeal by raising the question whether the respondent is a workman working in an industry and whether he should approach the industrial tribunal or the labour court under the industrial disputes act.2. we do not think that such an issue should be examined. the learned counsel relied upon the decision of this court in r.n.a. britto v. chief executive officer and ors. : (1997)iillj856sc . the question whether a government servant should also be a workman will have to be examined on the facts of each case. as such a question has not been raised specifically before the high court, we refuse to go into it. no other point is urged.3. in the facts and circumstances of the case, we think it is appropriate to modify the award made by the labour court to the extent of reducing it to back wages awarded by 50% . it is submitted by shri aruneshwar gupta, learned counsel, that the post of octroi nakedar has been abolished. if that is so, the respondent may be fitted in any other equivalent post. the appeal is disposed of accordingly.

Judgment:

ORDER

1. Shri Aruneshwar Gupta, learned Counsel for the appellants attacked the order under appeal by raising the question whether the respondent is a workman working in an industry and whether he should approach the Industrial Tribunal or the Labour Court under the Industrial Disputes Act.

2. We do not think that such an issue should be examined. The learned Counsel relied upon the decision of this Court in R.N.A. Britto v. Chief Executive Officer and Ors. : (1997)IILLJ856SC . The question whether a government servant should also be a workman will have to be examined on the facts of each case. As such a question has not been raised specifically before the High Court, we refuse to go into it. No other point is urged.

3. In the facts and circumstances of the case, we think it is appropriate to modify the award made by the Labour Court to the extent of reducing it to back wages awarded by 50% . It is submitted by Shri Aruneshwar Gupta, learned Counsel, that the post of Octroi Nakedar has been abolished. If that is so, the respondent may be fitted in any other equivalent post. The appeal is disposed of accordingly.