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CA/4968/2010 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
APPLICATION - FOR DIRECTION No. 4968 of 2010
In
SPECIAL
CIVIL APPLICATION No. 3016 of 2006
=========================================================
RAJESH
R. CHAWADA - Petitioner(s)
Versus
GUJARAT
WATER SUPPLY & SEWERAGE BOARD - Respondent(s)
=========================================================
Appearance
:
MR
BIPIN I MEHTA for
Petitioner(s) : 1,MR VICKY B MEHTA for Petitioner(s) : 1,
MR HS
MUNSHAW for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 06/05/2010
ORAL
ORDER
1. Heard
learned advocate Mr.B.I.Mehta for applicant original respondent
and learned advocate Mr.H.S.Munshaw for respondent original
petitioner, in each civil application.
2. Present
applications are preferred by applicant with a prayer to direct the
original petitioner Board to reinstate each applicant in service
or in the alternative, direct the original petitioner Board to
pay current wages per month.
3. Initially,
on 18.4.2007, this Court has passed following order :
Heard
learned advocate Mr. Hemant S. Munshaw for petitioner and Mr. Bipin
I. Mehta, learned advocate for the respective workmen who is
appearing on caveat. Petitioner Board has challenged various awards
passed by labour court granting reinstatement with continuity of
service without back wages for intervening period. On 29.2.2006,
rule was issued by this court by making it returnable on 20.12.2006.
By same order, ad.interim relief against continuity of service was
granted and it wa clarified that the award qua reinstatement has not
been stayed. It was observed that it will be open for petitioner to
give any other equivalent work to the respondent workmen.
Applicant
Board has filed these civil applications in the respective main
matters and has prayed to modify order of this court dated 24.2.2006.
It was submitted by Mr. Munshaw on behalf of the applicant Board that
there is no vacancy available with the petitioner in which the
present respondents can be accommodated. He has also submittied that
there is shortage of fund, grant is not available from the Government
and no work is available and, therefore, they are unable to reinstate
workmen concerned. It is also submitted by him that in various circle
offices and division office of the Board, it has been inquired as to
whether any vacancy is available or not but no vacancy is available
and, therefore, ad.interim order of this Court may be modified
suitably. Learned advocate Mr. Mehta has opposed the submissions and
prayer made by Mr. Munshaw.
I have
considered the averments made in the application and the submissions
made by the learned advocates for the parties.
In light of
these factual aspects of the matter, question required to be
considered by this court is, whether reinstatement in fact is
possible or not. When the petitioner is not able to reinstate workmen
because of non availability of vacancy, in those circumstances, court
can modify the ad.interim order by directing petitioner to pay
benefit of section 17B of the ID Act, 1947 to workmen concerned.
When the labour court has passed award of reinstatement with
continuity of service and petitioner employer is unable to reinstate
workmen, in that circumstances, by staying operation of the award of
reinstatement during pendency of the matter, court can direct the
employer to comply with the mandatory provisions of section 17B of
the ID Act. In these matters, while issuing rule and granting
ad.interim relief, operation of the award of reinstatement was not
stayed by this court. Therefore, that part of the order is required
to be modified.
Therefore,
considering the inability on the part of the petitioner Board to
reinstate workmen concerned considering various correspondence with
the circle and division office, order of this court dated 24.2.2006
is modified by staying operation of the award of reinstatement.
Consequently, petitioner is directed to pay the full wages last drawn
inclusive of maintenance allowance, if any, available, under the
service rules to the respondents workmen under section 17B of the ID
Act, 1947 from the respective dates of awards till 30th
April, 2006 within one month from the date of receipt of copy of this
order. Petitioner is also directed to go on making such payments of
full wages last drawn to each of the respondent workman regularly
every month from 1st May, 2006 till the final disposal of
the respective main matters without fail. Learned advocate Mr. Bipin
I. Mehta appearing for workmen submits that each workman in this
group will file affidavit under section 17B of the ID Act, 1947 with
copy thereof to the petitioner. Subject to these observations and
directions, order of this court dated 24.2.2006 is modified. These
Civil Applications are disposed of.
3.1 Thereafter,
on 25.4.2008, this Court has passed following order :
1. Heard
learned advocate Mr.B.I.Mehta for the applicants and learned advocate
Mr.Munshaw for the respondent.
2. The
applicants are receiving last drawn wages of Rs.1300/- per month
under Section 17B of the I.D.Act,1947. In the present applications,
the request is that vacancy is available and work is also available
and that the work has been carried out through Panchayat by the
respondent Board and therefore, the case of the applicants is that
let the Board may consider the applicants for reinstatement in
service without prejudice to the rights and contentions of the
applicants.
3. In
light of the aforesaid background, it is directed to the respondent
Board to consider the case of applicants for reinstatement during the
pendency of these petitions without prejudice to their rights and
contentions, if work and vacancy both are available and that work is
to be carried out through Panchayat within a period of one month from
the date of receiving the copy of this order.
4. Accordingly,
present civil applications are disposed of.
4. In
spite of aforesaid two orders passed by this Court, the applicants
workmen are sufferer because they are getting only Rs.1300/-
being a last drawn salary and though work was available with
respondent original petitioner Board to operate motor with
pumping station and also to get repaired the motors of all pumping
stations. The respondent original petitioner Board is having
several pumping stations and therefore, that work has been given on
contract basis to M/s.Vraj Construction, Amreli and Awarth
Infrastructure Pvt. Ltd., Jasdan. The above said contractor is
required to engage at least 10 workers on one pumping station. The
contractors have engaged workers at Mahi Yojna Pumping Station, Kotda
Pitha, Khanpur, Santhali, Botad, Modhuka, Mahuva, Bhadala and Ajmer
Pumping Stations. The respondent original petitioner Board has
engaged Ami Engineering Corporation, Rajkot for Hirpar, Hadala and
Bedi Pumping Stations. Number of contracts have been given for
operating the motor of pumping stations as well as for repairing work
of all pumping stations. In all 150 workers are working under
contractors and these applicants are really made to suffer because
though they are ready and willing to work but, respondent
original petitioner Board is not prepared to reinstate them in spite
of two orders passed by this Court with a recommendations to
respondent original petitioner Board to consider case of
applicants. The applicants are ready and willing to work and
respondent original petitioner Board is in a position to give the
work to each applicant in spite of giving some work to the Taluka
Panchayat and Gram Panchayat, only Rs.1300/- has been paid under
Section 17B of I.D.Act,1947. It is very difficult for applicants to
maintain themselves in such a meagre amount. Therefore, request is to
direct respondent original petitioner Board to pay current wages.
5. I
have considered submissions made by learned advocate Mr.Munshaw that
reinstatement is not possible because the work has been carried out
by other employees.
6. In
light of this background, it is very difficult for this Court to
direct at this stage to respondent original petitioner Board to
pay current wages because it is beyond the provisions of Section 17B
of the I.D.Act,1947. Therefore, if the work is available with
respondent original petitioner Board and such work has been
carried out by workers of Board, then it is a legal obligation on
part of petitioner Board being a State authority to consider case of
each applicant for reinstatement subject to result of petitions as
well as without prejudice to rights and contentions of petitioner
Board in pending petitions.
7. Therefore,
in the interest of justice, it is directed to petitioner Board to
consider the case of each applicant for reinstatement with
sympathetic approach and looking to the fact that work has been
alloted to various contractors that means that work is available with
petitioner Board but, petitioner Board does not want to reinstate the
present applicants that impression has been created before this
Court. Therefore, let the case of each applicant may be considered
sympathetically by petitioner Board for reinstatement subject to
result of main petitions and without prejudice to the rights and
contents of petitioner Board in pending petitions, within a period of
one month from date of receiving copy of present order.
8. In
view of aforesaid observations and directions, present applications
are disposed of.
9. The
Registry to notify main SCAs for final hearing on 13.5.2010 in
admission Board.
(H.K.RATHOD,
J.)
…mitesh…
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