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CA/13983/2010 21/ 21 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
APPLICATION - FOR VACATING INTERIM RELIEF No. 13983 of 2010
In
SPECIAL
CIVIL APPLICATION No. 2776 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
SUBHASHBHAI
RAMNIKBHAI GADHIYA - Petitioner(s)
Versus
GENERAL
MANAGER & 2 - Respondent(s)
=========================================================
Appearance
:
MR
AMAR D MITHANI for
Petitioner(s) : 1,
MR RC KAKKAD for Respondent(s) : 1 - 2.
None
for Respondent(s) :
3,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 28/01/2011
ORAL
JUDGMENT
Rule.
Mr. Kakkad waives service of
notice of Rule.
The
applicant-respondent no.1 in main matter i.e. S.C.A. No.2776 of
2009, has taken out this application for the following reliefs:
(A)
The Hon’ble Court may be pleased to admit and allow the present
application;
(B)
The Hon’ble court may be pleased to vacate the interim relief,
operating in favour of the respondent Nos.1 and 2 herein;
(C)
The Hon’ble Court may be pleased to direct the respondent Nos. 1 and
2 to supply the basis of calculation, whereby, it has made the
payment on 10-7-2010;
(D)
The Hon’ble Court may be pleased to grant such other and further
relief(s) in the interest of justice;
The
facts in brief leading to filing this application need to set out as
under.
The
applicant-original workman was working with the petitioner Bank as
watchman. He was constrained to make a request for the appropriate
wages and privileges attached to the regular employees’ posts
in the Bank. The appropriate application in form of B.I.R.
Application No. 3/2003 came to be registered with appropriate forum.
The workman’s services were terminated as he raised the dispute.
Thus, there was subject matter of employment in the B.I.R.
Application No. 3/2003. The competent Court has accepted and
allowed the said application and ordered that the applicant workman
be paid all the benefits of permanency namely, wages, dearness
allowances and all other benefits. This order was made on 16th
January, 2008. This order was carried into appeal by the
Bank being Appeal (I.C.) No.2/2008 in the Industrial Court, Rajkot,
and the Appellate Court vide its order dated 4th
February, 2009 rejected the same and declared that the order
dated 16th
January, 2008 passed
by the Labour Court in Original Application No. 3/2003 was
absolutely just and proper. Being aggrieved and
dissatisfied with the said order made in the
appeal, the Bank has preferred petition being S.C.A. No.2776/2009.
In this petition on 4.11.2009 this Court (Coram: JAYANT PATEL, J.)
while issuing Rule, granted ad-interim relief where under the
operation of the award was stayed on condition that the petitioner
i.e. Bank complies with the provisions of Section 17-B of the I.D.
Act. It was also observed by the Court in the order that if, in
case, the petitioner is not desirous of paying any idle wages to the
respondent workman under Section 17-B of the I.D. Act, then in that
case without prejudice to the rights and contentions in the
petition, it would be open to the petitioner to offer work to the
respondent workman and to pay wages but such wages shall not be
below the minimum wages prescribed for such work. The Court while
passing the order also observed as under:
It
is also observed that such work can also be provided
at the instance of petitioner by respondent no.2 to the concerned
workman.
It
is at this stage appropriate to mention that the petition is filed
by the Bank against the workman being respondent no.1
Manager/proprietor, Watch and Ward Consultancy of Veraval, address
is mentioned in the cause title, meaning thereby the petitioner Bank
has joined the workman and its contractor as a party respondent in
the main petition. Its contractor is joined as a party respondent
no.2 in the main proceedings.
The
workman, being aggrieved by the observation of the Court made in the
order dated 04.11.2009 namely, It
is also observed that such work can also be provided at the instance
of petitioner by respondent no.2 to the concerned workman.
preferred Letters Patent Appeal being L.P.A. No.303 of 2010 In
S.C.A. No.2776 of 2009, wherein the Division Bench of
this Court allowed the appeal and modified the order. Relevant
portion for our purpose needs
to be extracted as under:
Learned
advocate Mr. Mithani has appeared for the appellant. He has
submitted that two Courts below have declared that the respondent
no.1-Bank is the employer of the appellant. It is the respondent
no.1-Bank which has challenged the said finding before the learned
Single Judge and has obtained stay
of the order. It is, therefore, the Bank which is obliged to comply
with the provisions contained in Section 17B of the Act. It should
be the Bank which should either offer employment to the appellant or
should pay last wages drawn by the appellant. The fate of the
appellant could not have been left to the mercy of the respondent
no.2-Contractor.
We
do find substance in the submissions made by learned advocate Mr.
Mithani. It is indeed the duty of the writ petitioner to comply
with the provisions contained in Section 17B of the Act.
We,
therefore, allow this Appeal. The Order dated 4th
November, 2009 made by the
learned Single Judge pending Special Civil Application No.2776 of
2009 is modified as under:-
By
ad interim order, the operation of the Award is stayed on condition
that the petitioner complies with the provisions of Section 17-B of
the I.D. Act. It is also observed that if the petitioner is desirous
not to pay any idle wages to the respondent workman under Section
17-B of the Act without taking work then in that case without
prejudice to the rights and contention in petition, it would be open
to the petitioner to offer work to the respondent workman and to pay
wages but such wages shall not be below the minimum
wages prescribed for such work
The
parties will bear their own cost.
The
applicant has submitted in the memo of the application that this
order of the Division Bench was carried before the Apex court by way
of Special Leave to Appeal being S.L.P. No.14572/2010, which came to
be dismissed by the Apex Court vide its order dated 14.05.2010.
Thus, the observation with regard to the Bank’s application either
to pay 17-B wages to the workman or offer employment, become
confirmed and final.
The
workman has contended in this application that he was called on 25th
June, 2010 and handed over a draft of Rs.20,250/- dated 10.07.2010
by the Bank without there being
any explanation as to what was that money being paid to him nor did
the Bank bother to explain to the workman, about the break-up of the
said amount and in what way the Bank was discharging its obligation
cast upon it under the statute especially provisions of Section 17-B
of the Industrial Disputes Act, 1947.
The
workman’s repeated request for compliance with the order remain
unheeded and hence the workman was left it no choice but to take out
this application, seeking appropriate order and relief as mentioned
in the memo of the petition which have been set out herein above.
Mr. Amar D. Mithani, learned advocate appearing for the
petitioner-workman, in support of his case, relying upon the
following judgments namely, Bhanulal Khimjibhai Solanki Vs.
Deputy Executive Engineer reported in 2004 (3) G.L.H. 375
and Bharat H. Parmar Vs. Airport Authority of India & Ors.
reported in 2010 (2) G.L.R. 930.
Shri
R.C. Kakkad, learned advocate appearing for the original
petitioner-Bank and respondent herein above in this application,
contended that the workman has no right to receive wages under
Section 17-B of the Industrial disputes Act, when the workman is
offered employment and when he declined to accept the same. Learned
advocate for the Bank invited this Court’s attention to the
invitation or offer of employment at page 32 in the compilation
which is communication dated 23.11.2009, then again communication
dated 25th
June, 2010 at page 34 and one more communication at page 53 dated
15th
January, 2011. All these three communications are, as could
be seen from even a cursory glance on them, not issued by the
petitioner Bank. The learned advocate for the Bank relying upon
these three communications canvassed the submission that these three
invitations for employment were offered at the behest of Bank as the
Watch and Ward Consultancy is in contract with the Bank and Watch
and Ward Consultancy is providing security guards to the Bank and
its premises. Therefore, when Watch and Ward Consultancy has
offered an employment to the workman which he did not accept, then
the Bank is absolve of its liability to pay Section 17-B of the I.D.
Act wages to the workman. Learned advocate for the Bank has further
submitted that the Division Bench’s order cannot be misconstrued to
suggest only that the Bank is responsible to pay 17-B of the I.D.
Act wages or offer employment. The Division Bench’s order is only
to the effect that if, in case, 17-B wages are required to be paid,
then they are to be paid by
the Bank but Bank can always ask and order its contractor to offer
work to the workman and in such a circumstances when workman
declines to accept this offer of employment, he disentitles himself
for receiving any wages under Section 17-B of the Industrial
Disputes Act.
Learned
advocate for the Bank without prejudice to the aforesaid contention
and in alternative, submitted that the workman in fact did not have
any right to claim 17-B wages as the requisite affidavit, as
envisaged under the provision of Section 17-B of I.D. Act, is filed
only on 19th
January, 2011, prior thereto, the so called affidavits filed, as
contended by learned advocate for the applicant-workman, are not
affidavits par-taking
characteristics of an affidavit to be filed under Section 17-B of
the Industrial Disputes Act and hence the workman is not entitled to
seek any relief, much less, relief
of vacation of interim relief as prayed for by the workman in the
present application. The learned advocate appearing for the Bank
submitted that fortunately, in the instant case, the Watch and Ward
Consultancy being respondent no.2 has offered employment to the
workman but in a given case any other alien establishment who has no
nexus with the Bank or nexus with the dispute nor is a party to
dispute if it offers employment to the workman and when workman
declines such an offer of employment then he is not entitled to
receive 17-B wages from the employer who has filed petition or
proceeding before higher forum. Here in the present case despite the
offer of the respondent No.2-Watch and Ward Consultancy, applicant
did not join the work, therefore, he is not entitled to receive
wages as per Section 17-B of the Industrial Disputes Act.
This
Court is unable to accept submissions canvassed on behalf of the
respondent-Bank in this application for the following reasons
namely; (i) The provision of Section 17-B of the Industrial Disputes
Act, makes it incumbent upon the employer to see to it that the
workman is supported during the period for which the order of
reinstatement is challenged by the employer and some interim orders
are obtained against the said order of reinstatement. In order to
see to it that the workman is, in the meantime, in a position to
sustain himself and his family members. This benevolent provision is
made and it has now under gone interpretation at various stages. By
now, the law in respect of Section 17-B of the Industrial Disputes
Act, is absolutely clear and needs no further attention of the Court
on this matter. (ii) The employer is under an obligation to pay the
last drawn wages to the employee when employer has challenged the
order of reinstatement passed by
the Industrial Court or Forum or Labour Court. (iii) The employer
in a given case, as it happened in the instant case, is given
liberty to take work from the employee so as to avoid payment of
idle wages. Court hasten to add here that the device developed by
Courts where under liberty is sometime reserved to the employer to
take work from the employee, is also to be viewed appropriately and
as per the scheme of the Industrial Disputes Act, 1947, the interim
orders are strictly to be passed in conformity with the provision of
law. (iv)The Courts are passing order under Articles 226 and 227 of
the Constitution of India and, therefore, if any interim order is
passed, the same is to be passed in conformity with the arena of
jurisdiction confirmed upon this Court under Articles 226 and 227 of
the Constitution of India. Articles 226 and 227 of the Constitution
of India make abundantly clear that the justice is to be done in
accordance with law and
orders are to be passed as per the provisions of law. In the
instant case and in many other cases when liberty is reserved to the
employer to obtain work from the workman so as to avoid payment of
idle wages, it is ordered only with a view to see to it that the
employer in many cases, at times, the government agency or a
instrumental of the state may not have to keep paying wages without
taking work from the workman which in turn workman sometime not like
to receive as it may not be indeed, Court help to him. Therefore,
the liberty to take work is ordered, then such orders are to be
reiterated at the cost of repetition in the strict purview of the
law. In the given case, therefore, when such an order is passed,
the employer is not even entitled to post the
workman to any other posts, then
the post on which he is ordered to be reinstated. Even for such a
case, at times, workman is entitled to refuse to work as that would
not be strict compliance
with the provision of law. In the instant case, as could be seen,
there was a specific liberty reserved to the Bank to offer
employment to the workman even through its contractor who happens to
be respondent No.2 in the original petition but the workman felt
aggrieved by that liberty and chosen to assail those observations in
Letters Patent Appeal being L.P.A. No.303/2010, wherein the Division
Bench has specifically negatived this liberty based upon the
findings recorded by the Courts. When the Division Bench in turn
has negatived that liberty to
offer employment through contractor-respondent no.2 in the main
petition, then question arises as to what extent the Bank was
justified in offering employment through contractor or withholding
wages on that ground which are otherwise payable under Section 17-B
of the Industrial Disputes Act, 1947. The answer is emphatic. The
Bank is absolutely not justifying in undertaking
the exercise which it is undertaking so far. The Bank is under
serious misconception of law and in fact, as well in propounding
that the Bank can absolve itself of its liability to pay 17-B wages,
if Bank or any other establishment not related to Bank is offering
an employment to the workman and workman is not ready to accept the
same, had it been the case where the Bank had offered an employment
to the workman on the post on which there is an order of
reinstatement and if there was some deviation in the nature of work
then there could have been some scope left to Bank to argue that the
nature of job may not govern the payment of wages. In the instant
case, on the contrary the Bank has not only offered any job but it
had stopped paying wages on its own accord, though it was under
obligation to pay as per the order dated 04.11.2009 which stood
modified by the Division Bench’s order dated 08.04.2010.
The
proposition of the Bank’s advocate with regard to the
employee-workman, not accepting an offer of employment from even 3rd
party would render him disentitle to receive wages, is required to
be rejected, as such a proposition is, to say the least absolutely
illegal, uncalled for and contrary, in letter and spirit, to law and
ambit of Industrial Disputes Act, especially Section 17-B of the
Industrial Disputes Act, 1947. The Bank could not have avoided
payment of 17-B wages without itself offering employment to the
workman. In the instant case, when the Bank had received order from
the Division Bench which contains unequivocal clarification that the
Bank cannot offer employment through contractor namely, Watch and
Ward Consultancy and when the order of Division Bench was carried
into S.L.P. and the S.L.P. also came to be dismissed by the Apex
Court, then one fails to understand the Bank’s stand. It is nothing
but sheer disrespect for the majesty of law and justice. The Bank
being petitioner before this Court was, otherwise also not under
obligation to obey the order for sustaining the interim orders which
it had obtained in its favour. The Bank has miserably failed in
observing the provision of Section 17-B of the Industrial Disputes
Act and, therefore, this Court is left with no choice but to vacate
the interim relief forthwith. Accordingly, the said relief is
vacated.
This
Court is also of the view that a petitioner, an employer who moves
this Court under Articles 226 and 227 of the Constitution of India
and seeks discretionary reliefs which relief makes it statutorily
incumbent upon it to make payment of last drawn wages to the workman
during pendency of these proceedings, then compliance thereof is its
solemn duty and if such employer or establishment
fails in carrying out such duties, then in my view, it amounts to
committing default in prosecuting the matter. Therefore, in fact the
petition itself deserves to be dismissed at this stage and
appropriate liberty could be reserved to rectify the default but as
it has come on record that, there was some payment of Rs. 20,250/-,
I am of the view that let there be one more opportunity granted to
the Bank to rectify its defaults and pay the arrears admissible to
the workman within 10 days from today i.e. on or before 11th
February, 2011. It is observed that if, in case, the arrears of
17-B wages are not paid by 11th
February, 2011 and when the workman places an application to this
effect, duly affirmed on oath, the Registry may treat this matter as
having been dismissed for default, without being referred to the
Court. In case, if the payment is made then it would be open to the
Bank to make appropriate application for reviving
the order of interim relief with appropriate application with a copy
to other side. Workman is at liberty to file recovery application
from the date of the award.
At
this stage Shri Kakkad makes a request for staying this order up to
15th
of February, 2011. In my view, such a request is not required to be
entertained as otherwise also enough time is granted for compliance
of this order and therefore, this request is rejected. It is
clarified that the stay is vacated right from today.
Mr.
Mithani is saying magnanimity of his client for not pressing cost.
Rule made absolute to the aforesaid extent. No order as to costs.
(S.R.BRAHMBHATT,
J.)
Pankaj
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