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CA/8201/2008 4/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
APPLICATION No. 8201 of 2008
In
CIVIL
APPLICATION No. 14653 of 2007
In
SPECIAL CIVIL APPLICATION No. 27416 of 2007
=========================================================
VENUS
LAMINATIONS LTD. & 1 - Petitioner(s)
Versus
AJIJKHAN
V PATHAN & 1 - Respondent(s)
=========================================================
Appearance
:
MR
JOSHI FOR M/S TRIVEDI & GUPTA
for
Petitioner(s) : 1 - 2.
MR JS BRAHMBHATT for Respondent(s) :
1,
None for Respondent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 19/03/2010
ORAL
ORDER
1. Heard
learned advocate Mr.Joshi for M/s.Trivedi & Gupta on behalf of
applicants and learned advocate Mr.J.S.Brahmbhatt for respondent
No.1.
2. Present
application is preferred by application for clarification /
modification of the order dated 4.4.2008.
3. This
Court has passed following order on 4.4.2008 in CA No.14653 of 2007 :
1. Heard learned advocate Mr.J.S.Brahmbhatt for the applicant and learned advocate Mr.Naik for M/s.Trivedi & Gupta for opponent – original petitioner.
2. In main SCA, the petitioner has challenged the award passed by the Labour Court, Baroda dated 24.4.2007 in Reference No.822 of 1998 wherein the Labour Court, Baroda has granted reinstatement with continuity of service with 40% back wages of interim period.
3. This Court has issued notice to the respondent. Therefore, the respondent workman has filed application claiming the benefit under Section 17B of the I.D.Act,1947. The averments made in this application in Para.5 that workman is unemployed and not gainfully employed and also not receiving adequate remuneration from any establishment. No counter is filed against the present civil application by original petitioner.
4. Therefore, according to my opinion, the workman is entitled the last drawn wages as required under Section 17B of the I.D.Act,1947 w.e.f. 24.4.2007 to 31.3.2008. Therefore, it is directed to the original petitioner to pay last drawn wages to the workman for the aforesaid period within a period of one month from the date of receiving the copy of this order. Thereafter, the original petitioner shall have to pay regularly last drawn wages to the workman till the matter is finally decided by this Court.
5. In view of the above observations and directions, present civil application is disposed of.
5. Thereafter, on 14.5.2008, present application is made wherein following averments are made in Para.3,4 5 and 6 :
3. The applicants humbly state and submit that, the applicant No.1 was closed down on 14.4.1998 and the closure was made effective from 15.1.1999. The applicants humbly state and submit that at the time of closure there were 70 workmen employed with the applicant No.1. The applicants state and submit that closure of undertaking with effect from 15.1.1999 was intimated to the Deputy Commissioner of Labour vide letter dated 27.2.1999. A copy of letter dated 27.2.1999 is annexed hereto and marked as Annexure-II.
4. The applicants state and submit that while at the time of closure the applicant No.1 has paid legal dues to all its workmen including closure compensation, gratuity, leave encashment and PF. Further over and above such legally admissible dues, the applicant No.1 has also offered ex-gratia compensation to different classes of workmen according to their length of service. For workmen with more than 15 years of service ex-gratia compensation of 15 days’ salary for every completed year of service has been paid by the applicant No.1. A copy of the statement of full and final settlement with the 70 workmen is annexed hereto and marked as Annexure-III.
5. The applicants humbly state and submit that since the applicant No.1 was closed down unfortunately the aforesaid facts could not be brought to the notice of the Labour Court in Reference No.822 of 1998 as well as before this Hon’ble Court in SCA No.27416 of 2007 at earlier stage. The applicants were able to trace the documents annexed with the captioned application during the pendency of the captioned writ petition and therefore the applicants beg to produce the said documents and bring to the notice of the Hon’ble Court such vital and important facts involved in the present case.
6. In the aforesaid facts and circumstances, the applicants humbly state and submit that the opponent No.1 would not be entitled to the benefit u/s.17B of I.D.Act,1947 as assuming without admitting that the applicant was continued in service he would only be entitled to the benefits upto the date of closure of applicant No.1. Therefore, the applicants have filed the present application praying to the Hon’ble Court to kindly recall and modify the said order dated 4.4.2008.
6. In view of above averments made in present application, more particularly in Para.4, one fact is admitted by applicant before this Court that applicant No.1 was closed down unfortunately. The aforesaid fact could not be brought to the notice of the Labour Court in Reference No.822 of 1998 as well as before this Court in SCA No.27416 of 2007 at earlier stage.
7. Therefore, first time this fact has been disclosed by applicant before this Court which cannot be taken into account by this Court, because same was not raised before the Labour Court and also not raised in main SCA filed by applicant. Therefore, the order passed by this Court on 4.4.2008 cannot be modified or clarified because of subsequent facts which were not on record at all at the time when this Court has passed the order on 4.4.2008. Therefore, only on that ground, prayer made in this application cannot be granted. Accordingly, without expressing any opinion on merits, present application is rejected.
8. However, apart from that, even in case of factory or company is closed or manufacturing activities of employer company have come to an halt, even though provisions of Section 17B of the I.D.Act,1947 made applicable and it required to be implemented by petitioner company as stay against reinstatement is granted by this Court. This aspect has been considered by this Court in the case of Jayantilal Shanubhai Tailor v. Ralchem Ltd., Ankleshwar reported in 2005 (2) GLR 1218. Relevant observations are in Para.4 and 5 which is quoted as under :
4. Mr.Hasmukh Thakker, learned Advocate appearing for the opponent, original petitioner, submitted that it is the case of the petitioner-Company that it is a `transferree company’ and that the services of the applicant-workman were terminated by the `transferor company’ and, therefore, when the matter is subjudice before this Court, the opponent-Company be not directed to pay the benefits accruing under Section-17(B) of the Act. Mr.Thakker submitted that besides this, the manufacturing activities of the opponent-Company have also come to a halt and taking into consideration that aspect also, the order for making payment under Section-17(B) be not passed. Mr.Thakker relied upon Order dated 19th August, 2003 of the Division Bench of this Court (Coram:R.K.Abichandani & K.M.Mehta, JJ.) in the matter of Akbarkhan M.Pathan vs. General Manager in Civil Application No.5486 of 2003 in Letters Patent Appeal No.933 of 1999, wherein the Division Bench has observed in paragraph-5 as under:
5. In
our opinion, in the present case, in view of the Undertaking having
been declared sick and hereafter having been closed down, there is
no scope for making any order under Section 17B of the Act. The
application is, therefore, rejected, without prejudice to the
applicant s other rights and remedies in respect of their
dues.
5. In the considered opinion of this Court, none of the submissions made by the learned Advocate for the opponent, original petitioner-Company, can be the basis for not passing an order for complying Section-17(B) of the Act. The underlying concept of Section-17(B) is to provide subsistence allowance to a workman, who has the order of reinstatement in his favour, and against that order (award), an appeal is filed before the higher forum, in which such order is stayed. From the language of Section-17(B), it is very clear that the aforesaid two grounds cannot be the basis for denying the reliefs under Section-17(B). For the ready reference, Section-17(B) is reproduced here under:
“Where in any case a Labour Court, Tribunal or National Tribunal by its award directs reinstatement of any workman and the employer prefers any proceedings against any such award in a High Court or the Supreme Court, the employer shall be liable to pay such workman, during the period of pendency of such proceedings in the High Court or the Supreme Court, full wages last drawn by him, inclusive of any maintenance allowance admissible to him under any rule if the workman had not been employed in any establishment during such period and an affidavit for such workman had been filed to that effect in such Court:”
The only ground on which the High Court or the Supreme Court can deny the passing of an order for payment of benefits accrued under Section-17(B) is that, if the High Court or the Supreme Court is satisfied to the fact that such a workman is employed and is receiving adequate remuneration during any such period or part thereof.
(H.K.RATHOD,J.)
(vipul)
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