{"id":8301,"date":"2011-01-28T00:00:00","date_gmt":"2011-01-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/subhashbhai-vs-general-on-28-january-2011"},"modified":"2016-09-19T18:09:23","modified_gmt":"2016-09-19T12:39:23","slug":"subhashbhai-vs-general-on-28-january-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/subhashbhai-vs-general-on-28-january-2011","title":{"rendered":"Subhashbhai vs General on 28 January, 2011"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Subhashbhai vs General on 28 January, 2011<\/div>\n
Author: S.R.Brahmbhatt,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nCA\/13983\/2010\t 21\/ 21\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nCIVIL\nAPPLICATION - FOR VACATING INTERIM RELIEF No. 13983 of 2010\n \n\nIn\n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 2776 of 2009\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE S.R.BRAHMBHATT\n \n \n=========================================================\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo be\n\t\t\treferred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n \n=========================================================\n\n \n\nSUBHASHBHAI\nRAMNIKBHAI GADHIYA - Petitioner(s)\n \n\nVersus\n \n\nGENERAL\nMANAGER & 2 - Respondent(s)\n \n\n=========================================================\n \nAppearance\n: \nMR\nAMAR D MITHANI for\nPetitioner(s) : 1, \nMR RC KAKKAD for Respondent(s) : 1 - 2. \nNone\nfor Respondent(s) :\n3, \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE S.R.BRAHMBHATT\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 28\/01\/2011 \n\n \n\n \n \nORAL\nJUDGMENT<\/pre>\n
Rule.\n<\/p>\n
\tMr. Kakkad waives service of
\n\tnotice of Rule.\n<\/p>\n
The
\n\tapplicant-respondent no.1 in main matter i.e. S.C.A. No.2776 of
\n\t2009, has taken out this application for the following reliefs:\n<\/p>\n
 (A)
\n\tThe Hon’ble Court may be pleased to admit and allow the present
\n\tapplication;\n<\/p>\n
(B)
\n\tThe Hon’ble court may be pleased to vacate the interim relief,
\n\toperating in favour of the respondent Nos.1 and 2 herein;\n<\/p>\n
(C)
\n\tThe Hon’ble Court may be pleased to direct the respondent Nos. 1 and
\n\t2 to supply the basis of calculation, whereby, it has made the
\n\tpayment on 10-7-2010;\n<\/p>\n
(D)
\n\tThe Hon’ble Court may be pleased to grant such other and further
\n\trelief(s) in the interest of justice;\n<\/p>\n
The
\n\tfacts in brief leading to filing this application need to set out as
\n\tunder.\n<\/p>\n
The
\n\tapplicant-original workman was working with the petitioner Bank as
\n\twatchman.  He was constrained to make a request for the appropriate
\n\twages and privileges attached to the regular employees’ posts
\n\tin the Bank. The appropriate application in form of B.I.R.
\n\tApplication No. 3\/2003 came to be registered with appropriate forum.
\n\tThe workman’s services were terminated as he raised the dispute.
\n\tThus, there was subject matter of employment in the B.I.R.
\n\tApplication No. 3\/2003.  The competent Court has accepted and
\n\tallowed the said application and ordered that the applicant workman
\n\tbe paid all the benefits of permanency namely, wages, dearness
\n\tallowances and all other benefits.  This order was made on 16th
\n\tJanuary, 2008.  This order was carried into appeal by the
\n\tBank being Appeal (I.C.) No.2\/2008 in the Industrial Court, Rajkot,
\n\tand the Appellate Court vide its order dated 4th
\n\tFebruary, 2009 rejected the same and declared that the order
\n\tdated 16th
\n\tJanuary, 2008 passed
\n\tby the Labour Court in Original Application No. 3\/2003 was
\n\tabsolutely just and proper.  Being aggrieved and
\n\tdissatisfied with the said order made in the
\n\tappeal, the Bank has preferred petition being S.C.A. No.2776\/2009.
\n\tIn this petition on 4.11.2009 this Court (Coram:  JAYANT PATEL, J.)
\n\twhile issuing Rule, granted ad-interim relief where under the
\n\toperation of the award was stayed on condition that the petitioner
\n\ti.e. Bank complies with the provisions of Section 17-B of the I.D.
\n\tAct.  It was also observed by the Court in the order that if, in
\n\tcase, the petitioner is not desirous of paying any idle wages to the
\n\trespondent workman under Section 17-B of the I.D. Act, then in that
\n\tcase without prejudice to the rights and contentions in the
\n\tpetition, it would be open to the petitioner to offer work to the
\n\trespondent workman and to pay wages but such wages shall not be
\n\tbelow the minimum wages prescribed for such work.  The Court while
\n\tpassing the order also observed as under:\n<\/p>\n
 It
\n\tis also observed that such work can also be provided
\n\tat the instance of petitioner by respondent no.2 to the concerned
\n\tworkman.\n<\/p>\n
It
\n\tis at this stage appropriate to mention that the petition is filed
\n\tby the Bank against the workman being respondent no.1
\n\tManager\/proprietor, Watch and Ward Consultancy of Veraval, address
\n\tis mentioned in the cause title, meaning thereby the petitioner Bank
\n\thas joined the workman and its contractor as a party respondent in
\n\tthe main petition.  Its contractor is joined as a party respondent
\n\tno.2 in the main proceedings.\n<\/p>\n
The
\n\tworkman, being aggrieved by the observation of the Court made in the
\n\torder dated 04.11.2009 namely,   It
\n\tis also observed that such work can also be provided at the instance
\n\tof petitioner by respondent no.2 to the concerned workman.
\n\tpreferred Letters Patent Appeal being L.P.A. No.303 of 2010 In
\n\tS.C.A. No.2776 of 2009, wherein the Division Bench of
\n\tthis Court allowed the appeal and modified the order.  Relevant
\n\tportion for our purpose needs
\n\tto be extracted as under:\n<\/p>\n
\t    Learned
\n\tadvocate Mr. Mithani has appeared for the appellant.  He has
\n\tsubmitted that two Courts below have declared that the respondent
\n\tno.1-Bank is the employer of the appellant.  It is the respondent
\n\tno.1-Bank which has challenged the said finding before the learned
\n\tSingle Judge and has obtained stay
\n\tof the order.  It is, therefore, the Bank which is obliged to comply
\n\twith the provisions contained in Section 17B of the Act.  It should
\n\tbe the Bank which should either offer employment to the appellant or
\n\tshould pay last wages drawn by the appellant. The fate of the
\n\tappellant could not have been left to the mercy of the respondent
\n\tno.2-Contractor.\n<\/p>\n
\t    We
\n\tdo find substance in the submissions made by learned advocate Mr.
\n\tMithani.  It is indeed the duty of the writ petitioner to comply
\n\twith the provisions contained in Section 17B of the Act.\n<\/p>\n
\t  We,
\n\ttherefore, allow this Appeal. The Order dated 4th
\n\tNovember, 2009 made by the
\n\tlearned Single Judge pending Special Civil Application No.2776 of
\n\t2009 is modified as under:-\n<\/p>\n
\t     By
\n\tad interim order, the operation of the Award is stayed on condition
\n\tthat the petitioner complies with the provisions of Section 17-B of
\n\tthe I.D. Act. It is also observed that if the petitioner is desirous
\n\tnot to pay any idle wages to the respondent workman under Section
\n\t17-B of the Act without taking work then in that case without
\n\tprejudice to the rights and contention in petition, it would be open
\n\tto the petitioner to offer work to the respondent workman and to pay
\n\twages but such wages shall not be below the minimum
\n\twages prescribed for such work <\/p>\n
\t     The
\n\tparties will bear their own cost.\n<\/p>\n
The
\n\tapplicant has submitted in the memo of the application that this
\n\torder of the Division Bench was carried before the Apex court by way
\n\tof Special Leave to Appeal being S.L.P. No.14572\/2010, which came to
\n\tbe dismissed by the Apex Court vide its order dated 14.05.2010.
\n\tThus, the observation with regard to the Bank’s application either
\n\tto pay 17-B wages to the workman or offer employment, become
\n\tconfirmed and final.\n<\/p>\n
The
\n\tworkman has contended in this application that he was called on 25th
\n\tJune, 2010 and handed over a draft of Rs.20,250\/- dated 10.07.2010
\n\tby the Bank without there being
\n\tany explanation as to what was that money being paid to him nor did
\n\tthe Bank bother to explain to the workman, about the break-up of the
\n\tsaid amount and in what way the Bank was discharging its obligation
\n\tcast upon it under the statute especially provisions of Section 17-B
\n\tof the Industrial Disputes Act, 1947.\n<\/p>\n
The
\n\tworkman’s repeated request for compliance with the order remain
\n\tunheeded and hence the workman was left it no choice but to take out
\n\tthis application, seeking appropriate order and relief as mentioned
\n\tin the memo of the petition which have been set out herein above.
\n\tMr. Amar D. Mithani, learned advocate appearing for the
\n\tpetitioner-workman, in support of his case, relying upon the
\n\tfollowing judgments namely,  Bhanulal Khimjibhai Solanki Vs.
\n\tDeputy Executive Engineer reported in 2004 (3) G.L.H. 375
\n\tand  Bharat H. Parmar Vs. Airport Authority of India & Ors.
\n\treported in 2010 (2) G.L.R. 930.\n<\/p>\n
Shri
\n\tR.C. Kakkad, learned advocate appearing for the original
\n\tpetitioner-Bank and respondent herein above in this application,
\n\tcontended that the workman has no right to receive wages under
\n\tSection 17-B of the Industrial disputes Act, when the workman is
\n\toffered employment and when he declined to accept the same.  Learned
\n\tadvocate for the Bank invited this Court’s attention to the
\n\tinvitation or offer of employment at page 32 in the compilation
\n\twhich is communication dated 23.11.2009, then again communication
\n\tdated 25th
\n\tJune, 2010 at page 34 and one more communication at page 53 dated
\n\t15th
\n\tJanuary, 2011.  All these three communications are, as could
\n\tbe seen from even a cursory glance on them, not issued by the
\n\tpetitioner Bank.  The learned advocate for the Bank relying upon
\n\tthese three communications canvassed the submission that these three
\n\tinvitations for employment were offered at the behest of Bank as the
\n\tWatch and Ward Consultancy is in contract with the Bank and  Watch
\n\tand Ward Consultancy is providing security guards to the Bank and
\n\tits premises. Therefore, when  Watch and Ward Consultancy has
\n\toffered an employment to the workman which he did not accept, then
\n\tthe Bank is absolve of its liability to pay Section 17-B of the I.D.
\n\tAct wages to the workman. Learned advocate for the Bank has further
\n\tsubmitted that the Division Bench’s order cannot be misconstrued to
\n\tsuggest only that the Bank is responsible to pay 17-B of the I.D.
\n\tAct wages or offer employment.  The Division Bench’s order is only
\n\tto the effect that if, in case, 17-B wages are required to be paid,
\n\tthen they are to be paid by
\n\tthe Bank but Bank can always ask and order its contractor to offer
\n\twork to the workman and in such a circumstances when workman
\n\tdeclines to accept this offer of employment, he disentitles himself
\n\tfor receiving any wages under Section 17-B of the Industrial
\n\tDisputes Act.\n<\/p>\n
Learned
\n\tadvocate for the Bank without prejudice to the aforesaid contention
\n\tand in alternative, submitted that the workman in fact did not have
\n\tany right to claim 17-B wages as the requisite affidavit, as
\n\tenvisaged under the provision of Section 17-B of I.D. Act, is filed
\n\tonly on 19th
\n\tJanuary, 2011, prior thereto, the so called affidavits filed, as
\n\tcontended by learned advocate for the applicant-workman, are not
\n\taffidavits par-taking
\n\tcharacteristics of an affidavit to be filed under Section 17-B of
\n\tthe Industrial Disputes Act and hence the workman is not entitled to
\n\tseek any relief, much less, relief
\n\tof vacation of interim relief as prayed for by the workman in the
\n\tpresent application.  The learned advocate appearing for the Bank
\n\tsubmitted that fortunately, in the instant case, the Watch and Ward
\n\tConsultancy being respondent no.2 has offered employment to the
\n\tworkman but in a given case any other alien establishment who has no
\n\tnexus with the Bank or nexus with the dispute nor is a party to
\n\tdispute if it offers employment to the workman and when workman
\n\tdeclines such an offer of employment then he is not entitled to
\n\treceive 17-B wages from the employer who has filed petition or
\n\tproceeding before higher forum. Here in the present case despite the
\n\toffer of the respondent No.2-Watch and Ward Consultancy, applicant
\n\tdid not join the work, therefore, he is not entitled to receive
\n\twages as per Section 17-B of the Industrial Disputes Act.\n<\/p>\n
This
\n\tCourt is unable to accept submissions canvassed on behalf of the
\n\trespondent-Bank in this application for the following reasons
\n\tnamely; (i) The provision of Section 17-B of the Industrial Disputes
\n\tAct, makes it incumbent upon the employer to see to it that the
\n\tworkman is supported during the period for which the order of
\n\treinstatement is challenged by the employer and some interim orders
\n\tare obtained against the said order of reinstatement. In order to
\n\tsee to it that the workman is, in the meantime, in a position to
\n\tsustain himself and his family members. This benevolent provision is
\n\tmade and it has now under gone interpretation at various stages. By
\n\tnow, the law in respect of Section 17-B of the Industrial Disputes
\n\tAct, is absolutely clear and needs no further attention of the Court
\n\ton this matter. (ii) The employer is under an obligation to pay the
\n\tlast drawn wages to the employee when employer has challenged the
\n\torder of reinstatement passed by
\n\tthe Industrial Court or Forum or Labour Court.  (iii) The employer
\n\tin a given case, as it happened in the instant case, is given
\n\tliberty to take work from the employee so as to avoid payment of
\n\tidle wages.  Court hasten to add here that the device developed by
\n\tCourts where under liberty is sometime reserved to the employer to
\n\ttake work from the employee, is also to be viewed appropriately and
\n\tas per the scheme of the Industrial Disputes Act, 1947, the interim
\n\torders are strictly to be passed in conformity with the provision of
\n\tlaw. (iv)The Courts are passing order under Articles 226 and 227 of
\n\tthe Constitution of India and, therefore, if any interim order is
\n\tpassed, the same is to be passed in conformity with the arena of
\n\tjurisdiction confirmed upon this Court under Articles 226 and 227 of
\n\tthe Constitution of India. Articles 226 and 227 of the Constitution
\n\tof India make abundantly clear that the justice is to be done in
\n\taccordance with law and
\n\torders are to be passed as per the provisions of law.  In the
\n\tinstant case and in many other cases when liberty is reserved to the
\n\temployer to obtain work from the workman so as to avoid payment of
\n\tidle wages, it is ordered only with a view to see to it that the
\n\temployer in many  cases, at times, the government agency or a
\n\tinstrumental of the state may not have to keep paying wages without
\n\ttaking work from the workman which in turn workman sometime not like
\n\tto receive as it may not be indeed, Court help to him.  Therefore,
\n\tthe liberty to take work is ordered, then such orders are to be
\n\treiterated at the cost of repetition in the strict purview of the
\n\tlaw.  In the given case, therefore, when such an order is passed,
\n\tthe employer is not even entitled to post the
\n\tworkman to any other posts, then
\n\tthe post on which he is ordered to be reinstated. Even for such a
\n\tcase, at times, workman is entitled to refuse to work as that would
\n\tnot be strict compliance
\n\twith the provision of law. In the instant case, as could be seen,
\n\tthere was a specific liberty reserved to the Bank to offer
\n\temployment to the workman even through its contractor who happens to
\n\tbe respondent No.2 in the original petition but the workman felt
\n\taggrieved by that liberty and chosen to assail those observations in
\n\tLetters Patent Appeal being L.P.A. No.303\/2010, wherein the Division
\n\tBench has specifically negatived this liberty based upon the
\n\tfindings recorded by the Courts. When the Division Bench in turn
\n\thas negatived that liberty to
\n\toffer employment through contractor-respondent no.2 in the main
\n\tpetition, then question arises as to what extent the Bank was
\n\tjustified in offering employment through contractor or withholding
\n\twages on that ground which are otherwise payable under Section 17-B
\n\tof the Industrial Disputes Act, 1947.  The answer is emphatic. The
\n\tBank is absolutely not justifying in undertaking
\n\tthe exercise which it is undertaking so far. The Bank is under
\n\tserious misconception of law and in fact, as well in propounding
\n\tthat the Bank can absolve itself of its liability to pay 17-B wages,
\n\tif Bank or any other establishment not related to Bank is offering
\n\tan employment to the workman and workman is not ready to accept the
\n\tsame, had it been the case where the Bank had offered an employment
\n\tto the workman on the post on which there is an order of
\n\treinstatement and if there was some deviation in the nature of work
\n\tthen there could have been some scope left to Bank to argue that the
\n\tnature of job may not govern the payment of wages.  In the instant
\n\tcase, on the contrary the Bank has not only offered any job but it
\n\thad stopped paying wages on its  own accord, though it was under
\n\tobligation to pay as per the order dated 04.11.2009 which stood
\n\tmodified by the Division Bench’s order dated 08.04.2010.\n<\/p>\n
The
\n\tproposition of the Bank’s advocate with regard to the
\n\temployee-workman, not accepting an offer of employment from even 3rd
\n\tparty would render him disentitle to receive wages, is required to
\n\tbe rejected, as such a proposition is, to say the least absolutely
\n\tillegal, uncalled for and contrary, in letter and spirit, to law and
\n\tambit of Industrial Disputes Act, especially Section 17-B of the
\n\tIndustrial Disputes Act, 1947.  The Bank could not have avoided
\n\tpayment of 17-B wages without itself offering employment to the
\n\tworkman.  In the instant case, when the Bank had received order from
\n\tthe Division Bench which contains unequivocal clarification that the
\n\tBank cannot offer employment through contractor namely, Watch and
\n\tWard Consultancy and when the order of Division Bench was carried
\n\tinto S.L.P. and the S.L.P. also came to be dismissed by the Apex
\n\tCourt, then one fails to understand the Bank’s stand. It is nothing
\n\tbut sheer disrespect for the majesty of law and justice.  The Bank
\n\tbeing petitioner before this Court was, otherwise also not under
\n\tobligation to obey the order for sustaining the interim orders which
\n\tit had obtained in its favour.  The Bank has miserably failed in
\n\tobserving the provision of Section 17-B of the Industrial Disputes
\n\tAct and, therefore, this Court is left with no choice but to vacate
\n\tthe interim relief forthwith.  Accordingly, the said relief is
\n\tvacated.\n<\/p>\n
This
\n\tCourt is also of the view that a petitioner, an employer who moves
\n\tthis Court under Articles 226 and 227 of the Constitution of India
\n\tand seeks discretionary reliefs which relief makes it statutorily
\n\tincumbent upon it to make payment of last drawn wages to the workman
\n\tduring pendency of these proceedings, then compliance thereof is its
\n\tsolemn duty and if such employer or establishment
\n\tfails in carrying out such duties, then in my view, it amounts to
\n\tcommitting default in prosecuting the matter. Therefore, in fact the
\n\tpetition itself deserves to be dismissed at this stage  and
\n\tappropriate liberty could be reserved to rectify the default but as
\n\tit has come on record that, there was some payment of Rs. 20,250\/-,
\n\tI am of the view that let there be one more opportunity granted to
\n\tthe Bank to rectify its defaults and pay the arrears admissible to
\n\tthe workman within 10 days from today i.e. on or before 11th
\n\tFebruary, 2011.  It is observed that if, in case, the arrears of
\n\t17-B wages are not paid by 11th
\n\tFebruary, 2011 and when the workman places an application to this
\n\teffect, duly affirmed on oath, the Registry may treat this matter as
\n\thaving been dismissed for default, without being referred to the
\n\tCourt. In case, if the payment is made then it would be open to the
\n\tBank to make appropriate application for reviving
\n\tthe order of interim relief with appropriate application with a copy
\n\tto other side.  Workman is at liberty to file recovery application
\n\tfrom the date of the award.\n<\/p>\n
At
\n\tthis stage Shri Kakkad makes a request for staying this order up to
\n\t15th
\n\tof February, 2011. In my view, such a request is not required to be
\n\tentertained as otherwise also enough time is granted for compliance
\n\tof this order and therefore, this request is rejected.  It is
\n\tclarified that the stay is vacated right from today.\n<\/p>\n
Mr.\n<\/p>\n
\tMithani is saying magnanimity of his client for not pressing cost.
\n\tRule made absolute to the aforesaid extent.  No order as to costs.\n<\/p>\n
(S.R.BRAHMBHATT,
\nJ.)<\/p>\n
Pankaj<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
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Gujarat High Court Subhashbhai vs General on 28 January, 2011 Author: S.R.Brahmbhatt,&Nbsp; Gujarat High Court Case Information System Print 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-8301","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nSubhashbhai vs General on 28 January, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/subhashbhai-vs-general-on-28-january-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Subhashbhai vs General on 28 January, 2011 - 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