{"id":84147,"date":"2008-07-17T00:00:00","date_gmt":"2008-07-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/iron-vs-vinodkumar-on-17-july-2008"},"modified":"2015-10-12T23:57:55","modified_gmt":"2015-10-12T18:27:55","slug":"iron-vs-vinodkumar-on-17-july-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/iron-vs-vinodkumar-on-17-july-2008","title":{"rendered":"Iron vs Vinodkumar on 17 July, 2008"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Iron vs Vinodkumar on 17 July, 2008<\/div>\n
Author: A.L.Dave,&Nbsp;Honble Smt. Kumari,&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\n\n \n\n\n\t \n\nLPA\/486\/2008\t 16\/ 16\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nLETTERS\nPATENT APPEAL No. 486 of 2008\n \n\nIn\n\n\n \n\nCIVIL\nAPPLICATION No. 14435 of 2006\n \n\nIn\n \n\n\nSPECIAL CIVIL\nAPPLICATION No. 7850 of 2001\n \n\nWith\n\n\n \n\nCIVIL\nAPPLICATION No. 5068 of 2008\n \n\nIn\n\n\n \n\nLETTERS\nPATENT APPEAL No. 486 of 2008\n \n\n \nFor\nApproval and Signature:  \n \nHON'BLE\nMR.JUSTICE A.L.DAVE  \n \n\n\n \n\nHON'BLE\nSMT.JUSTICE ABHILASHA KUMARI\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 ? Yes\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\n\t\t\tbe referred to the Reporter or not ? Yes\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 ? No\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 ? No\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 ? No\n\t\t\n\t\n\n \n\n=========================================================\n\n\n \n\nIRON\nROLLING MILLS PVT. LTD - Appellant\n \n\nVersus\n \n\nVINODKUMAR\nR SINGH - Respondent\n \n\n=========================================================\nAppearance : \nMR\nDIPAK R DAVE for Appellant \nMR DG SHUKLA for\nRespondent \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 A.L.DAVE\n\t\t\n\t\n\t \n\t\t \n\t\t \n\t\t\t \n\nand\n\t\t\n\t\n\t \n\t\t \n\t\t \n\t\t\t \n\nHON'BLE\n\t\t\tSMT. JUSTICE ABHILASHA KUMARI\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 17\/07\/2008 \n\n \n\nORAL\nJUDGMENT<\/pre>\n
(Per
\n: HONOURABLE MR.JUSTICE A.L.DAVE)<\/p>\n
1.\t\tThis
\nLetters Patent Appeal arises out of an order passed in Civil
\nApplication No.14435 of 2006 in Special Civil Application No.7850 of
\n2001 on 26th March, 2008.\n<\/p>\n
2.\t\tBrief
\nFacts:\n<\/p>\n
2.1\t\tThe
\nopponent-workman raised an industrial dispute and by order dated 18th
\nMay, 2001, in Reference (LCA) No.1880 of 1991, the Labour Court
\ndirected reinstatement in service without continuity of service and
\nwithout back-wages. The said order came to be challenged by the
\npresent appellant by preferring Special Civil Application No.7850 of
\n2001. In the said Special Civil Application, interim relief was
\ngranted staying the order of reinstatement and the benefit of Section
\n17B of the Industrial Disputes Act, 1947 (?Sthe Act?? for short)
\ncame to be extended to the workman pursuant to a Civil Application
\npreferred by the workman.\n<\/p>\n
2.2\t\tSubsequently,
\nCivil Application No.14435 of 2006 was preferred by the
\nappellant-employer praying for discontinuance of the benefit of
\nSection 17B to the opponent-workman on the ground that the Unit is
\nclosed as it is not economically viable to run the Unit.\n<\/p>\n
2.3\t\tBy
\nthe impugned order, the learned Judge rejected the application and
\nhence this Appeal.\n<\/p>\n
3.\t\tBy
\norder dated 28th April, 2008, the Appeal came to be
\nadmitted and ad-interim relief in terms of paragraph-5(B) was granted
\nwhile issuing Rule in Civil Application No.5068 of 2008.\n<\/p>\n
3.1\t\tWhen
\nthe matter came up for hearing, since the points involved and
\nrequired to be canvassed and considered for deciding the Civil
\nApplication and Appeal are the same, at the request of learned
\nadvocates for the parties, the Appeal was taken up for final hearing
\nalong with Civil Application.\n<\/p>\n
4.\tWe
\nhave heard learned advocate Mr.D.R.Dave for the appellant and learned
\nadvocate Mr.D.G.Shukla for the respondent.\n<\/p>\n
4.1\t\tLearned
\nadvocate Mr.D.R.Dave submitted that the benefit of Section 17B of the
\nAct would be available to the workman only if the Unit is working.
\nThis, he canvasses on the basis of the provision contained in Section
\n17B and the definition of the terms `employer’ and `workman’ under
\nthe said Act. He has placed reliance on the decision in case of
\nHariprasad Shivshankar Shukla and another v. A.D.Divelkar and
\nothers reported in AIR 1957 SC 121. He also placed
\nreliance on a decision of the Division Bench of this Court in Civil
\nApplication No.5486 of 2003 in Letters Patent Appeal No.933 of 1999,
\ndated 19th August, 2003, (Akbarkhan M.Pathan v. General
\nManager) where benefits of Section 17B were denied to a workman in
\nview of the fact that the Undertaking, having been declared as a sick
\nUnit under the provisions of the Sick Industrial Companies (Special
\nProvisions) Act, 1985, (?SSICA?? for short) was closed down by an
\norder made under Section 25-O(1) of the Act, which decision was
\nfollowed subsequently by learned Single Judge in Civil Application
\nNo.13284 of 2006 in Civil Application No.2145 of 2002 in Special
\nCivil Application No.12744 of 2001 (Sarabhai Machineries Ltd. v.
\nRamdev Rambharose Yadav) by order dated 13th March, 2007.
\nMr.Dave submitted that as held by the Apex Court in case of
\nHariprasad Shivshankar Shukla and another v. A.D.Divelkar and
\nothers (supra), the term
\n`industry’ has to be read as an industry which is running and not one
\nwhich is closed. He has drawn our attention to paragraphs 12 and 13
\nof the said judgment. Mr.Dave therefore submitted that the learned
\nJudge has erred in rejecting the prayer of discontinuance of benefits
\nunder Section 17B to the workman in view of the fact that the Unit is
\nclosed because of non-viability.\n<\/p>\n
4.2\t\tOn
\nthe other hand, learned advocate Mr.Shukla has opposed this Appeal.
\nHe submitted that Section 17B of the Act has to be read as it stands.
\nIt cannot be interpreted or read by introducing different meanings to
\nthe words and the language employed therein. Mr.Shukla submitted that
\nthe object behind introduction of Section 17B in the  Act was to
\nprovide support to a workman who is not gainfully employed during
\npendency of the litigation which the employer used to prolong by
\napproaching the High Court and Supreme Court. Mr.Shukla placed
\nreliance on the decision in case of Dena Bank v. Kiritkumar
\nT.Patel<\/a> reported in (1999)2 SCC 106 and Confederation
\nof Ex-Servicemen Associations and Others v. Union of India and Others<\/a>
\nreported in (2006)8 SCC 399. Mr.Shukla submitted that as long
\nas the proceedings continue, the obligation of the employer continues
\nunder Section 17B of the Act and, therefore, the Appeal may be
\ndismissed.\n<\/p>\n
5.\t\tWe
\nhave given the matter our thoughtful consideration. In order that the
\ncontentions raised by both the sides may be appropriately dealt with
\nand applied to the facts of the case, it would be appropriate to
\nmention certain important dates of events.\n<\/p>\n
Sr
\n\t\t\t\tNo<\/p>\n
Date<\/p>\n
Event<\/p>\n
1<\/span><\/p>\n
18.5.2001<\/p>\n
Labour
\n\t\t\t\tCourt ordered reinstatement<\/p>\n
2<\/span><\/p>\n
14.9.2001<\/p>\n
The
\n\t\t\t\taward was stayed by order in the main petition<\/p>\n
3<\/span><\/p>\n
28.10.2002<\/p>\n
Order
\n\t\t\t\tpassed in Civil Application No.7220 of 2002 granting benefit of
\n\t\t\t\tSection 17B to the workman<\/p>\n
4<\/span><\/p>\n
18.11.2005<\/p>\n
The
\n\t\t\t\tUnit was formally closed by informing the authorities under the
\n\t\t\t\tAct<\/p>\n
6.\t\tThe
\nwhole controversy spins around the question whether the obligation of
\nthe employer to pay last drawn wages to the workman, as provided
\nunder Section 17B of the Act, comes to an end if the Unit is closed.
\nTo understand this, the provision contained in Section 17B of the Act
\nhas to be given a close scrutiny. Section 17B runs as under:\n<\/p>\n
?S17B.\n<\/p>\n
\tPayment of full wages to workman pending proceedings in higher
\n\tcourts :-\n<\/p>\n
Where
\n\tin any case, a Labour Court, Tribunal or National Tribunal by its
\n\taward directs reinstatement of any workman and the employer prefers
\n\tany proceedings against such award in a High Court or the Supreme
\n\tCourt, the employer shall be liable to pay such workman, full wages
\n\tlast drawn by him, inclusive of any maintenance allowance admissible
\n\tto him under any rule if the workman had not been employed in any
\n\testablishment during such period and an affidavit by such workman
\n\thad been filed to that effect in such Court:\n<\/p>\n
Provided
\n\tthat where it is proved to the satisfaction of the High Court or the
\n\tSupreme Court that such workman had been employed and had been
\n\treceiving adequate remuneration during any such period or part
\n\tthereof, the Court shall order that no wages shall be payable under
\n\tthis section for such period or part, as the case may be.??\n<\/p>\n
6.1\t\tWhat
\nemerges out of reading the said Section is that where a Labour Court,
\nTribunal or National Tribunal, by its award directs reinstatement of
\nany workman and the employer prefers any proceeding against such
\naward in a High Court or the Supreme Court, the employer is liable to
\npay such workman during the period of pendency of such proceedings in
\nthe High Court or the Supreme Court, full wages last drawn by such
\nworkman. Therefore, it has to be examined whether there is an order
\nof reinstatement by the Labour Court, Tribunal or National Tribunal,
\nwhether such an award is challenged by the employer before the High
\nCourt or the Supreme Court, and whether the workman is not gainfully
\nemployed, and if the answer to the above questions is in the
\naffirmative, the employer is under an obligation to pay to the
\nworkman, full wages last drawn by him inclusive of maintenance
\nallowance admissible to him. Section 17B of the Act does not
\ncontemplate any eventuality as canvassed by learned advocate for the
\nappellant, namely the closure of Unit, and if the argument of learned
\nadvocate for the appellant is to be accepted, a proviso will have to
\nbe added and read in Section 17B which would relieve the employer of
\nhis obligation of paying to the workman the last wages drawn by him.\n<\/p>\n
6.2\t\tA
\nreading of the Section on the contrary indicates that full wages last
\ndrawn by a workman are required to be paid by an employer during the
\nperiod of pendency of proceedings in the High Court or the Supreme
\nCourt. The liability to pay under this provision would subsist till
\nthe proceedings before the High Court or the Supreme Court remain
\npending. Thus, for accepting the contention of the appellant, this
\nCourt would not only be required to read something which is not
\nprovided in the Section, but also to ignore something which is
\nprovided in the Section, which cannot be done.\n<\/p>\n
7.\t\tHeavy
\nreliance was placed by learned advocate Mr.Dave for the appellant on
\nthe decision in case of  Hariprasad Shivshankar Shukla and another
\nv. A.D.Divelkar and others (supra),
\nparticularly, paragraphs 12 and 13, wherein, Their Lordships referred
\nto the observations made in case of Pipraich Sugar Mills Ltd. v.
\nPipraich Sugar Mills Mazdoor Union<\/a> reported in AIR 1957 SC 95,
\nwhich read thus:\n<\/p>\n
\t?SIt
\n\tcannot be doubted that the entire scheme of the Act assumes that
\n\tthere is in existence an industry, and then proceeds on to provide
\n\tfor various steps for being taken, when a dispute arises in that
\n\tindustry. Thus the provision of the Act relating to lock out,
\n\tstrike, lay off, retrenchment, conciliation and adjudication
\n\tproceedings, the period during which the awards are to be in force,
\n\thave meaning only if they refer to an industry which is running and
\n\tnot one which is closed.??\n<\/p>\n
7.1\t\tIt
\nwas therefore canvassed that since the present Unit is closed,
\nprovisions of the Act, including Section 17B would not remain
\noperative. In this regard, it may be noted that the said judgment was
\nrendered on 27th November, 1956, when Section 17B was not
\npart of the Industrial Disputes Act, 1947. The said provision was
\nintroduced in the Act by Act 46 of 1982 and became effective from
\n21st August, 1984. It, therefore, cannot be said that the
\nview expressed in the said judgment was expressed after considering
\nthe provision, its content, and impact. In our view, therefore, the
\nsaid judgment cannot benefit the appellant in any way.\n<\/p>\n
7.2\t\tSimilarly,
\nreliance was placed on an order passed in Civil Application No.5486
\nof 2003 in Letters Patent Appeal No.933 of 1999 (Akbarkhan M.Pathan
\nv. General Manager). In that case, the Unit was declared as a Sick
\nIndustrial Company under the provisions of SICA and it was closed
\ndown by an order made under Section 25-O(1) of the Act. This was a
\ndevelopment at a stage prior to the workman seeking benefit of
\nSection 17B. Now, in the instant case before us, the Unit is not
\ndeclared to be a Sick Unit under SICA. The order of reinstatement was
\npassed on 18th May, 2001, whereas the Unit is closed on
\n18th November, 2005, i.e. a subsequent event, not a
\nsituation which existed in case of Akbarkhan M.Pathan relied upon by
\nlearned advocate for the appellant. The right of the workman accrued
\nwhen the order was passed on 28th October, 2002, granting
\nbenefit of Section 17B. Such subsequent development in form of
\nclosure of business and consequential exemption to the employer from
\nobligation to pay full wages last drawn is not contemplated under
\nSection 17B. In our view, therefore, the said order in Civil
\nApplication No.5486 of 2003 in case of Akbarkhan M.Pathan v. General
\nManager will have no application to the present case.\n<\/p>\n
7.3\t\tAnother
\norder which is relied upon by learned advocate for the appellant is
\nin Civil Application No.13284 of 2006 in Civil Application No.2145 of
\n2002 dated 13th March, 2007, where again, benefits of
\nSection 17B were denied relying on the said order in case of
\nAkbarkhan M.Pathan v. General Manager. That order of the learned
\nSingle Judge will not have a binding effect in view of the foregoing
\ndiscussion that the view taken in case of Akbarkhan M.Pathan v.
\nGeneral Manager would not be applicable to the facts of the present
\ncase.\n<\/p>\n
8.\t\tLearned
\nadvocate Mr.Shukla relied on the decision in case of Dena Bank v.
\nKiritkumar T.Patel<\/a> (supra), wherein
\nin paragraph 7, Their Lordships have quoted the objects and reasons
\nfor enacting the said provision, which run as under:\n<\/p>\n
\t?S7.\t…When
\n\tLabour Courts pass award of reinstatement, these are often contested
\n\tby an employer in the Supreme Court or High Court. It was felt that
\n\tthe delay in the implementation of the award causes hardship to the
\n\tworkman concerned. It was, therefore, proposed to provide the
\n\tpayment of wages last drawn by the workman concerned, under certain
\n\tconditions, from the date of the award  till the case is
\n\tfinally decided in the Supreme Court or High Courts.\n<\/p>\n
\t(emphasis supplied)<\/p>\n
8.1\t\tIt
\nis thus clear that the intention of the law makers was to provide a
\nsupport for subsistence to the workman where an award of
\nreinstatement is challenged by the employer before the High Court or
\nSupreme Court and the workman is not in any gainful employment.  The
\nsituation which is projected here, namely closure of the Unit because
\nof non-viability, was not the factor which weighed with the law
\nmakers while introducing Section 17B on the statute book.\n<\/p>\n
8.2\t\tDuring
\nthe course of arguments, a reference was made to decision in case of
\nConfederation of Ex-Servicemen Associations and Others v. Union of
\nIndia and Others<\/a> (supra) and it was canvassed that all that a
\nworkman is expecting is a right to life envisaged under Article 21 of
\nthe Constitution of India. In this context, in paragraph-61, it is
\nobserved thus:\n<\/p>\n
?S61.\tIt
\n\tcannot be gainsaid that the right to life guaranteed under Article
\n\t21 of the Constitution embraces within its sweep not only physical
\n\texistence but the quality of life. If any statutory provision runs
\n\tcounter to such a right, it must be held unconstitutional and ultra
\n\tvires Part III of the Constitution. Before more than hundred years,
\n\tin Munn. v. Illinois [94 US 113 : 24 L Ed 77 (1877)], Field, J.
\n\texplained the scope of the words ?Slife?? and ?Sliberty?? in the
\n\t5th and 14th amendments to the US Constitution
\n\tand proclaimed: (US P.142)<\/p>\n
?SBy
\n\tthe term ‘life’ , as here used, something more is meant than mere
\n\tanimal existence. The inhibition against its deprivation extends to
\n\tall these limbs and faculties by which life is enjoyed. The
\n\tprovision equally prohibits the mutilation of the body by the
\n\tamputation of an arm or leg, or the putting out of an eye, or the
\n\tdestruction of any other organ of the body through which the soul
\n\tcommunicates with the outer world…\n<\/p>\n
By
\n\tthe term ‘liberty’, as used in the provision, something more is
\n\tmeant than mere freedom from physical restraint or the bounds of a
\n\tprison.??\n<\/p>\n
8.3\t\tIt
\nalso appears that the said observations have been quoted with
\napproval by the Apex Court in several other judgments. An order
\nsought by the appellant, if granted, would virtually amount to denial
\nof right to life, as it would adversely affect the quality of life of
\nthe workman.\n<\/p>\n
8.4\t\tSimilar
\nview has been taken by this Court in case of Jayantilal Shanubhai
\nTailor v. Ralchem Ltd., Ankleshwar<\/a> reported in 2005(2) GLR
\n1218, where it was held that a
\nworkman cannot be denied relief under Section 17B on the ground that
\nthe manufacturing activities of the employer-Company have come to a
\nhalt. In the said decision, order in case of Akbarkhan M.Pathan v.
\nGeneral Manager (supra) was also considered and distinguished.\n<\/p>\n
9.\t\tIt
\nis thus clear from the foregoing discussion that section 17B of the
\nAct does not contemplate a situation of closure of the employer’s
\nUnit. What is contemplated is retrenchment, order of reinstatement by
\nan award of the Labour Court or Industrial Tribunal or National
\nTribunal, challenge to the same by the employer before the High Court
\nor Supreme Court, pendency of the proceedings and lack of gainful
\nemployment of the workman. The argument of the learned advocate for
\nthe appellant, therefore, cannot be accepted. In our view, no error
\ncan be said to have been committed while passing the impugned order
\nrefusing exemption from the order granting payment of benefits under
\nSection 17B. The Appeal must fail, stands dismissed. No costs.\n<\/p>\n
10.\t\tAd-interim
\nrelief, granted earlier, would stand vacated in the light of
\ndismissal of the Appeal. Civil Application stands disposed of. Rule
\nis discharged. No costs.\n<\/p>\n
11.\t\tA
\nrequest is made to suspend the operation of this order and extend the
\nad-interim relief enjoyed by the appellant. In the light of what is
\nobserved by us above, granting such indulgence would be deciding
\nagainst the right to life of the workman. Hence, rejected.\n<\/p>\n
\t\t\t\t\t\t(A.L.Dave,
\nJ.)<\/p>\n
\t\t\t\t\t\t(Smt.Abhilasha
\nKumari, J.)<\/p>\n
(sunil)<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Iron vs Vinodkumar on 17 July, 2008 Author: A.L.Dave,&Nbsp;Honble Smt. Kumari,&Nbsp; Gujarat High Court Case Information System Print LPA\/486\/2008 16\/ 16 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 486 of 2008 In CIVIL APPLICATION No. 14435 of 2006 In SPECIAL CIVIL APPLICATION No. 7850 of 2001 […]<\/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-84147","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nIron vs Vinodkumar on 17 July, 2008 - 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\/iron-vs-vinodkumar-on-17-july-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Iron vs Vinodkumar on 17 July, 2008 - 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